SETHUKAVALAR v. ALVAPILLAI

055-NLR-NLR-V-36-SETHUKAVALAR-v.-ALVAPILLAI.pdf


Sethukavalar v. Alvapillai.
281
1934Present: Drieberg, Akbar, and Poyser JJ.
SETHUKAVALAR v. ALVAPILLAI.
188—D. C. Jaffna, 8,030.
Administration—Conflict of claims—Right of a widow or widower—Discretion-ary power of Court to pass over claim—Civil Procedure Code# 9. 523.
Under ordinary circumstances the claim of a widow or widower toletters of administrationto the estate of adeceased person isto be
preferred, but the Courthas power to passover the claim in favour
of another for good reasons.
C
ASE referred by Garvin S.P.J. and Poyser J. to a. Bench of threeJudges. Two questions of law were referred to to the Court—(1)
whether section 523 of the Civil Procedure Code gives the DistrictCourt any discretion in the matter of the appointment of the widow orwidower as administratrix or administrator, and (2) whether this prefer-•entail right can be claimed also by the attorney of the widow or widower.
JV. E. Weerasooria (with him D. E. Wijeyewardene and Batuwan-tudawe), for respondent, appellant.—This appeal raises a question relatingto theinterpretation of section523 of the CivilProcedure Code.After
theintroduction of the Code, the Court has nodiscretion, exceptas to
associating someone with the widow or widower in the grant of letters ofadministration.
In Mahamado Ali v. Sella Natchia the earliest case on the point afterthe introduction of the Code, a widow’s claim was preferred. In In reUkku Banda ", Bonser C. J. upheld a similar claim. In Habibu v. AltarMarikar3, a Muhammadan widow’s claim for letters to her deceasedhusband’s estate was preferred to all others. In Appuhamy v. Menika*,(binna husband’s claim). Wood Renton C.J. favoured the view thatthe wording in section 523 is imperative. In this case, a judgment ofSampayo J., at p. 151 of 19 N. L. R., was cited with approval. Counselalso cited Thambiah v. Parupatham3 and Pedurupillai v. Sewarichi ®.
In Cornells Appuhamy v. AppuhamyDalton J. held that a widoweris entitled to letters even though he had been living apart from thedeceased, in terms of a deed of settlement. In Moosajee v. Carimjee *,Fisher C.J. upheld “ a widow’s right to have her claim to letters preferredto all others”. In Kanagasunderam v. Sinniah*, the preferential right ofa widow was recognized.
There are safeguards provided under the Code in regard to anadministrator who may be guilty of misconduct. The draftsman, whenhe drafted section 523 of the Code, perhaps never contemplated theposition arising under the Thesawalamai.
This interpretation of section 523 has been holding good for over thirtyyears and has been recognized so long by the Courts that it should not bedisturbed now—see Boyagoda v. Mendis “.
*(1893) 2 C. L. J*. 179.
(1900) 4 N. L. R. 267.
(1904) 3 Bal. 59.
(1910) 19 N. L. R. 149.
(1917) 4 C. W. R. 89.
s (1923) 2 Times of Ceylon L^R. 83.i (1926) 28 N. L. R. 286.
® (1927) 29 N. L. R. 387.
• (1930) 32 N. L. R. 43.
30 N. L. R. 321.
282
Sethukavalar v. Alvapillai.
S. Nadesan (with him A. W. Nadarajah), for petitioner, respondent.—The ordinary under the English law had no power to prefer others to awidower. See 31 Edw. III., st. 1, c. 11. Also 29 Car. II., c. 3, whichenacts that “ their husbands may demand and have administration ”.
. Though these words are peremptory, the Courts have in interpret-ing them refused to grant letters to a widower who did not have aninterest in the estate—see Williams on Executors (11th ed.), p. 321.Similarly, in interpreting 21 Henry VIII., c. 5. s. 3, the Courts havegiven effect to the principle “ grant follows the interest ”, and despitethe letter of the law have given effect to the spirit of the law by grantingletters to one possessing an interest. See Williams, pp. 377-378; In reMegson, (1899) 80 L. T. 295; In re Arden, (1898) 67 L. J. 70; In re Gill,(1828) 1 Haggard 342; Fielder v. Hangar, 3 Haggard 769.
The paramount consideration with the English Courts has been thesafety of the estate. This was ensured by refusing letters to one who hadno interest as against one who had.
[Drieberg J.-—If the administrator is asked to give security for theproper discharge of his duties, is that not a sufficient safeguard ?]Security cannot provide an adequate safeguard; self-interest is the bestsafeguard.
These principles of English law are part of the law of Ceylon, for bysection 27 of the Charter of 1833, the law of England relating to executorsand administrators was introduced into Ceylon—see Staples v. De Saram1and Fernando v. Fernando Prior to the introduction of the CivilProcedure Code these principles have been accepted and followed inCeylon. (Ram., 1860-62, p. 5)—binna husband refused letters; In reRoUntina (Ram., 1872-76, p. 311)—where it was held that the Court has adiscretionary power in granting letters of administration to a widower;Iu re Muttu Pulle, (1859) Lorenz, part III., p. 193; and MarshalVsJudgments, pp. 3, 4, and 5.
In this state of the law was section 523 of the Code enacted. Theprinciples of English law introduced into Ceylon have not been abrogatedby this section. Section 523 should therefore be interpreted subject tothe principles, (a) that the safety of the estate must be ensured and (b)that the grant follows the interest.
The use of the word “ prefer ” shows that the legislature intended togive a discretion to the Court. There was no intention to repeal the lawprevailing prior to 1889. The fact that a certain interpretation ofsection 523 has been recognized by the Courts for a long time is no groundwhy the section should not be differently interpreted now. The sectionenacts substantive law, and not a simple procedural provision. SeePate v. Pate', in which the Privy Council over-ruled an interpretationwhich had held good for a long number of years.
Even if the widower has a preferent right to letters, the widower’sattorney has no such right. The Case of Moosajee v. Carimjee (supra) wasnot rightly decided. If the preferent right of a widow or widower is
1 Ram.. 1863—68, p. 27 5.1 (1908) 4 N. L. R. p. 201.
" 18 R. L. R. at p. 293.
AKBAR J.—Sethukavalar v. Aluapitlai.
403
created by statute, so is the preferent right of an attorney. Hence theabsence of any reference to an attorney in section 523 indicates that anattorney cannot claim any preferent right.
Weerasooria, in reply.—The Courts Ordinance s. 69, confersjurisdiction in administration cases on the District Court. This gives adiscretionary power, but such power is limited by section 523 of the CivilProcedure Code.
Cur. adv, vult.
December 19, 1934. Akbar J.—
This case was referred to a Bench of three Judges by Garvin S.P.J.and Poyser J., and Poyser J. in his judgment has fully stated the facts.The two questions of law which he thought should be settled are whethersection 523 of the Civil Procedure Code gives the Court any discretionin the matter of the appointment of the widow or widower as adminis-tratrix or administrator, and whether this preferential right (if any)can also be claimed by the attorney of the widow or widower. Fromthe facts stated by Poyser J. it is clear that if the Court had a discretionin the matter under section 523 of the Civil Procedure Code, the DistrictCourt was right in rejecting the claim of the widower Ayathurai toadminister his deceased wife’s estate. Ayathurai had no interest in hiswife’s property under the Thesawalamai, and he himself had suggestedin a letter to the District Judge that the proper person to administerthe estate was the father or the brother of the deceased, who presumablyhave no objection to the appointment of the petitioner-respondent,brother-in-law of the deceased to the office of administrator. Ayathuraiis away in the Federated Malay States and has applied for administrationthrough his attorney, a man apparently living in another district thanwhere the properties are situated.
Ayathurai it appears is now married to another woman and the DistrictJudge found that he had been very dilatory in another testamentarycase in which he v/as administrator. So that the Judge had amplematerial before him to hold against the claim of Ayathurai, if he hada discretion in the appointment of the administrator under section 523of the Civil Procedure Code. The question is whether that sectionconfers an absolute right on the widower. The relevant words are asfollows : —“ And in the like case of a conflict of claims for grant ofadministration where there is intestacy, the claim of the widow orwidower shall be preferred to all others, and the claim of an heir to thatof a creditor.” Under this section (to use the words of some of theJudges of the Supreme Court who interpreted this section) the languageused is no doubt peremptory or imperative in so far as the section saysthat the widow or widower’s claim is to be preferred, but I cannot agreethat the words “ shall be preferred ” mean that the widow or widower’sclaim is absolute and must prevail over those of all the others, evenwhen the Judge is convinced, as in this case, that the widower is not a fitperson to administer the estate. There can be no doubt that thereis a series of cases decided by this Court, in which such an interpretationwas adopted. In the first reported case after the Civil Procedure Code wasenacted, viz., In the matter of the Estate of S. L. M. Ahamadoe Lehbe
284AKBAR J.—Sethukavalar v. Alvapillai.
Marikar, deceased l, both Lawrie A.C.J. and Withers J. simply referredto the preferential rights of the widow without definitely stating thatthose rights were absolute. Lawrie A.C.J. said “ The reasons givenby the learned District Judge for refusing to give letters of administrationto the widow are insufficient. By law she is to be preferred to thenext of kin, much more is she to be preferred to a son-in-law, a strangerin blood and estate to the deceased." Withers J. said "I, too, thinkthat the widow has a better claim to be declared entitled to take outletters of administration to those estates
It will be seen from the case that the Supreme Court did recognizethe widow’s preferential claim—of which there can be no doubt from thewords of the section—but that it did not regard those claims as beingparamount and capable of over-riding all other claims in every instance,even when it was demonstrated that the widow was totally unfit toadminister the estate. In the next case, however, In re Intestacy of UkkuBanda, deceased2 the point was definitely decided by Bonzer C.J. andBrowne A.J., and, if this was not a Bench of three Judges, we would havebeen constrained to follow this decision.
But even in that case, although Bonser C.J. thought that the languageof the section was plain and that the cases referred to had no application,.as they were decided before the passing of the Civil Procedure Code,the Chief Justice followed the old practice as laid down by Chief JusticeMarshall and held that (as the Code did not say that a widow was to beentitled to sole administration but that her claim was to be preferred)ft was quite open to the Court, if it thought it advisable in the interestof the estate, to associate some other person as a joint administrator.
The next case to which we were referred was Appuhamy v. Menika Itwill be seen from that case that objection was taken to a binna husband’sright to administer his wife’s estate as he had no right in his wife’s estateafter her death. A previous decision of De Sampayo J. and Shaw J. (29
N.L. Rp. 151) was followed in which the 4 N. L. R. case was quotedwith approval. In that case Wood Renton J. refused to follow thedecision of the Supreme Court reported in Ramanathan’s Reports,1860-1862, p. 5 and 3 Lorenszfs Reports, p. 193, because “ the rules andregulations under which these cases were decided, while they no doubtindicate that a preference was intended to be assigned to the widowor widower of an intestate in claims for administration, do not expressthat preference in the peremptory language of section 523 of theCivil Procedure Code ”.
But Wood Renton J. went on to say that there was nothing unreason-able in the construction of the law that a binna husband was entitled tothe preference conferred by that section even though he had no interestin the estate, because he had interests of another kind. “ He is still herhusband and the father of her children and it is quite right that he shouldhave an opportunity of seeing that his wife’s estate is properly dealtwith and that the position of the children in regard to it is adequatelysafeguarded ”.
The only objection taken to the binna husband’s rights was on theground that he had no interest in his wife’s property. There seems to
> 2 C. L. R. 179.* 4 N. I.. 11. 2r>7.* 19 N. L. R. 149.
AKBAR J.—Sethukavalar v. Alvapillai.
285
have been phil<irpn bom out of the union, hence the further justificationby Wood Renton J. But supposing the finding of the District Judgehad been that the binna husband was totally unfit to administer hiswife’s estate, either because he was in jail for a long term of years orbecause his character was such that he should be deprived of this pre-ferential claim, has the Judge no discretion even in such cases ?Thambiah v. Parupatham1 is a short judgment in which the case ofAppuhamy v. Menika (supra) was followed in the following words: “ Section.523 is imperative, and this has been recognized in the case of Appuhamy v.Menika as applying even if the widow or widower is not an heir
In Pedurupillai v. Sewarichi* the two cases last quoted by me werefollowed. In Comelis Appuhamy v. Appuhamy* the appellant appliedfor letters of administration to his wife’s estate and it was objected tothat there was a deed of separation between the two under which theappellant had no interest in the estate. The District Judge held againstthe appellant as by the deed he had no interest in the estate and as therewas no child of the marriage to inherit it.
Dalton J. followed the 19 N. L. R. case above quoted and said “As-Wood Renton J. points out the claim of the widow or widower should bepreferred to all others, and it is set out in this section in peremptorylanguage, language he adds, to which it is impossible not to attach greatsignificance”. That case also is an authority for the proposition thatalthough the husband may have no beneficial interest in his wife’s estateafter her death, yet he may be still entitled to be her administrator.Letters of administration were given to the widower, but the questionwhether he had lost his rights in the estate under the deed of separationwas to be decided at a later stage.
In Moosajee v. Carimjee 1 Fisher C.J. and Drieberg J. followed BonserC.J.’s judgment in these words: “ If this were a case of a widow in theIsland applying for a grant to herself her right to have her claim‘ preferred to all others ’ would have to prevail The main pointdecided in that case was whether the attorney of a widow from theIsland was entitled to claim the preferential right to letters of adminis-tration.
Similarly in Kanagasunderam v. Sinniah* Garvin A.C.J. referred toMoosajee v. Carimjee (supra) and held that the manager of the estate of alunatic widow was held entitled to have letters issued to him. Objectionwas taken that the widow was not an heir of her husband’s property, butGarvin A.C.J. held that in the case before him a substantial part of theestate was acquired property and “ that is a reason why this may well beregarded as a case in which the widow has a special interest apart from herpreferential right to letters of administration ", remarking also that “Nospecial cause has been shown in this case why in recognition of thepreferential rights of the widow letters should not be granted to themanager ’’. He nowhere states that the provision is imperative in thesense that the Court is compelled to grant letters to a person having sucha preferential right, even when it is satisfied that the administration of
the estate will suffer thereby.
'Sf, W. R. 89.
2 (1923) 2 Time* of Ceylon Laic Report 83.
* 32 N. L. R. 43.
a 28 N. L. R. 286.* 29 N. L. R. 387.
286
AKBAR J.—Sethukavalar v. Alvapillai.
It will thus be seen that there is a series of two-Judge cases in whichthe interpretation was more or less put on section 523 that the words“ shall be preferred to all others ” meant that the claim of the widowwas to be paramount. There are really only two decisions which werelater followed : one being the decision of Bonser C.J. in 4 N. h. R. 257and the other by Wood Renton J. in 19 N. L. R. 149. Bonser C.J.said that the argument that section 523 must be read with a qualification,that she (i.e., the widow) is to be preferred unless the Judge thinks thatsome other claimant would make a better administrator, was quiteinconsistent with the plain language of the section. Wood Renton J.thought that the preference of the widow’s or widower’s claim wasexpressed in peremptory language. Their opinion has been endorsedby some of the later Judges. As regards the law existing in Ceylonbefore the Civil Procedure Code came into force, it was the English lawwhich was applied. As stated by Marshall, page 3, “As regards thepriority of the right of administration, it may be observed that the Englishlaw, which adopts the computations of the Civil law, in regulating thepropinquity of kindred may safely be followed at least as regardsEuropeans and the descendants and the Sinhalese inhabitants ”.
Under the English law as pointed out by Clarence J. in In the Matter ofthe Estate of D. Rolantina {Ram. 1872-1878, 311) the husband’s rightwas absolute, whereas in the case of the widow the Court had a discretion.One reason for the preference which the English law gave to the widowerwas due to the interest he had in his wife’s property. Under the laws inforce in Ceylon it may sometimes happen that a husband may get nointerest in his wife’s property viz., as in this case and in the case of ahinna husband. Clarence J. following the ruling of the English Courtswhich recognized the principle of giving the management of the propertyto the person who had the beneficial interest in it and of refusingadministration to the very person pointed out by the statutes, when itappeared that such person had no interest, held that the Court had adiscretionary power of preferring the next of kin for good reasons notonly in the case of the widow but in that of a widower. This being thelaw before the Civil Procedure Code, the question that has to be decidedis whether there has been a change in the law enacted by section 523 andwhether this change is given effect to in the words of section 523.
In spite of the opinion of the Judges of this Court mentioned by meabove, I cannot think that this great and drastic change has beenintroduced by the words of section 523. If this contention is right,our law would go beyond the English law in regard to the position of awidow, by giving her an absolute right which she never had under theEnglish law nor under our law as it stood prior to 1889. The fact thatboth the widow and the widower are grouped together in the same formulashows, I think, that the law that was meant to be codified in section 523was the law as enunciated by Clarence J., namely, that under ordinarycircumstances the widow or widower is to be preferred but that the Courthas a discretionary power of preferring another person for good reasons.It is of course a discretionary power and the Court must give its reasonsfor its preference. In spite of the previous decisions of this Court Icannot give any other interpretation to the words “ shall be preferred
GARVIN SJP.J.—De Silva v. Wijeyesekere.
287
to all others” than that in ordinary circumstances the claim of thewidow or widower is to be preferred, but that the Court has got thepower to pass over their claims in favour of other persons for good reasons.
This being my view, the second point reserved for consideration doesnot arise, and the appeal must be dismissed with costs.
Drieberg J.—I agree.
Poyser J.—I agree.
Appeal dismissed.