182-NLR-NLR-V-47-MACKEEN-et-al-Appellants-and-PULLE-et-al-Respondents.pdf
Mackeen v. Pull6.
616
1946Present: Keuneman S.P.J. and Jayetileke J.MACKEEN et al., Appellants, and PULRE et al., Respondents.
28 (Inty.)—D. C. Kandy, 162.
Partition action—Administrator of a deceased person's estate a party defendant—Right of heirs to intervene after interlocutory decree has been entered—Civil Procedure Code, s. 472.
Section 472 of the Civil Procedure Code is applicable to proceedingsunder the Partition Ordinance, and an interlocutory decree enteredagainst the administrator would be binding on the heirs as well. If,however, after interlocutory decree has been entered, the heirs seek tointervene on the ground that the administrator had fully administeredthe estate before the date of action the burden is upon them to provethat fact.
y^PPEAL against an order of the District Judge of Kandy.
N. Nadarajah, K.C. (with him H. W. Thambiah and S. R. Wijayatilake),for the intervenients, appellants.
N. E. Weerasooria, K.C. (with him C. E. S. Perera), for the plaintiff,respondent.
* 11945) 46 N. L. R. 126.
6X6
KEUNEMAN S.P.J.—Mackeen v. Pulle.
October 10, 1946. Ketjneman S.P.J.—
In this case the heirs of one Jainudeen sought to intervene in thepartition case after the interlocutory decree had been entered. Objectionwas taken by the plaintiff that the interlocutory decree was binding onthe appellants because the administrator of Jainudeen’s estate was aparty to the earlier proceedings and to the interlocutory decree.
In appeal Mr. Nadarajah argued first that the administrator was not aproper party to this partition action and that the heirs of Jainudeenwere the proper parties to the action. I cannot accept this argument.In my opinion section 472 of the Civil Procedure Code is applicable toproceedings under the Partition Ordinance. I do not think it is necessaryto discuss the earlier authorities on this point. Under section 472 theadministrator appears to be the proper party to the proceedings ratherthan the heirs although the heirs may in the discretion of the Judge bebrought in as parties to the action also.
A further point is urged by Mr. Nadarajah that in this case the adminis-trator, who was in point of fact the 1st defendant in the case, wasfunctus officio as administrator because he had completely and fullyadministered the estate, before the date of action. It had been provedby the production of letters of administration that the 1st defendantwas in fact appointed as the administrator of the estate. The burdenlay upon the appellant to prove that the administrator had fullyadministered the estate. This they did not succeed in doing and insubstance the learned District Judge has so held. No doubt, if theadministrator had fully administered the estate it would not be necessaryto have him as a party to the proceedings, but where he has not fullyadministered the estate, I think it is clear that he would continue torepresent the heirs of the deceased person and accordingly any decreeentered against him would be binding on the heirs as well. In thecircumstances I think this appeal mujit be dismissed with costs.
JayetHjKke J.—I agree.
Appeal dismissed.