Zain v. Sheriff.
1937Present: Maartensz and Koch JJ.
ZAIN et al. v. SHERIFF.
208—-D. C. Kalutara, 2,539.
Judicial settlement—Application to include asset in final account—Third partyinterested—Separate action.
Proceedings for a judicial settlement are not appropriate for thepurpose of deciding a question which could not be finally determinedwithout other persons who are not parties to the testamentary suit..Holsinger v. Nicholas (.20 N. L. R. 417) referred to.
^^PPEAL from an order of the District Judge of Kalutara.
H. V. Perera, K.C. (with him M. T. de S. Amarasekere), for appellants.N. Nadarajah (with him L. A. Rajapakse), for respondents.
MAABTENSZ J.—Zain v. Sheriff.
October 11, 1937. Maahtensz J.—
The respondent is the administrator of the estate of his deceasedbrother.
The appellants are the heirs of the intestate. They allege in theirpetition of appeal that the respondent, the deceased and another brother.Abdul Hamid Marikar, carried “ on business in partnership under thename, style and firm of Marikar Brothers ”.
The Commissioner of Stamps valued the. goodwill of this businessat Rs. 30,000, and the intestate’s share of the business at Rs. 15,259.16.The administrator has brought to the credit of the case the sum ofRs. 15.259.16, but in his Final Account he did not enter a one-thirdshare of the goodwill as an asset, nor did he, account for the profitsearned by the business between the date of the intestate’s death and thedate on which the sum of Rs. 15,259.16 was paid into Court.
The appellants objected to the correctness' of the account on accountof the omission of these items and moved for a judicial settlement.
The administrator submitted that the capital of the partnershipexceeded Rs. 1,000 in value and that as there was no agreement in.-writing as required by section 21 (4) of Ordinance No. 7 of 1840 for thePrevention of Frauds and Perjuries, the appellant could not claim eithera share of the profits or a share of the goodwill.
The administrator also submitted that the question whether theintestate was a partner was not one which could be decided in theseproceedings as Abdul Hamid Marikar, the other brother, was not a partyto the action.
The District Judge upheld this submission and referred the appellantto a regular action. The appeal is from this order.
The appellants’ Counsel contended that under the .provisions of section736 of the Civil Procedure Code, which enacts as follows : “ Upon ajudicial settlement of the account of an executor nr administrator,he may prove any debt owing to him by his testator or intestate,provided that a concise statement of such debt with an intimation of thepetitioner’s intention so to prove the same has been inserted in thepetition. Where a contest arises between the accounting party and anyof the other parties respecting any property alleged to belong to theestate, but to which the accounting party lays claim, or respecting a debtalleged to be due by the accounting party to the testator or intestate,or by the testator or intestate to the accounting party, the contest mustbe tried and determined in the same special proceeding and in the samemanner as any issue arising on a civil trial ”—, the District Judge wasbound to try and determine the contest between the administrator andthe appellants in these proceedings.
I am unable to agree, I do not think that the section ever contemplatedthat proceedings for a judicial settlement should be adopted for thepurpose of deciding a contest which could not be finally determinedwithout other persons who were not parties to the testamentary suit.
Clearly a decision in this case will not be binding on Abdul HamidMarikar who is not a party to it.
MAARTENSZ J._Zain v. Sheriff.
The case of Holsinger v. Nicholas', where Bertram, C.J. said, at pag#424, “ It may very well be that in the course of a judicial settlement, amatter may come up as to which the judge may think that it is a matter ofsuch complication and importance that it can only be inquired intoby a regular action. In such a case the Judge might reasonably eithersuspend the settlement until that, matter had been determined by aregular action, or conclude the settlement subject to the determination ofthat matter ” is authority for the proposition that a District Judgemay in an appropriate case direct a matter to be inquired into, in a regularaction.
I think this is an appropriate case for such an order, and I woulddismiss the appeal with costs.
As regards the cross objections filed by the administrator against theDistrict Judge’s order as to costs, I do not think we can interfere with theorder made by him. The objections are dismissed but without costs.
Koch J.—I agree.
Appeal dismissed. •
• (1918) SO N. L. R. 417.
ZAIN et al. v. SHERIFF