KEUNEMAN J.—The Public Trustee v. Karunaratne.
Present: Moseley and Keuneman JJ.
THE PUBLIC TRUSTEE v. KARUNARATNE.
118—D. C. Kalutara, 19,324.
Administrator—Heir in exclusive possession of premises—Right of adminis-trator to sue for rent—Distribution of the estate.
An administrator is entitled for purposes of administration to recoverreasonable rent from ad heir in respect of premises in possession of suchheir, particularly where the income from the premises is necessary for theproper distribution of the estate.
^^PPEAL from an order of the District Judge of Kalutara.
■ L. A. Rajapakse (with him G. P. J. Kurukulasuriya), for defendant,appellant.
N.E. Weerasooria, K.C. (with him C. Seneviratne), for plaintiff,respondent.
Cur. adv. vult.
December 15, 1938. Keuneman J.—
The plaintiff as administrator of the estate of Dr. D. T. A. Karunaratnesued in his plaint for declaration of title to a certain house and premises,and for ejectment of the defendant, and for the sum of Rs. 1,840 asdamages. The defendant in his answer averred that as an intestate heirof Dr. Karunaratne he had lawful right and title to one-half of thepremises, and denied that an action lay against him for declaration oftitle and ejectment. In the alternative he pleaded that he was liableonly to the extent of one-half of the amount of rent due. sAt the trialplaintiff’s Counsel restricted his claim and prayer to a half share of thepremises, and the following issues were framed.
Issues by plaintiff—
Is the defendant in exclusive possession of premises No. 318,
Has the defendant at any time paid rent for the half share of these
premises due to his sister ?
Is -the income from these premises necessary for the proper distribu-
tion of the Intestate Estate of Dr. Karunaratne ?
What sum is due by defandant to the estate in respect of these
Issues by defendants—
Does the plaint disclose any cause of action ?
Is the plaintiff entitled to—_
Declaration of title in respect of these premises ?
<7) Has the plaintiff suffered any damage by the defendant occupyinghalf of the premises for his share?
What is a reasonable rent for these premises ?
,(9) If any sum is found to be due, is the defendant entitled to a set-offagainst his share of the estate of his deceased brother ?
430KEUNEMAN J.—The Public Trustee v. Karunaratne.
The evidence established that the defendant and Mrs. C. Wijeratnewere the heirs of their brother Dr. Karunaratne, that the defendantexclusively occupied the premises in question from December, 1931,and deliberately refused to account for the income of these premisesand of almost all other properties belonging to the estate of the deceased,that a letter of demand P 3 dated April 16, 1935, was sent to the defendanton behalf of the administrator demanding rent for the premises inquestion from August 16, 1931, but that this demand was ignored by thedefendant. In the circumstances the learned District Judge enteredjudgment against defendant for the sum of Rs. 1,460 due from January 1,1932, till January 31, 1938, with further rent or damage of Rs. 20 permonth thereafter. This is calculated on half the rental value of thepremises.
From this judgment the defendant appeals. I do not think it ispossible to disturb the findings of fact of the learned District Judge,but Counsel for the appellant contends that the original basis of theaction has been abandoned, and that there is no cause of action disclosedin the issues. In particular he contends that no action can be broughtby an administrator against an heir to recover rent in respect of premisesof which the heir has been in possession. Certainly no authority hasbeen cited to us to show that such an action can or cannot be maintained.But when we examine the matter we find that the power of the personalrepresentative extends over immovable property (Vand. 273), and that•for the purposes of due administration he is entitled to sell a propertyeven though it has already been transferred by the heir, vide Silva v. SilvaThere seems little doubt that an administrator can bring an action torecover money or other movable property forming part of the estatein the hands of any person, and in fact under section 712 of the CivilProcedure Code he may proceed by way of citation. In Fernando v.Rosa Maria" it -was held that “ where heirs take possession of the estatepf a deceased, as they are entitled to do under our law, they would holdthe property in trust for the legal representative, as representing thecreditors, to the extent necessary to satisfy the debts of the estate.”This last authority should however be applied with caution, for thedecision is based upon the terms of section 96 of the Trust Ordinance.
Quite apart from the Trust Ordinance however, I find it difficultto deny to the legal representative, the right for the purposes ofadministration of requiring the heir or heirs in possession to bring intothe testamentary suit a reasonable rent for premises in the possession ofsuch heir or heirs, and of bringing an action to enforce this. This wouldmore particularly be the case where one heir is in possession of the wholeor the greater part of the deceased’s estate to the prejudice of the other' heirs. In the absence of authority I find it difficult to hold that whilean administrator can for purposes of administration sell the immovableproperty of the estate over the heads of the heirs, he cannot call uponthe heirs to account for the income of premises of which they are inpossession. This latter right would certainly conduce to the preservation
of the property of the estate.
1 10 N. L. R. 234.
28 N. L. R. 234, at p. 268.
POYSER S-P.J.—Don Harry v. Betto Homy.
As regards the further point raised, it is no doubt true that there is noevidence in this case, that this income is needed for the payment of thedebts of the estate. The learned District Judge has however held thatthe income from the premises is necessary for the proper distribution ofthe deceased’s estate. I think this finding is correct, for the evidenceshows that the testamentary case is at a stand-still owing to the failureof the defendant to account for the income.
The appeal is dismissed with costs.
Moseley J.—I agree.
THE PUBLIC TRUSTEE v. KARUNARATNE