016-NLR-NLR-V-25-IN-re-THE-ESTATE-OF-KALIDEEN-MARIKKAR-HADJIAR.pdf
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Present; De Sampayo A.C.J. and Garvin J.
In re The Estate of Kalideen Marikar Hadjxar.
154—D. C. Kalutara, 1,206.
Civil Procedure Code, ss. 712 and 714—Notice by administrator callingupon person in possession of money bdonging to deceased to pay itto him—Claim by party noticed to hold the money for some specialpurpose as directed by the deceased—Costs of application.
An administrator by a petition under section 712 of the CivilProcedure Code asked for an order compelling the appellants to payto him as administrator a sum of money received by them from thedeceased. The appellants said that the money was left in theircharge, and entrusted to them for the purpose of paying certaindebts and of spending the balance in defraying the funeral expensesand the expenses of certain religious ceremonies, &c.
Held, that they were not entitled to refuse payment.
The person cited under section 712 is not in the position of aparty, but that of a witness ; no costs should be awarded againstsuch a person.
'J'HE facts are set out in the judgment.
EUiot, K.C. (with him E. W. Jayatoardene and E. W. Per era),for appellants.
H. J. C. Pereira, K.C. (with him M. B. A. Coder), for respondents.
April 25, 1923. De Sampayo A.C.J.—
In these proceedings the estate of Abubakker Lebbe MarikarKalideen Marikar Hadjiar is being administered by his brotherAbubakker Lebbe Marikar Ahamado Cassim Marikar. The appel-lants are two other brothers who admittedly received from thedeceased during his lifetime a sum of Rs. 5,750, and still have thatsum in their charge. The administrator by a petition under section712 of the Civil Procedure Code asked for an order compelling theappellants to pay that sum to him as administrator. The appellantssought to bring themselves under the last portion of section 714 ofthe Code, and to resist the administrator’s claim. They said thatthis sum of money was left in their charge and entrusted to them forthe purpose of paying certain debts, of spending the balance indefraying the funeral expenses and the expenses of certain religiousceremonies, and of paying a sup of Rs. 150 to an adopted daughterof the deceased. Their position is that the money became thesubject of a trust, and should not be reclaimed by the administrator
1928.
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1923.
Ds SampayoA.C.J.
In re the
Estate ofKalideenMariharAdjiar
The part of the section referred to is in these terms :—“In case theperson cited puts in an affidavit that he is the owner of any of thesaid property, or is entitled to possession thereof by virtue of anylien thereon and special property therein, the proceedings as to suchproperty so claimed shall be dismissed.”
The appellants in the circumstances of the case must show by theaffidavit that they are the owners of the money or have a specialproperty therein. In my opinion the affidavit they put in amountsto no more than that the money was given to them to carry outcertain instructions of the deceased, and I think the facts allegeddo not constitute a trustin the sense contended, for much less do theyshow that the appellants became the owners of the money or hadspecial property therein within the meaning of section 714. Ithink, therefore, that the order of the District Judge requiring theappellants to execute a bond was justified, section 716 of the Codeis a little confused, but I think it does not provide for the bond cover-ing any costs due to the petitioner. Consequently, the DistrictJudge, I think, is not quite in order in requiring the appellants toexecute a bond for the payment of costs of the contention to theadministrator. If may be that the Court would have jurisdiction toorder the payment of costs by a party who has failed in any conten-tion. But that is rather different from requiring the bond to includethe payment of any costs. That part of the order will, therefore,be deleted. Subject to that modification, I think the appeal shouldbe dismissed. But in the special procedure under section 712 theperson cited is not in the position of a party but that of a witness, andit has been pointed out that no costs should be awarded against sucha person. In any case, I do not think that this is a case which callsfor any order for costs. While affirming the order to the extent Ihave indicated, I direct that there should be no costs in the DistrictCourt or in this Court.
Garvin J.—I agree.
Varied.