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Present: Dalton and Lyall Grant JJ.
MTJHEETH v. WAHID et al.107—D. C. Colombo, 1,338.
Procedure Code, Chapter LV.
In proceedings for the judicial settlement of an estate an executormay be charged with the value of property, which he has failedthrough -negligence to sell and realize.
^^PPEAL from an order of the District Judge of Colombo.
H. V. Perera, for executor, appellant.
Kmtneman (with him, Ferdinands), for respondents
November 27, 1929. Dalton J.—
The appellant here is the eldest son and executor of the lateM. M. 5. Cassim Lebbe Marikar. The appeal arises out of anapplication by the respondents, heirs of the deceased, far a judicialsettlement of the accounts of the executor. The deceased diod aslong ago as January 12, 1923. The inquii^ was fixed, as thelearned Judge says, in the interests ^f the Parties that the mattershould be finally and conclusively decided at the earliest opportunity.As a result of the inquiry he directed, amongst other things,—
that the executor do charge himself with the sum of Es. 50,000
as the value of the premises No. 76, Messenger street,
that he be charged with rent for the premises Nos. 7 and 8,
Keyzer street, at the rate of Es. 500 per mensem.
The executor appeals against this order, whilst there is a cross-appeal by the respondents in respect of the second item. Theyurged that the amount of rent for the premises at Keyzer street *should be Bs. 725 per mensem, and not Es. 500.
The appeal of the executor is based solely on the argument thatin an application for a judicial settlement under the provisions ofChapter LV. of the Civil Procedure Code no order can be madeagainst an executor in respect of any money or property that hasnot in fact come into his hands, and that questions of negligence,waste, or anything involving damage to the estate, except in respectof money or property that has actually come into his hands, mustbe the subject of a separate action. In support of this argument we
were referred to the case of Mohanvado Jan v. Ussen Bebe,1 whereMiddleton J. expressed the opinion that the Court, on a judicialsettlement, cannot charge an administrator with moneys that havenot reached his hands, but that if parties entitled to distributionthink he has been negligent or fraudulent, they should bring anaction based upon such allegations.
This view, it seems to me, may possibly have been influenced bythe procedure in force prior to the enactment of Chapter LV. of theCivil Procedure Code, for which we appear to be inbebted .to the'.State of! ‘New Yojrk. Unfortunately no New York authorities areavailable here for guidance as to the extent of an order1 for judicialsettlement there. Under .the old practice in Ceylon, however, therewas no right to compel a judicial settlement (vide In re Estate ofA. P. Dharmagoonawardena2), and if any question arose in theordinary course of testamentary proceedings of a character unfit tobe settled therein, the interested party was referred to an adminis-tration or other appropriate action in which .the questions raisedcould be dealt with. The argument adduced in support of thisappeal would in effect, so it seems to me, place an interested partyin a position no more advantageous than that in which he wasprior to the enactment of the provisions to compel a judicial settle-ment. Even under the old practice and procedure to be pursued intaking accounts, as pointed out by Phear C.J. in Fernando v.Fernando,3 the accounts directed to be made might include anaccount of not only the estate of the deceased that comes to thehand of the administrator, but also what might, but for his default,have come to his hands. As pointed out by Pereira J. inKoranchihamy v. Angohamy * the old practice and procedure followedin the administration suit fell into disuse as a result of the provisionsof the Code as to the rendering of accounts by administrators and thejudicial settlement of the estates of deceased persons. The purposeof a judicial' settlement, as stated by the same learned Judge inValli-pillai v- Ponnusamy,5 is to achieve finality.
The opinion of Middleton J. above referred to has been discussedin Holsinger v; Nicholas. 6 Bertram O.J., with whom de Sampayo J.agreed, points out that this opinion was obiter. He continues: “ Itmay very well be that in the course of. a judicial settlement a mattermay come up as to which the Judge may think that it is a matter ofsuch complication and importance that it can only be inquired intoby a regular action.But it would be a most serious
limitation of a most salutary procedure to declare that where acomplaint is made against ajn executor , of. negligence or waste, theCourt cannot inquire into the matter in a judicial settlement.”
1 (1909)' 1 .Current Law Rep. S3.4 4 JBalasingham Notes of Oases IS.
* 1 S. C. R. 296.6 17 N. L. R. 126.
*1 3: 0. 0: 52.• 20 N. L. R. 417.
He then repeats what Pereira J. had already said as to the objectof the judicial settlement, to effect as promptly and expeditiously aspossible a final winding up of the estate.
The ground upon which the appeal is based has therefore nosufficient or good ground to support it. It has not been suggested,nor do I see that the questions decided could not conveniently bedecided in these proceedings. The evidence shows that therespondents had very strong reasons for their objections raised atthe inquiry in respect of the matters to which the appeal relates,and I see no reason why the order of the learned Jjudge in respect ofthe premises at No. 76, Messenger street, should be interfered with.
With regard to the cross-appeal, in fixing the rent of the premisesat Keyzer street at Rs. 500 the learned Judge may well have beentaking* an average for the years for which the executor has toaccount. His evidence does show that the rent for No. 8, at thetime he gave evidence in 1929, was Rs. 500 a month, but all rentshave no doubt increased, and .there js nothing to show that that wasobtainable at earlier periods of his executorship. I' do not thinkany sufficient ground has has been shown for varying the learnedJudge's order on this point.
In the result, therefore, both the appeal and cro66-appeal must bedismissed with costs.
Lyaix Grant J.-r—I agree.