077-NLR-NLR-V-44-NAGALINGAM-et-al.-Appellant-and-SATHASIVAM-Respondent.pdf
301
KEUNEMAN J.—Nagalingam and Sathqgivam.
1943Present: Keuneman J.
NAGALINGAM, et al., Appellant, and SATITASIVAM, Respondent,
210—C. R. Chavakachcheri, 32,29'5.
Administrator—Action on promissory note by creditor of deceased—Right to,sue before letters.
A creditor of a deceased person is not entitled to sue the administratorof his estate unless the administrator has taken out letters or inter-meddled with the estate.
A
PPEAL from a judgment of the Coirimissioner of Requests,Chavakachcheri.'
N.Nadarajah, K.C. (with him H-. W. Thambiah), for plaintiff, appellant'.L. A. Rajapakse (with him C. T. Olegasegaram)for defendant,respondent..
Cur. adv. vult.,
March 18, 1943. Keuneman J.—
In this case the plaintiff sued the defendant,, who is 'described in the'caption to the plaint “ as administrator of the estate of the late K. Kasi–pillai ”. The plaint was filed on the March 7, 1942, in. respect of a
16 O. L. Rec. 176.** 29N.L.R. 321.
302
KEUNEMAN J.—Nagalingam and Sathasivam. '
promissory note executed by the deceased on March 9, 1936. Thedefendant filed answer on May 7, 1942, stating, inter alia, that he couldnot be sued as administrator. In fact, letters of administration were notObtained by the defendant until May 12, 1942. At the trial among theissues framed was one raising the question whether the defendant wasthe administrator of the said estate at the time of the institution of theaction. Certain questions as to whether the defendant carried on theaffairs of his father’s estate, and as to whether the defendant held himselfout as administrator were disallowed by the Commissioner. Laterplaintiff’s Counsel suggested issue 5, viz : “ was the defendant an ex-ecutor deeson tort of the estate of Kasipillai ”. This issue was disallowed,and in the result the plaintiff’s action was dismissed with costs, on theground that the defendant was not an administrator of the estate at thetime of the institution of the action-
Counsel for the appellant contended that' this finding was wrong.He cited two cases to me, viz., in the Goods of Elizabeth Pryse *, and Longand Hebb and other", where it was held that letters of administrationrelate to the time of the death of the intestate, and therefore an adminis-trator may bring an action of trespass or a trover and conversion for goodsof the intestate taken by one before the letters granted to him, otherwisethere would bq no remedy for the wrong done. Those cases, however,do not deal with the matter of an action against an administrator, who
had not at the time obtained letters.
.1
A number of cases have also been cited to me, in which an heir of theintestate has, subject to section 547 of the Civil Procedure Code, beenpermitted to bring actions against third parties. I do not think thatthese cases are of any help.
I tliink the true principle is to be found, in the decision of the PrivyCouncil in Mohideen Hadjiar v. Pitchey
“ A creditor of a deceased debtor cannot sue a person named asexecutor in the will of the deceased, unless he has either administered,that is intermeddled with the estate, or proved the will. ”
Their Lordships make it clear that the words “ prove the will ” areequivalent to “ take out probate ”, and state—
“ It would certainly be a most dangerous doctrine to hold that thecreditors could tear an estate to pieces on going through the form ofan action against a person – who has neither intermeddled with theassets, nor duly clothed himself with a representative character. ”
I think this applies with even greater force to the case of an adminis-trator.
The case of Kudhoos v. JoonoQS * cited to me, does not help, for thiswas decided on principles which are not applicable to the present case.
In the case of Hornigold v. Bryan‘ the words attributed toDodderidge and Coke, viz., “ The reason why an executor shall be suedbefore probate, because that otherwise great mischief might happen, for. that a bad executor would never then prove the will ”, are not in conflict
1 L. R. 1904, Probate Division 301.3 3 S. C. R. 105—107.
8 82 English Reports, K.B. 760.* 15 C.L.W. 133.
6 81 English Reports, K. B.t p. 62.
DE KRETSER J.—Arnolis Homy and Alagan.303
with tke Privy Council decision. For”it”^-made~cifiax^that-^^roofallowed of there, is by two ways, (1) By insinuation; and (2) Incommuni forma, by showing of literas testamentarias
The narrow reason on which the Commissioner rested his judgment,must then be upheld, but I think he erred in excluding the evidencewhich was tendered by the plaintiff. Even without issue (5), I am inclinedto think that the Commissioner should have allowed evidence, to showthat the defendant intermedled with the assets of the deceased. Butat any rate, I cannot uphold his reason for excluding issue (5). Insubstance the allegation was that defendant was a representative of theestate of the deceased.
I accordingly set aside the judgment of the Commissioner, and remitthe case for trial of issues (1), (2) and (5) and also issue (4) which theCommissioner has not answered. The Commissioner has answeredissue (3) in the affirmative and that finding will stand.
The Commissioner will have a discretion with regard to the costs ofthe trial already held. As both parties have partially succeeded inappeal, there will be no order for the costs of appeal.
Set aside ; case remitted.