Salih t>. Valliyammai Atchi 4,
[In the Privy Council]
1961 Present: Lord Radcliffe, Lord Denning, Lord Hodson, Lord Guest,Mr. L. M. D. de SilvaR. B. A. SALIH and others, Appellants, and VALLIYAMMAI ATCHI
and another, Respondents
Privy Council Appeal No. 3 o# 1960
S. C. 572—D. C. Colombo, 419jZ
Administration of estates—Appointment of Secretary of Court as administrator—Change of individuals holding the office—Effect—Status of Secretary as cor-poration sole—Unsatisfactory state of the law at present—Civil Procedure Codess. 520, 521, 53fi, 538-541, 549, Schedule I, Forms 87, 88, 90—Mortgagebond executed by executor—Subsequent release, by mortgagee, of the hypothe-cated property—Money decree obtained by mortgagee—Right of mortgagee tofollow up property other than that which had been mortgaged—Equitable defencesavailable to persons claiming through a testamentary devisee.
(i) When a Secretary of a District Court is appointed Administrator cumtestamento annexo under section 520 of the Civil Procedure Code, he is intendedto possess all such attributes of a corporation sole as are necessary for theproper discharge of his functions qua administrator. Section 520 contemplatesthe appointment of the Secretary of the Court as such and not the individualwho holds the office of the Secretary at the time of the appointment. Lettersof Administration in such cases should he addressed to the Secretary of theCourt and not to the current holder by name, and a change of the individualsholding the office would not affect the appointment once made.
Observations on the immediate need for new statutory Forms and even,possibly, new statutory provisions to provide for the responsibilities of theSecretary of the Court as administrator.
(ii) As a general rule a secured creditor of a deceased person’s estate isentitled to decline to rely on his security and to claim payment out of theestate as a whole. But if a mortgagee deliberately releases the secured property,apparently with the intention of favouring the devisees of the property subjectto the mortgage at the expense of other devisees, his rights against otherdevised property are not far-reaching.
An unsatisfied creditor is entitled to follow assets of the estate into thehands of devisees or legatees and those claiming through them for the purposeof obtaining payment: but this right of following is fundamentally an equitableright. As such it is liable to be lost by laches and acquiescence on the partof the creditor or by other conduct which raises an equity against him ; or itmay be defeated by a sale by the devisee to a purchaser for value withoutnotice or by a transfer from the devisee to someone who takes in considerationof marriage. In such oases the marriage consideration is as effective a baras a purchase for value without notice, since the property is transferred asprovision for an alteration of status which is in its nature irrevocable. Noris the creditor affected to his prejudice by these rules ; for, while he cannotfollow the propetty against the purchaser, he can follow the purchase price
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LORD RADCUFFE—Salih v. Valliyammai A tchi
in the hands of the devisee and, if there has been a transfer in considerationof marriage, he can claim as assets from the transferor the value equivalentto that -which has been transferred.
Two properties belonging to the estate of a deceased person were mortgagedby the executor (a son of the deceased) in 1935 with the sanction of Court.The mortgagee and, after his death, his executrix stood by while theadministration was proceeding during all the years until 1949. On 21 stNovember, 1949, the executrix hied plaint praying enforcement of the mortgagebond. Pending the hypothecary action she released the mortgaged propertiesin favour of two persons who were the specific devisees of those properties andundertook not to go against those properties for execution of the decree shewas proposing to obtain. She obtained a money decree and sought to seizeand sell in execution a land which was in possession of the present appellants.This land had heen devised to the executor who gifted it subsequently to hisson. The latter transferred it in 1941 to his sister, Z, as a provision madeon her marriage. Z transferred the property subsequently to her sons, thepresent appellants.
Held, that the executrix of the deceased mortgagee’s estate was not entitledto execute her decree against the appellants’ property for the reason that theappellants derived title to it through their mother who took it from her brotherin consideration of marriage. Even if this was not enough in itself, the defencewas strongly reinforced by the-other circumstances of the case.
Appeal from a judgment of the Supreme Court reported in(1957) 61 N.L. It. 289.
Walter Jayawardena, with Dick Taverne, for the 2nd to 4th defendants-appeUants.
Sir Frank Soskice, Q.C., with Mervyn Heald, for the plaintiff-respondent.
Cur. adv. vult.
May 8, 1961.[Delivered by Lord Radclute]—
This appeal from a Judgment and Decree of the Supreme Court ofCeylon, dated 4th December, 1957, involves two points of law. Oneis a question of procedure relating to the status of a Secretary of a DistrictCourt when he is appointed Administrator cum testamento annexo underS. 520 of the Civil Procedure Code. The other is a question of substantivelaw as to the equitable defences available to persons claiming througha testamentary devisee when their land is sought to be taken in executionby an unsatisfied creditor of the estate. The circumstances in whichthese two questions arose must first be briefly related.
The testator whose will and estate are involved was one HadjieIbrahim Bin Ahamed who died on 9th May, 1931, having specificallydevised the land which is the subject matter of the present action tohis son Ahmed Bin Ibrahim. The latter was also appointed executorof the will and in due course took out probate in the District Court ofColombo.
LORD RADCLIFFE—Salih v. Valliyammai Atchi
At the date of the testator’s death eight properties belonging to himwere charged to a creditor as security for sums owing to him Tn 1935.the executor obtained the Court’s sanction to his selling four of theseproperties and borrowing on the security of the other four. With themonies so realised, the existing creditor was paid off and a new mortgagewas created upon the four retained properties. This was a mortgagefor the sum of Rs. 30,000 in favour of the lender, Km. N. Sp. NatchiappaChettiar, whose executrix is the first respondent Valliyammai Atchi.The land now in dispute (hereinafter referred to as “ the disputedland ”} was not one of these four properties.
Ahmed Bin Ibrahim died on 5th November, 1940, without havingfully administered his father’s estate. Before his death he had, however,done two things that are material to this case. He obtained a releasefrom the mortgage of two of the four properties in consideration ofRs. 5,000 which he paid to the mortgagee in reduction of the mortgagedebt out of the assets of the estate ; and on the 13th December, 1938,at a time when, as found by the District Judge in his Judgment in thisaction, the administration was nearly at an end and when he was makingsimilar assents in favour of other specific devisees, he conveyed thedisputed land to himself, executor to devisee, and on the same daytransferred it by way of gift to his son Mohamed Ghouse bin Ahmed.Prima facie therefore it had ceased to be assets of the estate by the year1938.
On the 27th November, 1943, the first respondent, acting as executrixof the unpaid mortgage creditor, moved the District Court of Colombofor the appointment of the Secretary of the Court as administratorde boms non of the testator and on the 26th May, 1944, an order wasmade appointing Mr. Culanthaivalu, the then Secretary, OfficialAdministrator of the estate and declaring him entitled to Letters ofAdministration accordingly. These Betters were issued to him on the12th October, 1944. There will have to be more detailed referencelater to the various proceedings connected with the appointment ofthe Secretary or Secretaries of the Court to the administration of theestate ; but for the moment it is sufficient to notice that by the year1948 Mr. Culanthaivalu had retired from the post of Secretary withoutcompleting administration and a Mr. Peiris, the new Secretary, wasappointed administrator in his place, and that when Mr. Peiris in histurn retired he was succeeded as Secretary by a Mr. Palliyaguru. Onthe 7th July, 1949, an order was made in the administration proceedingsrelating to the testator’s estate by which Mr. Palliyaguru was directedto be substituted for Mr. Peiris, but no Letters of Administration wereissued to Mr. Palliyaguru.
It was not until matters had reached this state that the present actionwas begun. On the 21st November, 1949, the first respondent filed herplaint naming the “ Secretary of the District Court, Colombo ” asdefendant, praying enforcement of the mortgage bond by payment ofthe sum of Rs. 45,431 and further sums of interest and, failing duepayment, sale of the mortgaged properties under order of the Court.
LORD RADCLIFFE—Salih v. Valliyammai Atchi
Mr. Palliyaguru appeared to but did not defend the action : on the otherhand, two persons, Ahmed Bin Hasson and Mohammed Bin Hassen,who claimed to be specific devisees under the testator’s will of the twomortgaged properties, intervened asking to be added as parties andallowed to defend. The upshot of this was that the first respondentcame to terms with them and on the 24th October, 1951, an agreementwas recorded in the proceedings under which the first respondent agreedto release the properties from the mortgage not to ask for anyhypothecary decree in respect of them and in no event to go againstthose properties for execution of the decree she was proposing toobtain. In exchange the interveners undertook what prima facie seemsto be the smaller sacrifice of withdrawing any objection to decreebeing entered against the administrator, on the first respondentsatisfying the Court as to the amount due on the mortgage.
No explanation was ever given in the course of these proceedings asto why the first respondent entered into such an unusual transaction,which denuded the estate she represented of the security which it hadheld for sixteen years, or why the second respondent, as administrator,expressed no views about a transaction to which he could hardly havebeen indifferent. According to the evidence given at the trial, eachof the two properties was worth about Rs. 50,000, so the holder ofthe mortgage bond had been amply secured at the date of the release.
However that may be, the action went ahead on this basis, the firstrespondent filed an affidavit proving her debt as claimed, the secondrespondent did not appear, and on the 7th December, 1951, the DistrictCourt made an order sanctioning the agreed release of the two propertiesas well, as the earlier release of the two other properties originally subjectto the mortgage and decreed that the second respondent should payto the first the sum of Rs. 45,431, together with interest on Rs. 23,522/97at the rate of 8 per centum per annum from 22nd November, 1949, tothe date of the order and thereafter on the aggregate amount of thedecree at 5 per centum per annum until payment in full.
The next thing that happened was the issue of a writ of executionaddressed to the Fiscal of the Western Province directing him to levyupon the “ houses, lands, goods, debts and credits ” of the administratorfor satisfaction of the decree debt. It is not now necessary to enquirewhether this could in any event extend to assets that had long passedout of the estate. It did at any rate result in the seizure of the disputedland and this brought the present appellants into the affair, for the firstand second appellants were then in possession of it by virtue of a transfermade to them by their mother, Zubaida, who herself had received it in1941 as a provision made on her marriage by her brother MohamedGhouse. The third appellant appeared as their guardian ad litem.They applied to the Court to have the property released from seizureand their claim was upheld. Thereupon the first respondent started thepresent proceedings praying that the disputed property should bedeclared liable to be sold in execution of the money decree which hadbeen made against the estate on the 7th December, 1951. The action
LORD RADCLIFFE—Salih v. Valliyammai Atchi
was dismissed by the District Court (G. M. de Silva, D.J.) on the 5thJuly, 1954, the learned Judge holding that “ the plaintiff, having releasedthe mortgage property, cannot now seek to sell the land seized whichhas vested in the third and fourth defendants This judgment wasreversed on appeal by the Supreme Court (Basnayake, C.J. and Pulle, J.)on the 4th December, 1957, the learned Judges holding that nothinghad occurred to prevent the first respondent from executing her decreeagainst the appellants’ property.
In the course of the argument before the Board the point was madeby the appellants’ counsel that these proceedings, which were said to beproceedings under S. 247 of the Civil Procedure .Code, were not withinthe range of action covered by that section, having regard to the factthat the property had already passed out of the estate and that if theaction was to be treated as a mere pendant to the execution proceedingsthe appellants found themselves involved in an action in which a monetarydecree had already passed, in their absence, against the estate, althoughthey themselves would have desired to challenge the making of thedecree itself. This point does not seem to have been raised in theCourts in Ceylon and it is not noticed in any of the judgments giventhere. As the question it raises is essentially one as to the correctprocedure under the local rules and their Lordships have no assistanceon the point from the Judges familiar with the practice, they do notpropose to deal with it in this appeal. They will assume, withoutdeciding, that the first respondent’s action is not defective on thataccount.
But was there ever a real defendant in the action against whomthere could pass a monetary decree capable of binding the testator’sestate ? This is the first main point made by the appellants and it is byno means easy to say what is the correct answer to that question. Thedecree was obtained in proceedings against a defendant styled “ TheSecretary of the District Court of Colombo, as Administrator de bonisnon of the Estate and Effects of Hadjie Ibrahim Bin Ahmed deceased ”.Now the appellants say that Mr. Palliyaguru was not and could not bethat defendant since, although for the time being the Secretary of theDistrict Court, he had not received Letters of Administration to theestate and could not therefore represent it : that under S. 520 Lettersof Administration could only issue to a Secretary of the District Courtas an individual person and that there was no corporation sole constitutedby the office which could be sued under the corporate name as distinctfrom the individual holders from time to time : and that, consequently,no person representing the estate had ever been made defendant in theaction or had been effectively cited to appear in it.
It is necessary first to enquire what is the scheme established by theCivil Procedure Code under its Chapter on Testamentary Actions inorder to see how much support it would give to the appellants’ argumentthat the Letters can only issue to a Secretary in his individual capacity.Section 520 itself says no more than that, when no fit and proper personotherwise appears, the Court shall appoint the Secretary of the Court
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78LORD RADCLIFFE—Salih v. Valliyammai Atchi
to be administrator cum testamenlo annexo. There is nothing saidexplicitly about successors to the office or thv creation of a corporationsole. Section 538 prescribes certain general duties to be performed by(inter alios) all persons appointed administrator, without exception.They must take an oath in the form set out in the 1st Schedule, file aninventory and valuation of the estate, and enter into a bond with sureties,securing the due administration of the estate, which bond is to be inaccordance with Form 90 in the Schedule. By virtue of S. 521 the Court,when it appoints its Secretary a. administrator, is precluded fromdispensing with the giving of security, as under S. 541 it has a limitedpower to do in other cases.
When reference is made to the forms prescribed in the Schedule it isseen that while Form 87 (Letters of Administration) and Form 88 (Oath)are neutral and would be as consonant with the appointment of acorporation sole as that of an individual, Form 90 (Security Bond) isirreconcilable with a bond entered into by a corporation, since it isexpressed to bind the administrator and the sureties in the specifiedsums, “ for which payment we and each of us bind ourselves, our heirs,executors and administrators ”. Any conclusive argument that issought to be extracted from the form of the Security Bond, however,must take account of the fact that it is not merely irreconcilable withthe conception of an administrator being a corporation sole : it is alsoirreconcilable with the idea of the Secretary being administrator at all,since the prescribed form requires the bond to be entered into with
“ the Secretary of the District Court of (or . . . the Secretary
of the District Court for the time being) ”, and one can hardly supposethat the Secretary, whether individual or corporate, was envisaged asoffering security by himself to himself. This is only one of severalindications that neither the scheme laid down by the relevant sectionsof the Code nor the prescribed forms have been framed to fit the specialsituation of a Secretary of the Court acting as administrator.
If at this stage one follows up the suggestion that the only admissibleadministrator is a Secretary in his individual capacity, the practicalconsequences become so unworkable that it is virtually impossible toaccept it. The first Secretary to take the appointment must necessarilyremain administrator until his death or the final winding up of theestate, since the Code provides no means by which the Court can relievehim, once appointed, and transfer his duties to a new Secretary. Theonly lawful power to recall or revoke a grant (S. 536) is not applicableto such a case. Yet it is inevitable that Secretaries will retire or betransferred to another District while administrations are still pendingand it is inconceivable that they are intended to remain charged withthese duties, undertaken for the original Court, after they have ceasedto have any official contact with the office or the District.
It was argued for the appellants that the difficulty of this positioncould be met if S. 540, which is styled “ Power of administrator whennot limited ”, were to be read as impliedly sanctioning the appointmentof individual Secretaries for no longer period than their tenure of office
IjORD jRADCUFFE—Salih v. Valliyanxmai Aichi
as Secretary of the Court that appointed them. It was suggested thatthe opening words ** If no limitation ie expressed in the order makingthe grant …” could warrant the view that the mere naming of theSecretary of the District Court in the grant amounted to a limitationin time for this purpose. But this argument can provide no solutionand would in any case create more difficulties than it could solve. First,it is plain that S. 640 does not carry the implication suggested but is theobverse of the immediately preceding Section, S. 639, styled “ Limitedprobate and administration ”, a section which does enable the Courtin certain circumstances, though not circumstances that obtain here,to make limited grants in express terms. Section 540 merely says that,except and so far as there are such express limitations, an executor’sor administrator’s powers are to endure for his life or until finaladministration and to extend to the whole of the assets. Secondly, evenif an administrator, though appointed individually, could drop out ofhis appointment upon leaving his post as Secretary to the Court,provisions, which are lacking, would be needed for determining theliability of his sureties and himself on his bond, which is unlimited,and for requiring him to bring in and pass the accounts of his adminis-tration up to the date of his retirement.
For these reasons their Lordships think that it is in effect impossibleto treat a grant to the Secretary of a District Court as if it were a grantto him in his individual capacity. Not much help is to be had fromreference to the actual course that administration has taken in thiscase since no theory that is internally consistent seems to prevail. Thefirst person to receive Letters of Administration was Mr. Culanthaivalu.They were issued to him in his own name but “ as Secretary of theDistrict Court ”. He took the Oath of Office, and entered into a bondacknowledging that he was bound to himself, “ Secretary of the DistrictCourt of Colombo or to the Secretary of that Court for the time being ”in the sum of Rs. 500, for which payment he bound himself and hisheirs, executors and administrators. When he retired from the Secretary-ship, fresh Letters were issued to his successor, Mr. Peiris, on the basisthat there was an unadministered estate for him to succeed to asadministrator de bonis non : yet there is not to be found in the Code ofCivil Procedure power for the Court either to discharge an existingadministrator or to appoint an administrator de bonis non except uponthe death (not retirement) of a sole surviving administrator (S. 549).Rightly or wrongly, Mr. Peiris then took a new oath and entered intoa new Bond, made on this occasion in favour of “ N. Sinnetamby,District Judge of Colombo or . . . the District Judge of Colombo for thetime being ”, but again binding the giver of the Bond, his heirs, executorsand administrators.
When Mr. Peiris retired in his turn, no new Letters were issued toMr. Palliyaguru, nor did he take an oath or give a bond. The onlyofficial action which recognised him as administrator of the estate wasan order made on the 7th July, 1949, in the testamentary proceedingsdirecting him to be substituted for Mr. Peiris.
LORD RADCLIFFE—Salih v. VaUiyammai Atchi
There is not much that can be said about the course of practice, whichvery likely follows the practice accepted from time to time, except thatit is impossible to treat it as altogether consistent either with the ideathat the Secretary, when appointed by the Court under S. 520, is appointedin his individual capacity or with the idea that what is appointed isa corporation sole represented by the holder for the time being of theSecretary’s office. For, if the former, there was no way of getting ridof Mr. Culanthaivalu, the first holder, and no vacancy to which hissuccessors could be appointed : and, if the latter, there was no vacancyat any time and nothing to which either Mr. Peiris or Mr. Palliyagururequired appointment.
The change in procedure on the last occasion was no doubt due to adecision of the Supreme Court given in the same year, 1949, in the caseof Samarasekara v. Secretary of the District Court1. In that case theCourt (Basnayake and Gratiaen, JJ.) held that S. 520 contemplatedthe appointment of the Secretary of the Court as such and not theindividual who held the office of the Secretary at the time of the appoint-ment. Letters of Administration in such cases should, in their view,be addressed to the Secretary of the Court and not to the current holderby name, and a change of the individuals holding the office would notaffect the appointment once made. The sum of their judgment wasexpressed in their holding that the Civil Procedure Code intended theSecretary of the Court to possess “ all such attributes of a corporationsole as are necessary for the proper discharge of his functions quaadministrator ”.
Their Lordships accept this as a correct proposition. Despite thedifficulties created by the wording of certain sections and of the prescribedforms, they think that, having regard to the functions to be performedby the Secretary of the District Court and the evident intention thathis office should carry a continuing responsibility for the property tobe administered, it must have been intended that the Code shouldcreate the holder of the office a corporation sole for this purpose. Evenif their Lordships did not think that thk was the preferable conclusion,they would find themselves very reluctant indeed to overrule a decisionof this kind which has now stood for 12 years and upon the strengthof which many judgments and orders must have been made in thecourse of testamentary proceedings.
For these reasons the appellants’ first argument fails. There wasa proper defendant before the Court in the mortgage proceedings andMr. Palliyaguru did not require a grant of Letters of Administrationfor himself.
It must, however, be pointed out that the judgment of the SupremeCourt in Samarasekara’a case has not disposed of several difficultieswhich still attend the reconciliation of the requirements of the Civil
1 (1949) 51 N. L. R. 90.
LORD RADGLIFFE—Salih v. Valliyammai Atchi
Procedure Code with the responsibilities of the Secretary of the Courtas administrator. If it is a corporation sole which is appointed in thefirst instance, what is the correct form of security to be offered by thatcorporation ? The provision of proper security is of the first importancewhen the assets of an estate are entrusted to the hands of a stranger.The Supreme Court themselves said in their judgment in that case thatForm No. 90 was inappropriate to a Secretary administrator : but neitherthere nor in their judgment in the present case, where they seem to havefollowed the same principle, did they indicate what should be done toensure that proper security is at all times available. Should theSecretary in office when the appointment is made give a bond for theoffice binding himself and his successors, and, if so, out of what funds,public or private, should the penalty be exacted if there should bedevastavit ? And, again, is there to be indemnity at the public expenseif the corporation sole commits devastavit ? It does not seem satisfactorythat the estate should be secured by the mere personal bond of theSecretary in his individual capacity. And what should be the form ofoath appropriate to the corporation sole, and should a new oath berequired from each new holder ? Their Lordships must earnestlycommend these questions to the attention of the authorities in Ceylon,for the present position calls for immediate review and it looks as if itmay be necessary to produce new statutory forms and even, possibly,new statutory provisions if a complete scheme is to be provided.
Turning now to the appellants’ second ground of appeal, theirLordships are of opinion that the decision of the Supreme Court oughtnot to stand. It is quite true that as a general rule a secured creditorof an estate is entitled to decline to rely on his security and to claimpayment out of the estate as a whole ; though it must be rememberedthat if he does so his action releases the secured property into the generalpool of assets, and the creditor does not make a side deal, as was donehere, with the specific devisees of the land subject to the mortgagewith the intention of exempting their property from any contributionat all towards the satisfaction of his debt. It is quite true, too, thatan unsatisfied creditor is entitled to follow assets of the estate into thehands of devisees or legatees and those claiming through them for thepurpose of obtaining payment : but this right of following is funda-mentally an equitable right. As such it is liable to be lost by lachesand acquiescence on the part of the creditor or by other conduct whichraises an equity against him (see Ridgway v. Newstead1) ; or it may bedefeated by a sale by the devisee to a purchaser for value without noticeor by a transfer from the devisee to someone who takes in considerationof marriage (see Dilkes v. Broadmead2, Spackman v. Timbrell3). Insuch cases the marriage consideration is as effective a bar as a purchasefor value without notice, and this should be so, since the property istransferred as provision for an alteration of status which is in its natureirrevocable-. From this aspect the decision in the case of Theodoris
1 2 Giff. 492.
•8 Sim. 253.
a 2 Giff. 113.
LORD RADCX.IFFE—Salih v. Valliyammai Atchi
Fernando v. W. L. Kostin Fernando1, the correctness of which wasdoubted by the Supreme Court, must be regarded as unexceptionable.Nor is the creditor affected to his prejudice by these rules ; for, whilehe cannot follow the property against the purchaser, he can follow thepurchase price in the hands of the devisee and, if there has been a transferin consideration of marriage, he can claim as assets from the transferorthe value equivalent to that which has been transferred.
These general principles of equity are in their Lordships’ opinionfully applicable to the administration of a deceased’s estate in Ceylon(see Staples v. de Saram a, Qavinv. Hadden3 ). If they are applied to thecircumstances of the present case, it must result that the disputed landis not liable to be seized to satisfy the first respondent’s decree. Thefirst and second appellants derive title to it through their mother andshe took it from her brother in consideration of marriage, “ a dowryor marriage gift absolute and irrevocable ”, as it is described in hisDeed of the 21st December, 1941. The transfer on marriage blocks thefirst respondent’s claim. Even if this was not enough in itself, thedefence is strongly reinforced by the other circumstances of the case.The mortgagee stood by while administration was proceeding duringall the years until 1949, ostensibly in possession of an ample securityand without making any call for payment off of the mortgage monies.This alone would not be prejudicial ; but if, when at length proceedingsare taken, the mortgagee deliberately denudes herself of her security,apparently with the intention of favouring the devisees of the landsubject to the mortgage at the expense of other devisees, she has onlyherself to blame if she finds that her rights against other devised propertyare not so far-reaching as she may have wished to suppose. It is notthat in the absence of evidence the Court will impute to the firstrespondent bad faith in the making of the arrangement that she madein the course of the mortgage action ; but it is that, if such an arrange-ment is made, without explanation, at the time and in the circumstancesthat prevailed here, the creditor’s equity to follow assets after they havepassed from the hands of the executor may find itself destroyed by themere situation that the creditor’s own choice has brought about.
For the reasons that have been set out their Lordships will humblyadvise Her Majesty that the appeal should be allowed ; that the Judgmentand Decree of the District Court of Colombo dated the 5th July 1954dismissing the first respondent’s action with costs should be restored ;and that the Judgment and Decree of the Supreme Court dated the4th December 1957 should be reversed and that in lieu thereof the firstrespondent should be ordered to pay the appellants’ costs of the hearingbefore that Court. The first respondent must also pay the appellants'costs of this appeal.
1 (1901) 2 Browne's Reports 277.' (1863-68) Ramanathan 2651
8 8 -Moore N:S. 90.
A. .R. B. A. SALITH and others, Appellants, and VALLIYAMMAI ATCHI and another, R