003-NLR-NLR-V-54-KALU-SIGHO-et-al-Appellant-and-DESILWA-Respondent.pdf
ROSS C.J.—JHalu Singho v. de Alwis
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Present: Rose C.J. and Choksy A. J.
TC AT.TT SINGHO et al., Appellants, and DE ALWiS, RespondentS. C. 128—D. C. (Inly.) Kahitara, 1,680
_Administration of estates—Judicial settlement of accounts—Possession of propertyby administrator thereafter—Character of such possession. ■
Where an administrator of a deceased person’s estate remains in possessionof the estate after his accounts have been judicially settled, such possession isnot in his capacity as administrator and, therefore, cannot be made the basisof claim by the beneficiaries, in the administration proceedings. The properremedy of the beneficiaries, in such a case, is a separate action for damages.
PPE AT, from a judgment of the District Court, Kalutara.
H. W. Jayewardene, with D. R. P. Goonetileke, for the 6th, 7th and 8thr esp onden ts – app ellants.
N. E. Weerasooria, K.C., with Christie Fernando, for the administrator-respondent.
Cur. adv. vutt.
January 22, 1952. Rose C.J.—
The administrator (the respondent to this appeal) entered into anagreement with the beneficiaries, the 1st to 4th respondents, which wasduly filed of record. The agreement was in the following terms :—
“ 1. Rs. 5,000 of the over expenditure surcharged.
The administrator waives his right to recover 1 /5th share of thebalance over-expenditure and releases the 3rd respondent from allliabilities
The administrator can only recover 3/5th share of the balanceover-expenditure from the other heirs.
The heirs to be placed in possession of their property.
The administrator to be entitled to have recourse to the propertyfor the payment of the amount due to him. ”
The present dispute concerns the heirs of the 1st and 2nd respondentswho are the present appellants. The administrator has applied to issuewrit against the heirs of the 1st and 2nd respondents for the recoveryof 2/5th of Rs. 5,148 which is admittedly the amount due under thesettlement. The respondents-appellants now seek to call evidence toshow that the administrator has in fact remained- in possession of theproperty after the date of the settlement in 1937 and that he shouldtherefore account for any income that he had subsequently received from•the estate..
The learned District Judge refused to permit the respondents to adducesuch evidence and in my opinion was right in so refusing. As he pointsout, the administrator’s accounts were judicially settled on the 9th
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David Silva v. The King
November, 1937, and'the administrator ceased to function as such from thatdate. Even if—which is disputed—he remained in possession of th&estate thereafter such possession was not in bis capacity as administratorbut was a wrongful possession which could have given rise to an actionfor damages at the hands of the respondents-appellants.
That being so the appeal must be dismissed with costs.
Qeoksy A.J.—I agree.
Appeal dismissed.