FERNANDO et al. v. MATHEW et al

020-NLR-NLR-V-15-FERNANDO-et-al.-v.-MATHEW-et-al.pdf


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mi.
Present: Middleton J. and Wood Renton J.
In re the Estate of H. P. Fernando Wimalagoonewardene.
FERNANDO et al. v. MATHEW et al.
140■—D. C. Colombo, 3,858.
Joint proxy in favour of one proctor by several – executors—Application bpsome of the executors to revoke the proxy granted by them—Discretionof Court—Civil Procedure Code, s. 27.
Section 27 of the Civil Procedure Code invests the Conrt with -areal discretion as. to whether or not the revocation of a proxyshould be allowed
HE facts are'set out in the judgment of Wood Renton J.
Bawa (with.him H. A. Jayewardene and A. St. V. Jayewardene), •for appellants,—A party has a general right to change his pleader.This section no doubt makes it necessary to obtain the leave of theCourt for that. _ The Court will usually grant leave, on' the requestof the party. See Hukrn Chand’s Civil Procedure'1 Code, vol. 1.,p. 493. James L. J. said in Ex parte Yalden,1 “ A man has a rightto change bis solicitor if he likes, but then the law imposes certainterms in favour of the solicitor, that is to say, that the papers inthe suit cannot be taken out of his hands without his having hiscosts paid .
The Civil Procedure Code nowhere gives the grounds on whichleave to revoke a proxy could be given or withheld; the positionof proctor and client is merely that of an – agent and principal.The proctor cannot insist on acting for the client against the client’swill. In re Galland,2 Saffron Walden Building Society v. RaynerCThe four executors need Dot have gone to one proctor at thestart; there is nothing to prevent their separating at this stage.
Wedderbum v. Wedderbum,* relied on by the Judge, is not quitein point.
van Langenberg (with him Weinman and Schneider), for therespondents.—The principles of English law do not apply toCeylon; in Ceylon the proctor is an officer of Court.
There is nothing to prevent the appellants to give a proxy toanother proctor when they cannot agree on any important matter;but it would be most inconvenient to have four proctors doing thework of the four executors in ordinary matters. The cost wouldbe enormous:
> (1876) 4 Ch. D. 131.z (1885) 31 Ch. D. 296, 900.
2 (1880) 14 Ch. D. 406.* 17 Beat), 158.
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Bawa, in reply.—The fact- that Messrs. Prins and Swan have 1911.brought many charges against the appellants is enough to show pernanfothat the proxy could not be allowed to stand.Mathew
The appellants are prepared to bear the extra costs.
Cur. adv. vult.November 7, 1931. Wood Benton J.—
The applicants, appellants, two of the executors appointed underthe will of the late H. P. Fernando, moved the District Court ofColombo that they might be allowed to revoke the proxy grantedby them, together with the other two executors, to Messrs. Prins andSwan, Proctors, in connection with the testamentary case. Thelearned District Judge disallowed the motion, and the presentappeal is brought against his order doing so.
The material facts have been stated by the District Judge, and Ido not propose to repeat them. It appears to me that section 27 ofthe Civil Procedure Code invests the Court with a real discretionas to whether or not the revocation of a proxy should be atllowed,and that in such cases as the present the only question to be decidedis whether that discretion has been shown to have been wrongly■exercised. I am not prepared to answer that question in theaffirmative in this case. All four executors concurred in the jointproxy given to Messrs. Prins and Swan at the commencement' ofthe proceedings. The case is a testamentary one. and the proxyauthorized Messrs. Prins and Swan, not merely to apply for pro-bates, but to do all necessary acts in the subsequent testamentary
proceedings. The allegationswhich the learned District* Judge
has accepted—in the affidavits filed by Messrs. Prins and Swan andMr. C. J. Mathew, one of the executors, respondents, show that theappellants themselves at first assented to the proposal that Mr. C. J.Mathew should be empowered to act for all the executors in themanagement of the estate. It is a desirable thing in itself that,where a testator , has appointed a number of executors, one of themshould be appointed as attorney of all in regard to various adminis-trative matters, and there are in the present case special reasonswhy that position should be given to Mr. Mathew. The firstappellant, the testator's widow, is an illiterate person, and thetestator himself in .his will has expressly provided that she should notaffix her mark to any documents unless signed by Mr. G. J. Mathewalong with her. Whatever the real reason may be of the endorse-ment by the second appellant of the two cheques B 1 and B- 2, thefact at least supports the allegation in Mr. Mathew's affidavit* as tohis business inexperience. I agree with the District Judge that ifthe appellants were allowed to appoint one firm of proctors to actfor them, while the opposing executors were represented by Messrs.Prins and Swan, the result would in all probability be a state of
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1911.
WoodHiimoN J'
Fernando v.Mathew
chaos in so far as the administration of. the estate of the deceasedwas concerned. In particular I would adopt the language used bythe District Judge in the following passage: “It will be quiteimpossible for the Court to exercise a proper control over theexecutors and compel the filing of the necessary accounts, foreach proctor will lay the responsibility for any neglect upon theshoulders of the other. ’’
This difficulty might arise under any circumstances. But itwould almost inevitably do so where, as here, the executors them-selves weife not working harmoniously together. The appellants’counsel, in reply, stated that his clients were willing to undertakethat no costs of the separate firm of proctors .whom they wishto employ should be chargeable to the estate. Counsel for therespondents was not ready, however, to assent to the separaterepresentation of the appellants even on such an undertaking. I donot think that it constitutes a ground for any interference by theSupreme Court with the order under appeal. The undertakingnow tendered might save costs to the estate. But it would not meetwhat to my mind is the main difficulty’, viz., the probability amount-ing almost $o a certainty, in view of the state of, feeling between theparties, that the proposed separate representation of the appellant^would . produce a deadlock in the administration of the estate. Itis no doubt unfortunate that the appellants have to be represented bya firm of proctors whom they, rightly or wrongly, regard as adverseto themselves. But they concurred in the joint appointment ofthat firm by the executors as a body. The learned District Judgehas not credited the specific allegations made by them against thefirm'of proctors so appointed, and there is nothing to prevent theappellants from taking independent legal advice whenever theydeem it necessary, without rendering the administration . of theestate unworkable. I see no reason why the principle applied in thecase of Wedderbum v. Wvddefburn1—a decision apparently (seeAnnual Practice, 1910, 42) still regarded as good law in England—should not be adopted here.
. I think that the appeal should be dismissed with costs.
Middi,fton J.—
1 concur, and have nothing to add.
Appeal dismissed.
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' (1853) 17 Beat. 158.