Present:  Fisher C.J. and Drieberg J.  1929

WILSON v. EMMANUEL.

189-D. C. Jaffna, 5,408.

Probate-Sealing of foreign probate--Probate issued at Madras- British possessions-British and Colonial Probate Ordinance, No. 7 of 1921, s. 4.

Recognition of probate or letters of administration under section 4 of the British and Colonial Probate Ordinance, No. 7 of 1921, may be obtained with respect to only those granted in British possessions to which the Ordinance is made applicable by proclamation.

The Ordinance does not preclude an application from being made under section 539 (e) of the Civil Procedure Code on a proper exemplification of the foreign probate.

APPEAL from an order of the District Judge of Jaffna.

One A. R. A. R. S. M. Somasunderam Chetty died in Ceylon leaving a large estate. On the footing that he left no will, letters of administration were issued in the District Court of Jaffna to the Secretary of the Court as official administrator. Somasunderam Chetty left as his heirs three sons, who were adjudicated insolvent in Madras. Subsequently a last will purporting to be the will of Somasunderam Chetty was discovered in India, it was proved in the Madras High Court and letters of administration cum testa-mento annexo were issued to the official assignee in Madras of the insolvent estate of the said three sons of Somasunderam Chetty.

In the present case the appellant, the said official assignee, to whom letters had been issued in Madras, filed a petition and affidavit along with a certified copy of the said letters and asked that the said letters be sealed with the seal of the Jaffna Court under the provisions of section 4 of Ordinance No. 7 of 1921, and also that the letters already issued to the Secretary of the District Court of Jaffna be recalled. The District Judge refused the application as it had not fully complied with the requirements of Ordinance No. 7 of 1921.

H. V. Perera (with Subramaniam and Thiagarajah), for petitioner,  appellant.-The petitioner has substantially complied with the Emmanuel provisions of Ordinance No. 7 of 1921. Even if he is not entitled to claim the benefits allowed by the Ordinance, still he can under the provisions of section 539 (c) of the Civil Procedure Code on the exemplification produced ask that recognition be given to the letters issued by the Madras Court and probate of the copy be granted. No good reasons have been shown why the Ceylon Court should not follow the decision of the Madras Court as to the grant of the letters, an exemplification of which was before Court.

Counsel cited In re Estate of Sinne Thambi Poothepillai [1 (1896) 2 N .L.R . 214.].

C. V. Ranawake, for the official administrator, respondent.- The application has been made under the special procedure laid down in Ordinance No. 7 of 1921, no alternative remedy has been asked; the application was rightly refused inasmuch as there was no proof under section 3 of the Ordinance that the Ordinance' applied to probate or letters issued by the Madras High Court.

As to the alternative remedy now asked, the original application itself does not contain a prayer to this effect. An application under section 539 (c) of the Civil Procedure Code should be made in due form and on proper material. Further, the recall of the letters already issued could not have been allowed inasmuch as under section 536 of the Civil Procedure Code there has been no proof either that the present letters should not have been granted or that the present administration has been rendered " impracticable and useless."

November 25, 1929. FISHER C.J.-

In this case the appellant petitioned the District Court of Jaffna to order that " the letters of administration with the will annexed granted to the petitioner by the High Court of Madras and already filed of record be resealed by this Court in terms of section 4 of Ordinance- No. 7 of 1921." He also asked " that lette