SC by majority Judgement allows Lakmini Welgama's appeal

BY SARATH Malalasekera

THE Supreme Court, in a two to one majority judgement, allowed an appeal of Lakmini Ratwatte Welgama in a dispute relating to the administration of the estate of the late Upali Wijewardene, a leading public figure and a businessman and set aside the order dated November 28, 1997 of the District Court and the judgement of the Court of Appeal on January 11, 1999.

Then Bench comprised Chief Justice Sarath N. Silva PC, Justice Dr. Shirani Bandaranayake and Justice Nihal Jayasinghe.

Dr. Shirani Bandaranayake delivered a dissenting judgement dismissing the appeal of Lakmini Ratwatte Welgama.

Petitioner Lakmini Ratwatte Welgama of Cumaratunga Mawatha, Colombo 3 cited Helena Anoja Wijesundera and Anula Kalyanidevi Attygalle of Colombo 3 as respondents.

President's Counsel Wijedasa Rajapaksa with Navin Marapana appeared for the respondents.

President's Counsel Nihal Jayamanne with Ronald Perera, V.K. Choksy, Ms. Noorani Amarasinghe, Ms. Udith Collure and Dilan de Silva appeared for the petitioner.

The Chief Justice, in a twenty page judgement, Justice Nihal Jayasinghe agreeing, allowing the appeal, stated that the appellant being the Administratrix of the Estate is directed to file the inventory and final account on the basis of that the Estate of the deceased came into being on April 21, 1988.

Since the Administratrix has failed to file any account either in compliance of the Settlement Agreement or in compliance with the order made by the District Court, she is directed to file the said inventory and account finally within three months of the date of the judgement. No costs.

The Chief Justice in his lengthy judgement stated.....

"This is an appeal from the Judgment dated 11.1.1999 of the Court of Appeal. By that Judgment the Court of Appeal dismissed the application of the appellant for leave to appeal from the order dated 28.11.1997 of the District Court.

The hearing of the application for Special Leave to Appeal before this Court and of this appeal were adjourned for considerable periods of time to enable the parties to arrive at a settlement of the dispute. Upon the failure to arrive at a settlement, Counsel made submissions and thereafter tendered extensive written submissions.

The dispute relates to the administration of the estate of the late Philip Upali Wijewerdena, leading public figure and a businessman. He embarked from the Kuala Lumpur International Airport in his private Lear Jet on 13.2.1983 with the recorded destination being Colombo.

The aircraft failed to give a position report overhead Medan to the Kuala Lumpur Air Traffic Control Centre and did not regain contact with any Ground Control Center, thereafter.

Neither the remains of Wijewardene nor of any of the passengers have been found. It is reported that some fishermen in Indonesia have found a wheel of an aircraft and a part which could be related to that aircraft of. The heirs are his widow, the present appellant and his two sisters, being the Respondents.

Although, Wijewardene disappeared in the circumstances stated above on 13.2.83, neither the Appellant nor any of the Respondents sought to institute Testamentary proceedings for Letters of Administration in terms of Section 530(1) of the Civil Procedure Code (which was then applicable) on the basis that he died on 13.2.1983 being the day on which the aircraft he was in disappeared.

Wijewardene had appointed one Ramalingam Murugiah as his Attorney and his affairs were carried out on the basis of the said Power of Attorney. Subsequently, the said Murugiah gave a substituted Power of Attorney in favour of the Appellant.

On 7.10.1987, the two Respondents filed a petition in the District Court of Colombo (No. 30927/T), seeking Letters of Administration in respect of the estate of Wijewardene.

It was pleaded in the petition (paragraph 7) that the Petitioners have reason to believe that the Respondent (the present appellant) has been willfully asserting that the deceased is still alive for the unlawful and illegal purpose of administering wrongfully, intermeddling and to do what she solely wishes with the considerable assets of the deceased, without any authority or supervision from this Court.

They also pleaded that the action taken by Murugiah and the Appellant on the power of attorney referred to above is unlawful.

They applied to administer the estate on the basis that Wijewardene died on 13.2.83 and sought inter alia Letters of Administration pendente lite in terms of Section 539A of the Civil Procedure Code (which was then applicable). The District Court refused to grant Letters of Administration pendente lite.

However, the Court issued Order Nisi on 8.10.1987. On 19.10.1987 the Appellant filed papers and made an application to recall the Order Nisi that had been issued. The District Court then noted that the Order Nisi had not been signed and made order that no Order Nisi be published.

It was further directed that notice of objection be issued on the present Respondents. The Respondents filed an application for Leave to Appeal to the Court of Appeal from the order made by the District Court on 19.10.1987. They also filed an application in Revision and a Final Appeal from the same Order.

On 28.4.1988, the Appellant filed petition in the District Court (Case No. 31166/T) seeking Letters of Administration.

The application was filed on the basis of the amendment to Section 108 of the Evidence Ordinance made by Act No. 10 of 1988, which came into force on 21.4.1988. The District Court issued Order Nisi on the basis of this application, in terms of Section 531 of the Civil Procedure Code and directed service on the Respondents.

At this juncture, when cases were pending in the District Court and Court of Appeal as aforesaid, the parties entered into a settlement on 18.1.1989. The settlement has been signed by the Appellant and the Respondents on the basis of which the Respondents withdrew the Applications for Leave to Appeal, Revision, and the Final Appeal referred to above.

A schedule to the Settlement Agreement specifies the Companies in respect of which the deceased had interests and the Appellant agreed on her part to the appointment of the Respondents and their children to positions in the Boards of Directors of specified Companies and to make certain payments as fees.

It is specifically provided that subsequent to the execution of the agreement and the appointment of Directors, as referred to, the Respondents will consent to Letters of Administration in respect of the estate of the deceased being issued to the Appellant in the District Court case No. 31166/T, as the widow of the deceased without her providing any security for this purpose other than a personal bond.

The Respondents also agreed to withdraw the testamentary action. No. 30927/T filed by them in the District Court. It was specifically agreed that the Respondents will withdraw the allegations made against the Appellant in paragraph 7 of the petition filed in that action, the contents of which paragraph have been referred to above.

On the basis of the foregoing settlement Appellant was issued with Letters of Administration.

On 26.11.1992 the Letters of Administration were signed by the Addl. District Judge who directed that the inventory and the final account be filed on 8.3.1993. In clause 3 of the settlement Agreement it is specifically stated that the Appellant, "undertakes to furnish accounts in respect of each and every year of her administration of the said Estate of the deceased to the Parties of the First Part (Respondents) before the Thirty First day of December in each and every year commencing from 31st March 1990."

The dispute was rekindled by the failure on the part of the Appellant to file the inventory and final account as directed by Court or to render accounts as agreed to in clause 3 of the Agreement referred above.

The Respondents filed a petition and affidavit on 2.4.1997 in case No. 31166/T (being the application filed by the Appellant in which Letters of Administration had been issued), alleging inter alia, that the deceased died on 13.2.1983 and the Appellant intermeddled and/or dealt with the assets of the deceased for her own benefit on the basis of a Power of Attorney which was null and void, for her own benefit in fraud of the Respondents.

They sought and order against the Appellant from the District Court to file a further inventory and valuation of the deceased's property at the date of his death, namely 13.2.1983 and a final account of the administration of the estate on or before a date to be fixed by Court.

The Appellant filed objections on 29.7.1997 stating that the Respondents are estopped from asserting that the deceased died on 13.2.1983 after they withdrew case N0.30927/T filed by them and consented to Letters being granted to her in case no. 3166/T filed by her on the basis that death took place on 21.4.1988 being the date on which the amendment to the Evidence Ordinance came into force.

She further stated that as at the date of disappearance the liabilities of Mr. Wijewardene exceeded his assets, with about Rs. 50 Million due to the Inland Revenue Department and nearly Rs. 200 Million due to the Peoples Bank on debts of his companies covered by personal guarantees.

That, action was taken on the Power of Attorney to avoid a bankruptcy situation in which the Peoples Bank would have taken over the assets.

The debts were settled and the assets were restructured. That, the Respondents acquiesced in such restructuring which was done on the basis that Wijewardene was alive and on the authority of the power of attorney by accepting Directorships in Companies that came into existence after 13.2.1983, in terms of Settlement Agreement referred to above.

The Additional District Judge, in the first part of his Order dated 28.11.1997, came to finding that the Appellant has delayed in filing the final 21.4.1988 being the earliest date on which the matter could have been established in Court. It is a sine qua non for a person to be considered an Executor de son tort, that it be established in the first instance that the person is dead and there is an estate.

Therefore the liability of an Executor de son tort cannot be attributed to the Appellant in the manner contended for by Counsel.

If at all, the Appellant could be considered an Executor de son tort from 21.4.1988. This would be unnecessary since the doctrine of relation back relied on by the Respondents would apply and the letters granted subsequently would relate to the date of death as determined.

In this connection I would cite the following passage from Whartons Law Lexicon - 4th Edn - page 858 - relied on by the Respondents -

"Relation, where two different times or things are accounted as one and by some act done the thing subsequent is said to take effect 'by relation' from the time preceding. Thus letters of administration relate back to the intestate's death, and not to the time when they were granted"

Justice Dr. Shirani Bandaranayake, in a sixteen page dissenting judgement stated that this appeal is accordingly dismissed and the order of the District Court dated November 28, 1997 and the judgement of the Court of Appeal dated January 11, 1999 are affirmed.

The appellant being the administratrix of the estate is directed to file the inventory and final account on the basis of that the estate of the deceased came into being on February 13, 1983 within three months from today. There would be no costs.

Justice Bandaranayake in the judgement further stated...

"I have had the benefit of reading, in draft, the judgement of the Chief Justice. Whilst I am in agreement with the factual position considered in the said draft, I regret very much that I am unable to agree with Chief Justice's answer to the question as to the exact date of the presumption of death begin to operate, in connection to the estate of the deceased coming into being to the appellant for the purpose of inventing and accounting. The reasons for my inability to agree with the draft judgement are as follows:

At the stage of granting Special Leave to Appeal, both parties were permitted to raise questions on which the appeal was to be considered and consequently three questions were so raised. However, learned President's Counsel for the appellant made submissions mainly on question No. 3, which was in the following terms:

"In view of the appellant's application for letters of administration being filed on 28.04.1988 on the basis of the amendment to section 108 of the Evidence Ordinance, which came into force on 21.04.1988, that date should be taken as the date on which the estate came into being and the operative date for the inventing and the accounting."

Having considered the aforementioned question, it has been narrowed down in the draft judgement to read as follows:

"On what date does the presumption of death begin to operate? Does it relate back to the date of the person was not heard of as contended by the respondents? Or is it at the end of the period as contended by the appellant?"

The appeal was chiefly considered on the basis of sections 107 and 108 of the Evidence Ordinance. These two sections are contained in Part III, which deals with the burden of proof.

Section 107 of the Evidence Ordinance could be regarded as a provision which considers the burden of proof of the death of a person known to have been alive within thirty years and section 108 refers to the burden of proof regarding a person who is alive and has not been heard of for seven years.

Having said that, it is also necessary to be borne in mind that both these sections are also referred to as sections dealing with the presumption of death and the presumption of continuance of life. Considering this aspect, E. R. S. R. Coomaraswamy, (The Law of Evidence, Vol. II, Book I, pp. 428-429) is of the view that,

"The fact is that rules as to burden of proof and presumptions are so involved together that it is artificial to separate a given situation and to state that it is a pure rule of the burden of proof and not of a presumption.

Every rebuttable presumption in favour of one party necessarily involves a rule as to burden of proof in the other and vice versa. It is, therefore, proposed to consider the rules in sections 107, 108, 109, 110 and 111 as giving rise to the contrary presumptions which a court shall draw."

At the same time it would be necessary to be borne in mind that there is a school of thought that sections 107 and 108 of the Evidence Ordinance do not enact a presumption of law or fact, but enact rules governing the burden of proof. In fact Basnayake, CJ, in Davoodbhoy v Farook ((1959) 63 N.L.R. 97) observed that,

"It is essential to bear in mind that sections 107 and 108 do not enact a presumption of law or fact, but enact rules governing the burden of proof like any one of the other rules that precede them."

A similar view was taken by Pulle J, in the same decision to the effect that,

"A rule of evidence as to burden of proof does not generate a presumption of fact."

The view that has been taken by Pulle, J., thus emphasises the fact that one cannot always discharge the burden that the person in question is dead by leading evidence to indicate that the said person had been heard of for seven years by those who would naturally have heard from him. It would be necessary according to Pulle, J., to prove such death in terms of section 101 of the Evidence Ordinance. In Pulle, J.,'s words:

It is therefore not disputed that the deceased was expected to return to Sri Lanka after 21.09 hrs. on 13.02.1983 and considering the aforementioned circumstances on the basis of the example given in Hickman v Upsall (supra) the conclusion should be that the deceased met his death in or around the said time en route from Kuala Lumpur to Sri Lanka.

For the aforementioned reasons, I am of the view that 21.04.1988 cannot be taken as the date on which the estate of the deceased came into being as on the disappearance and the death of the deceased, which apparently had occurred on

The preceding analysis reveals that from the perspective of the Law the property of a person has to be dealt with on the basis that he is alive or dead with a clear dividing line.

As at the date of disappearance, the presumption of life was operative and the affairs of Mr. Wijewardene were carried on, on the basis he was alive.

The finding stated above is that, the presumption of death operates from 13.02.1983, in the absence of a will, the deceased persons' estate passed at once by operation of law to his heirs on 13.02.1983, and such date should be taken into consideration as the date for the inventory and the accounting."