COURT OF APPEAL.
ABEYWARDENA, J. AND T. D. G. DE ALWIS. J.
A. No. 371/76(F).
C. CHILAWNo. 18828.
SEPTEMBER 10, 1985.
Administration of estates-Administrator's suit in ejectment-ls administrator functusofficio on closing of estate?-Section 540 of the Civil Procedure Code.
An administrator is functus officio only when he has duly completed the administrationof estate. Closing of the proceedings or rendering of a final account or even a judicialsettlement of the estate will not make the administrator functus if he has not completedthe administration.
Cases referred to:
Ekanayake v. Appu-( 1899) 3 N.L.R. 350.
Soysa v. Abeydera-(1909) t2N.LR. 349, 351.
Supramaniam Chetty v. Palaniappa Chetty-3 Bal 59.
Ramalingam v. Kailasapillai-( 1942) 43 N.L.R. 425.
APPEAL from judgment of the District Court of Chilaw.
P. A. D. Samarasekera, P.C. with K. Abeypala for appellant.J. W. Subasinghe, P.C. with J. C. Nilanduwa for respondent.
Cur. adv. vult.
May 14. 1986.
T. D. G. DE ALWIS, J.
The plaintiff in his capacity as administrator of the estate of the late D.Rajapakse filed this action against the defendant to have him ejectedfrom the land described in the schedule to the plaint and for damages.Judgment was entered for plaintiff as prayed for. A point was taken atthe trial that the plaintiff was functus officio and no longer theadministrator of the estate of the deceased, and hence he could notmaintain this action. This is also the only point taken at the hearing ofthis appeal.
In support of this contention learned counsel relied on the followingfacts: letters of administration to the estate of the deceased wereissued to the plaintiff on 31.1.70; plaint in this case was filed on6.1.71 ; final account was filed on 1.7.70; final accounts wereaccepted on 10.12.70; scheme of distribution in respect of theimmovable property was dispensed with; the estate was closed on2.6.71; and judgment was entered on 11.10.76. It was thesubmission on behalf of the.defendant that since the closing of theestate on 2.6.71 the plaintiff was functus officio, and for the action tofurther proceed substitution should have been effected under section404 of the Civil Procedure Code and this has not been done.
I should think that section 540 of the Civil Procedure Code is acomplete answer to this question. This section states:
"If no limitation is expressed in the order making the grant then thepower of administration, which is authenticated by the issue ofprobate, or is conveyed by the issue of a grant of administration,extends to every portion of the deceased person's propertymovable and immovable, within Ceylon, or so much thereof as is notadministered, and endures for the life of the executor oradministrator or until the whole of the said property is administered,according as the death of the executor or the administrator, or thecompletion of the administration, which comes first."
, In the case of Ekanayake v. Appu (1) it was thought that thetendering of a final account does not make an administrator functusofficio without a judicial settlement or a formal discharge or removalfrom office. But however in the case of Soysa v. Abeydera (2)Middleton, J. stated as follows:
"Under English Law an executor is entitled to his release from thebeneficiaries under the will upon a filing of proper accounts andvouchers showing a due discharge of his obligations under the will,and so far as I can gather from a perusal of Chapters XXXVIII and LIVof the Civil Procedure Code an executor may get his discharge inCeylon on the same grounds and for the same reasons' althoughunder sections725 and 729 the court may either order a judicialsettlement of accounts, or the executor may petition for one to beordered if he desires to do so." ■
In the case of Supramaniam Chetty v. Palaniappa Chetty (3), Layard,C.J. expressed the opinion that even where there has been a judicialsettlement an administrator may still be sued and it may be provedthat he had not duly administered the estate. In the case ofRamalingam v. Kailasapillai (4) it was held that it was not necessary foran administrator to obtain the judicial settlement of an estate as apreliminary to a plea of plene administravit.
It could be inferred from these decisions that an administrator couldbe considered functus officio not because he has rendered a finalaccount, nor even because there has been a judicial settlement of theestate. The true criterion appears to be whether he has dulycompleted the administration of the estate. As he has done in thiscase it was the duty of the plaintiff as administrator of the estate of thedeceased to institute action for the recovery of the property in suit.That is a part of the administration of the estate. At the time that thefinal account was rendered, and the estate was .declared closed theadministration of this part of the deceased’s estate was not complete.Hence the power of administration under section 540 of the CivilProcedure Code still subsisted where this property was concerned.Therefore we are of the view that the plaintiff was not functus officio,and he had the capacity to continue the action.
The appeal is accordingly dismissed with costs fixed at Rs. 525.00.ABEYWARDENA, J. – I agree.