Haniffa v. (fader
1941Present: Soertsz and Wijeyewardene JJ.
HANIFFA v. CADER et ah75—D. C. (Inty.) Kurunegala, 216
Administration—Action by widow—Application for letters by widow—Recallof letters and reissue rto attorney—Irregularity in proceedings—EvidenceOrdinance, s. 44—Application to add attorney—Defendants bound byorder in testamentary suit—Amendment of pleadings—Civil ProcedureCode, ss. 42, 472, and 547.
The plaint was instituted by the widow of a deceased person, R,asking for a declaration that she and her children were entitled to abusiness carried on by the deceased under the name of S. R. M., the'profits of which it was alleged were being misappropriated by thedefendants, who were employees of the deceased.
On November 25, 1939, the widow obtained letters of administrationto the estate of the deceased but on January 20, 1940, the letters wererecalled on her application and issued to her attorney H, with theconsent of the heirs.
On February 7, 1940, application was made in the action to have Hmade an added -plaintiff and to make certain amendments in the plaintto enable the widow and children as heirs of the estate of R, representedby the added-plaintiif, the administrator thereof,, to claim a decree ofCourt in respect of the entire business.
Held, it was not open to the defendants to question the validity of the-appointment of H as administrator on the ground of any irregularitythat may have occurred on the administration proceedings.
Held, further, that the amendments should be allowed as they do notenlarge the scope of the action or cause any prejudice to the defendants.
^^PPEAL from an order of the D'istrict Judge of Kurunegala.
N. E. Weerasooria, K.C. (with ’.him E. A. P. Wijeyeratne), for appellants.
H. V. Perera, K.C. (with him N. Nadarajah), for respondents.
Cur. adv. vult.
1 21 V. L. R. G2.
WUEYEWARDENE J.—Haniffa v. Coder
May 5, 1941. Wxjeyewahdene J.—
The plaint in this case was filed on October 7, 1939, by one Pathummathrough her attorney K. M. M. Haniffa. It was stated in the plaintby Pathumma—
(i.) that one Rawther was the sole owner of a business in rice andsundries carried on under the name of S. R. M.
(ii.) that Rawther died in India in September, 1939, leaving her as hiswidow and five minor children.
<iii.) that the defendants who were employees of Rawther—the firstdefendant being in addition an attorney of Rawther—weremisappropriating the profits of the business, falsifying theaccounts and removing the goods with the object of defraudingher and her children.
(iv.) that irreparable loss and damage would be caused to her and herchildren unless “ the immediate intervention of the Court wasobtained before letters of administration were granted ”.
(v.) that she intended applying for letters of administration.
The prayer in the plaint was for a decree declaring her and her childrenthe owners of the entire business and granting them some incidentalrelief.
On October 9, 1939, Pathumma moved the Court for the appointmentof a receiver in terms of section 671 of the Civil Procedure Code. OnNovember 25, 1939, she withdrew that motion on the defendants under-taking to deposit a sum of Rs. 2,000 “ as security for any sum that may befound due by Court to be payable Certain other, arrangements werealso made at the time without prejudice to the rights of the parties,to enable the plaintiff to take stock of the goods and examine the booksof account.
The defendants-respondents filed answers in October and December,1939, claiming to be partners of the firm with Rawther and pleadingthat the plaintiff’s remedy was to ask for an accounting after takingletters of administration.
Pathumma obtained letters of administration in D. C. (Testy.)Kurunegala, No. 4,370, in respect of the estate of Rawther on November25,1939, the Supreme Court having conferred sole testamentary
jurisdiction on the District Court of Kurunegala for that purpose. – OnJanuary 30, 1940, Pathumma moved in the testamentary case that theletters issued to her be recalled as owing to her absence in India theadministration of the estate by her had become impracticable. TheDistrict Judge allowed this motion which was made with the consent ofthe heirs. On the same day Haniffa, with the consent of the heirs,moved that letters be issued to him. The District Judge issued lettersto Haniffa that day itself on his filing the oath of office.
On February, 1940, Pathumma’s Proctor filed a motion in this actionto have Haniffa made an “ added plaintiff ” and to make certain amend-ments in the plaint calculated to enable! Pathumma and her children“ as heirs of the estate of Rawther represented by the added-plaintiffthe administrator thereof" to claim a decree of Court in respect of theentire business against the -defendants-respondents. On an objection
WUEYEWARDENE J.—Haniffa v. Coder
raised by the defendants-respondents, the District Judge held thatHaniffa’s appointment as administrator was invalid and disallowed themotion. The present appeal is preferred against that order by Pathummaand Haniffa.
The three main questions that have to be considered on this appeal are—(i.) Is Haniffa a duly appointed administrator ?
(iL) Is it open to the defendants-respondents to question in this casethe validity of Haniffa’s appointment as administrator ?
(iii.) Are the suggested amendments of the various paragraphs in theplaint liable to be rejected on the ground that they tend toenlarge the scope of the action ?
The District Judge allowed Haniffa’s application ip the testamentarycase to be appointed administrator and issued letters of administrationto him without any such advertisement as is referred to in section 532of the Civil Procedure Code. It was contended on behalf of theappellants that, as there had been due advertisement of the earlierapplication of Pathumma for letters of administration, it was notnecessary to give any notice of the application of Haniffa and the learnedCounsel for the appellants sought to support his argument by referenceto sections 534 and 549 of the Code. It was argued that section 532of the Code required only the first application for letters of administrationto be advertised and that there was no provision in the Code requiringsuch advertisement in respect of a subsequent application except in thespecial cases falling under section 549. The Counsel’s argument, if Iunderstood him right, was that an application required advertisementin order to give notice to the world that the estate of a person was beingadministered as that of a deceased person, and that once the world hadbeen given notice of that fact by the advertisement of the first application,there was no reason for giving notice of the same fact by advertising asubsequent application.
The appointment of Haniffa was not, however, made under section 534.Letters were issued to him after the revocation of the grant to Pathumma.The answer to the question whether there should have been an advertise-ment in respect of Haniffa’s application depends on a consideration ofsections 532 and 549 of the Code. I think that such an advertisement wasnecessary, as section 532 is operative “ in all cases of application for thegrant of the administration of a deceased’s property ”. No doubt section549 specifically enacts that such advertisement is necessary in the caseof a fresh grant of administration on the death of an administratorleaving a part of the deceased’s property administered. I do not thinkthat can be regarded as an indication of the intention of the Legislaturethat in all other cases where a fresh grant of administration is made,such advertisement is not necessary. It has, however, to be concededthat the need for such an advertisement in the circumstances underwhich Haniffa’s application was made depends on the interpretation ofthe various sections in the Code and that there has not been a uniformpractice in matters such as these in our Courts. Therefore the most thatcan be said against the order made in the testamentary case is, that theDistrict Judge has on a wrong interpretation of the law issued the letters
WIJEYEWARDENE J.—Haniffa v. Coder
to Haniffa without a due advertisement of his application. I do notthink however that the defendants are entitled to question the validityof Haniffa’s appointment in these circumstances. Under section 41 ofthe Evidence Ordinance the order made in the testamentary case wouldbe conclusive proof of the fact that the legal character which it conferredaccrued to Haniffa at the time when the order came into operation.The respondents seek to impugn the conclusive nature of that orderon the ground that the order was made by “ a Court not competent todeliver it ” (vide section 44 of the Evidence Ordinance). It cannot bedenied that the District Court of Kurunegala was duly empowered toentertain an application for the administration of the estate of Rawther.The fact that the Judge made an incorrect interpretation of the lawregarding the need for notice—if it be correct to say that the Judge’sinterpretation was wrong—did not deprive him of the jurisdictionwhich was vested in him when he entertained the application. Theremight have been a wrong exercise of the jurisdiction which the DistrictJudge had but not a usurpation of a jurisdiction which the Judge did nothave. In Malkarjun Bin Shidramppa Pasare and Narhari Bin Shivappa'the Privy Council said, “ The real complaint here is that the executionCourt construed the Code erroneously. Acting in its duty to make theestate of Nagappa available for payment of his debt it served with noticea person who did not legally represent the estate, and on objectiondecided that he did represent it. But to treat such an error as destroyingthe jurisdiction of the Court is calculated to introduce great confusioninto the administration of the law ”. In his commentary on the Law ofEvidence, Ameer Ali says, “ It cannot be said that whenever a decisionis wrong in law or violates a rule of procedure, the Court must be heldincompetent to deliver it.” That statement of the law is founded on theJudgment of the Full Bench in Castan v. Caston" which has been followedin Nathu Ram v. Kaluan Das s. In Caston v. Caston (supra) it was arguedthat in view of section 17 of the Indian Divorce Act No. IV. of 1869 adecree absolute of nullity of marriage pronounced by the High Courtshould be regarded as a nullity because it was pronounced before sixmonths had elapsed from the date of the decree of the District Judgewhich it confirmed. Strachey C.J. rejected the argument and said in thecourse of his judgment: —
“ Since the High Court had jurisdiction in the suit, it follows that ithad jurisdiction to consider and determine every question of law orfact arising in the suit. This would of course include any question ofprocedure, such as the question of the construction of sections 17 and20 of the Indian Divorce Act. To illustrate this let us suppose thatat the hearing either the petitioner or the respondent had formallytaken the objection that an adjournment was necessary, as under theproviso in section 17 the decree could not be confirmed until thesix months had expired. Suppose further that, after full argumenton the point, the High Court had taken a view of section 17 differentfrom that expressed in the Bombay case, and had confirmed the decreeof the Judicial Commissioner accordingly. In such a case surely the
1 27 Indian Appeals 216.11. L. R. 22 Allahabad 271.
3 I. L. R. 26 Allahabad 623.
WIJEYEWARDENE J.—Haniffa v. Coder
Court would not only be competent but bound to decide the questionthus raised and argued. If competent to consider and decide thequestion, it cannot be supposed that the Court was ‘ competent ’to decide it in one particular way only. This shows that even if thedecision was erroneous or irregular, the Court was nevertheless* competent to deliver it ’ . . . . The competency or jurisdic-tion of the Court cannot possibly depend on whether a point which itdecides has been raised or argued by a party or Counsel. An expressdecision upon the construction of sections 17 and 20 and an implieddecision must stand on the same footing. The view that the decreewas a nullity by reason of the proviso in section 17 could only besupported on the principle where every decision is wrong in law, orviolated a rule of procedure, the Court must be held incompetent todeliver it. Such a principle is obviously unsustainable. In the firstplace it is opposed to the language of sections 41 and 44 of the EvidenceAct, which were undoubtedly meant to make the decree which theyreferred to conclusive except in a very restricted class of cases. If theintention had been to make such decrees questionable on the ground ofany legal defect or irregularity, very different expressions would havebeen used, and it would be inaccurate to describe such decrees asconstituting * conclusive proof
I shall now discuss thje third question more specifically. The actionwas instituted in order to obtain a decree in respect of the entire businessand not merely the widow’s share of the business. This is made clearby the prayer in the plaint that “ she and her minor children be declaredthe owners and proprietors of the business ”.
Apart from any question of administration, the action could have beenproperly instituted and maintained if the widow and the minor childrenappearing by a next friend were named as the plaintiffs. There is noreason to suppose that the omission to have the minor children also asplaintiffs was due to any cause other than a bona fide mistake. Therecould have been no substantial objection to her getting the childrenadded and a next friend appointed when the defendants pleaded in theiranswers that she could not claim in this action the shares of her children.Such an addition would not have resulted in enlarging the claim originallymade and could not have caused any prejudice to the defendants. Wherea new party is added, the action will, so far as the new party is concerned,be regarded as having been instituted when he was made a party. Evenif it be contended that the addition of the minor children involvedaddition of new causes of action, such a contention could Jbe met bypointing out that the causes of action accruing to those children have notbeen barred by prescription. Does the fact then, that the letters ofadministration were applied for and obtained after the commencement ofthe action alter the position ? The need for administration in respect ofcivil actions arises in view of certain provisions of the Civil ProcedureCode (vide sections 42, 472, and 547). Clearly section 42 has no applica-tion in the present case as Pathumma did not purport to sue the defend-ants in the representative character of an administrator. Section 547has not the effect of preventing the institution of a suit in respect of anestate for which no administration has been taken. It- provides only
408*,WIJEYEWARDENE J.—Haniffa v. Cadet
that, “ no -action shall be maintainable …. unless letters ofadministration duly stamped shall first have been issued to some personor persons . . . . ” (vide Alagqtcawandi v. Muttumal'). Hencethe present action could have been maintained and continued whenPathumma obtained her letters on November 25, 1939. The subsequentrecall of these letters did not and should not have the effect of abatingthe action. Nor do 1 think that section 472 presents an effective obstacleto any necessary relief being granted in this case. In fact the somewhatstrict interpretation put on that section in the earlier cases has now beenconsiderably modified (vide Nagahawatte v. Wettesinghe c).
Moreover the proposed amendments will prevent a multiplicity ofsuits and enable the Court to decide effectually and completely all thequestions arising between the parties in respect of the business formingthe subject-matter of the action. I think that this is essentially anappropriate action for the Court to exercise its powers and allow thepleadings to be amended especially as there is not the remotest possibilityof the proposed amendments working any injustice to the defendants.(Vide Seneviratne v. Candappa5 and Cassim Lebbe v. Natchiya *.)
I set aside the order of the District Judge and direct that the motionof February 7, 1940, be allowed.
The appellants are entitled to the costs of the appeal and of the inquiryin the Court below.
Soertsz J.—I agree.
* 22 N. L. B. 3.
J 23 N. L. B. 70.
3 20 X. L. B. 60.
* 21 X. L. B. 205.
HANIFFA v. CADER et al