084-NLR-NLR-V-43-RAMALINGAMPILLAI-v.-ADJUWAD-et-al.pdf
Ramalingampillai v. Adjuwad.3fi1
1942Present: Howard C J. and Soertsz J.
RAMALINGAMPILLAI v. ADJUWAD et ah292—D. C. Colombo, 4,458.
Administration—Estate closed—Property in possession of devisees—Right ofcreditor to sue heirs in possession—Contingent debt—Roman-DutchLaw.
Where the administration of an estate has been completed and theheirs are actually in possession of the property devised to them, a creditor,whose debt fell due after the estate was closed, is entitled to sue theheirs in possession in proportion to the extent to which they havebenefited from the estate. Minor heirs in possession of the propertydevised to them may be sued by a creditor under such circumstances.
The judgment of Bonser C.J. in Pattiman v. Kanapati Pu'le(1 Browne J18) explained.
A
PPEAL from a judgment of the District Judge" of Colombo. Thefacts appear from the judgment of Soertsz J.
N. Nadarajah, K.C. (with him H. W. Thambiah and V. K. Kandasamy),for the plaintiff, appellant.—The finding of the District Judge is thatthe administration of the estate had been de facto completed. On thatfinding the defendants would be liable to the extent of the propertythat had passed to them. It has been held in de Silva v. Rambukpota *that the property of a deceased person vests in the administrator forpurposes of administration. In the present case the shares due to thedefendants had been already conveyed to them by the executor. Themoment an executor executes a deed of conveyance to the devisees orheirs he loses title to the properties belonging to the estate and relin-quishes all claims to the properties as being necessary for the purpose ofadministration. He is then in a position to plead plene administravitwhen claims are made thereafter by creditors. It is not obligatoryon an administrator to obtain a formal judicial settlement before theplea of plene administravit can be taken. 143—C. R. Colombo, 72,628'is exactly in point. See also Arunasalam Chetty v. Mootatamby3 andDon Nicholas v. Mack
H. V. Perera, K. C. (with him S. J. V. Chelvanayagam), for the defend-ants, respondents.—As long as there is a single debt of the estateremaining unpaid the executor cannot be said to have completed hisadministration.
[Soertsz J.—By virtue of the adiation of the estate by theheirs, cannot the heirs be sued ?] According to section 472 of the CivilProcedure Code the proper party to be sued is the executor. A personcan cease to function as executor in three ways, (a) by death, (b) byobtaining an order of discharge from court, (c) on completion ofadministration.. Before there can be completion of administration alldebts of the estate must be paid—Williams on Executors filth ed.)p. 1077 et seq. Independently of any arrangements between the executor
> (1939) 41 N. L. R. 37.*(1906) 2 A. C. R. 90.
* S. C. Minutes o] 26.3.42« 11891) I. C. L. Rep. 81.
362SOERTSZ J.—Rama!ingavipillai v. Adjuwad.
and the heirs, the executor is always liable for the debts of the estate.No handing over of the assets by the executor to the heirs affects therights of a creditor to sue the executor.
[Soertsz J.—On the basis of Silva v. Silva', cannot the heirs be sued ?]The creditor would have two concurrent remedies, but the statutoryprovision of section 472 of the Civil Procedure Code makes only oneaction available when there is an executor. For the purpose of paymentof debts title which has already vested in heirs goes back to the executor.
Even if heirs who have adiated can be sued, they should not be minors.
A miner cannot adiate an inheritance and is not liable to be sued for thedebts of the ancestors, Robert v. Abeywardene et aV. At the date of thepresent case the defendants were minors.
N. Nadaraja!>. K.C., in reply.—The proposition that minors cannotadiate an inheritance is not true in all cases. Grotius' Introduction toDutch Jurisprudence, p. 158 (Maasdorp’s Translation) is iri conflict WithRobert v. Abeywardene et al. (supra). See also Lee’s Introduction toRoman-Dutch Law '(3rd ed.) pp. 365-366. Robert v. Abeywardenewas a, case of intestacy. In the present case, however, there was a willunder which the title vested in the minors. Parties who have takenbenefit under a last will cannot escape liability—Vol. 2 of Williams onExecutors (11th ed.) p. 1129.
Cur. adv. vult.
June 19, 1942. Soertsz j.—
This case came before a Divisional Bench of this Court on anotheroccasion, and it was then remitted on certain terms to the trial Courtin order to give the plaintiff an opportunity to state and establish thegrounds upon which he sought to fix the defendants with liability. Hewas suing them to recover the loss he had sustained in consequence of hishaving suffered judicial eviction, after due notice of that action had beengiven to the defendants, from a share of a land which the defendants' fatherhad sold to him. On that occasion,' the Divisional Bench pointed outthat the sole fact that the plaintiff had established and was relying upon,namely, that1 the defendants were .the children of his deceased vendor,and. were, with their mother, the devisees named in his last will, was notsufficient to render them liable on the breach of the covenant to warrantand defend title' which the vendor had given in his own name and on •behalf of his heirs, executors and administrators. For such a liabilityto attach to the defendants, the plaintiff had to show that the administra-.tion of the estate left by his vendor had been completed by his executors,and that property of that estate had. passed into the hands of thedefendants.’ In that event,* the defendants would be liable each to theextent of the property that had passed to him or to her.
. . At the trial held in accordance with the order of the Divisional Bench,further evidence was led and, after consideration, the trial Judge foundthat the legatees under the will (that is, the defendants and their mother)have been taking the-rents and profits from the premises devised tothem. In another part of his judgment, he held that this was the state
» [1007) 10 .V. L. B. 234:
* (1912) IS X. L. R. 323
SOEBTSZ J.—Ramalingampillai v. Adjuwad.
363
of things from January 18, 1934. He also found that, at the date of thisaction, which he held must be regarded as instituted on June 26, 1935,the administration of the estate “ had been de facto completed .
But, despite these findings in favour of the plaintiff, the trial Judgedismissed his action because “ although the administration of this estatehad been de facto completed,, it was not de jure completed." He tookthis view on the interpretation he gave of the case of Valipulla v.Ponnusamy that is to say that it meant that a judicial settlement onthe lines indicated in the judgment of Pereira J. is sine qua non for thecompletion of administration proceedings. But that interpretation is,clearly, erroneous. If authority is needed, I would refer to ArunasalamChetty v. Mootatamby *•; Suppramaniam Chetty v. Palaniappa Chattyand recent and unreported case S. C. No. 143—C. R. Colombo 72,628 But Counsel for the respondent said he could not support that findingof the trial Judge. He conceded that the question whether the wholeof a deceased person’s property has been administered or not is as mucha question of fact as a high English authority has said is the state ofone’s digestion.
Counsel for the respondents, however, supported the dismissal of theaction on .the ground that, as a matter of fact, there cannot be said to becompletion of administration proceedings so long as a debt of the testatorremains unpaid. He also contended that for the recovery of a debt of adeceased person his executor or administrator was the only person thatis liable to be sued. Lastly, he submitted that the defendants wereminors at the date of the action and that, therefore, they could notadiate an inheritance and were not liable to be sued as heirs in possession.
In regard to the first point, as I have already observed, the trial Judgefound that, in fact, the whole, of the deceased’s property had beenadministered, because, as he pointed out, “ inventory and final accountwere both filed and passed as being in order on September 12, 1928.Thereafter, there is an interval of seven years without anything happening.Then, on February 5, 1935, the first defendant asked forj an order ofpayment. On March 19, 1935, some further orders of payment wereissued to the heirs and since then there has been no further action in thetestamentary case up to this day, an interval of six years or more.” Theorders of payment, it must be observed, were made on the basis of thefinal account filed in 1928. The defendants do not say that there' areany assets unadministered in the hands or under the control of theexecutors.
In this state of things, it is clear that the executors and the deviseeshave long since treated the actual administration as completed. Thequestion then is what is the position in law where a party seeks torecover what was only a contingent debt at the time of the testator’sdeath? Under the English system, it is now well settled law that it isthe duty of the executor to bear in mind and provide for even a contingent,debt such as one that might arise from a covenant of the testator and that,if disregarding such a possible liability, he makes -payment of legacies,he would be liable to answer the damages de bonis pnopriis, although as
1 17 N. L. R. 127.3 3 Bal. 57
« 2 A. C. R. SO.4S. C. M. IS 3. 42.
364
SOERTSZ J.—Ramalingampillai v. Adjuwad.
against the legatees he may, in certain circumstances, claim repayment(William’s Law of Executors, Vol. II., p. 2079, 10th Ed.). Under theolder practice, the Court of Chancery sought to minimize this risk to theexecutor or administrator by requiring the legatee to give security torefund if debts should afterwards appear, but after it had ceased to bethe practice to exact such security, creditors were allowed in Courts ofEquity to follow assets in the hands of the legatees as well as of theExecutor (Ibid pp. 1081-2). It would therefore, appear, that in thecircumstances of the present case, it is open to the creditor, that is tosay the plaintiff, to go after the assets in the hands of these defendantswho are devisees, if he chooses to do so.
The next question is whether in order to get at those assets, the plain-tiff must, as a matter of procedure, sue the executors and may not suethe devisees. That is Counsel’s contention, and that that is the only ‘ opensesame ’ for ihe plaintiff. But it seems to me that the answer to thisquestion must depend upon the facts of each case. If, for instance,the administration is in course in such a way as to enable it to be said asapproximately as it could possibly be said under our system of law thatthe property of the estate is “ vested ” in the executor or administrator,and that the devisees, legatees, and heirs are only “ beneficially inter-ested ” in that property, the person liable to be sued would be theexecutor or administrator. But in a case like the present where, on thefacts as found, and rightly found, the devisees are actually in possessionof the property devised to them, it would be extremely unreal to describethem merely as “ persons beneficially interested ” in that property. Inthat view of the matter, section 472 of the Civil Procedure Code, whichCounsel invoked, has no application. It is open to the plaintiff to suethe devisees themselves.
So far as the last point taken by Counsel is concerned, hemakes that- submission on the strength of the judgment in thecase of Robert v. Abeywardene In that case de Sampayo J.observed as follows:—“the second defendant is a minor and is joinedas a defendant on the footing of his being an heir, but a minor cannotadiate an inheritance and is not liable to be sued for the debts of anancestor. The first defendant is the widow of the deceased and there isevidence that she intermeddled with the property of the deceased’sestate and so made herself an executrix de son tort The contrastdrawn, in this passage, between the minor son and the widow is highlysignificant. The widow is made liable not as an heir but-as an executrixde son tort, in other words, as a tortfeasor ; the minor is exempted becausethe sole ground on which it was sought to make him liable was that he wasan heir. It was not alleged, and there was nothing to show that hehad either intermeddled or that he was in possession of any assets ofthe deceased. It is true that de Sampayo J. says, without any quali-fication, that “a minor canriot adiate an inheritance and is not liableto be sued for the debts of the ancestors, ” but when that observation isregarded in its context, there/ is implied in it that it is meant to apply in thecircumstances of that case in which, as I have already pointed out, liabilitywas imputed to the minor solely because he was an intestate heir. The
■ 15 X. L. S. 323.
SOERTSZ J.—Ramalingampillai f. Adjuwad.365
observation itself is, more or less, a quotation from the 1 judgment joiBonser C.J. in Pathinan v. Kanapati Pulle ’ in/ which he says “ minorscannot adiate an inheritance, and they cannot be said to be/ iripossession of the land”. It is clear that when/the learned Cliief Justice-;said that he meant that, in that case again, the plaintiff was seeking/to fix the minor with liability because he was an heir, and the firsy partof the statement that “ minors cannot adiate an inheritance ” iff con-cerned to refute that attempt by pointing out that the mere fact of heir-ship is insufficient ih our law. As was pointed out in the case pf Oos-thuysen v. Oosthuysen,' the phrase “ adiate an inheritance ” is survival fromthe Roman Law and really has no meaning in our law. On this point',
I would refer particularly to the judgment of Connor J. at pages 61-$4.Under our law, there is nothing to prevent a mionor being sued through aguardian ad litem in order to rea ch assets of a deceased person in his hands-And that is precisely what Bonser C.J. said in the second part of the state-ment I have quoted, “ and they cannot be said to be in possession of theland ”, that is that, in the case he was dealing with, there was nothing toshow that they (that is the minors) were in possession of the land (that is themortgaged land). It is important to bear in mind that the Chief Justicev/as dealing with an action on a mortgage bond in which the plaintiffwas seeking relief “ not only against the hypothecated property, butagainst the heirs personally ” on the bare allegation that they had adiatedthe estate. Two of these heirs were minors, and according to Grotius(Grotius1 Introduction 2.21.6), the position of minors was that, unlikemajors, they are not irrevocably bound by an act of a fixation and mayclaim restitutio in integrum. Majors once they had adiated, werepersonally liable where the claim exceeded' the assets in their hand.But, in the law, as it obtains to-day, even major heirs would be liableonly to the extent of the assets of the estate in their hands.
In passing, I would respectfully point out that such misapprehensionas there appears to be in regard to minors not being able to adiate aninheritance and to be sued is probably due to the statement at page 187of Walter Pereira’s Laws of Ceylon, Vol. II., “ Minors cannot adiatean inheritance and cannot be sued as heirs in possession”. The authorityquoted by the learned writer in support of that statement is Bonser C.J’sobservation already quoted by me from the case of Pathiman v.Kanapathi Pulle. The words “ cannot be sued as heirs in possession ”are an erroneous paraphrase of “ they cannot be said to be in possessionof the land,” meaning, as already observed, that the minors in that, casewere not shown to be in possession of the mortgaged land.
On the facts in this case, it is clear that the property in the hands ofeach of the defendants exceeds in value the amount of the plaintiff’sclaim which, by agreement, has been fixed at Rs. 11,954.17. Theplaintiff is suing, in this action, the two minors devisees, and for somereason that does not appear at all has left out their mother, the otherdevisee, who was also an executrix under the will, and, to say the least,it is equitable that he should be restricted to a. third of the sum agreedupon, as against each of the defendants, that is Rs. 3,984.72 againsteach. I would, therefore, set aside the judgment of the trial Judge
1 1 Br. 118.1 Buchanan's Reports (1868) p. 51.
43/27
366Gnanamuttu v. Chairman, 17, C., and 17. C., Bandarawela.
and direct that decree be entered, giving the plaintiff judgment forRs. 3,584.72 against each of the defendants. For the recovery of thatamount the plaintiff may not proceed against any property other- thanthe houses devised directly to each of them. Plaintiff is entitled to hiscosts in both Courts.
Howard C.J.—I agree.Set aside.
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