( 353 ;
Present: j The Hon. Mr. A. G. LasceUes, Acting Chieif Justice, andMr. Justice Middleton.
KULANTHAVELU v. KANDBEPEEUMAL et al.
D. C., Batticaloa, 2,659.
Claim by administrator for mesneprofits—Prescription—Grant ofletters—
Relationback of titleof administrator—Collation—Divisionof
inheritance—Statute S and 4Will. IV., c.27—OrdinanceNo.22
Held, that an administrator is entitled to sue for rents and profitsof the estate taken by a third party before grant of letters ofadministration to him; and that such action is prescribed in threeyears fromthedateof thegrant of administration.
Held, also, that section 6 of 3 and 4 Will.IV., c. 27, ishotlaw
Iiascbllbs A.C.J.—It iswell settledthat forcertainpurposes
the title of the administratorrelates backto the deathofthe
intestate, so as to enablehimto maintain' actionssuch astrespass
or trover in respect of goods of the intestate taken before the grant
Middleton J.—No rightofactionaccrues toan administrator
till he has taken out letters of administration, and the Statute ofLimitation only begins ' torunagainsthim fromthe dateof the
grant of such letters.
Held, also, that where there has been no administration ordivision of the estate an heir, who has received advancement bydowel; or otherwise, cannot be excluded from the inheritance.
Lascellbs A.C.J.—Theobligation to “ collate ” arises only on
a division of the estate.
^J^PPEAL from a judgment of the District Judge of Batticaloa.
The facts and arguments sufficiently appear in the judgments.
Sampayo, K.C. (with him Balasingham),_ for the defendants,appellants.
Bawa (with him Wadsworth), for the plaintiff, respondent.
Cur. adv. vult.
llijh October, 1906. Lascelles A.C.J.—
The plaintiff, who is the administrator of the estate of one Kathira-velupillai, has obtained judgment against the defendants forEs. 1,662.19 representing the rents and profits of certain lands ofthe intestate occupied by the defendants
12J.N. A 99412(8/60)
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From this judgment the defendants now appeal on several grounds:
First, it is said that judgment should not have been enteredagainst • the second defendant. The foundation of the claim isthe action of the first defendant in taking the produce of the landsof the estate without accounting to the beneficiaries. There is nopresumption that first defendant’s wife participated in the producetaken by her husband, and I think the action, so far as it relates toher, has no foundation and should have been dismissed. The nextpoint raised by the appellant is that part at any rate of the claim isprescribed.
The material dates ate the following. On 7th September, 1895,the intestate died, and the first defendant took possession of his landsthe following November. On 3rd July, 1901, the plaintiff took outletters of administration, and on 1st July, 1904, this action wasinstituted.
Leaving out of consideration the provisions of section 6 of theBeal Property Limitation Act (3 and 4 Will. IV., c. 27), which thisCourt has already decided are not in force in Ceylon, it is clear thatthe cause of action accrued when the plaintiff took out letters.In Cary v. Stephenson (1) the claim was for money belonging to theestate received after the intestate’s death by the defendant. Thedefendant pleaded, non assumpsit intra. sex annos. The Court wasof opinion that the statute would be no bar, because the plaintiff’stitle began by taking out letters of administration (vide also Murrayv. East India Company) (2).
It is thus clear that in this case' the period of limitation began torun on the date when plaintiff took out letters, namely, on 3rd July,1901. But, it is urged by the appellant, if the plaintiff’s cause ofaction accrued only in July, 1901, he cannot sue for debts to theestate which became due before that date. This argument ofcourse is fallacious. It is well settled that for certain purposes thetitle of the administrator relates back to the death of the intestateso as to enable him to maintain actions such as trespass or trover forthe goods of the intestate taken by the defendant before the grantof letters [vide cases cited in Williams on Executors, page 253 (9thedit.)]. On these authorities I think it is clear that the administratoris entitled to sue for rents and profits of the estate taken beforegrant of administration to him.
Having regard to the substance of the action I think that it fallswithin the class of action named in section 8 of Ordinance No. 22 of1871, and that the District Judge was right in holding that no partof the claim is prescribed.
(1) 2 Salkcld 420.
(2) 5 B. A AUl. 215.
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The next point which arises is whether the intestate, Kathira-velupillai, was entitled to seven forty-eighths or to one-sixth of thelands which are the subject-matter of the action. The matter standsthus. The intestate’s father, Kanderperumal, left four childrenand o widow. If the shares of all the children are taken into accountthe intestate’s share in the events which have happened will beseven forty-eighths. But the plaintiff contends that, inasmuch astwb of Kanderperumal’s daughters received dower without bringingthe amount into collation, their share must be excluded from thecomputation. On . this footing the plaintiff contends that theintestate’s share is one-sixth and not seven forty-eighths. TheDistrict Judge has adopted this view. I can find no authority forthe proposition that, where there has been no administration ordivision of the estate, an heir, who has received advancement bydower or otherwise, is to be excluded from the inheritance. It is clearthat the obligation to “ collate ” arises only on a. division of theestate (Voet 36, 6, 9). And the provisions in section 10 of the sametitle, with regard to compelling heirs to make collation are inconsis-tent with the view that an heir who fails to collate must be presumedto have received the advance in satisfaction of his share in the inheri-tance. In my opinion the share of the intestate in the estate ofKanderperumal must be taken to be seven forty-eighths and notone-sixth, and any question which may arise with reference to theportion of the daughters who- have received advancement must beconsidered hereafter. I am not prepared, on the evidence beforeme, to interfere with the finding of the Court as to the value of theproduce of the estate taken by the defendant.
In the result the judgment must be set aside and the case remittedto the District Judge to enter up judgment, dismissing the actionso far as it relates to the second defendant, and to give judgment infavour of the plaintiff on the footing that he was entitled, as theadministrator of the estate of Kathiravelupillai, to seven forty-eighths of the estate of Kanderperumal. The second defendant isentitled to her costs of this appeal. As the-first defendant has onlypartially succeeded, he will only be allowed the advocate’s fees inappeal.
I agree. The second defendant cannot by implication, becauseshe is an heiress of the estate of Kathiravelupillai, be deemed tohave participated in the acts of her husband which form the cause
of this action, and there is no proof that she did so.
( 856 )
From the English cases mentioned in Williams on Executors (10thedition, p. 468), it appears that no right of action* accrues to anadministrator tUl he has sued-out letters of administration, and thatthe Statute of Limitations only begins to run against him from thedate of the granting of the letters of administration. Furthej thatfor particular purposes, such as for trespass or trover for the goods- of the intestate taken by one before the letters granted unto him,the administrator may have his action.
Here the intestate died on the 7th September, 1895, the letterswere granted on the 3rd July, 1901, and the defendants are allegedto have taken forcible possession of the rents and profits of Kathira-velupillai’s estate from November, 1895, and this action was broughton 1st July, 1904.
I think therefore that the claim which appears to come undersection 8 of Ordinance No. 22 of 1871 is not barred by that Ordinance,which would only run. against the administrator here from the dateof his letters, i.e., 3rd July, 1901.
Voet 36, 6, 9, says “ facienda coUatio tempore divisionis, ” and itwould not be possible in an action of this kind to make an equitableadjustment, as no issue has been settled as to which of the heirs,and to what extent, they had received advancement.
I think, therefore, that the share of Kathiravelupillai must becalculated at seven forty-eighths.
The District Judge's calculations as to the value of the producehave not been seriously attacked or affected by the attack, and I seeno reason to interfere with them.
The judgment in my opinion must be varied in the sense indicatedby my Lord.
As appellants have only partly succeeded, I would give appellantstheir advocate’s fees only on appeal.
KULANTHAVELU v. KANDERPERUMAL et al