010-NLR-NLR-V-41-DE-SILVA-v.-RAMBUKPOTA.pdf
de Silva v. Kamoulcpota.
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1939Present : Soertsz and de Kretser JJ.
DE SILVA v. RAMBUKPOTA.293—D. C. Ratnapura, 6,352.
Administration—Right of administrator to sue for property■—Legal representativeof heirs—Plea of res judicata available to him as to heirs—Civil ProcedureCode, s. 472.
The property of an intestate vests in the administrator for purposes ofadministration.
The administrator is the representative in law of those who have beenfound in administration proceedings to be the lawful heirs of the intestateand in an action by the administrator a plea of res judicata, which isavailable to the heirs, would also be available to the administrator.
T
HIS was an action brought by the official administrator of the estateof one Mudiyanselage Podi Singho, to recover the value of rubber
coupons issued in respect of two lands purchased by the defendant fromone John Singho, who professed to be the sole heir of Podi Singho. Thequestion whether John Singho was the sole heir of the deceased arosebetween him and some others, who applied for administration. Whilethis question was pending the District Judge appointed the presentplaintiff as official administrator of the estate.
1 9 Ceylon Law Weekly 72.
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de Silva v. Rambukpota.
The District Judge held that John Singho was not an heir and hisfinding was affirmed in appeal.
The District Judge thereupon made order directing the plaintiff tocontinue as administrator.
The defendant pleaded that the order made and the findings in thetestamentary case were not binding on him.
The learned District Judge gave judgment for the plaintiff.
N. K. Choksy (with him N. L. Jansz), for defendant, appellant.—Theparties to the present case are not bound by the order in the testamentarycase No. 987. That order would bind only the parties to the proceedings—Chinniah v. Suppramaniam et al.x It has been held that a judgmentagainst some of the heirs does not operate as res judicata against the otherheirs, although they derive title from the same source—Silva et al. v.Kumarihamy *.
The plaintiff was not a party in the testamentary case. The findingin that case cannot operate as a finding in rem—Punchirala v. Kiri Bandaet aV where section 41 of the Evidence Ordinance is considered. Seealso Velupillai v. Muthupillai et aV and Spenser Bower on Res Judicata,para 242. The only effect of the former proceedings on the defendantis to debar him from taking letters of administration.
Furthermore, the plaintiff, being administrator, has no title to theimmovable property and is therefore not entitled to bring this action.There is a fundamental distinction between English law and Ceylon lawin regard to the position of an administrator. In Ceylon, on the deathof a person intestate, his estate passes at once to his heirs and thedominium vests in them and not in the administrator—Silva v. Silva et al ° ;in England, it vests in the administrator appointed by Court—HukumChand on Res Judicata p. 196, Art. 91.
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and E. S.Dassenaike), for plaintiff, respondent.—The question whether there isprivity between the plaintiff of this case and the heirs who took partin case No. 987 is conclusively answered by section 472 of the Civil Pro-cedure Code. There is an identity of interest between the administra-tor and the heirs, and a plea of res judicata which is available to the heirswould also be available to the administrator. There is not merelyprivity, but identity between the administrator and the heirs just asidentity of parties remains when a new administrator is appointed tosucceed another.
Silva v. Silva et al. (supra) is correct to the extent that on the factsof that case a further conveyance from the administrator would not benecessary. The statute law, viz., section 472 of the Civil Procedure Code,cannot be altered by that decision.
N. K. Choksy, in reply.—The wording of section 218 of the CivilProcedure Code implies that there is no identity between the administra-
tor and heirs.
1 (1929) 10 C. L. Rec. 152.a (1923) 25 N. L. R. 449 at 452.
‘ (1907) 10 .V. L. R. 234.
3 (1921) 23 N. L. R. 22S.* (1923) 25 N. L. R. 201.
SOERTSZ J.—de Silva v. Rambukpota.
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Section 472 is a procedural section and should be so interpreted asnot to conflict with the substantive Jaw. Silva v. Silva et al. {supra) hasbeen consistently followed—Fernando v. Rosa Maria et al.1 There maybe identity of interest between the heirs and the administrator, but certainlynot identity of personality ; it is impossible to conceive of the latter.
Cur. adv. vult.
March 29, 1939. Soektsz J.—
In this action, the official administrator of one Jayatunge Mudiyanse-lage Podisingho, sues the defendant-appellant to recover the value ofrubber coupons obtained by him on the strength of a deed of transferNo. 557 of February 22, 1933, by which one Muhandiramage John Singho,professing to be the full brother and sole heir of Podisingho, purported toconvey to him eleven parcels of land, including the two lands in res-pect of which the coupons were issued.
The question whether the appellant’s vendor, John Singho, was thesole heir of the deceased arose between him and a number of otherswho claimed to be the lawful heirs, when all of them in opposition to oneanother, applied for letters of administration. While this question waspending, the District Judge, on August 13, 1935, appointed the Secretaryof the Court, that is, the present plaintiff official administrator, “protempore until the rival claims are decided ”. On January 16, 1936,the District Judge decided that John Singho is not a brother of thedeceased, Podisingho, and that Mr. Proctor Peries’s clients are the next-of-kin of the deceased. There was an appeal from this order and on July27, 1936, this Court, dismissed the appeal. On August 13, 1936, theDistrict Judge made order directing the secretary to continue officiatingas administrator. This order was most probably made with the consentor acquiescence of the next-of-kin, for when on October 26, 1936, the officialadministrator filed this case, their proctor, Mr. Peries, was his proctor.
The defendant filed answer pleading, inter alia, “ that any orders madeor findings arrived at in D. C. Testy, case No. 987 of this Court towhich this defendant was no party do not bind him his vendor havingdivested himself of all title previously, deliberately failed to place allevidence before Court. ”
When the case came up for tried, a number of issues were framed,among them—
(5) Even if John Singho was not the sole heir or an heir of the estateof Podisingho, do the orders in the testamentary case No. 987operate as res judicata against the defendant to the effect thatJohn Singho did not inherit any rights from Podisingho ?
Was plaintiff the administrator of the estate of the deceased,
Podisingho, at the date of the institution of this action ?
Has there been a judicial settlement of the estate in testamentary
case No. 987, and if so, can plaintiff maintain this action ?
The District Judge decided to try these three issues as preliminary ones,He heard all the evidence adduced to him on these issues, and theargument of Counsel, and on August 27, 1938, delivered judgment
1 (1926) 28 N. L. R. 234
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SOERTSZ J.—de Silva v. Rambukpota.
finding in favour of the plaintiff and entering judgment for him forRs. 2,251.10, which was the amount the parties had agreed would bepayable by the defendant in the event of its being found that he wasbound by the earlier decision.
This appeal is from that judgment. The only question really debatedon appeal was that raised by issue 5, and I wish to say that we weregreatly assisted by the able argument of Counsel on both sides. Aftercareful consideration of that argument, I have come to the conclusionthat issue (5) must be answered in the affirmative, that is to say, againstthe defendant-appellant. In brief, Mr. Choksy’s contention was thatalthough the defendant is the privy of John Singho, the plaintiff is astranger to the proceedings in which it was held that John Singho wasnot Podisingho’s heir, and that he cannot rely on that finding against thedefendant; that the only persons who could have repelled the defendantwith that plea are Mr. Peries’s clients, who were found to be next-of-kinand that between them and the plaintiff there is no privity whatever ;that the only hypothesis on which it could have been sought to bind thedefendant by the finding in the testamentary case is that that findingwas a finding in rem, but that was not a sound legal hypothesis. (Seethe Divisional Bench Case of Punchirala v. Kiri Banda.')
Mr.. Perera’s contention was that although the official administratoris the nominal plaintiff, he is present as the representative in law of thosewho were found to be the lawful heirs of the deceased, and that, in effect,this question of res judicata now arises between those heirs and thedefendant, who is the privy of John Singho, the unsuccessful party.For this proposition Mr. Perera relies on section 472 of the CivilProcedure Code, which runs as follows:“In all actions concerning
property vested in a trustee, executor, or administrator when the con-tention is between the persons beneficially interested in such propertyand a third person the trustee, executor, or administrator shall representpersons so interested, and it shall not ordinarily be necessary to makethem parties to the action. But the Court may, if it thinks fit, order themor any of them to be made such parties.”
The reply made by appellant’s Counsel to that argument is that thatsection is purely procedural and will operate when an appropriate casearises, namely, a case in which the property of a deceased person is foundto have vested in an administrator. He says he is not aware that anysuch case has arisen so far, nor can he visualize such a case, the lawbeing so, he contends, that title to immovable property belonging to theintestate estate of a deceased person does not vest in the' administratorof the estate of such person, but in the heirs. He relies on the DivisionalBench Case of Silva v. Silva' for0this proposition.
The effective part of that judgment, as I understand it, is the decisionthat a conveyance by an heir of an estate under administration is notineffectual merely because the administrator did not concur or assentto it. This finding is contrary to the view Bonser C.J. took in two earliercases, and it must now be regarded as the settled law on that point.It has been recognized as such for nearly a third of a century. But Ido not think that case compels us to hold that the property of the
* (1907) 10 N. L. R. 234.
(1921) 23 N. L. R. 228.
SOERTSZ J.—de Silva v. Ram bukpota.
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deceased can never vest in the administration in any sense at all. It isnotorious that frequently administrators sell and mortgage propertybelonging to their intestate in the course of administration. Thisobviously they cannot do, if in no case, and in no sense, they are vestedwith title to that property. Hutchinson C.J. after examining a numberof authorities concludes his judgment in the Divisional Bench case I havereferred to, by saying “ the personal representative still retains powerto sell it (i.e., immovable property) with the authority of the Court ifthe terms of the grant of administration so require, for the purpose ofadministration Now, a power to sell implies a power to pass titleand it is one who has title that can transmit it. Grenier J. however,in his judgment in Silva v. Silva (supra) put the matter on another basis.He said, “ a grant of administration viewed by itself, is not a conveyanceor assignment by the Court to the administrator of the title of theintestate …. a practice has, in consequence of the anomalousposition which an administrator occupies as regards .the immovableproperty of all intestates grown up in our Courts, which I think maycorrectly be described as inveterate, by which the Court, where it hasordered the sale of immovable property belonging to an intestate estate,permits and sometimes expressly orders the administrator to executethe necessary conveyance …. It is a fallacy therefore tosuppose …. that an administrator obtains an absolute titleto the estate of his intestate. What happens is that on letters ofadministration being granted to him …. he is entrusted andcharged with the estate of the deceased for purposes connected with theproper administration and settlement of it.” Grenier J. took this viewand described the administrator as being ‘ entrusted and charged ’ withthe estate or as being ‘ permitted or ordered ’ to execute a conveyancebecause he refused to recognize the possibility that the title can be in boththe administrator and the heirs at one and the same time. This is nodoubt the correct logical view, but it sometimes happens that a logicalinconsistency is tolerated and even encouraged by law for some verygood reason. Take, for instance, the case of a lessor and lessee. Themodem view is that a lease creates not only contractual rights, but alsoproprietary rights. In Gunewardene v. Rajapakse1 Bonser C.J. andWithers J. held that a notarial lease was a pro tanto alienation and gavethe lessee the rights of the owner during his term. In Abdul Azeez v.Abdul Rahaman" a Divisional Bench held that a lessee is dominus orowner for the term of the lease. “ He is owner during that term againstall the world including his lessor.” But this does not prevent the lessorfrom conveying title to the leased land to a third party, during the termof the lease. The sale will, of course, ordinarily be subject to the lease.There is thus in a sense, concurrent title in two persons. Similarly forpurposes of the law of registration, by a fiction, a title may be consideredto exist in two persons at the same time. A sells to B. From thatmoment, title is clearly in B as between the two of them. But, the lawsays that if notwithstanding his sale to B, A sells again to C, who registershis deed before B, C gets the superior title. I adduce these instancesto show that it is possible for a title to be regarded as vested in two1 (1895) 1 N. L. R. 211.• 1 Curr. L. R. 271.
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Sockalingam Chettiar v. Munasinghe.
different persons at the same time, for certain purposes. The position• is not different in the case of administrators and heirs in relation to theproperty of their intestate, except that it results not from a legal fiction,but from the evolution of our law of succession, which is derived fromthree different systems of Jurisprudence, the Roman, the Dutch, and theEnglish baged on divergent theories relating to succession.
In my opinion, therefore, it would not be incorrect to say that theproperty of the intestate vests in the administrator for purpose ofadministration. Section 472 of the Civil Procedure Code in so far as itrelates to executors and administrators can be given a meaning onlyin that view of the matter. The only alternative is to adopt appellants’Counsel’s suggestion that that part of the section is meaningless in thepresent state of the law. That, however, is a suggestion that I am notat all disposed to accept. I cannot regard that part of that sectionas some Utopian forecast. Section 218 of the Code seems to support theview I take of section 472.
The conclusion I reach is that section 472 of the Code furnished acomplete refutation of the defendant’s plea, for by virtue of it, the presentplaintiff occupies the place of those who claimed to be the intestate’sheirs and succeeded against John Singho the predecessor-in-title of thedefendant. In other words, as far as the plaintiff and the successfulclaimants (i.e., the heirs) are concerned, there is identity and betweenJohn Singho and the defendant there is privity.
I dismiss the appeal with costs.
de Kretser J.—I agree.^
Appeal dismissed.