KEUNEMAN J.—Vyraven Chettiar v. Segappai Achy.
1940Present : Soertsz and Keuneman JJ.
VYRAVEN CHETTIAR v. SEGAPPAI ACHY.
29—D. C. Colombo, 8,010.
Administration—Application for letters by attorney of deceased’s widow—Absence from the Island—Conflict of interest with duty—Discretion ofCourt.
The attorney of a widow, who is resident in India, should not beappointed to administer the estate of a deceased person, where theattorney resides for the most part in India or where his interest conflictswith his dutyl
PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and E. B.
. Wikremanayake), for fifth respondent, appellant.
N. Nadarajah (with him C. Thiagalingam), for petitioner, respondent.
Cur. adv. vult.
March 3, 1940.' Keuneman J.—
The present case involves a contest for letters of administration to theestate of Peria Caruppen Chettiar, deceased. The petitioner is the widowof the deceased, and the fifth respondent is an adopted son and, under the
REUNEMAN J.—Vyraven Chettiar v. Segappai Achy.
Hindu law, entitled as sole heir to the property of the "deceased, subject tothe right of the widow and her unmarried daughter to maintenance.Admittedly, in Ceylon, the fifth respondent is the heir to the bulk of theestate, which consists of a business and other movable property. Butthe deceased also left certain immovable property in Ceylon. The titleto this immovable property will be in the widow and her daughters, andthe fifth respondent has no interest in it.
On June 3, 1937, the widow (petitioner) through her attorney filedpetition and affidavit in D. C. (Testy.) Colombo, No. 8,010, claimingletters of administration. In her petition the widow claimed letters ofadministration for herself, and the order made thereon was: “ Let ordernisi be issued for service and publication ”. The order nisi, however,declared that " the petitioner be and he is hereby declared entitled asattorney of the widow ” to letters of administration.
On being served with the order nisi, the fifth respondent intervened,opposed the grant of letters to the petitioner, and claimed the letters forhimself. After inquiry, the District Judge made order aganist the fifthrespondent, who now appeals.
It is not quite clear in the order whether letters of administration havebeen granted to the petitioner or to her attorney. In the earlier part ofhis order, the District Judge treated the contest for letters as beingbetween the petitioner and the fifth respondent, but towards the end ofhis order the District Judge deals with the question whether the attorneyof the widow had a preferent claim to letters of administration, and speaksof granting letters to the attorney. The journal entry of that dateruns as follows:“ Judgment delivered and filed. Letters to issue
to the widow’s attorney ”. This is subject to the giving of certainsecurity. It is not clear from the proceedings how there was a transitionfrom the claim of the widow to that of her attorney for letters of adminis-tration, and I cannot find that the widow at any time claimed that herattorney be appointed administrator, nor does the attorney appear tohave claimed letters for himself.
The District Judge has, in the course of his order, dealt with section 523of the Civil Procedure Code, which gives the widow a preferent claim toletters of administration. At one time it was considered that the widowhad an absolute right to obtain letters, but this view was modified in thecase of Sethukavaler v. Alvapillaiwhere the Divisional Court held thatwhile in ordinary circumstances the widow is to be preferred, yet theCourt has the power to pass over her claims in favour of others forgood reason. It was held that the Court has a discretionary power inthis respect.
In this case, if we regard the widow as having claimed letters ofadministration for herself, there is a very strong and vital objection tosuch a claim, namely, that the widow resides, not in Ceylon, but in India,outside the jurisdiction of the Court. It is not even suggested that thewidow intends to come to Ceylon for the purpose of administering theestate of the deceased. I think, it undesirable to appoint an absenteeadministrator, and on that ground I am of opinion that letters shouldnot be granted to the widow.
1 36 N. L. R. 281.
KEUNEMAN J.—Vyraven Chettiar v. Segappai jichy.
I do not however hold that in fact the District Judge ordered letters toissue to the widow. He appears rather to have given the letters to thewidow’s attorney. He purported to follow the reasoning in Moosajee v.Carimjeewhere it was held that the preferent right to a grant of lettersof administration may be claimed by the attorney of a widow", who istabsent from the Island. It will be noticed that this decision is basedupon the older view of our Courts, namely, that the widow had a preferentright, and I think it may be desirable in an appropriate case to considerwhether this finding is correct in view of the decision in Sethukavalar v.Alvapillai (supra). I notice -that the very point in issue here wasreferred to the Divisional Court in the latter case, but was not decided.
I do not, however, think it is necessary to decide that point in this appeal.
Apart from the irregularities and confusion, which I have mentioned,in the proceedings and in the District Judge’s order, there are two pointsof substance which we have to consider in this connection. The first isthat the widow’s attorney is, as the District Judge says, “ a gentlemanresiding for the most part in India The same objection can be raisedagainst him as against the widow, although not to the same degree. Thesecond point is that the second respondent, who is a son of the widow’sattorney has filed a petition claiming from the estate a sum of Rs. 16,647.33as a debt due to him. This debt is not admitted by the fifth respondent,who had worked with the deceased and had full knowledge of the businesstransactions of, the deceased. The learned District Judge seems to haveappreciated the fact that this was a substantial objection to the claim ofthe widow’s attorney, but thought it sufficient to make a special orderthat the amount claimed by the second respondent should not be paidwithout further orders from the Court and without notice to all the otherheirs. I do not think this is a sufficient safeguard, for there is nothing toprevent the second respondent from suing the widow’s attorney asadministrator and obtaining a decree which will bind the estate. I thinkit is very undesirable to place the widow’s attorney in an office in whichhis interestor affection may conflict with his duty to the estate.
If then the District Judge has appointed the widow’s attorney asadministrator, I think that he has manifestly exercised a wrong discretion,and that the objections to such appointment more than counterbalanceany preferent claim which the widow’s attorney may have.
I am of opinion that the appeal must be allowed, and the appointmentmade by the learned District Judge must be set aside. The DistrictJudge has not considered the claim of the fifth respondent, and it is notpossible in this appeal to grant him letters of administration.
I send the case back for inquiry into this claim. I may add that in• view of the distinct conflict of interest between the fifth respondent andthe petitioner, the parties may be well advised to decide on having anofficial administrator, either as a sole administrator or jointly with someother person.
The appellant is entitled to the costs of this appeal. The costs of theinquiry already held will be in the discretion of the District Judge.
Soertsz J.—I agree.
1 29 N. L. R. CS7.
VYRAVEN CHETTIAR v. SEGAPPAI ACHY