( 126 )
Present: Garvin J. and Muartens/. A.J.
BAMAXATHAN CHETTTAB t>. BABFI LALL.
20—D. C. Jaffna, 5,870.
Official administrator—Application for administration by a creditor—Appointment of official administrator—Letters of administratumpendente lite.
An official administrator should be appointed only when thereis no fit and proper person to be appointed' administrator.
Where proceedings are pending, for the appointment of anadministrator it is open to the Court to appoint an administrator pendentelite.
Necmath Vmma «. Abdul Wahab 1 followed.
PPLICATION for letters of administration for the intestateestate of Mathan Lall by the appellant as creditor of the
estate. The facts appear from the judgment.
H. V. Perera (with Navaratnam and Nadarajah), for appellaut.
Groos DaBrera, for 1st respondent.
Hayley (with- Bajaratnam), for 2nd respondent.
Joseph (with H. H. Barthtflomeusz and Tl. L. Bartholomensz),for 3rd respondent.
July 13, 1927. MaArtknsz A.J.—
The appellant in this case purports to be creditor of the intestateestate of Bajanamand Mathan Lall, late of Khurja in India.
The intestate and his brother Baboo Lall, who predeceasedhim, were carrying bn business in Jaffna under the name of B.Mathan Lall and Brother. The intestate was Baboo Lall’s soleheir under the terms of a joint will executed by the brothers andwas at the time of his death sole owner of the business, and inaddition left a considerable amount of immovable property inJaffna. The debts due to the business are put down at Rs. 200,000.and the debts due by the intestate at Rs. 550,000.
In case No. 5,828 letters ad colligenda were granted to the appellantas a creditor of the estate on June 9, 1925, on the ground that therewas no one in Ceylon to represent the estate. .
On July 23 the first respondent, as widow of the intestate,■obtained in case No. 5,870 an order nisi appointing her adminis-tratrix of the estate, which order, so far as I can gather from therecord, was made absolute on September 10, 1925.
111919) 6 C. W. R. 288.
( 127 )
On *luly 19, 1926, she was ordered to give security in the sumof Rs. 590,1)00.
On August 29 she intimated in ease No, 5.870 that she wasnimble to give the security ordered. Prior to that, in the courseof certain proceedings in case No. 5,828 had on. August 9, 1926,there is a record that the widow, the present petitioner, is notprepared to give security and take out* letters of administrationand that the appellant consents to take out letters.
The District Judge then made the following order :—tf He(appellant) will file papers and give the necessary security .withinthree weeks hereof. If this is not done the lettere ad colli ij end awill be withdrawn and the estate officially administered.”
The appellant filed papers in case No. 5.870 on August 20 andmoved for an order absolute in the first iustauce and that thesecurity be reduced by Rs. 898,845, as the creditors vo that amounthad consented to letters issuing to him without security., on whichthe following order was made:—“ File promissory notes andaccount particulars and other documents, in proof of his debt,”I take it this order meant that the appellant was to file documentaryevidence in proof of the debts due to him by the intestate.
On August 24 the appellant's application for letters of adminis-tration was opposed by the widow, and, after considerable discussion,the learned District Judge appointed the Secretary of the Court-official administrator and cancelled the letters ad coUujenda issuedto the appellant. The appeal is from this order.
I am of opinion that the appellant’s contention that he was notgiven an opportunity of establishing his claim to letters of adminis-tration and that an official administrator should not be appointedunless there is no one else to represent the estate must be upheld.
Tn the course of his judgment the learned District Judge expresseshis doubts regarding the debts which the appellant claims as dueto him and observes that the order that the creditor Chettiar(the appellant) should prove the debts due to him and shouldenter order nisi as a preliminary to giving security is a necessaryone in the circumstances.
The procedure indicated by the learned District Judge in bisobservations should have been followed in this case, that is to say,the appellant should have applied for an order nisi and the questionwhether he was the proper person to be appointed administratorshould have been determined after issues were framed and evidencetaken under the provisions of section 533 of the Civil Procedure Code.
The procedure followed does not appear to be authorized by anyprovisions of the Code. The appointment of an official adminis-trator should, as was contended by the appellant, only be madewhere there is no person fit and proper in the opinion of the courtto be appointed administrator^and-not in any other case.
RamanathanChettiar r.Barfi Latt
( 12S )
1$27. The order of the District Judge must, therefore, be set aside'MaarVensz an(l the case remitted to the District Court for consideration of theA.J. application made by the appellant in the manner provided for byjRamanatlian t^e Civil Procedure Code. I, however, do not think it desirableChettiar t that the estate should be left without an administrator while theseBarfi Latl proceedings are pending, and I think the best course would be toissue letters of administration pendente life to the Secretary of theCourt with effect from the date of his present appointment to bein force until letters of administration are issued to anotheradministrator, and order accordingly.
The case of Neemath Umma v. Abdul Wdhah 1 appear to me to bean authority for the proposition that the Court has power in certaincircumstances to appoint an administrator pendente Hie.
As regards costs, the appellant was, I think, responsible for theorder made by the learned District Judge as he applied for anorder absolute in the first instance. I think he should pay hisown costs both here and in the Court below. The costs of the officialadministrator should be paid from the estate. The other respond-ents should pay their own costs in appeal and in the Court below.
Garvix J.—I agree.
Set aside. 1
1 (19X9) 6 C. W, R. 2SS,