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Present : Ennis J. and Shaw J.
ARUNASALEM v. SOMASUNDEEAM98 and 99—D. C. Jaffna, 7,668
Land held in trust for another—Action by heir against trustee—Is adminis-tratortheonly partyentitledto sue f—Interlocutoryappeal—Does
itipso facto stay proceedings in the action ?—Appeal—Bond
hypothecatingsecurity—Stamps instead of moneytendered for
serving notice of appeal—Eesad judicata—Withdrawalof case by
administratei—^Action by hoir—Prescription.
Plaintiff and defendantswerethe heirs ofoneAruoasalem
Chetty,andentitled toa halfshare of his property.Arunasalem
Chetty’s agents inCeylon conveyed the landsin question tothe
defendants, when he in turn became Arunasalem Chetty's agent.After Arunasalem Chetty'sdeathplaintiff broughtthisaction for
declarationof title to ahalfshareof the landsor for a conveyance.
It was contended for thedefendant that as thelegaltitle vested
in the defendant, the only claim possible was for a conveyance, andthat sucha claim was" achosein action, ”upon which the ad-
ministrator alone had the right to sue.
Held, that the plaintiff had the right to maintain this action.
Shaw J.—The propertyofa deceased personwho dibs intestate
passes on his deathto his heirs, subject tothe right of the adminis-trator to sellfor the purposes of administrationif necessary.
This principalapplies topropertyheldin trust for thedeceased as
well as to propertythe legal title to which wasvested in him,and
the heir can enforce his rights tosuch property ifit isnot required
by theadministratorforthepurposes ofadministration. An
interlocutory appeal does not ipso facto stay proceedings ir. theaction pending the determination of the appeal.
rJ1HEfactsare setout inthejudgment.
Bawa, K.C. (withhim SamaraunokremeandCanakaratne),for
St. V. Jayawardene (with him Drieberg), lor respondent.
F. de Silva (with him Thtagarajah), for added respondent.
Cur. adv. vult.
July 16, 1918. Ennis J:—
In this action the plaintiff, Arunasalem Chetty, claimed againstthe defendant, Somasunderam Chetty, a declaration of title to ahalf share in five lands, or in the alternative that the defendant beordered to convey a half share to him. The plaintiff further prayed
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for possession ; for Rs. 37,976.50 as balance due in respect of profitsfor a half share from 1901 to 1908 ; for an account, or Rs. 20,625, iurespect of a half share of the profits from 1908 to the date of action,viz., December 16, 1910 ; and for further damages thereafter at therate of Rs. 900 per annum. The learned District Jundge found infavour of the plaintiff, and the defendant appeals (Appeal No. 99).
The lands Nos. 1 to 4 originally belonged to James Price Todd,who conveyed them by deed No. 319 of April 28, 1898. to Suppra-maniam Chetty, who on May 1, 1910, conveyed them to the defendantby deed No. 911.
Land No. 5 originally belonged to Henry J. Todd, and on a writof execution against him was sold by the Fiscal and conveyed toNachchiappa Chetty on March 16, 1900, who by deed No. 907 datedApril 24, 1900, conveyed to the defendant.
Both Suppramaniam Chetty and Nachchiappa Chetty were theagents of Arunasalem Chetty, the grandfather of the presentplaintiff, and bought with his money for him. The lands wereconveyed by them to the defendant, when he in turn became theagent. The question as to whether the defendant held the land ina representative capacity was decided in favour of ArunasalemChetty in Jaffna District Court case No. 6,697. between the sameparties. The decision was affirmed by this Court on appeal,1 andagain on appeal to the Privy Council. 2 Counsel for the defendant-appellant accepts the findings in that case that the lands wereconveyed to the defendant, in trust.
After the institution of the present action on December 16, 1910,it. was stayed until the decision in No. 6,697; and that case havingbeen finally disposed of by the Privy Council on October 26, 1917,the present case came on for trial.
Arunasalem Chetty, the senior, died in 1901, and the plaintiff anddefendant are his sole heirs, each entitled-to a half share in hisproperty. At the trial the defendant took the objection that theplaintiff could not maintain the action, as the administrator hadnot been joined, and on June 8, 1918, the learned District Judgemade an order, with the consent of the administrator, adding theadministrator as a plaintiff. The defendant also appeals from thisorder (Appeal No. 98).
Three preliminary objections were taken to the appeals : —
That no money had been deposited in Court, within theprescribed period, to meet the expenses of serving notice ofappeal, as required by section 756 of the Civil Procedure Code ;
That the amount deposited as security for the appeal has notbeen hypothecated ; and
That the appeals were not properly constituted, as the
administrator had not been made a party.
'(1914) 17 N.L.R. 257'Privy Council Appeal No. 79 of 1915.
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With regard to the first objection, it appears that stamps wereaffixed, within the prescribed period, to the notices of appeal, whichwere duly served. Stamps are used as a means for accounting formoney, and that they were affixed proves that the amount wasreceived by the Court. I would over-rule the first objection.
With regard to the second objection, it appears that the bonds
contain a clause “ for better securing the payment I hereby
deposit the said sum as per kachcheri receipt
No ”. The mention in the bond of the specific deposit “ for
better securing the payment ” is, in my opinion, an hypothecationof that deposit. I would over-rule the second objection.
With regard to the last objection, it was agreed that the adminis-trator should be added as a party to the appeals, leaving open theappellant’s objection to his addition as a party plaintiff in the case,and, as counsel for the administrator was present and also agreed,this was allowed, and the hearing of the appeals proceeded. It wasargued for the appellant—
That the first plaintiff could not maintain the action.
That the matter was res adjudicata against the administrator,
and through him against the plaintiff, by the withdrawal of caseNo. 7,208, H. C. Jaffna, filed by the administrator in respectof the same cause of action, and that the learned Judge waswrong in refusing to frame an issue on this point.
(8) That the filing of the appeal No. 08 against the order ofJune 8, 1918, stayed proceedings, and that all proceedingsafter that date were null and void.
That the claim was prescribed.
With regard to the first point, it was contended that as the legaltitle vested in the defendant, the only claim possible was for aconveyance, and that such a claim was “ a chose in action, ” uponwhich the administrator alone could sue. To meet this, it waspointed out that the administrator had filed an action, viz., No. 7,208,in which the present appellant, in answer, had objected, on theground that the administrator could not do so without an avermentthat the lands in question were required for the purposes of adminis-tration; that the administrator could not then make such anaverment ; and that, since he has been joined in the present action,has declared that he does not so require the lands. Counsel forthe respondent further urged that the plaintiff’s action was anaction by an heir who had reduced the lands to possession. Herelied on P 1, an agreement made in 1901 between the plaintiff andthe defendant, whereby one Raman was appointed their joint agentfor the management of these lands, and the evidence of Pn'aniappaChetty, who was the Colombo agent for the plaintiff and defendantfor the three years 1901 to 1904, and who received from Ramanremittances in respect of the lands. There is, in my opinion,ample proof that the defendant was in possession through Raman,.
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and that his .possession was not interfered with till 1908, whenplaintiff first claimed the whole estate, as found in the case No. 6,697.In my opinion the plaintiff as heir in possession can maintain theaction, especially as the' administrator does not require the landsfor purposes of administration.
On the second point, section 406 of the Code of Civil Procedurewas cited, and the appellant filed, with an affidavit, a copy of theproceedings in case No. 7,208. In my opinion the learned DistrictJudge was right in refusing to allow the issue proposed by thedefendant. The point could have been raised in case No. 6,697,for the decision in which the present case has been standing over .for years. It was not raised in that case, and it is too late to raiseit now. Moreover, to raise it would require an amendment of theplaint in this case in so far as the first plaintiff is concerned, and noapplication to amend it has been made. Further, the applicability ofsection 406 is not beyond question: if the alternative (b) is omitted,the rest of the section read with (a) would seem to have no meaning,unless after the word “ application ” the words “ for permission towithdraw ” are understood; the section, moreover, does not expresslybar privies of parties withdrawing. It was sought to draw ananalogy in this respect with section 207. I do not see any analogy,as a withdrawal is not an adjudication. The authorities dealingwith section 207 have held that the section is not exhaustive of thesubject of res adjudicata, and there is no reason that I can see forapplying such a ruling by analogy to cases of withdrawal.
For the appellant's third argument the case of Cassim LebbeMarikar v. Surayi Lebbe,1 4 Nathan 2360, and Voet 49, 6, 1, werecited. I see no occasion to refer to the Koman-Dutch authorities.Section 4 of the Civil Procedure Code governs the question. As tothe practice, it seems to me to be clear that when an act or omissionof a party is to abate the action, special provision is made in theCode, and, short of abatement of action, proceedings can only bestayed by an order. In the case of Cassim Lebbe Marikar v. SurayiLebbe,1 the Court from which the appeal was had was to considerthe stay of proceedings in execution. No case has been cited tous where the act of a party alone stays proceedings.
With regard to prescription. This point appears to have beenraised in case No. 6,697, and decided on the same set of facts. Theargument presented in this case was that the conveyances to thedefendant did not establish an express trust. In my opinion thelearned Judge is right in holding that the prefix of the vilasam beforethe defendant's name in the documents establishes an expresstrust, against which there is no prescription.
I see no reason whatever for interfering with the order andjudgment of the learned District Judge, and would dismiss theappeals, with costs.
3 C. L. P. 61.
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This is a step in some protracted legal proceedings, by means ofwhich the defendant has succeeded in keeping a co-heir out of hisinheritance for many years. So far as the facts and merits of thepresent case are concerned, they are precisely similar to thoseinvolved in the action between the same parties reported in17 N. L. R. 257.
That case related to another land claimed by the present defendantas his property, under identical circumstances to those under whichhe claims the lands the subject of the present action. In that casethe facts were all found against him, and the judgment of this Courtwas affirmed by the Privy Council, their Lordships in their judgmentstigmatizing his claim as a dishonest one.
The findings and decision in the previous case are acceptedon behalf of the defendant as governing the present action, butnumerous technical objections are raised, by which it is attemptedto defeat the plaintiff's claim to the lands. The first and principalobjection taken is that the plaintiff himself cannot maintain theaction to enforce the right to his share of the lands, and that theadministrator of the estate of the late Arunasalem Chetty alone hasthe right to sue.
It is also contended that the Judge was wrong in allowing theadministrator to be added as a plaintiff in the action, and that furtherproceedings in the action became ipso facto suspended by theplaintiff’s appeal from the interlocutory order of the Judge addingthe administrator as a party, and that the subsequent proceedingsare therefore void. It was further urged that any claim by theadministrator was barred by prescription at the time he was madea party to the suit, and that both he and the heir are precluded fromsucceeding in this action by reason of the withdrawal of a previousaction commenced by the administrator, in which he, as adminis-trator, claimed the lands in dispute from the defendant, and thatthe Judge was wrong in refusing to settle an issue to try this question.
In my view the decision of the Judge that the plaintiff was himselfentitled to maintain the action is correct. It was decided in theFull Court case of Silva v Silva,1 that the property of a deceasedperson who dies intestate passes in Ceylon on his death to his heirs,subject to the right of the administrator to sell for the purposes ofadministration if necessary. I can see no sufficient reason to holdthat this does not apply to property held in trust for the deceasedas well as to property the legal title to which was vested in him, and.in my opinion, the heir can enforce his rights to such property, ifit is not required by the administrator for the purposes of adminis-tration. This does not appear to me to conflict with the decisionin the unreported case, Fernando v. Sumanasara,2 to which I was
1(1901) 10 KJjJR. 234.»Reported Later.
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h party, that an executor or administrator is the only person whocan sue in respect of debts due to, or contracts entered into by, adeceased whose estate amounts to Rs. 1,000 and upwards. That theproperties in dispute were not required for the purposes of adminis-tration is clear, not only from the statement of the administratorhimself, but from the fact that from the death of Arunasalem Chettyuntil the year 1908, when the defendant repudiated his co-heir’srights, the properties remained in the possession of the heirs, andwere managed under the agreement of April 8, 1901, to which boththe plaintiff and defendant were parties.
With regard to the contention that an interlocutory appeal ipsofacto effects a stay of proceedings in the action pending the determi-nation of the appeal, there appears no foundation for it, either inthe Civil Procedure Code or the practice of the Courts. Ou thecontrary, to judge from the provisions of chapter LIX. regaling thesomewhat analogous case of an apeal from a decree, it would appearthat the Code does not contemplate an appeal acting as a stay ofproceedings, and, in my opinion, there is no stay of proceedings on aninterlocutory appeal, unless an application is made for the purposeand acceded to.
The opinion I have arrived at on these points renders it unneces-sary to consider the defendant's possible defences in an action bythe administrator. Clearly, if the plaintiff can maintain the, suit asheir under his title from the deceased, no withdrawal of any previousaction brought by the administrator can affect his rights.
Only one other point remains for consideration, namely, whetherthe heir’s claim or any part of it is barred by prescript-or. Theaction was commenced in December, 1910, and, according to theevidence in this case and the findings in the previous case, theplaintiff was in receipt of some of the rents and profits of the landsin dispute collected by Raman Chetty under the agreement betweenthe plaintiff and the defendant of April 8, 1901, up to the year 1908.Moreover, it was found in the previous case, and affirmed by thePrivy Council, that the conveyance to the defendant was a convey-ance to him as representing the firm of R. M. A. R. A. R.* anl he was,therefore, an express trustee of the lands and their proceeds Theprovisions of sections 14 and 15 of the Prescription Ordinance. 1871,seem also to be a sufficient answer to this objection.
I would dismiss the appeals, with costs.
ARUNASALEM v. SOMASUNDERAM