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Present: Garvin and Lyall Grant JJ.
DE ZILVA v. GOMES.224—D. C. Colombo, 2,618.
Administration—Claim by creditor—Not admitted by administrator—Responsibility of Court—Separate action.
■ An administrator, who is not prepared to admit the claim of acreditor, is not entitled to place upon the Court the'responsibilityof a decision on the matter. In such a case it is left to the creditorto establish his claim by regular proceedings against the estate.
PPEAL from an order of the District Judge of Colombo allowingthe respondent, a creditor of one Shirman de Zilva, to draw
certain moneys lying to the credit of his estate. The administrator,to whom the respondent applied for payment, was not prepared toadmit his daim. The widow who was given notice of the applicationobjected to the payment of the full claim.
H. V. Perera, for petitioner, appellant.
Hayley, K.C. (with Soerlsz), for creditor, respondent.
February 1,1928. Gabvin J.—
This is an appeal from an order of the learned District Judge onan application made by the respondent to draw from certain moneyslying in credit to one Shirman de Zilva, the sum of Rs. 65,000 and
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De ZHva v.Gomes
interest threon at 10 per cent, per annum from August 3,1923, leasa. sum of Rs. 6,525. The respondent was admittedly a creditor ofthe estate. He applied to the administrator for the payment of. thedebt which he alleged was due to him, but the administrator was notprepared to do so unless the Court ordered him to make the payment.The reason for the attitude of the administrator would seem to bethat the widow of the deceased desired to challenge the right of thecreditor to recover so large a sum as he claimed.. Instead of suing,the administrator the respondent adopted the course of applying tothe Court for an order of payment in his favour for a sum of approxi-mately Rs. 90,000. The widow was given notice of this motion andshe appeared and through her Counsel objected to the payment ofthis claim in full. An argument, appears to have taken place, at thetermination of which the learned District Judge made order in thefollowing terms—“ I therefore order that the money be paid to themortgagee if the official administrator has no other objectiontowards it. The widow can take' any action she likes regarding thetransfer and regarding the claim on the mortgagee.” It is urgedthat this is not an order which the learned District Judge wasentitled to make. Indeed that the whole procedure adopted bythe respondent to recover payment of his claim was irregular. Theadministrator of course has the right to decide for himself whetherhe will pay the claim against the estate or not. The administratorwas not prepared to make decision upon the question. He did not.pay the claim. He is not entitled to place upon the Court theresponsibility of advising him as to whether the claim is onewhich should or should not be admitted. In such a case it is leftto. the creditor by appropriate proceedings against the estate toestablish his right to the amount which he claims to be due tohim from the estate of the deceased. It seems to me that since theadministrator in this case was not prepared to take the responsibiltyof paying the claim, the creditor should have been left to establishhis claim in a regular proceeding. For these reasons I would setaside the order under appeal. We make no order as to costs.
T.vat.tI Grant J.—I agree.
DE ZILVA v. GOMES