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Present: Shaw J. and De Sampayo J.
FERNANDO v. UNNANSE.3—D. G. Anuradhapura, 742.
Agreement between A and B—Death of the executor of A's estate withoutsuingon agreement—Actionby the administrator of theestate of
A's executor on the agreement—Action must be brought by adminis-trator de bonis non of A*s estate.
By a notarial agreement A 'put the defendant in possessionof certain property, on the condition that the defendant shoulddeliverto him ten half-yearlyinstalments,and further pay asum
of Bs. 15,000, and agreed to transfer the fields* to the defendant atthe expiration of five years if he fulfilled the condition.
A died leaving his widowB sole heir and executrixunder' his
last will. B obtained probate, and before the estate was fullyadministered she herself died intestate. The plaintiff obtainedletters of administration to the estate of his motlier B, and broughtthis action against the defendant on the agreement.
Held,that the plaintiff asadministratorof B’s estatecouldnot
sue -on the agreement, and that only an administrator de bonis nonof the estate of A himself could bring the action.
rj^HE facts are set out in the judgment of de Sampayo J.
Bawa, K.C. (with him Balasingham and Hay ley), for defendant,appellant.—The District Judge was wrong in refusing to frame theissues suggested by the defendant. The issue: Whether the lands inquestion were inventoried as forming part of the estate of W. D. A.Fernando, and whether probate-duty was paid, affects the right ofthe plaintiff to sue. See Silva v. Weerasuriya.1
The plaintiff is administrator of the executrix of W. D. A.Fernando. The contract sued upon is one between W. D. AFernando and the defendant. The plaintiff cannot sue on it. Onlyan administrator de bonis non can sue. See Williams on Executors,vol. 1. (10th ed.)t 604. The fact that the plaintiff is also sole heiro,f Mary Fernando and her husband W. D. A. Fernando does notgive him a legal status to sue.
The legal title to the lands in question may be in the plaintiff, asheld in Silva v. Silva,2 but that does not enable him to sue for theland or on the contract. Under section 547 of the Civil ProcedureCode the widow (Mary Fernando) herself cannot sue. How canthe administrator of Mary Fernando's estate sue ?
1 (1906) 10 N. L, R. 73.* (1907) 10 N. L. B. 234.
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Ihe right of a Ceylon, executor or administrator extends to landsas well as personal effects.
Counsel referred to 4 N. L. R. 201; 14 HdUbury 141, 195; 1 Lor.201; 10 N. L. R. 73.
J. 8. Jayawardene, for the plaintiff, respondent.—The objectionis a purely technical one. The plaintiff is sole heir. The last willof W. D. A. Fernando has been proved, and letters of probate wereissued to his widow (Mary Fernando). Letters of administrationwere issued to the plaintiff in respect of the estate of his mother,Mary Fernando. The title to the lands vests in the plaintiff. Thereis nothing in section 547 to prevent the plaintiff from suing, as theprovisions of that section have been complied with by the grant ofprobate and letters.
All the heirs of an intestate can sue on a contract of this nature.See judgment of Lawrie J. in Thomtpittai v. Naganather;1 see alsoLohu Appu v. Banda.2 In any case, the plaintiff may be given anopportunity to be appointed executor of W. D. A. Fernando's estate.
Cur. adv. vult.
April 19, 1918. Shaw J.—
This is an appeal from certain interlocutory orders made by theJudge. The only points pressed upon the appeal were, first, thatthe Judge was wrong in refusing to frame certain issues suggestedby the defendant; and second, that he was wrong in his decision ofa preliminary issue that the plaintiff had a right to maintain theaction.
The second point is one of some importance, and raises a questionon which there appears to be no direct authority in this Colony.
The action is brought by the administrator of one Mary Fernando,and the principal claim made is for damages for breach of an agree-ment contained in an indenture dated August 15, 1912, madebetween the defendant and one W. D. A. Fernando.
W. D. A. Fernando died on March 9, 1915, and probate of hiswill was granted to Mary Fernando, his widow and executrix, onJuly 27, 1915. Under the terms of the will Mary Fernando wassole heir.
The indenture of August 15, 1912, was in effect an agreementfor the sale by W. D. A. Fernando to the defendant of certainproperty in consideration of the payment by the defendant of 10,000bushels of paddy in ten half-yearly instalments, or its value atRe. 1.50 a bushel, and a further payment of Rs, 15,000 at the endof five years. The indenture also contained provisions as to therights of parties should either of them fail to carry out the terms ofthe agreement.
1 (1885) 7 S. C. C. 23.
8 (1884) 7 S. C. C. 23.
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The objection taken to the plaintiff maintaining the presentaction is that he is not the legal representative of W. D. A. Fernando,who alone has a right to sue on the agreement. The Judge has heldthat the plaintiff being sole heir and administrator of Mary Fernando,who inherited by will freon W. D. A. Fernando, is entitled to main-tain the action.
That an administrator of an executor does not represent theoriginal testator, and cannot in his capacity of such administratorsue in respect of debts due to the original testator, is undoubtedlaw (see Williams on Executors, 10th edition, page 180, and authoritiesthere cited). It is contended, however, that the plaintiff in thepresent action can sue because he represents Mary Fernando, whois W. D. A. Fernando's sole heir.
It has been held in the Full Court case, Silva v. Silva,1 reviewing theearlier decisions, that in Ceylon property, movable and immovable,passes on the death of a person to the heirs by operation of law,and, subject to the right of the legal representative to deal withthe property for the purpose of administration, they have fullpower to deal with the property without the concurrence of thepersonal representative.
The effect of the decision appears to me to be, as stated byHutchinson C.J. in Silva v. Silva,1 that an executor or administrator inCeylon has the same power as regards the immovables as an Englishpersonal representative had previously as regards chattels, or, as itwas put in the judgment of the Privy Council in Qavin v. Hadden,2an executor in Ceylon has the same power as an English executor,with the addition that it extends over all real estate, just as inEngland it extends over chattels personal.
The power of the heir to deal with the property without theconcurrence of the personal representative does not seem to me,however, to at all necessarily import a power in the heir to sue uponcontracts made by, or to recover by action debts due to, the deceased,and no case has been cited to us in which an heir has successfullysued in such an action where an executor or administrator has beenappointed, or where it was necessary to take out probate or lettersof administration under our law. The cases of Lohu Appu v.Banda3 and Thomipillai v, Naganather4 were both cases of smallestates, to which personal representation was unnecessary underthe existing law, and in which probate would not now be necessaryunder the provisions of chapter XXXVIII. of the Civil ProcedureCode. So far at any rate as regards debt due to, or contractsentered into by, the deceased, I agree with the opinion expressedby Bonser C.J. in Fernando v. Fernanda,5 that the effect of theprovisions in the Civil Procedure Code is that the executor or
» (1907) 10 N. L. R. 234.* (1884) 7 S. C. C. 3.
» (1871) 8 Moore's P. C. Cases 90.4 (1885) 7 S. C. C. 23.
s (1900) 4 N. L. R. 201.
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administrator is the only person who can sue in respect of an estateamounting to Bs. 1,000 and upwards. The result is that, in my'view, tiie only person who can succeed in such a claim as that underconsideration is the personal representative of W. D. A. Fernando.
The point in the present case is a purely technical one, for theplaintiff, being the administrator of the sole heir, is clearly entitledto be appointed administrator de bonis non of W. D. A. Fernando’sestate. Under the circumstances of the present case, I would directthe proceedings in the action should be suspended, to enable theplaintiff to regularize his position by obtaining a grant from theproper Court.
With regard to the other point in the appeal, the additional issuessuggested by the defendant were not seriously opposed on thehearing of the appeal, and I see no reason why they should not beadopted.
The appellant is entitled to the costs of the appeal and theargument in the Court below.
De Sampayo J.—
The facts leading up to this case may be shortly stated as follows.One W. D. Andris Fernando was the owner of two paddy fields,over 90 acres in extent, situated at Anuradhapura. On August 15,1912, Andris Fernando and the defendant, who is the chief priestof Buwanwelisaya Dagoba, entered into a notarial agreement,whereby Andris Fernando put the defendant in possession of thefields on the terms that-the defendant should deliver to him 10,000bushels of paddy within five years, in equal half-yearly instalments,or pay their value at the rate of Be. 1.50 per bushel, and shouldalso pay to him a further sum of Bs. 15,000, and that, in considera-on May 29, 1916. The plaintiff, who appears to be a son of AndrisFernando should at expiration of the five years transfer the fieldsto the defendant. Andris Fernando died on March 9, 1915, havingexecuted a last will jointly with his wife Mary Fernando, wherebythey appointed the survivor the sole heir and executor. MaryFernando, who survived her husband, obtained probate of the will,and before the estate was fully administered she herself died intestateon May 29, 1916. The plaintiff, who appears to be a son of AndrisFernando, obtained letters of administration to the estate of hismother, Mary Fernando. The plaintiff as such administratorbrought this action against the defendant on the said agreement,alleging that the defendant had failed to deliver any paddy or topay any money as agreed, save a sum of Bs. 600, and praying forcancellation of the agreement, for ejectment of the defendant fromthe fields, and for judgment for Bs. 27,000 as damages, and Bs. 460a month as further damages from the date of the action till restora-tion into possession. Among other defences, the defendant pleaded,29 –
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as a. matter of law, that the averments in the plaint did not discloseany right in the plaintiff to maintain the action. At the trial thi>plea resolved itself into an objection, that the plaintiff as adminis-trator of the estate of Mary Fernando could not sue on the defendant'sagreement with Andris Fernando, and that only an administratorde bonis non of the estate of Andris Fernando himself could bringsuch an action. It was also objected that the fields in questionhad not been inventoried in Andris Fernando's testamentary caseand probate duty thereon paid, and an issue on that point wassuggested on behalf of the defendant. The District Judge over-ruled the legal objection as to the plaintiff's right to sue, andrefused to accept the issue with regard to the non-payment ofsufficient probate duty, and the defendant has appealed from theseorders.
In my opinion, the contention that the plaintiff has not the requi-site capacity to maintain this action is entitled to prevail. Theclaim founded on the agreement i$ a chose in action belonging tothe estate of Andris Fernando, and can only be enforced by hislegal representative. If Mary Fernando had herself made a willand appointed an executor thereof, such executor would underthe law have the right to administer the original estate, and mightproperly have brought an action to enforce the • agreement. Butthe plaintiff, as her administrator, is not in the same position. Itis, however, contended that by virtue of the joint will. the claimon the agreement became Mary Fernando’s own property, and thatshe could have sued in her personal capacity, and so could heradministrator, and reliance is placed on Silva v. Silva.1 In myopinion that decision is not an authority for the contention onbehalf of the plaintiff. What is there decided is that the propertyof a deceased person descends by operation of law to his • heirsindependently of any administrator, and that they having legaltitle may transfer such property without any concurrence or assentof the administrator, subject only to the right of the administratorto deal with the property for purposes of administration. Theheirs referred to are heirs ab intestato, and I doubt whether thereasoning applies to a mere devisee or legatee. In any event, itseems to me that, though rights of action are a species of property,the decision is not intended to go so. far as to hold where the deceasedleaves a will, or iris estate- is of such a character as to require adminis-tration, the heirs themselves can sue:.to. enforce mere choses in action.Whatever rights they may have to property in possession, I do notthink they have a similar right to things which have still to bereduced into possession by action. By-the English law of executorsand administrators*, which, generally prevails in Ceylon, the right tobring such actions is vested in the executor or administrator alone.Bee Williams on Executors * It is true that the right to sue on1 [1907) 10 N. L, B. 934.* 10th ed.9 FoZ. 1, p. 604 el seq.
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covenants real in many cases descends to the heirs of tire canvenanteeto the exclusion of the executor. Ibid., p. 619. But in Ceylon thereis no distinction between real and personal property, and with usthe power of an executor or administrator extends to both speciesof property. Moreover, the agreement with which the present caseis concerned is in no sense a covenant real. The Civil ProcedureCode, so far as it contains provisions relevant to this matter, appearsto me to be on a line with the English law. Section 547 declaresthat “ no action shall be maintainable for the recovery of anyproperty, movable or immovable, in Ceylon, belonging to or includedin the estate or effects of any person dying testate or intestate in orout of Ceylonunless grant of probate or letters of adminis-
tration duly stamped shall first have been issued to some person orpersons as. executor or administrator of such testator or intestate.” Icannot agree to the construction sought to be placed on this provision,viz., that, provided grant of probate or letters has been issued to someone, the heirs may sue to recover property which was never reducedto possession by the executor or administrator. It seems to me thatin such cases no one but the executor or administrator can maintainan action. 'Hie inconvenience of any other course is obvious. Theexecutor or administrator admittedly may sue, and it can neverbe intended that the heirs may also sue at the same time on thesame cause of action. Moreover, the third party is entitled todischarge his obligation by payment before ‘ action, and should notbe put to the necessity of finding out who the heirs are, or of payingover again to the executor or administrator if he has paid to' thewrong persons as heirs. Again, the executor or administrator mayrequire the money realized for purposes of administration, and thepayment to the heirs instead of himself ' may effectually defeatthose purposes, and may, in addition, expose him to personal liabilityto the creditors of the estate. The very object of appointing a legalrepresentative is that there may be one recognized person who isentrusted with the duty as well as the power of collecting assets,paying debts, and necessary expenses, and distributing the estatein the course of the administration. He is liable to account forassets and disbursements, and is responsible to the Court as well asto the parties interested for his proceedings. The realization ofassets by the heirs for distribution among themselves according totheir own will and pleasure and without any responsibility is notonly highly inconvenient, but-ris, in my opinion, disallowed by law.I think, therefore, that the objection to the maintenance of thisaction by the plaintiff, who does not represent the estate of AndrisFernando, is sound.
As regards the other objection, founded on the alleged deficiencyof probate duty, I think the issue suggested should have beenaccepted, and the facts relating thereto should have been ascertained.Although the District Judge refused to state an issue, he has in fact
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decided it in favour of the plaintiff, because'it appears that theinventory includes an item of Bs. 17,500 as due by the defendant.This sum is said to be the claim against the defendant on the agree-ment in question. This may be so, but the amount of money soughtto be recovered in the present action is much higher, even apartfrom the value of the lands, the possession of which is also claimed.It seems to me that there should have been some inquiry upon aproperly framed issue as to whether the probate granted to MaryFernando was duly stamped.
In the circumstances of the case, however, neither of theseobjections should result in an entire dismissal of the action. ThisCouth has frequently given an opportunity to a plaintiff to obtainprobate or letters of administration, and regularize his position whenthe action has been brought without the fulfilment of that preli-minary condition, and I think that course may be adopted in thiscase. At the same time, the plaintiff may be allowed to supply theadditional stamps for the probate, if it be found that the probateis now insufficiently stamped. I would set aside the orders appealedfrom and send the .case back, with the direction that the trial ofthe case should be suspended until the plaintiff obtains administra-tion de bonis non to the estate of Andris Fernando within such rimeas the District Judge may think fit to allow, and that an issue asto the due stamping of the probate issued to Mary Fernando shouldalso be accepted and tried, and if it be decided in the negative, theplaintiff should be given a similar opportunity to have the omissionrectified. I would allow the defendant the costs of appeal and ofthe argument in the Court below.
FERNANDO v. UNNANSE