Letchiman V. Murugappa Chettiar

1936  Present : Moseley J. and Fernando A. J.

LETCHIMAN v. MURUGAPPA CHETTIAR.

72-D. C. Colombo, 6,741 (Testy).

Administration-Application on a copy of last will-proof of copy-Civil Procedure Code, s. 539 (c)-Evidence Ordinance, s. 63.

Where application is made for letters of administration with the copy of a will annexed under section 539 (c) of the Civil Procedure Code, the document produced must be proved in accordance with the terms of section 63 of the Evidence Ordinance.

APPEAL from an order of the District Judge of Colombo.

H. V. Perera (with him Kumarakulasingham), for appellant.

C. Thiagalingam (with him Nadesan), for defendant, respondent.

Cur. adv. vult.

November 24, 1936. FERNANDO A. J.-

The petitioner applied as attorney of the widow of the deceased Narayan Chetty for letters of administration with copy of a will annexed, on the footing that the will had been executed by the deceased, Narayan Chetty.  The application was opposed by the fifth respondent, the present appellant, on various grounds.

Along with his petition, the petitioner fled the document marked X 7 which purports to be a copy issued by the Sub-Registrar of Karakudi, and it transpired in the evidence that the original will said to have been executed by Narayan Chetty was at one time in the custody of Arunasalam, the attorney of the fifth respondent, and it was stated that  Arunasalam had on one occasion brought it to Colombo and had handed it to Mr. Muttusamy, the proctor for the present petitioner, Mr. Muttusamy, however, did not take the will into his custody, and product it in Court, because Arunasalam was unwilling to part with the possession of the document unless a sum of Rs. 250 was paid to him, to be paid to Meyappan Asari from whose possession Arunasalam had obtained the document. Meyappan Asari appears to have taken certain proceedings in connection with the will in India, and apparently claims the sum of Rs. 250 as expenses incurred by him in those proceedings.

The original application made to Court by petitioner's protector is in these terms : "Mr. Muttusamy files proxy, affidavit, and a petition of the petitioner together with last will, and Supreme Court order, praying for letters of administration with will annexed to the estate of the above-named deceased, and for an order directing service of order nisi on the respondents and executors". It would follow from this application that the petitioner originally took up the position that the document produced by him was in fact the last will of the deceased, and it was only after Mr. Muttusamy's evidence on November 8, 1934 , that Counsel for the petitioner moved that letters of administration with copy of the will annexed be issued in terms of section 539 of the Civil Procedure Code. The learned District Judge has ordered letters of administration to issue with copy of the will annexed, but has not limited the letters so ordered to issue in any manner whatsoever.  An examination of section 539, however, will show that letters issued in terms of that section must be limited in some way, and in all cases in which letters of administration have issued in England in similar cases, they have been limited till the will itself is brought into Court.  Counsel for the respondent thought that the relevant sub-section that would apply was section 539 (c) where provision is made that  probate of a copy of a will may be granted where the original is in the hands of a person residing out of the Island who cannot be compelled to give up the original to the executor, but even in that case the section requires that the executor or another applicant should produce a copy, and that the letters issued or the grant of probate as the case may be, should be limited until the original is brought into Court.  The only other section under which the District Judge was entitled to make an order in the terms of this order

Click Here to Read the rest of this document