TENNEKOON, C.J.—Nesaratnarn v. Vailhilingam
1975 Present: Tennekoon, C. J., Pathirana, J., and
NESARATNAM, widow of KANDIAHPILLAI, Appellant and
S. C. 264/70 (F)—D. C. Jaffna D/1092
Civil Procedure Code—Sections 341, 338 (3), 394 (2)—Whether executorde son tort can be made respondent to application under Section341(1)—Do the words “executor or administrator” includeexecutor de son tort.
(Tennekoon C. J. dissenting) that an executor de son tort isa legal representative of the deceased within the meaning ofsection 341 (1) of the Civil Procedure Code.
An order for alimony pendente lite in favour of the wifenecessarily comes to an end upon the death of the husband.
A PPEAL from an Order of the District Court, Jaffna.
C. Thiagalingam with C. Chellappah and S. Ruthiramoorthy forAppellant.
C. Ranganathan with M. Sivarajasingham for Respondent.
Cur. adv. vuU
November 27, 1975. Tennekoon, C. J.—
I have read the judgment of my brother PathiranS, J., andI would like to say with respect that I do not find myself inagreement v/ith him.
The question that arises in this case is whether the executorde son tort can be made respondent to an application undersection 341(1) of the Civil Procedure Code. This section reads asfollows: —
“ 341 (1) If the judgment-debtor dies before the decree hasbeen fully executed, the holder of the decree may apply tothe court which passed it by petition, to which the legalrepresentative of the deceased shall be made respondent, toexecute the same against the legal representative of thedeceased.
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TENNEKOON-, C.J.—Neaaralnamv. Vaithilingam
(2) Such representative shall be liable only to the extentof the property of the deceased which has come to his handsand has not been duly disposed of ; and for the purpose ofascertaining such liability, the court executing the decreemay on the application of the decree-holder compel the saidrepresentative to produce such accounts as it think fit. ”
Section 338 (3) appearing in the same Chapter as section 341provides as follows : —
“ 338 (3). For the purposes of this Chapter the term ‘ legalrepresentative ’ shall mean an executor or administrator, orin the case of an estate below the value of two thousand fivehundred ^ rupees, the next of kin who haveadiated the inheritance :
Provided, however, that in the event of any dispute arisingas to who is the legal representative, the provisions ofsection 397 shall, mutatis mutandis, apply. ”
It is an admitted fact that the deceased judgment-debtor leftan estate over the value of Rs. 2,500. It is urged on behalf of theappellant that the words ‘ executor or administrator ’ includeexecutor de son tort.
The definition of the term * legal representative * contained insection 338(3) is the same as that contained in Chapter XXV ofthe Civil Procedure Code dealing with the continuation ofactions after the death of a plaintiff or a defendant or afterany other alteration of a party’s status. Section 394(2) occurringin that Chapter reads as follows : —
“ 394(2). For the purposes of this Chapter legal
representative shall mean on executor or administrator, orin the case of an estate below the value of two thousand fivehundred rupees the next of kin who have adiated theinheritance. ”
Our Civil Procedure Code contains among other things, thelaw relating to testamentary actions under which provision ismade for the declaration of persons as executors of wills, and forthe appointment of administrators of the estates of deceasedpersons. Under those provisions where a person shall die leavinga will,' the person named as executor in the will may apply to aDistrict Court to have the will proved and to have probate there-of issued to him ; also any person interested may apply to suchcourt to have the will proved, and to obtain grant to himself ofadministration of the estate with copy of the will annexed.
TEXXEKOOM, C.J.—-Nesaralnam v. VailhUingam
(Section 518), Section 519 goes on to provide that upon applica-tion for probate being made, and “ in every case in which theestate of the testator amounts to or exceeds in value Rs. 2,500,v/hether any such application shall have been made or not, itshall be obligatory on the court to, and the court shall, issueprobate of the will to the executor or executors named in the willand if there is no executor resident in Ceylon competent andwilling to act, the court shall issue letters of administration withor without the will annexed to some person competent to applyfor the same or to some other person who the court thinks fitperson to be appointed administrator. ” Section 530 makes itpossible for application to be made for grant of administration ofdeceased person’s property, where the deceased has died withoutmaking a will, or where the will cannot be found. Section 547then provides that no action shall be maintainable for therecovery of any property of any person dying testate or intestate,where such estate or effects amount to or exceed in value the sumof Rs. 2,500, unless grant of probate or letters of administrationshall first have been issued to some person or persons as executoror administrator of such testator or intestate.
In this context it seems to me that when sections 338 (3) and394(2) refer to an executor or administrator, the reference isintended to be to an executor or administrator who has obtainedprobate of a will or received the grant of letters cf administra-tion ; the wider interpretation given to the term ‘ legal represen-tative ’ in these two sections in the case of estates below the valueof Rs. 2,500 is I think fairly conclusive, for it is only in that classof cases that there may not be any testamentary proceedings in aDistrict Court.
There can be no doubt that an administrator is a creature ofthe court, and his character as legal representative vests in himonly upon his being appointed as such by order of a competentcourt. An executor is, of course, a creature of the will and may beregarded as coming into existence as soon as the will becomesan operative document, that is to say, when the testator dies ;however, although an executor under the will may represent theestate outside court even before obtaining probate his rights asexecutor can be established in court only on production ofprobate.
It is to be observed that the definition of the term * legal repre-sentative ’ contained in section 394(2) has to serve both in thecase of the death of a plaintiff and in the case of the death ofa defendant. Vide sections 394(1), 395 and 398. In this situationit is difficult to give to the words ‘ executor or administrator ’ ameaning which will include the executor de son tort for it would
TENNEKOON, C.J.—Nesaratnam v. Vaithilingctm
be absurd to say that the executor de son tort can be substitutedin place of a deceased plaintiff. An executor de son tort is aperson who intermeddles with the estate of the deceased or doesany other act which belongs to the office of executor while thereis no rightful executor or administrator in existence. Ajiexecutor de son tort is answerable to the rightful executor oradministrator or to any creditor or legatee of the deceased to theextent of the assets which may have come into his hand. Thus,while there can be no anomaly in making an executor de sontort answerable to a judgment-creditor, there is no bas s on whichhe can be given the right to continue an action instituted by adeceased plaint’ff. An executor de son tort is in no sense a legalrepresentative of a deceased person or of his estate. He is onlya person in a position of liability to answer for debts of thedeceased to the extent of the assets he has taken possession of.
The Indian Code of Civil Procedure uses the expression * legalrepresentative ’, but this expression was not defined in the Codeof 1882. Some Indian courts, in this situation, gave a wideinterpretation to the expression * legal representative ’ so as toinclude within that term persons who without title either asexecutors or administrators were in possession of the estate ofthe deceased and could be made answerable to a plaintiff whowas in the position of a creditor of the estate. The Indian courtshowever have never gone so far as to hold that an executorde son tort can take the place of a dead plaintiff. The IndianCode of Civil Procedure of 1908, however, defined ‘ legalrepresentative ’ as follows : •—
“ Legal representative means a person who in lawrepresents the estate of deceased person’ and includes anyperson who intermeddles with the estate of the deceased
It is to be noted that this definition eschews the use of theterms ‘ executor ’ and ' administrator ’ and for that reason isquite different from our definition. Even with this definition thecourts in India were soon faced with the problem as to whethera person who intermeddles with the estate of the deceased canbe substituted in place of a deceased plaintiff, and they weredriven to the conclusion that despite the definition, an inter-meddler could not be substituted in place of a deceased plaintiff.The Indian Succession Act 1925 provides in section 211—
“ The executor or administrator, as the case may be, of adeceased person is his legal representative for all purposes,and all the property of the deceased person vests in himas such.”
TEISnyEKOON, C.J.—Nesaraina/m u. Vaithilingam
That Act provides, as does our Civil Procedure Code, for testa-mentary proceedings and the grant of probate of wills and forthe grant of letters of administration in certain situations.
Accordingly it has been held in India that in the case of a partyto whom Succession Act applies the legal representative who canbe substituted in place of a deceased plaintiff or defendant is onlyhis executor or administrator. If, therefore, such party dies pend-ing a suit and no representation is taken for his estate, the oppo-site party must move the court to have an administratorappointed as no right to the property of intestate’s estate canbe established in a court unless letters of administration havefirst been granted. See Bornett Bros. Ltd. vs. Foivle, A. I. R.1925, Rangoon 186. In the same way if any person to whom theprovisions relating to testamentary actions contained in the CivilProcedure Code apply, dies pending a suit and no executor oradministrator has yet been appointed, the action can only becontinued after an executor or administrator is duly appointedand such executor or administratior substituted in place of thedeceased party.
There are of course those provisions of the Income Tax Ordi-nance, the Inland Revenue Act and the Estate Duty Ordinance inwhich the expression * executor or administrator ’ is so definedor has been so interpreted by court, as to include a person whointermeddles with the property of a deceased tax payer. This isunderstandable for under our law an executor de son tort isliable to a creditor and the tax payer being in the position ofdebtor and the State in the position of creditor, the extendedmeaning given to the expression * executor ’ is in keeping with thecommon law concept of the liabilities of an executor de son tort.
I do not think that this same approach can be made in the case ofthe definition of the term ‘ legal representative ’ contained insections 338(3) and 394(2) ; for one thing, the expression ‘ execu-tor and administrator ’ appear in a statute which in other partsprovides for appointment of executors and administrators bycourts and for another, these two sections do not coutain thewords ‘ and includes person who intermeddles with the estate ofthe deceased persons ’ nor the words ‘ or other personadministering the estate of the deceased person.’
I might add that having regard to the fact that an executorde son tort is liable to answer for the debts of the deceased tothe extent of the assets he has taken possession of, uhere is agood case for permitting the holder of a decree for money toexecute the same against the executor de son tort of a deceasedjudgment-debtor ; but that must be done by the legislature aftertaking into account the impact of such a provision on the
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462PATH TRAN A J.—Nesaratnam v. Vaithilingam
collection of taxes due to the State from the estate of a deceasedjudgement-debtor ; it is not for the court under the guise ofinterpretation to alter the law so as to include within thedefinition of ‘ legal representative ’ an executor de son tortmerely because the court thinks that would be good policy todo so.
For these reasons I prefer the view taken by the SupremeCourt in the case of Sarlin vs. James Fernando (63 N. L. R. 34)to that taken, without reasons stated, in Dahanayake vs.Jayasinghe (71 C. L. W. 112).
In the result, I am of the opinion that the learned DistrictJudge was right in dismissing the application of the plaintiff-petitioner to levy execution against the respondentKandiahpillai Vaithilingam in his capacity as a person whointermeddled with the estate of the deceased. I would like toadd that I agree with my brother Pathirana, J. that in any eventthe plaintiff will only be entitled to alimony pendente lite from6th August, 1965 to 18th September 1966, together with the sumof Rs. 1,500 ordered as costs.
T would dismiss the appeal with costs.
This appeal is a sequel to the dismissal by the learned DistrictJudge of an application under section 341(1) of the CivilProcedure Code made by the plaintiff-petitioner-appellant, whowas a holder of a decree for arrears of alimony pendente lite andcosts ordered by the District Court against her deceased husband,to have the respondent, a son of the deceased by the first bedof her husband, appointed legal representative of the deceasedand to have the said decree against the respondent executed aslegal representative of the deceased defendant. The plaintiffsought to make the respondent legal representative of thedeceased as executor de son tort on the ground that he hadintermeddled with the assets belonging to the deceased defendant.
The learned District Judge refused the application on theground that it was premature for the reason that if the applica-tion was allowed there may not be sufficient funds to meet theclaims by the Commissioner of Inland Revenue for income taxand for estate duty, and that “ the dues to the Commissioner ofInland Revenue will have to be met before the other duties of thedeceased can be satisfied. ”
The plaintiff-petitioner-appellant sued her late husband for adecree for judicial separation, for permanent alimony and alimonypendente lite. On the 6th of August, 1965 the defendant wasordered to pay the plaintiff Rs. 1,500 per month as alimony
PATHIRANA, J.—Ncsaratnam v. Vaithilingam
pendente lite and Rs. 1,000 as costs to prosecute the action. Thedefendant appealed from the order to the Supreme Court on the5th of February, 1966. This Court ordered the defendant to payan additional sum of Rs. 500 to prosecute the appeal. Whilethe appeal was pending the defendant died on the 18th ofSeptember, 1966. This appeal was declared abated by this Court.The defendant had during his lifetime neither paid the alimonypendente lite nor the costs ordered by Court to the plaintiff. Theplaintiff claimed a sum aggregating to Rs. 39,250.
The respondent filed objections denying that the amountclaimed by the plaintiff was due from the estate of the deceased.He further stated that in any event the plaintiff can claim alimonypendente lite only from the date of the order, that is, 6th August,1965, till the death of the deceased on the 18th of September, 1966,that is, for a period of 13£ months. He further took up the positionthat the plaintiff should make a claim in the Testamentary casesNos. 4350 and 5376 of the District Court of Negombo which werepending at that time in respect of the estate of the deceased. Therespondent, however, admitted that he was collecting rents andincomes from certain properties and was paying the income taxand other taxes and Bank overdrafts and had deposited whatevermonies that came into his hands in the Bank and that he wasmaking every effort to preserve the estate. He also said thatanother son of the deceased and the plaintiff-petitioner hadapplied for Letters of Administration in the said Testamentarycase No. 4356. The Testamentary cases were pending in theDistrict Court of Negombo. The respondent took up the positionthat the plaintiff must make the claim as a liability from theestate in the said Testamentary cases.
We do not think that the ground on which the learned DistrictJudge dismissed the application, namely, that the application waspremature and that if he allowed the application there may notbe sufficient funds to meet the claims of the Inland RevenueDepartment, can be sustained.
In our view there is no legal impediment in the way of acreditor who holds an unsatisfied decree against a judgment-debtor from proceeding to execute a decree against the legalrepresentative of the debtor in the event of the judgment-debtordying before the decree has been fully executed, on the groundthat if the decree is executed there may not be sufficient fundsto meet the claim against the deceased for income tax or estateduty. In our view Section 27 of the Estate Duty Ordinance whichstates that subject to the provisions of the Section, the estateduty payable by an executor shall be a first charge on all theproperty of the deceased and the provisions of Section 109 of the
PATHIRANA, J.—Nesaratnam v. Vaithilingam
Inland Revenue Act that tax in default shall be a first chargeon the assets of the defaulter provided the necessary safeguardsfor the collection of estate duty or income tax from a deceasedperson.
If this contention is to prevail, then by parity of reasoning aclaim by a creditor against an executor de son tort who hasintermeddled with the assets of the deceased for debts due to himfrom the deceased can be defeated on this ground. But the law isnow settled that such a claim against an executor de son tortcan succeed and in execution against an executor de son tortsuch property of the deceased as is found in his possession canproperly be seized and made liable in execution. Appuhamy vs.Cole, 8 C.W.R., 28.
Mr. Thiagalingam for the plaintiff-appellant submitted that anexecutor de son tort is a legal representative of the deceasedwithin the meaning of Section 341 (1) of the Civil Procedure Codein Chapter XXII of the Civil Procedure Code. For the purposeof this chapter “ legal representative ” is defined in Section 338
to mean “ an executor, or administrator, or in the case of anestate below the value of Rs. 2,500, the next of kin who haveadiated the inheritance. ” Under Chapter XXV which deals withcontinuation of actions after alteration of a party’s status ; inSection 394 (2) “ legal representative ” is defined in similar terms.Mr. Ranganathan for the respondent on the contrary submittedthat a strict interpretation should be given to the term “ legalrepresentative ” to mean only an “ executor ” or “ administrator ”and should not be extended to include an executor de son tort.
In order to determine this question it would be necessary tounderstand what makes a person an executor de son tort andwhat are his rights, duties and liabilities. If anyone who is neitherexecutor nor administrator intermeddles with the assets of thedeceased, or does any act characteristic of the office of executor,he thereby makes himself what is called in law an executor of hisown wrong or more usually an executor de son tort. The slightestact of intermeddling with the goods of the deceased will make aperson an executor de son tort. He who takes upon himself theoffice of executor by intrusion not being so constituted by thedeceased such a person makes himself liable to the obligations ofan executor de son tori by his own wrong. Williams on Executorsand Administrators, 4th Edition, p. 28. An executor de son tort hasall the liabilities, but none of the privileges that attach to theduly constituted executor. He is liable :
to an action by the rightful executor or administrator :
to be sued as executor by the creditor or legatee;
PATHIRANA, J.—Nesarainam, v. Vaithilingam
to be made accountable for all death duties on theestate—Mustoe : Executors and Administrators, 4th Ed.p. 7.
In Prins v. Peiris—(1901), 4 N. L. R., 353, Bonser, C.J. tookthe view that the English law of executor de son tort was inforce in Ceylon and that it was too late in the day to argue thatit was not in force.
In Arunachalam v. Arunachalam—36 N. L. R., 49 at 51—MacDonald, C. J. held that to be an executor de son tort did notnecessarily imply that you had done anything morally wrong.It simply means that you have been acting as executor of anestate without legal right to that position and that having soacted you are liable as if you have been executor with a legalright to that position.
In Perera v. Pathuma—21 N. L. R., p. 76 at 77 : Schneider,A. J. held that an executor is liable to be sued as executor deson tort by the creditor or legatee as well as by the lawfulexecutor or administrator, but he cannot bring an action in rightof the deceased.
An executor de son tort will only be liable to the extentof the assets that comes into his hands—Perera v. Manuel,2 C. L. W., p. 343.
In Dahanayake v. Jayasinghe—71 C. L. W., p. 112, Sri SkandaRajah, J. (with Alles, J. agreeing) held that the term “ executor”in Section 394 (2) of the Civil Procedure Code which is in iden-tical terms with Section 338 (3) : includes an executor de sontort. No reasons, however, have been given why this extendedmeaning was given to the term “ executor ” except that * therewas ample evidence to indicate that the appellant intermeddledwith her late husband’s estate and thereby constituted her-self executrix de son tort.”
In Junaid v. Commissioner of Inland Revenue.— 65 N. L. R.,p. 561, it was held that an executor de son tort falls within thedefinition of “ executor ” in Section 2 of the Income TaxOrdinance. Section 2 reads as follows : —
“ An executor means any executor, administrator orother person administering the estate of a deceased person,and includes a trustee acting under the trust created bythe last will of the author of the trust. ”
PATHIRANA, J.—Nesaralnnm v. VaUhtlingam
This extended meaning was given to the word “ executor"by Sansoni, J. in this case in spite of the rule that statutesrelating to taxation, like penal statutes should bestrictly constru-ed. No doubt in Section 2, in addition to the words “ any execu-tor, administrator ” there occurs the words “ or other personadministering the estate.” Sansoni, J. at page 564 observedas follows : —
‘ By the words ‘ any executor, administrator or otherperson administering the estate’ it is obvious that theLegislature intended to cast as wide a net as possible, and toinclude all persons who may have taken part in theadministration of the estate whether they had a legal titleto do so or not. The term ‘ executor ’ itself does not necessarilymean a rightful executor, that is to say, a person who hasbeen appointed an executor by the deceased. It could alsoinclude one who has acted as an executor of an estate withouta legal right to the position.”
The Estate Duties Ordinance Chapter 241 by Section 80defines “executor” as follows: —
“ Executor or administrator of a deceased person, andincludes, as regards any obligation under this Ordinance,any person who takes possession of, or intermeddles withthe property of a deceased person, and any person who hasapplied or is entitled to apply to a District Court for thegrant or resealing of probate or letters of administrationin respect of the estate of a deceased person. ”
In Sarlin v. James Fernando.— 63 N. L. R., p. 34 Basnayake,C. J. however, held that in the case of an estate above adminis-trable value it is only the executor or administrator thatthe plaintiff can in law specify as a person whom he desires tobe substituted as the defendant in place of the deceased. TheCourt had no power to enter on the record in place of thedeceased defendant the name of any person other than hisadministrator or executor.
Basnayake, C. J. observes as follows at page 40 : —
“ It is for the party on whom the duty of taking thenecessary steps is imposed by the Civil Procedure Code toadvise himself as to what in law is the correct step to be
taken and to take that step in Section 394 and the
other sections of Chapter XXV the expression ‘ legalrepresentative ’ means an executor or administrator or inthe case of an estate below the value of two thousands five
PAT1UKANA,,J.—Nesaralnam v. VaithUingam
hundred rupees the next of kin who have adiated the inheri-tance. (s. 394 (2). In the instant case the estate is not belowthe value of two thousand five hundred rupees and it isonlj" the executor or administrator that the plaintiff-respon-dent could in law have specified as the person whom hedesired to be made the defendant instead of the deceasedand the Court had no power to enter on the record in theplace of the deceased defendant the name of any personother than his executor or administrator. The substitutionof the deceased defendant’s widow and children appearingby their guardian-ad-lit em not being authorised by law hasno legal effect and does not carry with it the consequencesof a proper substitution under section 398. The proceedingssubsequent to the death of the defendant-appellant havetherefore been against persons who in law cannot be sub-stituted in place of the deceased in the suit.
A person who is not entitled to take the place of thedeceased defendant appellant in the suit and whom the Court,has no power to appoint to take his place has no locusstandi in judicio. The deceased defendant was therefore notin law represented at the hearing of his appeal which wasdismissed without such representation.
(Section 394(2) is similiar to Section 338(3).
In this case the deceased defendant’s widow had applied forletters of administration in respect of the estate of the deceased.Order Nisi was made under Section 531 and was made absoluteunder Section 534. The power of administration had not beenconferred on her by issue of a grant of administration.Basnayake, C. J. at page 41, held : —
“ The circumstances that the widow had applied forLetters of Administration in respect of the estate of thedeceased and that the order nisi made under Section 531had been made absolute under Section 534 did not makeher the administrator, as under Section 52 of the EstateDuty Ordinance, the Court is forbidden to grant Lettersof administration until the Commissioner has issued a certi-ficate that the estate duty for the payment of which theadministrator is liable under the Ordinance has been paidor secured or that the administrator is not liable to payestate duty under the Ordinance, and that certificate hasbeen filed in Court. It would appear by implication fromSection 540 that the power of administration is not con-ferred on the administrator and cannot be exercised byhim until it is conveyed by the issue of a grant of adminis-tration. In the instant case no such power had been conferredon the widow at the material time. ”
PATHIRANA J.'—Nesarainam v. Vaithilingam
On the facts in this case there was clear intermeddling withthe estate by the widow at least in that she had applied forletters of administration. Therefore, on the construction byBasnayake, C.J. an executor de son tort cannot come within thedefinition of executor or administrator within the meaning ofSection 338 or Section 394(2) of the Civil Procedure Code.
We have, therefore, two conflicting decisions of this Courton the question whether the term executor or administrator inSection 338(3) and 394(2) includes an executor de son tort.It will be useful to examine the question under the Indian CivilProcedure Code. Section 50 of the Indian Civil Procedure Code,is in the same term as Section 341(1) of our Civil ProcedureCode. It states : —
“ The holder of the decree may apply to the Court whichpasses it to execute the same against the legal representa-tive of the deceased.”
The term “ legal representative ”, however, is defineddifferently to our definition of “legal representative” inSections 338 (3) and 394 (2) of our Civil Procedure Code. “ Legalrepresentative” is defined in Section 2(ii) of the Indian CivilProcedure Code to mean, “ a person in law representing anestate of the deceased person and includes a person whointermeddles with the estate of the deceased, and where a partyso sued in a representative capacity, the person on whom theestate devolves on the death of the party so suing or sued. ”It is apparent, therefore, that the definition, “ legal representa-tive ” in the Indian Civil Procedure Code is wider in scope andincludes an executor de son tort, i. e., a person who intermeddleswith the estate of the deceased. In the original Indian CivilProcedure Code of 1882 according to Mulla in his Commentaryon the Civil Procedure Code of India, 10th Edition, p. 13, theexpression, “ legal representative ” was not defined in the Codeof 1882. In its strictest sense the term “ legal representative ”was limited to an executor and administrator only and in thecases under the Indian Succession Act that is still the case. Butits meaning was extended after many conflicting decisions toinclude heirs and also persons who without title either asexecutors, administrators or heirs were in possession of theestate of the deceased. In view of the conflicting decisions, Mullastates that the present definition settles the meaning of the termto include even a person who had intermeddled with an estate,who in our law is called an executor de son tort.
The trend seems to favour an extended meaning to be givento the term executor or administrator as to include an execu-tor de son tort. Both reason and logic seem to favour this view,particularly in interpreting Section 341 of the Civil Procedure
PATHTRANA, J.—Nesaratnam v. Vaithilingam
Code. If, for example, a debtor owes money to another and thedebtor dies, it is settled law that the creditor can proceedagainst a person who intermeddles with the assets of the deceas-ed. Prins vs. Peiris (1901) 4 N. L. R.., p.353.) There is no reasonwhy when an action has been commenced by a creditor againstthe debtor and the debtor dies, an executor de son tort whointermeddles with the estate cannot be made a legal represen-tative within the meaning of Section 341 for the purpose ofexecuting the decree. An executor de son tort is essentially aperson who has all the liabilities, but none of the privilegesthat is attached to a duly constituted executor—Vide MustoeExecutors and Administrators, 4th Edition, P. 7.
An essential characteristic of an executor de son tort is thatas a result of taking upon himself the functions of an executorby intrusion he renders himself liable to be sued by a creditorof the deceased. It must logically follow that such a personrenders himself by his conduct to be made a legal representativefor the purpose of executing an unsatisfied decree against adeceased-debtor as he incurs the liabilities of his usurped office.We are, therefore, of the view that in section 341 read withsection 338(3) an executor de son tort comes within the meaningof an executor or administrator. It is not disputed that on theadmissions made by the respondent in his affidavit in the DistrictCourt he has clearly intermeddled with the assets of the deceas-ed defendant. The respondent is therefore a legal representativefor the purpose of Section 341 in this application.
Mr. Ranganathan also raised an objection to the application ofthe plaintiff-appellant that it did not contain a prayer for theexecution of the decree. The plaintiff-appellant only prayed thatthe respondent as executor de son tort be appointed legalrepresentative of the deceased defendant under Section 341 ofthe Civil Procedure Code. The objection raised is toe technical.We are satisfied that the intention of the plaintiff-appellant wasto invoke the provisions of Section 341(1) to have the respon-dent appointed legal representative for the purpose of executingthe decree against him.
The next question we have to decide is the quantum ofalimony the plaintiff-appellant will be entitled to. In herapplication she has stated that on the date of the order, that is.6th August, 1965, neither the alimony pendente lite nor the costshad been paid. She therefore, claims Rs. 34,750 as alimonypendente lite and Rs. 1,500 as costs.
Mr. Ranganathan submits that an order for alimony pendentelite in favour of the wife must necessarily come to an end onthe death of her husband, that is the deceased-defendant. Forthis reason the plaintiff will only be entitled to alimony pendente
PATKIRANA, J.—-Nesaratnam v. Vaithlingam
lite from 6th August, 1965 to 18th September, 1966. He has citedthe following passages from The South African Law of Husbandand Wife by H. R. Hahlo, 2nd Edition, p. 328, in support of hiscontention :
“ Where it is the death of the wife which dissolves themarriage, a maintenance order in her favour necessarilycomes to an end. Whether the same holds true if the marriageis dissolved by the husband’s death, the wife surviving,cannot be regarded as settled, but it is submitted that theanswer must be in the affirmative. A maintenance order inconnection with a decree of judicial separation is intendedto provide the innocent spouse with maintenance duranteseparations and therefore necessarily lapses when theephemeral separation under the order is superseded by thepermanent separation of death. ”
At page 346 there is also the following passages—
* There can be little doubt that in Roman-Dutch Law thewidow had no claim for maintenance out of her husband’sestate. In accordance with Roman law principles, duties ofsupport, being regarded as personal to the person obligated,were not passively transmissible to his or her heirs. ”
In Bennett ’ vs Bennett’s Executrix, 1959 (1) South AfricanLaw Report—876 at page 880, de Villiers, A. J. has said—
“ The question is one of some difficulty, and for variousreasons my time for research and consideration has beenvery limited. On principle, however it seems that a spouse’sobligation of maintaining the other spouse must terminatewith the death of the other. ”
We, therefore hold that the plaintiff is entitled to alimonypendente lite only from 6th August, 1965 to 18th September,1966, and also for the sum of Rs. 1,500 as costs.
We allow the appeal and set aside the order of thelearned District Judge dismissing the application of the plaintiff-petitioner and we direct that the respondent, KandiahpillaiVythialingam, be made a legal representative of the estate ofthe deceased in terms of Section 341 of the Civil ProcedureCode. The plaintiff-appellant is entitled to alimony pendentelite from 6th August, 1965 to 18th September, 1966, that for aperiod of 13 112 months, at Rs. 1,500 per month, and a sum ofRs. 1,500 as costs. We direct writ be issued by the District Courtagainst the respondent for the recovery of the said sum.
The plaintiff-appellant will be entitled to costs here and alsocosts in the District Court in respect of this application againstthe respondent.
Vythialingm:, J—I agree.
NESARATNAM, window of KANDIAHPILLAI, Appellant and K. VAITHILINGAM, Responden