AKBAR S.P.J.—Lebbe Marikar v. Mohamed Kalid.
1936Present: Akbar S.P.J. and Maartensz J.
LEBBE MARIKAR v. MOHAMED KALID.
14—D. C. (InSy.) Colombo, 5,582.
Administration—Death of executor—Right of his executor to administer estate oforiginal testator—Civil Procedure Code, s. 549.
The executor of an executor is not entitled to administer the estate ofthe original testator without a fresh grant of administration.
PPEAL from an order of the District Judge of Colombo.
H. V. Perera, for first respondent, appellant.
X. Martyn, for second respondent, appellant.
N.Nadarajcih (with him C. Thiagalingam and D. W. Fernando), for-petitioner, respondent.
November 14, 1935. Akbar S.P.J.—
Under a last will of 1905 of a Muslim lady who died in 1916 her husband;was named as the executor and a bequest of Rs. 2,000 was made to thepetitioner-respondent which was to be paid to him on his attaining.21 years, if “ the executor shall deem him deserving of the said legacyThe executor proved the will and filed his final account on November 20,.'
AKBAR S.P.J.—Lebbe Marikar v. Mohamed Kalid.
1916, in which he showed 'hat he had retained the Rs. 2,000 being amountof legacy payable to the petitioner-respondent. According to thepetitioners affidavit he attained majority about a month after finalaccount was filed, namely, December 27, 1916.
The executor himself died on September 7, 1922, leaving a last willwhich was proved by the two appellants as executors in D. C. Colombo,1,096, and final account was filed in this case on September 11, 1923. Thepetitioner filed his present application under section 720, Civil ProcedureCode, on July 20, 1933, alleging that he had not. been paid this legacy andthat he came to know of it only recently. On June 6, 1934, the petitionerfiled a petition stating that the appellants as executors of the originalexecutor were “ the executors de bonis non ” of the lady’s will andasked the Court to appoint them “ executors de bonis non ”, for a judicialsettlement of the accounts of the estate of the testatrix and for pay-ment of the legacy with interest.
On October 26, 1934, in spite of objection offered by the appellantsthey were appointed administrators de bonis non of the estate of thetestatrix and on December 13 the Court entered a decree directing theappellants to pay the legacy with interest to the petitioner. Undersection 549 of the Civil Procedure Code when a fresh grant of adminis-tration is made on the death of a sole executor the rules prescribed inthe Code for a first grant must be followed.
In this case the learned District Judge dispensed with all these form-alities as he was of opinion that the lady’s will had been proved and allthe formalities had been gone through. In my opinion this was a fatalomission which vitiated the whole proceedings. None of the heirs underthe will of the testatrix were cited and the District Judge forced the twoappellants who were unwilling to be the administrators de bonis non ofthe estate of the testatrix. At the inquiry on the December 6, 1934, theappellants took up the position that they did not know whether the firstexecutor had paid the legacy to the petitioner or had exercised his dis-cretion and had refused to pay the legacy. If the other heirs had been citedthey might have helped the Court on this point. As it is there is only theaffidavit of the petitioner to prove that the legacy was not paid to him.
Faced with this objection Mr. Nadarajah argued on the remarks ofLord Romily in Brooke v. Haymes1 that the appellants were the executorsof the original testatrix without any grant of fresh letters of adminis-tration. I am not prepared to hold that this is the laW in Ceylon forseveral reasons. In the first place by the order of the Court of October 26,1934, the Court did issue letters of administration to the appellants without.following the formalities for a first grant. In the second place our law isto be found in statutory form in sectio#549, and to introduce the Englishlaw will be to do violence to the words of that section by introducingan exception which the draftsman could very well have included and didnot. Moreover, it would be undesirable to allow the executors of anexecutor to administer the estate of the original testator without thesupervision of the Court and perhaps leaving the Court in ignorance of.such administration. Further, according to the decision of the FullBench in Silva v. Silva *, the powers of the personal representative of. an
» L. It. 6 Equity 25.* 10 N. L. R. 234.
KOGH J.-—The King v. Ridley de Silva.
estate are not the same in England and Ceylon. Nor do I think on theauthority of the case reported in 2 Leader Law Reports, p. 58, thatthe appellants cannot question the order of the District Court made onOctober 26, 1934, in this appeal.,
I would allow the appeals and set aside the orders of the District Courtmade on October 26, 1934, and December 13, 1934. The. appellantswill be entitled to the costs of these appeals but each party will bear hisown costs in the Court below.
Maahtensz J.—I agree.
LEBBE MARIKAR v. MOHAMED KALID