082-NLR-NLR-V-29-MOOSAJEE-v.-CARIMJEE.pdf
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Present: Fisher G.J. and Drieberg J.
MOOSAJEE v. CABIMJEE.198—D. C. Colombo, 3,356.
Administration—Preferential right of widow—Application by attorney—CivilProcedure Code, s. 523.
The preferential right to a grant of letters of administrationgiven under section 623 of the Civil Procedure Code may beclaimed by the attorney of a widow who is absent from the Island.
PPEAL from an order of the District Judge of Colombo.
HayleyJ K.C. (with F. if. B. Koch), for appellant.
Keuneman (with Ghoksy), for respondent.
December 20, 1927. Fisher C.J.—
This case concerns the administration of the estate of one AbdulHussein Alibhoy, who died in India in 1923, leaving movable andimmovable property in Ceylon. It has been dealt with on thefooting of an intestacy, for although the deceased is alleged to havemade an oral will, its validity has been contested in Court in India
1 (1909) 78 L. J., K. B. D. $29.3 {1875) Q. B. D. 447.
3 (183$) 7 C. and P. 303.
1927
and no probate has as yet been granted. The deceased left a widowwho jus in India, and the question for our decision is whether in acontest of claims for grant of administration the provisions of section528 of the Civil Procedure Code apply to an application by theattorney of the widow. That section puts the claims of widows andwidowers on the same footing, and if this were a case of a widow inthe Island applying for a grant to herself her right to have her claim“ preferred to all others ” would have to prevail. See In re Intestacyof Ukku Banda.1 It is contended, however, that the right cannotbe given effect to in the present case, and the learned Judge has. heldthat " the privilege provided, for is personal to the person giventhe right and cannot.be delegated to another.’' He rejected thecontention that the last four lines of section 518 are applicable. tothe case, and I think he was right in so doing. In my opinion thewords in that section, relied on by the appellant, are limited to casesin which the deceased person left a will. Dealing, therefore, withsection 523 by itself—in the first place it must be borne in mindthat the right of a widow under section 523 in case of an intestacyis a right created solely by the section and must be distinguishedfrom the right of an executor whose appointment and authority arebased on the wish of the testator as expressed in the will, and Ido not think that the use of the words “ or his attorney M in thecase of an executor can. be successfully used to sustain the viewthat the absence of those words, in the case of the preferential rightgiven to the widow, involves the construction that that right isconfined to applications by a widow without the intervention of anagent. A right created by statute can be exercised by a dulyappointed agent* unless the. language used or the object of thestatute show that a personal exercise is intended, the presumptionbeing that the Legislature does not intend to exclude the applicationof the general principle of law “ qui facit per (ilium facit perSee Maxwell on the Interpretation of Statutes,. 6th ed., p. 136. Thepractice of granting administration to an attorney is well recognizedand established in England (see, e.g., Williams on Executors andAdministrators (1921), vol. p. 352), and I can see no reason-forlimiting the operation of section 523 in favour of a widow to a caseof a personal application by a widow present in Ceylon.
I would therefore allow the appeal and direct that administrationbe granted to the appellant. The respondent must pay theappellant’s costs of the inquiry in the District Court end of theappeal.
Duieberg J.—-I agree.
Appeal allowed.
i(mo)4N. l. r. m.