115-NLR-NLR-V-53-BLACKER-Appellant-and-DAVID-Respondent.pdf
GRATIAEN J.—Blacker e. David
499
1951Present: Gratiaen J. and Gunasekara J.BLACKER, Appellant, and DAVID, Respondent
S. C. 342—D. C. Colombo, 19,I19/il£
Executor—Enjoys distinct persona—Representative capacity distinct from personalcapacity.
A person cannot be sued in bis personal capacity in respect of a cause ofaction which arose against him in a representative capacity.
A person sued in his personal capacity cannot in the same proceedings claimrelief by way of reconvention in respect of a cause of action which is allegedto have accrued to him in a representative capacity.
^^LPPEAL from a judgment of the District Court, Colombo.
E. B. Wikramanayake, K.C., with Ivor Misso, for the defendantappellant.
S. Jayawickreme, for the plaintiff respondent.
Cur. adv. vult.
July 20, 1951. Gratiaen J.—
According to the evidence led in this case, ■ the plaintiff had for manyyears been a trusted servant of the late Mrs. Botticelli who died in Colomboon 15th October, 1946. Mrs. Botticelli had owned and carried on a1 (1911) 13 N. L. R. 326.* (1912) 14 N^L. R. 219.
500
GRATIAEN J.—Blacker «. David
lucrative business in the purchase and sale of pianos and musical instru-ments, and the plaintiff, who first entered her employment as a podian,later helped in the business in a capacity which clearly indicates that hehad progressively secured her confidence. A question which may arisefor adjudication in other proceedings is whether or not that confidencewas betrayed.
Mrs. Botticelli was in poor health during the latter part of 1945, andfrom time to time until she died she was compelled to enter a nursing homefor treatment. On 25th February, 1946, she had drawn a cash cheque D5on her bank for Rs. 2,250, and an entry in the corresponding counter-foil D5a (which has been made out in the plaintiff’s handwriting) indi-cates that out of this sum Rs. 250 was for nursing home expenses, whilethe balance Rs. 2,000 was “ in favour of a/c for purchasing pianos ”.The cheque was cashed by the plaintiff. Mrs. Botticelli entered a nursinghome on the daj: on which the cheque was cashed, and did' not returnhome till the end of March or the beginning of April.
On the death of Mrs. Botticelli it was ascertained that she had left alast will and testament dated 8th March, 1946, appointing her personalfriend the defendant to be the executrix of her estate. The plaintiffwas one of the legatees under the will. The defendant thereupon inher representative capacity, took over the deceased’s belongings,including a jewellery bag in which was found the cheque book containingthe counterfoil D5a and also the plaintiff’s Post Office Savings Bankpass book. This pass book shows that on 4th March, 1946—i.e., a fewdays after Mrs. Botticelli’s cheque D5 had been cashed by the plaintiff—he had deposited a sum of Rs. 2,000 to his credit in the Savings Bank.The defendant’s suspicions seem to have been aroused, and she taxed theplaintiff with the suggestion that the amount so deposited representedin fact the money with which he had been entrusted for the purpose ofpurchasing a piano as Mrs. Botticelli’s agent. It is not surprising thatthe defendant’s suspicions were not removed in view of the conversationwhich, according to her uneontradicted evidence, took place betweenherself and the plaintiff regarding the transaction shortly after the passbook came into her possession as executrix:—
“ I questioned the plaintiff ”, she states, ‘‘ about the pass book.He came and asked me for the book, I asked him from where hegot this money and he said that his father gave it to him. I saidthat his father could not give it as he did not have so much. Thenhe said ‘ lady ’ gave me a gift, meaning Mrs. Botticelli. I said it wasstrange that the lady would have given that money to him as a gift.
The plaintiff did not choose to give evidence at the trial as to how hispass book had come into Mrs. Botticelli's possession during her life-time.Nor has he stated which, if either, of the contradictory explanationsregarding the deposit of Rs. 2,000 represents the truth. He has alsorefrained from stating whether the money entrusted to him for thepurchase of a piano was in fact expended on 'Mrs. Botticelli’s account.I mention these matters because, in the view which I have taken regardingthe scope of the present action, the plaintiff will no doubt be given a
GBATIAEN J.—Blacker v. David
601
further opportunity of satisfying Mrs. Botticelli’s executrix or, in thealternative, a Court of law as to what the true position is regardingmatters all of which are within his personal knowledge.
In the present action the plaintiff sued the defendant in her. personalcapacity and not in her capacity as executrix, for the return of his passbook of which, he alleges, she is in wrongful possession. The defendantdenied that she could be sued in her personal capacity. At the sametime she counterclaimed for. a declaration that she was entitled asexecutrix to the sum of Es. 2,000 previously referred and to the pass, bookin question.
Only the defendant gave evidence at the trial. An issue was; specificallyraised as to whether the defendant had unlawful possession of theplaintiff’s pass book, and the learned District Judge, in answer to thisissue, held that “ the pass book came into the possession of the defendantas executrix of the estate of Mrs. Botticelli along with her belongings.The defendant therefore did not take unlawful possession of the passbook ”. Nevertheless the learned District Judge entered judgment infavour of the plaintiff as prayed for as against the defendant in herpersonal capacity. He also dismissed the defendant’s claim inreconvention.
It seems to me that the defendant’s claim in reconvention was rightlydismissed in this action, but not for the reasons given by the learnedDistrict Judge. A person sued in his personal capacity cannot in the-same proceedings claim relief by way of reconvention in respect of acause of action which is alleged to have accrued to him in a representativecapacity. The converse proposition was laid down by Bertram C.J.and Ennis J. in Mutunayagam v. Britto 1 and the ratio decidendi in thatcase is clearly applicable in this action.
I am satisfied that the plaintiff’s claim against the defendant inher personal capacity was equally misconceived. It is important tobear in mind that the executor or administrator of a deceased’s estateenjoys a distinct persona whose obligations in that capacity cannot beconfused with the obligations imposed upon him in his personal capacity.The learned Judge has held that the pass book claimed by, the plaintiffcame into the defendant’s possession qua executrix, and there is noevidence that the defendant at any time thereafter took possession of thebook on her personal account. If therefore the possession of the passbook was wrongful, an action for trespass could only lie at the plaintiff’sinstance against the defendant in her representative capacity.
For these reasons I would set aside the judgment appealed from andenter decree dismissing the plaintiff’s action as well as the defendant’scounterclaim. If the dispute cannot even at this stage be satisfactorilyadjusted, both remedies are of course still available to the parties inproceedings properly constituted. There should be no order as to costsin the Court below, but the defendant is entitled to her costs of appeal.
Gunasekara J.—I agree. 1
1 {1920) 22 N. L. R. 329.
Judgment set aside.