016-NLR-NLR-V-37-ARUNACHALAM-CHETTIAR-v.-RAMANATHAN-CHETTIAR.pdf
AKBAR S.P.J.—Arunachalam Chettiar v. Ramanathan Chettiar
89
1935Present: Akbar S.PJ. and Koch J.
ARUNACHALAM CHETTIAR v. RAMANATHAN CHETTIAR.
38—D. C. Colombo (Inty.), 1,284.
Mortgage Ordinance—Action on mortgage bond—Representation of estate ofdeceased mortgagor—Application for letters of administration likely tobe delayed—Ordinance No. 21 of 1927, s. 7 (2) (b).
An order for representation of the estate of a deceased mortgagor maybe made under section 7 (1) of the Mortgage Ordinance whether anapplication for letters of administration to the deceased’s estate hasbeen made or not.
The only point the Court has to consider under section 7 (2) (b) iswhether there is likely to be undue delay ih the grant of representation.
y^PPEAL from an order of the District Judge of Colombo.
H. V. Perera (with him D. W. Fernando), for respondents, appellants.
Hayley, K.C. (with him Nadarajah), for petitioner, respondent.
Cur. adv. vult.
July 15, 1935. Akbar S.P.J.—
One Ramanathan Chettiar owed a large sum of money to the petitioneron a mortgage bond dated December 23, 1929, and this Chettiar died onAugust 1, 1934, leaving the two appellants who are his two sons and twodaughters as his heirs. The petitioner applied for an order under section7 of the Mortgage Ordinance, No. 21 of 1927, appointing the two appel-lants to represent the estate of the deceased for the purpose of institutinga hypothecary action on the bond. In support of this petition thepetitioner filed an affidavit dated December 21, 1934, in which he swore—
(a) that the appellants had to the best of his belief been sued asexecutors de son tort of the intestate estate of the deceased ;
<b) that the appellants were in possession of the estate and effects ofthe deceased and that they were appropriating the income totheir own use ;
; 🙂 that the appellants have no intention of administering the estateof the deceased and paying off his debts ; and
i i) that they were delaying the administration of the estate with theintention of appropriating the income to themselves, eventhough the income and produce of the mortgaged premiseswere also mortgaged to the petitioner.
Various objections were taken by the appellants to the application bya counter-petition, in which however, the appellants stated that stepswere being taken to take out letters of administration to the estate ofthe deceased. Counsel who appeared for them, as far as I can see,only took one objection arising in this appeal under section 7 (2) (b),namely, that that sub-section only applied when an application forletters had been made. The learned District Judge held against theappellants. Mr. Perera for the appellants has pressed the same point
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AKBAR S.P.J.—Arunachalam Chettiar v. Ramanathan Chettiar.
before us and has also urged another point to which I shall refer later.As regards the first objection I entertain no doubts whatsoever thatsection 7 (2) (b) will apply to any case whether an application for lettersof administration has been made or not. The only point the Court hasto decide is whether there is likely to be undue delay in the grant of theletters. Ordinance No. 21 of 1927 repeals section 642 of the Civil Pro-cedure Code under which a mortgagee had to apply to Court to appointan administrator of a deceased mortgagor’s estate in every case wherethe mortgaged property exceeded Rs. 1,000 in value (as in this case).This entailed a great delay and it is clear to me that section 7 (2) (b)was meant to supply a speedier method by which a mortgagee couldrealize his debt if he was in a position to satisfy the Court that there waslikely to be undue delay in the grant of letters. In this case the peti-tioner asserted that the appellants were executors de son tort and thatthey never meant to apply for letters. This assertion has not beentraversed by the appellants either by affidavit or evidence. On thecontrary they say in their petition that steps are being taken to take outletters. No such steps have been taken up to date. It seems to meidle to contend that section 7 (2 (b) only applies when there is likelyto be undue delay in the grant of letters when an application has beenmade and does not apply when no application for letters has been madeeven when the petitioner can show that the persons who ought to take outletters never mean to do so.
The second objection taken by Mr. Perera was that the appellantswere unwilling to be appointed representatives under section 7 ofOrdinance No. 21 of 1927, and that therefore the Court had no power toappoint unwilling persons. He argued that section 7 was similar toOrder XVI., rule 46, of the English rules, and he cited the case ofIn re Curtis and Betts 1 in which the Court of Chancery had appointedthe executors of Curtis (solicitor) to represent the estate of Betts(solicitor) in a matter of taxation of the bill of costs of Curtis andBetts who had acted as solicitors for a client Stainbank. The Courtof Appeal held that there had been a series of blunders and that ifBetts was dead (of which there was some doubt) “ it was wrong toappoint a person to represent the estate of a deceased person who was'the only person liable and it was also wrong to appoint to represent anestate a person who was unwilling to act When the Court of Chanceryappointed the executors of Curtis to represent the estate of Betts, forthe purpose of taxation, the former did not assent. Even if this authorityapplies to this case, there was no statement before the District Courtthat the appellants did not assent to be made representatives of the'mortgagor’s estate. On the other hand the petitioner had assertedthat the appellants were in possession of the estate without taking outletters and that they did not mean to do so. The appellants in theirpetition did not traverse these assertions, but on the contrary statedthat steps were being taken to apply for letters. Their dissent to beappointed to represent the mortgagor’s estate is not to be found in their
(1887) Weekly Notes, p. 126.
Deutrom. v. Deutrom
91
petition, nor in the argument of their counsel before the District Judgenor in their petition of appeal. The reason why a direct statement wasnot made by the appellants expressing their unwillingness is obvious.As they were in possession of the intestate’s estate without administra-tion, it was not possible for them to say they were unwilling becausethey were guilty of the offence set forth in section 543 of the CivilProcedure Code. Unwillingness expressed in clear terms as in the Englishcase would be given effect to if the person called on to represent theestate was a total stranger who had nothing to do with the deceased’sestate. This is the effect, as I understand it, of the English case. Butwhen the person objecting has been intermeddling in the estate of thedeceased and appropriating the income, I am not sure if the decisionin the case cited would not have been different.
In my opinion the appeal fails and it must be dismissed with costs.
Koch J.—I agree.
Appeal dismissed.