LUCIA GUNERATNE v. DE ALWIS.

LUCIA GUNERATNE v. DE ALWIS.

C. R., Colombo, 19,825.

Jurisdiction of Court of Requests-Testamentary suit in District Court-Action in Court of Requests by legatee against executor of executor for recovery of interest of money due to him-Value of claim-Liability: of executor of executor.

    Where a testator bequeathed a share (valued at Rs. 1,800) of his estate to a person, and testamentary proceedings were pending in the District Court,-

    Held, that it was competent to the legatee to raise in the Court of requests an action against the executor of an executor for the rents and profits of his share due to him for certain months, aggregating in value Rs. 213; and that in the absence of any proof that one of the original executors of the testator was still alive and officiating, the defendant was responsible for the money claimed.
   
    THE plaintiffs in this case sued the defendant to recover Rs. 213 under the following circumstances: -

    One Cornelis de Silva died in 1880 leaving a last will, by which, among other requests, he bequeathed one-eighth of the residue of his estate to his niece Lucia, who was married in community to the plaintiff. He directed by the will that her share should be under the control of the executors, who were required to pay the income, interest, and profits that should be derived therefrom.

    One David de Alwis was one of the executors of the said will  proved in testamentary suit No. 4,227 C of the District Court of Colombo, and duly managed and controlled the whole estate. He  filed final account in the said case, but retained the one-eighth share that fell to the said Lucia as directed by the will.

    According to the final account, Lucia (first plaintiff) was entitled to the interest on a sum of money, and one-eighth share of rents and profits accruing from the premises No. 147, Kollupitiya road, Colombo, and from premises Nos. 14 and 15, Kotte road, Colombo.

    David DC Alois sold the above-mentioned properties and retained the purchase amount, and paid the plaintiff the interest on the said purchase amounts until he (David de Alwis) died in 1901. The defendant was then appointed executor of David de Alwis, but failed to pay the interest on the amounts retained by David de Alwis.

    The plaintiff sued the defendants as executor of David de Alwis to recover the interest on the said money due to them by the will of the said Cornelis de Silva.

    The Commissioner (Mr. H. White) dismissed the plaintiff's action by the following judgment:-" I am of opinion that this Court has no jurisdiction to try this action, as it will be an encroachment on the exclusive testamentary jurisdiction of the District Court, and also that no ground is afforded by the framing of this action for a final decision upon the matter in dispute, which really is plaintiff's one-eighth share of the property worth Rs. 1,865.58, a matter beyond the jurisdiction of this Court.

        " This being my view, it is unnecessary for me to enter into the questions whether plaintiffs should sue the surviving co-executors of Cornelis de Silva's will, or whether they are right in suing the executors of a deceased co-executor. I hold that this Court has no jurisdiction, and dismiss the action with costs."

    Plaintiffs appealed. The case was argued on the 2nd October, 1902.

    H. Jayawardene, for appellants.-It is true that the one-eighth share of the lands out of which the present claim arises is worth Rs. 1,865, but the first claim is for Rs. 213, being interest and rents due for certain months only not paid to the appellants. Fernando v. Soysa, 2 N. L. R. 40, amply bears out the proposition that, even when a testamentary suit is pending it is competent to a legatee ' to claim in a separate action what is due to him. Here the testamentary suit is not pending, being closed after final account filed.

    Sampayo, for respondent.-In law t

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