Punchirala V. Kiri Banda Et Al.

1921       [FULL BENCH]

Present : Bertram C.J. and Ennis and De Sampayo JJ.

PUNCHIRALA v. KIRI BANDA et al.

144-D. C. Kandy, 27,592.

Evidence Ordinance, 1895, s. 41-Declaration in judicial settlement in testamentary case that a person was adopted by the deceased for purposes of inheritance-Has declaration the effect of a judgment in rem.

In a judicial settlement in testamentary case No. 2,222 the question arose whether A had been duly adopted for purposes of inheritance, and the Court held that he was. In the present action brought by the administratrix de bonis  non, the adoption of A was again challenged.

Held, that as the defendant (appellant) was not a party to the judicial settlement or a privy of any of the parties, he was not bound by the decision in the judicial settlement as to the status of A

A declaration made incidentally by a Testamentary Court as to the legal character of the persons before them has not the effect of a judgment in rem.

THE case was referred to a Full Court by Ennis J. and Schneider A.J. The facts appear from the judgment.

M. W. H. de. Silva (with him Bartholomeusz and Fonseka), for appellants.-The case of Punchi Banda v. yusubu Lebbe [1] is on all fours with the present case. The expression " probate jurisdiction " in section 41 of the Evidence Ordinance must be strictly construed. An incidental decision on a question of adoption given by a District Court on an application for a judicial settlement in testamentary proceedings is not given in the exercise of its special probate jurisdiction, but in the exercise of its ordinary jurisdiction. The District Court might well have referred the parties between whom the question arose to a separate action, and would have done so if the question was too complicated to be investigated in the testamentary proceedings themselves. A decision on the question of adoption in such separate action would not be conclusive except as between the parties to the action. It would be extraordinary if a decision on the question given after a more or less summary investigation made in the course of testamentary proceedings is to be given a greater effect than a decision on the same question in a regular action. Sections 739 and 740 of the Civil Procedure Code state the effect of a judicial settlement and of a decree for payment and distribution. The findings of the Court on the various matters enumerated in those sections are binding only on the parties and their privies. The expression "legal character" in section 41 does not include the status of heir by adoption.

Counsel cited Kanhya Loll v. Radha Chura [2] and Concha v. Concha.[3]

H. V. Perera, for respondent.--The expression "probate jurisdiction " in section 41 has a wider meaning than that given to it in Punchi Banda v. Yusubu, Lebbe.[1] It refers to the jurisdiction exercised by Courts of Probate which deal not merely with wills, but with cases of intestacy. This special jurisdiction is conferred on our District Courts by the Courts Ordinance. It cannot be said that the Court is functus officio, so far as that special jurisdiction is concerned, as Boon as a grant of probate or of letters of administration is made. It is only by virtue of that special jurisdiction that the Court has power to take the proceedings that follow such grant of probate or letters, and the various orders made in the course of such proceedings are made in the exercise of the same jurisdiction. Thus, the order in question is an order of a competent Court, made in the exercise of probate jurisdiction.

The expression " legal character " in. section 41 is not confined to a legal character like that of an executor or administrator that is conferred by the Court, but extends to a legal character that the Court finds and declares a person to be entitled to ; for instance,

Foot Notes:

1 (1908) 11 N. L. R. 294.
2 (1867) 7 W. R. 338,
3 (1887) 11 A. C. 5

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