BASNAYAK3T, C.J.—Talayaratnf v. Talayaratne
Present : Basnayake, C.J., and L. W. de Silva, A.J.
TAT; AY ARATNE and others, Petitioners, and TALAYARATNE,
8. C. 544—D. G. Colombo, 11,869jT
Appeal—Necessary parties—Administration of estates—Judicial settlement of accounts—Objections by parties not entitled to the income from the estate—Duty of Courtto hear them—Civil Procedure Code, ss. 729, 730, 735.
The Civil Procedure Code does not require a party appellant to name asrespondent to an appeal every party to the proceedings in the lower Court.A party against whom no order is sought by tzhe appellant need not be namedas a respondent.
When, application is made by an administrator under section 729 of the CivilProcedure Code for judicial settlement of his accounts, the Court is bound totake the accounts and hear the allegations and proofs of the objecting partieseven when the objectors are not entitled to the income from the Estate.
iiPPEAL from an order of the District Court, Colombo.
H. V. Perera, Q.G., -with T. B. Dissanayake and D. R. P. GoonetiUeke,for Petitioners-Appellants.
H. W. Jayeward&ne, Q.G., with P. Ranasinghe, Miss Maureen Senevi-raine and N. R. M. Daluwaite, for Petitioner-Respondent.
Cur. adv. vult.
September 2, 1957. Baskayake, C.J.—
The respondent to this appeal, the administratrix curn tesiamento■annexo of the Estate of the deceased Don Charles Talayaratne, applied
BASHATAKB, C.j.—Talayaratne v. Talayaratne
to the District Court by petition to have the accounts filed by her judi-cially settled. She named 18 persons, including the four appellants, as.respondents to her application. The appellants and another filed a state-ment of objections in which they alleged that the accounts filed wereincorrect and lacking in- detail and had not been kept regularly. Theygave details of their objections by specifying their grounds of objections,against each item of the accounts objected to.
After inquiry the learned District Judge held that the accounts hadnot been kept in a proper or business-like manner and found that a largenumber of items of expenditure were unsupported by vouchers. Healso held that, as the 17th respondent to the application, who was theonly party entitled to the “ balance income ”, had accepted the correctnessof the accounts and as the objectors were not entitled to the income fromthe Estate, they were not entitled to contest the accounts ; hut that if apaity entitled to the income of the Estate contested them a large part of theaccounts would have to be rejected and the administratrix surchargedin respect of the sums of money derived as income which have not beenproperly accounted for. He therefore ordered decree to be entered to theeffect that the accounts filed by the administratrix are accepted andpassed. The present appeal is from that order.
A preliminary objection was taken by learned counsel for the res-pondent on the ground that all the parties to the application for a judicialsettlement had not been made respondents to this appeal. We do notthink that there is any substance in this objection. The Civil Procedure'Code does not require a party appellant to name as respondent to anappeal every party to the proceedings in the lower court, .dearly noorder can be made against a party to an action in appeal unless that partyhas had an opportunity of being heard. In the instant case the appel-lants do not seek an order against anyone not named as a respondentto this appeal. Their prayer is as follows “ Wherefore the Appellants-Petitioners pray that Your Lordship’s Court he pleased to set aside thejudgment and order of the learned Additional District Judge of Colomboand direct that the said accounts be rejected and the administratrixhe called upon to file a fresh account, for costs, and for such other andfarther relief as to Your Lordship’s Court may seem meet. ”
We shall now consider the main questions arising on this appeal.The administratrix by petition under section 729 of the Civil ProcedureCode prayed that her accounts he judicially settled. Among others theappellants were made respondents to the petition and they were rightlycited by the court. Upon the return of the citation the court was houndto take the accounts and hear the allegations and proofe of the parties(section 730). This the court declined to do, even though it was satisfiedthat the administratrix had failed to properly account for the moneyreceived by her. The learned trial Judge is wrong in holding that hehas power to take the accounts and hear the allegations and proofs of theparties only where the objectors are entitled to the income. The factthat sub-section (2) of section 730 provides that a party may contest
H. N. G-. FBBNAKDO, J,—Wttaa v. JPeiris
the accounts wife, respect to a matter affecting his interest in the settle-ment and distribution of it does not relieve the court of fee obligationimposed on it by sub-section (1) to take fee accounts and hear theallegations and proofs of the parties respecting fee accounts.
We therefore set aside the order of the learned District Judge and directhim to hear the objections respecting the accounts and examine theaccounting party under section 735 and make his order on the applicationof fee administratrix praying for a judicial settlement of her accounts.
The appellants are entitled to the costs of this appeal.
W. db Silva, A.J.—I agree.
Order set aside.
TALAYARATNE and others, Petitioners , and TALAYARATNE, Respondent