AKBAR J.—Ranasinghe v. Ranasinghe.
1936Present ; Akbar and Koch JJ.
RANASINGHE v. RANASINGHE.1—D. C. (Inty.) Kalutara, 2,622.
Administration—Application for letters—Choice of majority of personsinterested—Discretion of Court.
In an application for letters of administration to the estate of a deceasedperson the Court should grant the order in favour of that person amongstthose of the same degree of kindred for whom the majority of the partiesinterested have expressed preference.
PPEAL from an order of the District Judge of Kalutara.
H. V. Perera, for the respondent, appellant.
Molligoda, for the petitioner, respondent.
Cur. adv. vuIt.
July 8, 1936. Akbar J.—-
The question in this appeal is as regards the right for the issue of lettersof administration to the intestate estate of a woman named Serah Rana-singhe, who died leaving a considerable estate on October 2, 1934. Shedied childless and unmarried. The only heirs were the respondent andthe appellant to this appeal and three others, brothers and sisters.The respondent to this appeal, Simon Ranasinghe, was the eldest brother
AKBAR J.—Ranasinghe v. Ranasinghe.
in the family and he applied for letters of administration himself. Thiswas opposed by the appellant, another brother of the deceased, on theground that Simon Ranasinghe was not a fit and proper person to beentrusted with the letters of administration. An inquiry was held inthis matter and the only persons who gave evidence were James, theappellant, and his sister Catherine. Both objected to the granting ofletters of administration to the eldest brother Simon, and the Court alsorecorded the further fact that the other two heirs, a brother and sisterof the deceased, also objected to letters being granted to Simon. Theappellant gave evidence, trying to prove the bad character of the re-spondent Simon. He stated that Simon Ranasinghe had removedbarbed wire from the fences, cut down and sold some trees and damagedthe rubber plantations. James also stated that Simon had assaulted hissister Catherine and that there was a case pending in the Police Courtand that he also used to ill-treat the deceased, too. He further statedthat there was a writ against Simon in a certain case the number ofwhich he gave. So far as I can see from the cross-examination of thiswitness, nothing was alleged to counteract the evidence that Jameshad given in his examination-in-chief regarding the character of Simon.The point that was emphasized in cross-examination was the fact thatJames was living in Rambukkana and iiot within the judicial districtwithin which the property of the deceased was situated, a fact whichSimon had alleged in his own affidavit. James, on the other hand, gavedefinite evidence that he stayed away from the judicial district for onlyone or two months in the year in a house which he had in Rambukkana.No question was put with regard to the points affecting Simon’s characterwhich I have already mentioned. Catherine definitely stated that shehad been assaulted by Simon when the deceased died, and she wasassaulted to such extent that she had to be in hospital for 15 days, andthat she had charged him and his son in the Police Court. No questionhas been put to disprove what the woman stated on this point nor hasSimon given evidence. It is however, not necessary for me to decide thisquestion of fact, because it seems that this appeal can be decided ona question of law.
The learned District Judge states five reasons for granting letters ofadministration to Simon in preference to James, and one of the reasons is,in my opinion, based on a wrong conception of the law. He states asreason No. 2 that Simon is the eldest brother of the deceased and as suchhas a superior claim to administer the estate. If this was a correctstatement of the law, it would go a long way to justify the learned Judge’sorder ; but it is not so. What section 520 of the Civil Procedure Codecontemplates is that the administrator must be a fit and proper personin the opinion of the Court to be entrusted with the administrationof an estate. Williams in his (Treatise on Executors (vol. I.; 12th ed.),p. 289) states as follows : —
“It is the duty of the Court to place the administration in the handsof that person who is likely best to convert it to the advantage of thosewho have claims either in paying the creditors, or in making distri-bution ; the primary object being the interest of the estate ”.
AKBAR J.—B. inghe v. Ranasinghe.
Williams in his Treatise furtfc states:—
“ Where there is no material objection on one hand, or reasons forpreference on the other, the Court in its discretion, puts the adminis-tration into the hands of that persons amongst those of the same degreeof hinders, to whom the majority of the parties interested are desirous ofentrusting the estate ”,
and he gives references to certain English cases. It seems to be a principlewell recognized in the English Courts and there is no reason why we shouldnot adopt this rule in this case. If we apply this rule, the majority ofthe interests, namely, four-fifths is in favour of the appellant in thiscase, and the respondent stands by himself alone, opposed to the others.
Mr. Molligoda who argued the case for the respondent stated that theappellant was a creditor himself. It is true that Williams says on theauthority of the case of Cordeux v. Trasler1 that the fact of one of severalnext of kin being also a creditor is rather adverse to than in favourof his being preferred in a contest for administration. But Williamsalso says at page 219 that “ that principle would apply (where none ofthese considerations applies) ” referring to the principle which I havealready stated.
Although the respondent-appellant has disclosed the fact that a sum ofRs. 850 is due to him from the estate when giving evidence he was preparedto waive it. He has repeated that offer in his petition of appeal, and Mr.H. V. Perera, on behalf of his client, has stated that he is willing to waivethat sum. So that, this objection disappears.
The further objection taken by Mr. Molligoda was the fact that CatherineRanasinghe, one of the heirs to this estate, has claimed a certain interestwhich seems to be in conflict with the interest of the estate. But thepoint in favour of the claim of James the appellant, is that he himselfdisclosed in the schedule filed by him that this interest belonged to theestate. Even if Catherine, having an interest adverse to the estate wasan undesirable person to have a voice in the appointment of James, and ifher name were excluded in counting the interests that are on the side ofJames and those that are on the side of Simon, it still leaves three-fifthsof the estate as opposed to one-fifth in favour of James. The principleof law which the learned Judge has stated as his second reason for hisorder and which seems to have led him to come to the conclusion that hedid come to, is in my opinion wrong.
The learned Judge further states that the allegations made againstthe respondent have not been proved. I fail to see in what other waythey can be. proved except by positive evidence and which evidence hasnot been traversed by evidence to the contrary.
Another reason given by the learned Judge is that the respondentlives in the village. The appellant’s evidence shows that he is also a-resident m the district in which the properties are situated for 10 or 11months in the year.
It seems to me therefore that the order of the learned Judge is wrongand sho. 'Vhe ■i is allowed with costs in this Court
AKBAR S.PX—Gooneratne v. Mahadeva.
and the Court below, subject to the condition that the claim of Jamesto the sum of Rs. 850 which has been mentioned in the inventory isdeleted and it is understood that he will not prove that claim againstthe estate.
Koch J.—I agree.
RANASINGHE v. RANASINGHE