065-NLR-NLR-V-11-SESMA-LEBBE-MARIKAR-v.-MANATCHY-UMMA-et-al.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
SESMA LEBBE MARIKAR v. MANATCHY UMMA et al.
1908.
June 89.
D. C., Colombo (Testamentary), 2,925.
A dministration—Insolvency of applicant—Disqualification—English Law—Civil Procedure Code, ss. 523 and 544.
An undischarged bankrupt is not ipso jure disqualified tor theoffice of administrator of a deceased person's estate under the CivilProcedure Code.
A
PPEAL from an order of the District Judge of Colombo grantingletters of administration of the estate of Packeer Pullo
Mustapha Natchia to the respondent Siddi Lebbe Marikar SesmaLebbe Marikar. The facts sufficiently appear in the judgments.
M. de Saram, for the .third respondent, appellant.
Bawa, for the petitioner, respondent.
Cur. adv. vult.
June 29, 1908. Hutchinson C.J.—
This ’ is an appeal from an order made on February 13, 1908,granting letters of administration of the estate of Packeer PulleMustapha Natchia to the respondent Siddi Lebbe Marikar SesmaLebbe Marikar.
The respondent is the only son of the deceased; the appellant is agrandson, and he opposed the respondent’s application for a grant ofadministration, alleging that he is not a fit and proper person toadminister the estate, but giving no reason for .the allegation.
The District Judge took evidence, from which it appeared that therespondent was adjudicated insolvent thirty-six years ago, and hadgot no certificate, but had paid all his debts; and that the appellanthad been in jail for five years about seven years ago for uttering aforged promissory note. The District Judge said that the respondentis a respectable old man, and that his insolvency is now matter ofancient history.
The appellant contends that an uncertificated bankrupt is by law-incapable of being appointed administrator- Williams, on Execu-tors, 1,336, 359, says that such a person is disqualified, giving as hisauthority the case of Hills v. Mills,1 which means that in Englandthe Court will not appoint such a person. In Ceylon an applicationfor a grant of administration of an intestate’s estate is made undersection 544 of the Civil Procedure Code, which places no restrictionon the power of the Court to appoint any person interested in having
> 1 Salkeld 35.
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1908. the estate administered, except that when there is a conflict ofJune 29- daims, regard is to be had to section 523, which enacts that theHutchinson claim of the widow or widower is to be preferred to all others,; and theC,J. claim of an heir to that of a creditor. But, of course, the Court willnot appoint a person whom it thinks to be not a fit and properperson; and in considering whether a claimant is fit and proper, theCourt may be guided by the English practice, although there is no lawmaking that practice absolutely binding on it. I do not feel surethat an English Court would hold that a man who was bankruptthirty-six years ago and has paid all his debts and lived a respectablelife ever since is absolutely disqualified by the fact that he neverobtained an order of discharge. But, whether that is so-or not, Ido not think that we should bind our Courts by laying down a hardand fast rule which the Legislature, in the elaborate provisionswhich it has enacted on the subject of administration, has not laiddown.
I think the appeal should be dismissed, with costs.
Wood Renton J.—
This appeal arises out of a contest for the grant of letters of1 administration to the estate of Packeer.Pulle Mustapha Natchia, whodied intestate on May 2, 1889. The appellant is the grandson, andthe respondent is the son of the intestate. The appellant is entitledto 7/60 and the respondent to 8/60 of the property. As regardscharacter, the balance is decidedly in favour of the respondent.The learned District Judge has found—and Mr. Morgan de Saramdoes not contest the finding—that he is a respectable old man, whowas for some time employed by the Governor of Ceylon in hiscommunications with the Maldivian Ambassador. The respondent,on the other hand, was on his own admission convicted and sentencedto five years’ imprisonment for forgery, and he was undergoing thatsentence about seven years ago. The exact date of his convictiondoes not appear. The District Judge rightly declined to considera person of this description as a serious candidate for the grant ofletters of administration,' and Mr. de Saram did not press his client’sclaims upon us from that standpoint on the hearing of the appeal.But he contended that the respondent was, ipso jure, disqualifiedfor the office of administrator by reason of the fact that he is anundischarged bankrupt. The respondent stated—and there is noevidence to the contrary—that his bankruptcy occurred thirty-sixyears ago, and that he has since paid his creditors in full. But he isstill a bankrupt, and Mr. de Saram contends that he is therebydisqualified to be an administrator. In support of this propositionno local enactment or decision was cited; but we were referred to apassage in Williams on Executors {10th ed., vol. I., p. 359), in.which it is stated that “ the incapacities of an administrator
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extend to- bankruptcy.” The authorities given in the footnote
(n (o) ) are Hills v. Mills and Comyn’s Digest, title Administrator (B) 6.Hills v. Mills 1 is not a direct authority on the point. It was amotion for a prohibition to the Ecclesiastical Court of Canterbury tostay a suit for the revocation of probate, on the ground that theexecutor “ was become bankrupt. ” The report poceeds “ andthough one Coates’s case was cited, where an administration wasrevoked for that cause, yet the Court said that differed; for theexecutor is constituted by the testator himself, and by him intrusted.”The prohibition was, therefore, granted. This case was cited to theCourt of King’s Bench in B. v. Simpson,* and L.ord Mansfield C.J.said: " The consequence was that the Court of Chancery was forcedto assume a new jurisdiction and take the power out of the executor’shands and appoint a receiver of the effects; ” and the principle is nowwell established that while probate cannot be refused to a personappointed executor of a will on the ground of insolvency (JR. v. Baynes,sWilliams on Executors, 10th ed., I., p. 162, and cases ad loc. cit.),the Court can and will restrain an executor who becomes bankruptafter probate from further dealings with the estate (c/. TJtterson v.Mair,* Scott v. Becker,s Bowen v. Phillips,*). I have been unable totrace any report of Coates’s case to which reference was made mHills v. Mills, or to find any other authority for the propositionthat bankruptcy necessarily disqualifies a person for the office ofadministrator. Hills v. Mills is not such an authority. Neither isComyn’s Digest (ad loc. cit.). The words used are: “ So .if the nextof kin be incapable, administration shall be granted to another…… asif he become bankrupt,” and the statement is
justified by a reference to Hill v. Mills.''
I conclude, therefore, that there is nothing in the English Law ofadministration to fetter the power of the District Court in the presentcase, acting under the joint provisions of sections 519 and 545 of theCivil Procedure Code, to say that “ by reason of consanguinity,amount of interest, the safety of the estate, and probability thatit will be properly administered, ” the respondent is, in spite ofhis remote bankruptcy, “ a proper person to be appointed adminis-trator. ”
I would dismiss this appeal, with costs.
Appeal dismissed. 1
1 (3 Will, and Mary) 1 Salic. 36.* (1703) 2 Vet. Jim. 95.
(1 W.) Black 455 at p. 458.s (1816) 4 Price, 346.
(10 Will. III.) 1 Salk. 299.6 (1897) 66 L. J. Ch. 165.
*1 Salk. 36.
1908.
June 29.
WoodBentos J.