(a) Where such person has died intestate leaving an estate, specifying the name, description, and place of abode of any person whom he alleges to be the legal representative, as defined in section 394 (2), of the deceased and whom he desires to be made the defendant in the proposed action in place ofthe deceased. Such application shall also specify the name, description, and place of abode of the person or persons whom the applicant alleges to be the other heir or heirs of the deceased; or
(b) Where probate of the will or letters of administration to the estate of the deceased has not been issued or its issue is likely to be unduly delayed, specifying,the name, description, and place of abode of any person whom he alleges to be the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued and whom he desires to be made the defendant in the proposed action in place of the deceased. Such application shall also specify the name, description, and place of abode of the person or persons whom the applicant alleged to be the heir or heirs of thedeceased.
(2) Upon receipt of an application under paragraph (a) of subsection (1), and the court where it is satisfied that there are grounds therefor, and, after the issue of notice on the representative named in such application and such other persons, if any, and after causing notice of such application, (in the form No. 2A in the First Schedule) to be advertised in a local newspaper to be selected by the court, or by such other mode of advertisement in lieu of such publication as to the court seems sufficient, and after such inquiry as the court may consider necessary and upon such terms as it thinks fit, the court may order that such representative or such other person as the court may consider fit be appointed in place of the deceased, for the institution of such action:
Provided, that the person to be so appointed in place of the deceased may object that he is not the legal representative of the deceased or that he should not be appointed in place of the deceased.
(3) Upon receipt of an application under paragraph (b) of subsection (1), the court may, where it is satisfied that probate of the will or letters of administration to the estate of the deceased has not been issued or is likely to be unduly delayed, and, after the issue of notice on the person alleged in such application to be the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued and such other persons, if any, causing notice of such application, (in the form No. 2A in the First Schedule) to be advertised in a local newspaper to be selected by the court or by some other mode of advertisement in lieu of such publication as to the court seems sufficient, and after such inquiry as the court may consider necessary and upon such terms as it thinks fit, order that the person, who appears to the court to be the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued, be appointed in place of the deceased, for the institution of such action:
Provided, that the person to be so appointed may object that he is not the person to whom probate of the will or letters of administration to the estate of the deceased would ordinarily be issued or that he should not be appointed in place of the deceased.
(4) Notwithstanding the provisions of subsection (2) or subsection (3), the court may make an order under any one of those subsections, only where-
(a) it is satisfied that the delay in the institution of the action would render such action not maintainable by reason of the provisions of the Prescription Ordinance; or
(b) a period of six months had lapsed after the death of the deceased.
(5) Where after an order appointing a representative in place of the deceased has been made under subsection (2) or subsection (3) and an action instituted against such person in place of such deceased, an executor of the will, or, an administrator or the estate, as the case may be, of such deceased, is appointed in proceedings instituted under Chapter XXXVIII of this Code, such executor or administrator shall, on the application by way of summary procedure, supported by affidavit, made by the plaintiff or any other party to such action or by such executor or administrator, be substituted in place of the person appointed under subsection (2) or subsection (3), and the action shall thereupon proceed in the same manner as if such executor or administrator had originally been made a defendant, and had been a party to the previous proceedings in the action.
Petitioner made an application in terms of section 14A(1)(a) of the Civil Procedure Code to have the respondent to the application appointed in place of the deceased for the institution of the proposed action. The application was made against sole respondent on the basis that he suffers injury from a motor traffic accident caused by the collision of vehicle belonging to B.Y. Tudawe deceased and his chauffeur. The petitioner had estimated loss and damage of Rs. 1,530,000/=. The petitioner’s plaint states that the cause of action has accrued to him to recover damages in an acquilian action. B.Y. Tudawe has died before the action filed leaving only heir the respondent. Accordingly she sought that the respondent, sole heir of the deceased to be appointed as the legal representative of B.Y. Tudawe.
The respondent objecting to the appointment stated that any cause of action accrued to the petitioner against B.Y. Thudawe did not survive his death, the respondent is not liable in any delictual liability of the deceased and therefore the petitioner is not entitled to have her appointed for the purpose of institution of such action. Court refused the application by holding that the applicant failed to establish that the deceased left any estate to the respondent proposed to be appointed as the legal representative as defined in section 394(2) of the Civil Procedure Code. To establish that the respondent was the legal representative, the petitioner ought to have stated that the respondent “adiatted” the inheritance.
The petitioner invoked the revisionary jurisdiction against the said order.
P. Wijeyrathne J, held that;
“The petitioner has not established that the respondent who is said to be the sole heir of the deceased has adiatted the inheritance. In terms of the definition of the “legal representative” under section 394(2) of the Civil Procedure Code, apart from an executor or administrator in the case of an estate below the value of Rs. 500,000/= only the next of kin who have adiatted the inheritance becomes a legal representative of the deceased. The application of the petitioner to appoint the respondent in place of the deceased is on the basis of her being the legal representative of the deceased and not in the capacity of an heir of the deceased. On a mere reading of section 394(2) it is very clear that a next of kin, who had adiatted the inheritance, should aidate an estate below administerable value. The existence of estate below administerable value and adiation by next of kin are two main ingredients of “legal representative” the definition of the term.
As the learned District Judge has correctly concluded the petitioner has failed to establish that the respondent is the legal representative of the deceased; in other word that the deceased left an estate below administerable value and the respondent as next of kin who adiatted the same. In the absence of such fact being established the petitioner is not entitled to have the respondent appointed in terms of section 14A, in place of the deceased.”
Priyantha Kamal Mabotuwana Vs. Ranjani Tudawe (C.A. Application No. 1501/2000, D.C. Galle 3588, C.A. Minute dated 10.11.2004)
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