DE KRETSER J.—Ramalingam v. Kailasapillai.
1942Present: de Kretser J.
RAMALINGAM v. KAILASAPILLAIet al.
143—C. R. Colombo, 72,628..
Administrator—Action by creditor—Burden of proof—Plea of plene adminis-travit.
In an action on a promissory note by a creditor against the administra-tor of the deceased maker the burden is upon the plaintiff to show thatthe adminstrator has assets of the deceased in his hands.
It is not necessary for an administrator to obtain the judicial settle-ment of an estate as a preliminary to a plea of plene administravit.Arunasalem Chetty v. Mooiatamby (2 A. C. R. 90), followed.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo.
N. Nadarajah, for defendants, appellants.
P.Navaratnarajah, for plaintiff, respondent.
March 26, 1942. de Kretser J.—
Plaintiff sued the appellants as administrators of the estate of oneKandiah, for the sum of Rs. 77.15 due on a promissory note dated May 12,1938. Kandiah died on May 18, 1938. This action was broughton February 6, 1941. In the meantime, the estate of Kandiah had beenadministered and the assets distributed. The second defendant wasone of the heirs of Kandiah and in that capacity received a share of theestate.
In reply to plaintiff’s claim the defendants put plaintiff to the proofof the debt of which they said they were unaware, and further took the 'plea of plene administravit. The learned Commissioner held that therewas no evidence to prove that the defendants were aware of the indebted-ness of the deceased to the plaintiff but that the plea of plene adminis-travit could not succeed as there had been no judicial settlement of the
DE KRETSER J.—Ramalingam v. Kailasapillai.
estate. He added that the defendants had been guilty of laches in thatthey had made no formal call for claims—of which fact the only evidenceon the record is that of the plaintiff that he saw no such notice published.The learned Commissioner gave judgment for the plaintiff, holding-that thedefendants as heirs were in possession of the assets of the estate of Kandiah.
Much elaborate argument was advanced at the hearing of this appeal:for example, that section 222 of the Civil Procedure Code amounted to astatement that a plea of plene administravit could only be taken afterexecution had issued, and that therefore judgment must be .enteredfor the plaintiff for what it is worth. In support _ of this propositionI was referred to the case of Tamiz Bano v. Nand Kishore'. That casewas decided oh different grounds and the two Judges who composedthe court expressed contrary opinions. Mukerji J. adopted the viewput forward by the respondents while Ashworth J. was of a contraryopinion. I prefer the view taken by the latter.
The points taken by the learned Commissioner are covered by localauthority. In Arunasalem Chetty v. Mootatamby ~ it was held that it wasnot necessary for an administrator to obtain a formal judicial settlementas a preliminary to such a plea. In Supramaniam Chetty v. PalaniappaChettyLayard C.J. expressed the opinion that even where there hadbeen a judicial settlement an administrator may be sued and it may beproved that he had not duly administered the estate.
There is no provision in our law making it imperative to call for noticeof claim. That, however, would be a very wise step for an administratorto take. The point seems to have been raised in Arunasalem Chetty v.Mootatamby (supra), for Middleton J. said—“ It may be true that thedefendant can maintain no release from the fact of advertisement ; butthe fact that he has done so makes his position a stronger one.”
It seems to be a question of fact in each case whether the estate hasbeen duly administered or not. The burden is on the plaintiff to showthat the administrator has assets—vide Williams on Executors,(1930 Edn) 11.1240,—that is, he'musthave assets in his capacity of adminis-trator. In this case, I am satisfied that the estate has been duly adminis-tered and that the plaintiff’s action ought to be dismissed with costs.This will not prevent fhe plaintiff from suing the heirs, if so advised,and it may be that it is open to him to apply for a judicial settlement ofthe accounts himself under section 720 of the Code. In either caseall persons who are now the legal representatives of the deceased will bebefore the court.
In the testamentary case, the judge of his own motion noticed interestedparties, including a claimant, and when all matters had been adjusteddeclared the estate closed. It is not clear that that did not amount toa judicial settlement and that is why I express some doubt as to plaintiff’salternative remedy.
The appeal is allowed with cost. The decree entered is set aside andplaintiff’s action dismissed with costs.
» A.I.R. (1927) All 409.
‘2 A.C. R. 90.
3 3 Bal. S7.
RAMALINGAM v. KAILASAPILLAI et al