Last will complicates matters in ongoing litigation | Daily News

Last will complicates matters in ongoing litigation

When a certain Mr. Pedris died, he had been owed by two people who he was suing at the time of death. When he died, the executors of his last will won the right to be substituted in the money recovery case that he had initiated, against the two persons aforementioned.

The substitution of the executors of his will was allowed, as mentioned above, by the Additional District judge. The defendants in the money recovery case however objected to the order made by the Additional District judge allowing, in effect, the substitution. The objection was overruled whereupon they came by way of revision to the Court of Appeal. (Jayasinghe and Another Vs Pedris and Another - SLR - 290, Vol 1 of 2005 [2004] LKCA 8; (2005) 1 Sri LR 290 (November 4, 2004)).

The facts of the case from the Court of Appeal record are:

“This is an application in revision filed by the petitioner on 03.02.2003 from the order made by the Additional District Judge of Colombo on 07.10.2002. Briefly, the facts relevant to this application are as follows:

Dr. D. J. Devapriya Pedris instituted the action bearing No. 24640/MR in the District Court of Colombo against the defendants-petitioners (hereinafter referred to as the defendants) to recover a sum of Rs. 2,855,000/- which included the capital and interest on a sum of Rs. 2,000,000/- lent to the defendants who were carrying on a partnership business.”

The dissatisfaction of the Appellants in the application for revision arising from the above DC case, was over the fact that the additional District Judge had dismissed the objections taken by the defendant to the aforementioned substitution on the grounds that his “predecessor already made the order for substitution.”

Here is the relevant excerpt from the Appeal Court judgement:

“When the matter came up on 07.10.2002 before the Additional District Judge of Colombo, the learned judge dismissed the objections taken by the defendants to the said order on 04.05.2001, by which the 1st and 2nd substituted plaintiffs were substituted in place of the deceased plaintiff, on the ground that his predecessor had already made the order substituting them (1st and 2nd substituted plaintiffs) as the substituted plaintiff. It is against this order the defendants have filed this application in revision.”

It appeared that the Appellants in this case had missed the bus. They could appeal the order for substitution but did not because their Attorney had not given them the correct date on which the order was made, and hence they could not file appeal on time. They came by way of revision four months later. The problem with that, is that revision is an extraordinary remedy granted only when there are exceptional circumstances, and grave injustice is caused. The defendants didn’t seem to fall within the ambit of any of these definitions:

“In Rustom vs Hapangama & Co (1) Vythialingam, J. after an exhaustive analysis of all the authorities on this question held that power of revision conferred on the Appellate Court is very wide and can be exercised only in exceptional circumstances or when there is something illegal about the order made by the trial judge which has deprived the petitioner of some right”.

In the first place there didn’t seem to be exceptional circumstances that the plaintiff relied on. That the Attorney had allegedly messed up was not deemed exceptional at all. Having established that the defendant Appellant had no cogent case for revision, the Bench went into the core issues of the application.

The position of the appellants was that when Mr. Pedris died the plaintiffs had been substituted when it had not in fact been established that they were the legal representatives of the deceased. Why so? They contended it was because they, the substituted plaintiffs had been made executors of the will, but had not obtained probate.

The Court of Appeal judgement notes:

Section 395 of the Civil Procedure Code reads as follows:

“In case of the death of a sole plaintiff or sole surviving plaintiff the legal representative of the deceased may, where the right to sue survives, apply to Court to have his name entered on the record in place of the deceased plaintiff, and the Court shall thereupon enter his name and proceed with the action.”

The Appeal Court judgement cited decided cases to establish that though probate had not been obtained, the executor appointed with regard to a last will had the right to have himself substituted:

“In terms of Section 395, on the death of a sole plaintiff, the legal representative may be substituted by the Court on his application, if the right to sue survives. This being an action to recover money, the right to sue survives. The deceased plaintiff, Dr. Devapriya Pedris died leaving a last will, executed on 20.01.2001 bearing No. 3934 attested by A. R. Mathew N. P. In the said last will the 1st and 2nd substituted plaintiffs were appointed as the executors.”

“In my view when the sole plaintiff dies leaving a will, and when the right to sue survives, the executor appointed therein, has a right to have himself substituted whether probate has been obtained or not at the time of application for substitution,” Court of Appeal held in judgement, and dismissed the appeal.

However, in a separate case, (Parameshwary Upali De Silva vs Savithiri Lokitharajah and others (S.C. Appeal No. 104/2012) Supreme Court held that a will is not proven until probate has been granted by a Court of Competent Jurisdiction. All objections had to be considered accordingly.

It was decided that irrespective of the question of a delay, if the court is satisfied that there are grounds to object to an application (for probate in this case), court should frame issues as in Section 533 of the Code and proceed with the matter. The District Court cannot dismiss the action, it was decided.

No doubt the circumstances of the two cases are vastly different, and are too cumbersome to be gone into here. However, question remains why in the case of Pedris, above, the objections were not entertained despite probate not being granted? It was probably due to the following reason:

The Court of Appeal held — in the case under review re’ Pedris — that even if the monies are recovered they will accrue to the estate of the deceased and not the substituted parties. Therefore no injustice was done to the Appellant, it was held, and no objection could be entertained.


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