Thornton v. Velaithan Che tty.
Present: Maartensz and Moseley JJ.
THORNTON et al. v. VELAITHAN CHETTY.
79—D. C. Galle, 24,593.
Administrator—Right to continue action brought by predecessor in office—Legal representative summoned to defend action—Objection to be urgedin first instance—Right of administrator to vindicate title to land—CivilProcedure Code, s. 404.
Under section 404 of the Civil Procedure Code a succeeding adminis-trator may continue an action brought by his predecessor in office..
Where a person is summoned to defend an action as legal representativean objection that he is not the legal representative must be raised and'determined in the first instance.
An administrator is entitled to bring an action – to vindicate title toimmovable property belonging to the estate without joining the heirsunless the Court so directs.
» L. R. 21 Bom. 228.
Thornton v. Velaithan Chetty.
PPEAL from an order of the District Judge of Galle declaring the
21 substituted plaintiffs as administrators entitled to the premises ofthe intestate in place of the plaintiffs, whose letters had been recalled.
H. V. Perera, K.C. (with him E. B. Wikramanayake), for first substituteddefendant, appellant.—An administrator cannot continue an actionbrought by his predecessor in office ; when he succeeds to the office, hemust bring a fresh action. On the death of the administrator the actionwould abate, and a fresh action has to be brought by the new adminis-trator. The right to sue is personal to the administrator. With him theright dies and does not survive, because it is a right personal to him. Inthe Trusts Ordinance, No. 9 of 1917, for example, express provision ismade in section 77 giving the right to a new trustee to continue an actionon the death of a trustee. There is no similar provision in the CivilProcedure Code to enable a new administrator to continue an actionbrought by his predecessor. Further, in England and New York expressprovision is made for the continuance of an action when an administratordies. See Williams’ Law of Executors and Administrators, pp. 464 and 465(10th edition).
[Maartensz J.—Cannot section 404 of the Civil Procedure Code
No. “ Any interest ” in section 404 must be construed according tothe context. The earlier sections refer to cases where the interest in someproperty devolves. “ Any interest ” does not include the right to bringan action.
An administrator cannot bring an action to vindicate title to land.See Silva v. Silva
The appellant was made a party defendant in his capacity as executorde son tort, i.e., in a personal capacity; but judgment has been enteredagainst him in a representative capacity. Under section 35 (2) of theCivil Procedure Code, no claim can be made against a defendant partlyin his personal capacity and partly in his representative capacity.
The document P 13 must be read as a wrhole, although it was put in forthe admissions contained there—Ameer All’s Law of Evidence, p. 234(9th edition) ; Chowdhry v. Shikdar2; Sooltan Ali v. Chand Bibee et al."
N. Nadarajah (with him-J. R. Jayawardene), for plaintiff, respondent.—Order 22, rules 1-10 of the Indian Code correspond to Chapter 25 of ourCivil Procedure Code. Rules 4 and 10 are particularly relevant. Rule 4corresponds to section 398 of our Code. The appellant was orginallybrought into the case as executor de son tort. He did not deny hisrepresentative character at the stage mentioned in the proviso to section398. Where the legal representative of a deceased defendant is alreadya party though in another capacity, no special application is necessary toimplead him as legal representative. See Chitaley and Rao’s Commentaryon the Code of Civil Procedure, p. 2118, note 12. Any person acting in anyrepresentative manner may be made a party—Arunaselam Chettiar v.Arunaselam Chettiar *; Rahman Dole v. Abesiriwardene SaminathanChetty v. Silva”; Webster v. Webster'.
> (1907) 10 N. L. R. 234.- (1905) 1 Weer. 49.
2 (1868) 9 Sutherland's Weekly Reporter 290.• (1904) 7 N. L. R. 279.
– (1868) 9 Sutherland'#^ Weekly Reporter 130.* (I8AJ; 10 Vcscy 93.
(1934) 36 N. L. R. 49 at 61.
MAARTENSZ J.—Thornton v. Velaithan Chetty.
Rule 10 of Order 22 of the Indian Code corresponds to section 404 of ourCode. As to meaning of “devolution of interest”, see Chitaley andRao; p. 2145.
Plaintiffs right to bring an action, as administrator, for declaration oftitle to land belonging to the estate cannot be questioned—Fernando v.UnnanseMoysa Fernando v. Alice Fernandosection 540 of CivilProcedure Code.
H. V. Perera, K.C., in reply.—
June 23, 1938. Maartensz J.—Cur. adv. vult.
This is an appeal from a decree of the District Court of Galle declaringthe substituted plaintiffs as administrators of the estate of the lateA. R. A. R. S. M. Somasunderam Chetty entitled to the premises describedin the schedule to the decree and to eject the substituted defendantstherefrom.
The plaint in this action was filed by Bastian Emanuel, who had beenappointed official administrator, and A. R. A. R, S. M. Subba Naidu, asadministrator of the estate of Somasunderam Chetty in March, 1927,against Narayanan Chetty.
On July 7, 1930, according to the journal entries, Mr. Wickremesinghefiled proxy of the substituted plaintiffs and moved that they be substitutedas the letters of administration granted to the plaintiffs had been recalledand letters granted to the movers.
The defendants’ Proctor took notice subject to objections. The Judgeordered the case to be called on August 29, 1930.
On August 8, 1930, defendants’ Proctor moved that a certified copy ofthe letters granted to the substituted plaintiffs should be filed. This wasdone on August 29, 1930. The case was called again on September 3,1930, and the present plaintiffs were substituted as plaintiffs.
No objection was raised by the defendant to the status of thesubstituted plaintiffs.
The trial was postponed from time to time and the defendant died beforethe case could be tried. He died, according to the journal entry, inApril, 1933.
The appellant was made a defendant as executor de son tort. He filedanswer as such in February, 1935, and took the objection that the plaintiffshad no status and also that they could not continue the action.
I agree with the District Judge that it is not open to the appellant tosay that the substituted plaintiffs are not the administrators of Soma-sunderam Chetty’s estate. That objection should have been taken bythe defendant when the plaintiffs moved to be placed on the record.
In support of the alternative plea it was contended that (1) the Codemade no provision for an administrator continuing an action brought byhis predecessor in office and an administrator who succeeds to the officemust bring a fresh action; (2) an administrator could not bring ant actionto vindicate title to land.
In support of the first contention we were referred to the followingpassage at page 464 of the 10th edition of Williams? Law of Executors andAdministrators: “If an action was brought by the administrator, and
1 (.1918) SO N. L. R. 37S.2 (1900) 4 N. I.. R. 201.
160MAARTENSZ J.—Thornton v. Velaithan Chetty.
while it was pending administration was committed to another, the writwould formally have abated”. It was urged that the Court of ProbateAct (20 & 21 Viet. c. 77) and the Judicature Acts under which proceedingscommenced by or against an administrator may be continued afterrevocation by or against the person to whom the new grant is made(ibid., page 465) were not in force in Ceylon.
I am unable to agree with the contention that there is no provision inthe Code for an administrator continuing the action commenced by hispredecessor in office. In my judgment the succeeding administrator maycontinue the action or the action may be continued against him under theprovisions of section 404 of the Civil Procedure Code which enacts asfollows: “ In other cases of assignment, creation, or devolution of anyinterest pending the action, the action may, with the leave of the Court,given either with the consent of all parties or after service of notice anwriting upon them, and hearing their objections, if any, be continued byor against the person to whom such interest has come, either in additionto or in substitution for the person from whom it has passed, as the casemay require ”.
It has been held in India that “ where a suit is brought by or against aperson in his representative character and a devolution of the repre-sentative interest takes place the. rule that is applicable is not rule 3 orrule 4 but rule 10 ” of Order 22 which corresponds to sections 395 and 404of our Code. See The Code of Civil Procedure (1908) by Chitaley and Rao,vol. 2, p. 2145.
To get over the effect of section 404 it was contended that an adminis-irator could not commence an action to vindicate title and that thereforethere was no interest which could pass to his successor in office.
It was argued on the authority of the case of Silva v. Silva et al.1 thatthe legal as well as the beneficial title to immovable property belonging tothe estate of a deceased person vested in the heirs and that therefore theprovisions of section 472 of the Civil Procedure Code, which enacts that‘ in all actions concerning property vested in a trustee, executor, oradministrator when – the contention is between the persons beneficiallyinterested in such property and a third person, the trustee, executor, oradministrator shall represent persons so interested; and it shall. notordinarily be necessary to make them parties to the action. But theCourt may, if it think fit, order them, or any of them, to be made suchparties”, did not entitle an administrator to bring an action for decla-ration of title to immovable property. This is a startling propositionand entirely inconsistent with the practice'which has prevailed since theenactment of the Civil Procedure Code and prior thereto. In my judg-ment it cannot be sustained. It is now settled law that the executor oradministrator in Ceylon has the same powers as regards immovables asan English -personal representative had in 1833 as regards personalproperty. (See Vanderstraaten’s Reports (1869-1871), p. 273.)
In Silva v. Silva (ubi supra) Grenier J. said, “ It is a fallacy therefore tosuppose, as urged by appellant’s Counsel, that an administrator obtainsan absolute title to the estate of his intestate. What happens is that, on •letters .of administration being granted to him by the Court, he is entrusted
S' (1907) 10 N. L. U. 23i.
MAARTENSZ J.—Thornton v. Velaithan Chetty.
anrf charged with the estate of the deceased for purposes connected with.-the proper administration and settlement of it; the person of the deceasedis, by a legal fiction, continued in him until under the provisions -ofChapter LIV of the Civil Procedure Code the estate is finally settled bythe Court, or a distribution of the same is made amongst the heirs
I am of opinion that one of the purposes would be the vindication ofimmovable property belonging to the estate. In an action brought forthat purpose by virtue of the provisions of section 472 of the Civil Pro-cedure Code, the administrator may sue alone and the heirs need not bemade parties unless the Court so directs.
I accordingly hold that the present plaintiffs were entitled to continuethe action brougnt by their predecessors in office.
Appellant’s Counsel next contended that the appellant had not beenproperly entered as defendant upon the record as there was no evidence'that he had intermeddled with the estate. Counsel for the respondentreferred us to the affidavit filed iri support of the plaintiffs’ applicationsworn to by one Carthigesar Canapathypillai that Velaithan Chetty (theappellant) is intermeddling with the estate of the deceased. This state-ment has not been rebutted and the contention fails.
Apart from that, under the proviso to section 398 of the Civil ProcedureCode the person summoned to defend the action as legal representative-must object that he is not the legal representative or make any defence-appropriated to his character as such. In my opinion the questionwhether the person summoned is the legal representative must be deter-mined in the first instance. He cannot both take exception to the claimthat he is the legal representative of the deceased and also file answeras such.
I accordingly hold that the defendant’s name was entered upon therecord in due course.
It was finally contended that the learned District Judge’s findings offact were not justified by the evidence.
The plaintiffs’ case is formulated in the first and second issues which areas follows: —.
“ (i) Were the estates referred to in the schedule to the plaint,purchasedby Narayanan Chettiar the original defendant as agent andtrustee of the late A. R. A. R. S. M. Somasunderam Chettiar?”
“ (2) Was the said Narayanan Chetty in charge and possession of thesame estate for and on behalf of the said Somasunderam? ”
As regards the first issue there can be no doubt that Narayanan Chettiarpurchased the estate as agent and trustee of the late A. R. A. R. S. M.Somasunderam Chettiar. He admitted it himself in the course of hisevidence in case No. 2,133 of the District Court of Matara. P 13 is acopy of the evidence. He went on to' say, however, that he had, inpursuance of an agreement with Somasunderam, taken over the estateand paid him a sum of approximately Rs. 51,000 the amount agreed on.The appellant submitted that this evidence was not rebutted and that the*District Judge should have answered the s&ond iss.ue in the negative.
Respondent’s Counsel contended that he had only put in evidenceNarayanan’s admission and that the passage relied on by the appellant40/15
SOERTSZ J.—de Silva v. Sangananda Unanse.
was not evidence in this cause. 1 do not think it necessary to decidewhether the passage .is in evidence or not. It appears to me that theadmissions made by Narayanan in cross-examination that he continuedto remit amounts t9 Somasunderam, that he wrote to the Colombo branchthat the-Mudaliyar had valued the estate at Rs. 50,000 for the purposesof Estate duty, and that he had asked the Mudaliyar to reduce the valu-ation clearly establish, apart from the other evidence in the case, thatthere is no truth in his evidence that he purchased the estate fromSomasunderam..
I am accordingly of opinion that the learned District Judge’s findings onthe issues of fact are amply justified by the evidence.
I would dismiss the appeal with costs.
Moseley J.—I agree.
THORNTON et al. v. VELAITHAN CHETTY