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Present: Fisher C.J. and Drieberg J.
In re Sebastian Perera176—D.C. (Inty.) Chilaw, 13.
tmnatic—Order against manager of estate—Direction to pay fixed amountto Court—Civil Procedure Code, chapter XXXIX.
An order requiring the manager of the estate of a lunatic to paya fixed sum into Court as the income of the estate without regardto a statement of accounts, showing the receipts and disbursements,is irregular.
y^PPEAL from an order of the District Judge of ChUaw.
F. de Zoysa, K.C. (with Croos Da Brera), for appellant.
H. V. Perera, for respondent.
December 5, 1928. Drieberg J.—
In August, 1922, the respondent was appointed manager of theestate of Sebastian Perera, who was adjudged to be of unsoundmind and incapable of managing his affairs. The respondent ismarried to a sister of the lunatic. The appellant was appointedguardian of his person.
In November, 1927, the appellant presented a petition allegingthat the estate was deteriorating by neglect on the part of therespondent in not properly cultivating and supervising it. He setout the gross income derived from the estate when it was previouslymanaged by Mudaliyar Abeyratne and compared it with the incomeobtained during the respondent’s management in 1925, 1926, and
He did not say that the accounts rendered by the respondentwere false or inaccurate. He asked for the appointment of areceiver or in the alternative that the estate be leased for a term ofyears, the lease to be sold by public auction.
The learned District Judge says that he had grave doubts whethersuch an application as this could be made. It is not an applicationunder section 572 of the Civil Procedure Code to impugn the accuracyof the accounts rendered by the respondent, nor is it an applicationunder section 575 to remove the respondent from office and appointanother manager, but the Judge says that during-the argumentthe petition reduced itself into a prayer by the petitioner that he beappointed manager—this might be more correctly described asan extension or enlargement of the petition—and that the petitioner
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be given a lease of the lunatic’s estate on a rental double the averagenett income shown by the respondent. There was evidence, whichthe Court accepted, that the lunatic’s estate could be leased forRs. 1,250 a year ; whether this is more or less than the nett incomeaccounted for by the respondent is not stated.
The learned District Judge thought that it would be inequitable todeprive the respondent of his right to manage the lunatic’s estate,for he claims to have made some sacrifice in marrying his wife,whose sanity was once doubted, and could fairly expect to be allowedthe management of her half share. As the respondent is managingthis share he thought there would be disadvantages attending thepossession by a stranger of the lunatic’s half.
He therefore ordered that the respondent should be allowed tocontinue as manager if he paid into Court half-yearly to the creditof the lunatic Rs. 625, and that he was to manure and properlycultivate the lunatic’s half share ; the land is not divided.
I presume this means that the respondent is not to draw thespecial remuneration allowed, but is entitled to retain anythingover this amount if there is a surplus and to pay the full Rs. 625even if the estate should not yield that amount.
This arrangement is not a satisfactory one. The lunatic isentitled to have credited to his account the income of this estateafter deduction of costs of working and of remuneration to themanager, who cannot get more. The present arrangement is ineffect a lease to the manager without the advantage of a leasebinding him to a definite term ; nor is it clear from this order whetherthe respondent is absolved from rendering accounts of income andexpenditure; if he is liable to pay a definite sum, whatever theincome is, the Court would not be concerned with the amount of theincome ; though the Court may need an account of the expenditureto satisfy itself that the estate is properly cultivated.
1 doubt whether such an order as this is possible. There is noevidence, beyond the offer of Elaris to lease it at Rs. 1,250 and theoffer of the petitioner to lease it at double the average nett incomeshown by the respondent, to show what the real income of this estateis. We have not been given the figures of what nett income therespondent has accounted for.
District Courts have the control of many estates and should beable to secure for them proper management and due receipt ofincome by requiring proper accounts and subjecting them to-examination.
If the Court is satisfied that the yearly income should be at leastRs. 1,250 and if the respondent fails to account for that amount,that would be proof that the respondent is dishonest or negligentand he should be made to pay the deficit; security has been givenfor the due administration of the estate. If, as is suggested and
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asthe past administration by the Mudftliy&r shows, the estate canbe made to yield much more,-1 do not see how the Court can permit iHtirn'nw ytthis arrangement. Mudaliyar Abeyratne’s accounts of the working——
from May, 1921, to July 31, 1922, showed a total income of SebastianRs. 4,029 ■ 60 and Rs. 1,128*54 expenditure, leaving a profit of PereraRs. 2,901106, which he paid into Court. This is exclusive ofremuneration and cost of hire of cars to visit the estate ; a co-ownerresiding on the land should be able to show at least as good resultsas this.
The appellant appeals from this order, which he says will givethe respondent Rs. 825 half yearly, which is more than the lunaticwill get. If he is right this is a good reason for not allowing thisorder to stand.
The respondent has not appealed from this order, though hecould have done so, but he agrees with the appellant that this ordershould be set aside, though he opposes the other ground of theappeal, viz., that the respondent should be removed from office.
Sufficient reason has not been shown to justify the removal of therespondent from office and apart from this, his removal was notasked for in the petition.
We, therefore, set aside the order of the District Judge of July 11,
The appellant will have an. opportunity of questioning theaccounts presented by the respondent, and the Court can undersection 572 make such order as is considered proper.
I think the inquiry into the accounts should now be confined tothose rendered after the presentation of the petition.
The order of the District Court as to costs will stand, but in viewof the failure of the appellant to succeed on the question of removingthe respondent from office, he should pay to the respondent halfthe costs of this appeal.
Fishek C.J.—I agree.
In re SEBASTIAN PERERA