OBATIABN J.—Mariam Beeri v. Ruqqiah Umma
1951Present: Gratiaen J. and de Silva J.MARIAM BEEVI et al., Appellants, and RUQQTAH UMMA,
S. C. 40—D. C. Piqttalam, 806
Administration of estates—Letters of administration with will annexed—Competingclaims—Bight of widow of testator—Civil Procedure Code, ss. 519 (1) and (2),523.
Other considerations being equal, a Court should, in granting letters ofadministration with the will annexed, exercise its discretion with due regardto the claims and wisheB of those legatees or devisees who have (he greatestinterest in the estate to be administered. The provisions of Section 523 ofthe Civil Procedure Code which confer upon the spouse of a deceased person apreferential right to the grant of letters of administration are applicable onlyin caseB of intestacy.
^^PPEAL from a judgment of the District Court, Put-talam.
V. Perera, K.C., with S. Nadesan, for the 4th to 12th appellants.
N. K. Choksy, K. C., with Cyril E. S. Perera and Naina Marikar, torthe respondent.
Cur. adv. vult.
•June 12, 1951. Gratiaen J.—
This appeal relates to a competition between claims for the grant ofletters of administration, with the will annexed, in respect of the estateof A. H. M. M. Faluloon Marikar who died on January 3, 1947, leavingproperty of considerable value. Mr. L. E. David, Proctor, was theexecutor named' in the will. He applied for probate, and order nisiin his favour was entered on November 5, 1947.
Under the deceased’s will certain properties of the aggregate value ofapproximately Rs. 15,000 were devised to his widow Ruqqiah Umma,subject (with one exception) to a fidei commissum in favour of one or othercf their two surviving children (i.e., their son Abdul Hameed Marikar7 – N. L. R. Vol. – Liii
GRATIAEN J.—Mariam Bet ti c. Huqqiah Imran
and their married daughter Samsunnehar). To the daughter Sam-sunnehar certain other properties, of the aggregate value of onlyRs. 5.900 were devised subject to a fidei commisswn in favour of " herchild or children according to Muslim Law, the males taking two sharesand the females one share Apart from a few minor charitable bequests,the bulk of the estate, valued at about Rs. 200,000, was devised by thetestator to his son Abdul Hameed Marikar, sujbect to fidei commissain favour of either his male or his female descendants upon the conditionsstipulated in the will. Provision was also made that the remainingproperty, which had not been specially devised, should be sold for thepayment of debts and that the residue should devolve upon AbdulHameed Marikar and Samsunnehar, the former taking two shares andthe latter one share.
The son Abdul Hameed Marikar died intestate pending the testamentaryproceedings on November 10, 1949, leaving as his heirs his widow and 7minor children. On Mr. David’s application these heirs were addedas parties to the action, and the 9th appellant was appointed guardianad litem of the minors. The 9th appellant is the father of Abdul HameedMarikar’s widow and, incidentally, is also the brother of the testator’swidow. It is common ground that, upon Abdul Hameed Marikar’sdeath, the bulk of the testator’s estate passed, mainly under the termsof the will but to a limited extent under the Muslim Law to Abdul HameedMarikar’s children and widow who, as interested parties, had now beenjoined in the action as interested parties.
On July 27, 1950, the executor Mr. David died, and it therefore becamenecessary for the Court to appoint someone else to administer the estatein terms of the will which had been propounded. The testator's widowRuqqiah Umma claimed that the grant of letters of administration withthe will annexed should be made in her favour, and her claim was sup-ported by her daughter Samsunnehar. This application was, however,strenuously opposed on behalf of the heirs of Abdul Hameed Marikarwho, being the persons admittedly possessing the largest interests in theestate to be administered, claimed that letters should be issued to theirnominee, the 9th appellant.
A somewhat half-hearted attempt was made by each claimant to suggestthat the other was, for one reason or another, disqualified on personalgrounds from being entrusted with the responsibilities of administeringa large estate. These allegations were discounted by the learned trialJudge, and at the closing stages of this appeal learned counsel agreedthat the dispute should be decided solely with reference to the questionwhether in the circumstances of the present case, Ruqqiah Umma (thoughvested with a comparatively small interest in the estate) should in lawbe regarded as having a preferential claim, as vndow of the testator,over that of a person selected or nominated by those who now stoodin the place of the devisee to whom the largest interests in the estatehad passed under the testator’s will.
The case for the widow was presented in the lower Court on the basisthat, in terms of section 523 of the Civil Procedure Code, her claim“ should be preferred to all others ” in the sense in which these words
ORATIAEN J.—.Variam Becri r. Ruqqiah Vmma
have been interpreted by a Divisional Bench of this Court in Sethukavalarv. Alvapillai *. In my opinion the learned Judge was right in rejectingthis contention. Those provisions in section 523 which confer upon thespouse of a deceased person a preferential right to a grant of letters ofadministration are expressly stated to apply on in cases of intestacy.The present dispute, on the other hand, relates to a grant of letters where,owing to the failure of an executor, the Court is required to appointsomeone other than the executor to administer the estate according tothe tenor of the testator’s will. In such oases, the principles of the EnglishLaw would be applicable under the Charter of 1833 except to the extent,if any, to which they are found to be inconsistent with the provisionsof our local statutes. Section 519 (1) of the Civil Procedure Code directsa Court, in exercising its discretion, to pay regard to considerations of“ consanguinity, amount of interest, the safety of the estate, and theprobability that it will be safely administered ”. Section 519 (2) clearlyhas no application except that it introduces certain rules and regulationswhich come into force after but not before a grant has been made. Theonly other relevant statutory provision is to be found in the earlier partof section 523 which provides that “ the claim of a creditor shall bepostponed to the claim of a residuary legatee or devisee under the willIndeed, these express statutory directions seem to be in accordwith the guiding principles of the English Law on the subject, and Iwould hold, in accordance with what is admitted to be well-acceptedpractice, that, other considerations being equal, a Court should, in grantingletters of administration with the will annexed, exercise its discretionwith due regard to the claims and wishes of those legatees or deviseeswho have the greatest interest in the estate to be administered. Williamson Executors (12th Edition), Volume 1, page 322. In the words of SirJohn Nieholl in Atkinson v. Barnard 2 “ the residuary legatee is the tes-tator's choice, he is the next person in his election to the executorWhen the persons with the largest interest in the estate are minors whoin consequence lack the capacity to administer the property themselves,there is precedent for making a grant of letters with the will annexed tosomeone for their benefit. In re Gardiner3. In the present case the9th appellant was, on the application of the original executor and byconsent of parties, appointed by the Court as a fit and proper person toprotect the minor’s interests in the administration proceedings, and, inthe absence of good grounds for rejecting his present appointment, Ithink that, as the person nominated by those who have by far the largestinterests in the estate, his claim should prevail over that of the testator'swidow whose interests are by comparison of small extent. If onerejects the argument that the widow has, irrespective of the extent ofher vested interests in the estate, a preferential right such as she couldhave put forward in the case of an intestacy, one cannot lose sight of thefact that a Muslim lady in purdah is not ideally qualified to administera valuable estate of the gross value of Rs. 300,000 saddled with debtsto the extent of Rs. 100,000.
* 2 PhiU. 316 at 318 (161 E. B. 1156).
» L. R. 9. Q. B. D. 66.
* (1944) 36 N. L. R. 281.
Thomas Silva v. Hemalatha fI amine
I would set aside the order of the learned District Judge dated January25.3951, and direct that the record be returned to the lower Court
with a direction that a grant of letters with the will annexed be made infavour of the 9th appellant K. T. M. M. Mohamed ISmail Marikkar.subject to such terms and conditions as to security and otherwise as thelearned District Judge may in his discretion deem necessary. I wouldorder that in the circumstances of this case, the costs of the parties bothin this Court and in the contest in the Court below should be borne bythe deceased’s estate. I would further direct that some other personshould be appointed as the guardian ad litem of the minors when the 9thappellant enters upon his appointment as administrator.
i>j! fiii.VA -T.—I agree.
Order set aside
MARIAM BEEVI et al., Appellants and RUQQIAH UMMA Respondent