Re Estate of BOPEGAMAGE PRANSAPPU of Kumbalwela, deceased

041-NLR-NLR-V-07-Re-Estate-of-BOPEGAMAGE-PRANSAPPU-of-Kumbalwela,-deceased.pdf


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3004.
January 12.
Re Estate of Bopegamage Pkansappu of Kumbalwela, deceasedD. C., Galle. 3,371.
Appu Gunatileke, Administrator, Petitioner.
Leise Jayawardane, Respondent and Petitioner in-Appeal.
Civil Procedure Code, s. 717—Widow of intestate keeping back property fromadministrator—Order on widow to pay into Court moneys of estate in herhands—Proper decree to be made—Delay of person cited to bring moneyinto Court—Contempt of Court.
Where a person retains possession of a sum of money belonging to anestate vested in an administrator by letters issued to him by the DistrictCourt, it is not a proper order to require the person cited to pay themoney into Court.
The proper course is to enter a simple decree requiring him to deliverpossession of the money to the administrator petitioning for the same.
The person cited must be allowed a reasonable time to give securityfor the payment of the money.
It is contempt of Court on the part of vicious intromitters to' 6et atnought the provisions of the law requiring administrators to carry outduly the administration of estates.
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HIS was an appeal against an order purporting to be madeunder section 717 of the Civil Procedure Code committing
the appellant (the widow of the intestate) to prison as for acontempt of Court for the period of six months, or until shecomplies with the terms of a decree dated 9th Afarch, 1903, wherebyshe was ordered to bring Into Court Rs. 308 received by her out ofthe proceeds sale of the intestate’s movable property. The facts ofthe case are set forth in the judgment of Wendt, J.
Bawa, for appellant.
H. Jayawardene, for petitioner, respondent.
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Cur. adv. vv.lt. *
*12th January,^'1904. Wendt, J.—
The proceedings b,efore us were taken under chapter 54 of theCode, and began,with a peti.ton of the administrator supported byaffidavit under section 712, alleging that all the inventorizedproperty of the intestate, concisting of” money and movables, wasin the possession of the appellant (the widow of the intestate) andof one Karunanaike. The Court on 24th September, 1902, directed
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a citation to issue to the persons named in the petition, and thecitation accordingly issued on 3rd December, accompanied by theorler required by section 718. Neither the citation nor the ordervery closely follows the forms prescribed by the Code, but insubstance they contain all that is necessary. On 19th Decemberthe widow appeared, and is recorded to have stated that " she hadno property belonging to the estate, and that her husband had nomoney at the time of his death.” The matter was adjourned to22nd December, when .the window was examined on oath. As aresult of her admissions,, the Court ordered her .to.produce in Courton 22nd January, 1908, a sum of Bs. 300, being the moietyreceived by her out of the proceeds sale of some of the intestate’smovable property. The matter was further adjourned to the 29thJanuary, on which date the second respondent, Karuna Naike, alsoappeared and was examined on oath. As a result of his admissionshe was ordered to pay into Court Bs. 152.41, and with this orderhe complied. The widow filed affidavit pleading inability to paythe Bs. 900 into Court. She was directed to serve this affidaviton the administrator, and .the parties were heard upon it on 3rdMarch, 1908, and the Court reserved its order. On 9th March theCourt declared itself not satisfied with the petitioner’s allegationsas to the other property, but proceeding on the widow’s admissionfound that she had received Bs. 308 out of the proceeds sale of thefurniture, and .that her plea that. she had made use of the moneyfor her own expenses could not be accepted. It therefore directedthat) a decree be entered against the window requiring her to pay intoCourt. Bs. 308, or to find two sureties to pay this amount on orbefore 9th April, 1903, and condemning the respondents to paythe administrator’s costs.
This decree was not such as section 716 contemplates. Thatsection requires a simple and direct decree requiring the personcited to deliver possession of the money or other property to thepetitioner, not to pay it into Court. It is true the section mentionsthe giving of security for the payment' of the money . or deliveryof the property, but that isf- a matter antecedent to the decree.The decree can only be entered if the person cited fails to givethat security. . Accordingly it was pointed out by this Court in thecase of Fernando v. Fernando (D. C., Negombo, 605), decided dn12th August, 1903, that, before passing the decree t*he Court mustallow the person cited a reasonable time for (the giving of thesecurity, and proceed to the next step only if default is made indoing so. See also the case of Sar&vanamuttu a. VaUipillai (D. C.,Trincomalee, 194, Civ. Min., 29£E October, 1903). The widow,however, did not appeal against the decree and in the absence of
1904.
January 12.
Wendt, J.
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1904.such appeal I am not prepared to say that it is so irregular as to
January 12. incapable of enforcement under, section 717, either because itWendt, J. gave the widow the option of finding security instead of payingmoney, or because it directed the payment, of the money into Courtinstead of to the petitioner. The appellant failed either to paythe money or to find the security.
On the 5th May, 1903, the Court issued a notice requiring thewidow to show cause why she should not be attached. Sheappeared by Counsel on 26th May, and submitted that she had notbeen guilty of any defiance or wilful disobedience to the order ofCourt, but that not. having the money, which she had paid away,and being a poor Woman, she could not bring it into Court. Sheadmitted at the same time her liability to account for.the moneyto the administrator. The Court, however, held—and I think. properly held—that these were matters which ought to have beenput before the Court as cause against the making of the decree, andthat indeed they had been considered by the Court and declaredinsufficient. No order as for a contempt was, however, made,because the proper procedure, such as the issue of summons, &c.,had not been observed, but the Court expressed its opinion thatthe respondent had committed a contempt and ought to be dealt-with accordingly. Nothing was done towards this end untilSeptember. The widow thus had another opportunity of comply-ing with the decree or of taking steps to have it set aside byproper proceedings. She did nothing. In October she appearedin answer to a fresh summons as for contempt of Court andrepeated her former explanation. The District Judge found thatthe widow was the daughter of wealthy parents and was livingcomfortably with them, that she had not even asked her father togive security for her for the payment of the comparatively smallsum of Rs. 308. In his opinion she was' wilfully resisting theefforts of the administrator to recover the money due to the estate.He held further—and I think he ought .to be supported in soholding—that, if the provisions of the law requiring administra-tion of estates to be carried out in a legal manner by theresponsible administrators are not ‘to be set at nought, it isnecessary that vicious intromitters should be checked and shown
the liabilities they incur by intermeddling without authority.
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I think the order appealed from should be affirmed.
I would call the attention of the District Judge to the fact thatthe record has been sent up to this Court without being paged orfurnished with the usual index.
Lavard, C.I.— I agree.