KEUNEMAN J.—Tamila Umma and Jailabdeen.
Present: Hearne and Keuneman JJ.
JAMILA UMMA et at., Appellants and JAILABDEEN et al., Respondents.77—D. C. (Inty.) Colombo, 9,379.
Administration—Contest between widow and son of deceased—Son’s interest-in estate preponderant—Widow’s claim preferred.
In a contest for letters of administration the preference given by lawto the widow’s claim cannot be displaced merely because her interestin the estate is small.
PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C., (with him N. Nadarajah, .K.C., and Chelvanayagam),for petitioner, appellant.
E. B. Wickremanayake for first respondent.
Cur. adv. vult.
In this case the petitioner, who is a son of the deceased intestate, appliedfor letters of administration. This was opposed by the first respondent,who is the widow of the deceased and the step-mother of the petitioner.First respondent claimed letters for herself. Letters were granted to the,first respondent by the District Judge, and the petitioner appeals.
Counsel for the petitioner argues that although under section 523of the Civil Procedure Code “ the claim of the widow shall be preferred,”the Court has a discretion to grant administration to another for good 'reasons. He cited the decision of the Divisional. Court in Sethukavalar v.Alvapillai', where it was held that “under ordinary circumstances thewidow or widower is to be preferred, but that the Court has a discretionary
* 36. N. L. R. 281.
KEUNEMAN J.—Jamila Umma and Jailabdeen.
power of preferring another person for good reasons. It is, of course,a discretionary power and the Court must give its reasons for its preference.
The “ good reasons ” urged by Counsel in this case are as follows : —
that the petitioner and his brother and sister who support him are
entitled to seven-eighth of the estate as against the widow’sone-eighth. They have, therefore, a preponderant interest in theestate. Counsel argues that grant should follow interest ;
that there is a dispute between the widow, who was the second wife
of the deceased, and the children of the first bed . as regards thegift by the deceased to the widow of immovable property threedays before his death ;
that there had been drawings on deceased’s bank account beforehis death from time to time of large sums amounting in all toRs. 21,000. Counsel suggests that these sums were improperlydrawn by the widow, who has appropriated these sums forherself wrongly.
There was at the start of the inquiry another objection, viz., that thewidow was not in a position to manage the business of the deceased.This has now ceased to be operative, because the petitioner has takenover the business at a valuation.
As regards the first objection, no doubt the fact that the widow has noclaim or a very small claim to the estate may be one of the grounds whichthe District Judge may take into account in considering the question,but I am not satisfied that taken by itself it is a sufficient ground todisplace the preference given by law to her claim for letters. As regardsthe second .objection, all that need be said is that, in the present state ofthe evidence, more particularly in view of the evidence of the Notary,which has not been controverted in this case, there does not at presentappear to be any ground for thinking that any genuine dispute can ariseabout the gift. As regards the third objection, here again on the availableevidence there is no' reason to think that the money was not drawn for theordinary purpose of the deceased’s business. But in any event, there isnothing to show in this case that the widow either drew or misappropriatedthese amounts.
1 think that the second and third objections amount to nothing morethan that the petitioner has a nebulous suspicion as to the conduct of thewidow.
In my opinion, there is no ground for holding that the discretion of theDistrict Judge has been wrongly exercised. The District Judge haswritten a careful judgment.
The cases that have been cited to us do not assist us to arrive at adifferent decision. Sethukavalar v. Alvapillai (supra) was a claim by awidower for letters. The claimant has no interest in his wife’s propertyunder the Thesawalamai, and had himself suggested in a letter to theDistrict Judge that the proper person to administer the estate was thefather or the brother of the deceased. Further, the claimant was himselfaway in the Federated Malay States, and had applied for administrationthrough his attorney, who lived in a district where the properties werenot situated. Under these circumstances, the widower was not givenletters.
WUEYEWARDENE J.—The King v. Goonewardene.
In the Goods of Shirley, deceased was a case where the widow had byletters through her Solicitor suggested that she would not help the next-of-kin in any way whatever, unless she was well paid for it herself. Besides,she was going abroad, and in such a way as to prevent her properlyadministering the property. The fact of her hostility to the next-of-kinwas taken in account in passing her over, in favour of one of the next-of-kin.
In The Estate of Alfred John Paine, deceased s, was a case where thewidow had previously opposed the intestacy, and put forward a willwhich was held to be forged. She had also carried that matter to theCourt of Appeal. Justice Shearman said that as the widow had opposedthe intestacy and had adverse claims to the estate, he would make agrant of administration to the daughter.
The facts in these cases are very different to the facts in the present case.
I hold that the District Judge was right in granting letters of administra-tion to the widow. The appeal is accordingly dismissed with costs.
Hearne J.—I agree.