KULANTHAVELU v. KANDERPERUMAL et al.

Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, and
Mr. Justice Middleton.

KULANTHAVELU v. KANDERPERUMAL et al.

D. C., Batticaloa, 2,559.

Claim by administrator for mesne profits-Prescription-Grant of letters- Relation back of title of administrator-Collation-Division of inheritance-Statute 8 and i Will. IV., c. 27-Ordinance No. 22 of 1871.

Held, that an administrator is entitled to sue for rents and profits of the estate taken by a third party before grant of letters of administration to him; and that such action is prescribed in three years from the date of the grant of administration.

Held, also, that section 6 of 3 and 4 Will. IV., c. 27, is not law in Ceylon

LASCELLES A.C.J.-It is well settled that for certain purposes the title of the administrator relates back to the death of the intestate, so as to enable him to maintain actions such as trespass or trover in respect of goods of the intestate taken before the grant of letters.

MIDDLETON J.-No right of action accrues to an administrator till he has taken out letters of administration, and the Statute of Limitation only begins to run against him from the date of the grant of such letters.

Held, also, that where there has been no administration or division of the estate an heir, who has received advancement by dower or otherwise, cannot be excluded from the inheritance.

LASCELLES A.C.J.-The obligation to " collate " arises only on a division of the estate.

APPEAL from a judgment of the District Judge of Batticaloa.

The facts and arguments sufficiently appear in the judgments.

Sampayo, K.C. (with him Balasingham), for the defendants, appellants.

Bawa (with him Wadsworth), for the plaintiff, respondent.

Cur. adv. vult.

11th October, 1906. LASCELLES A.C.J.-

The plaintiff, who is the administrator of the estate of one Kathiravelupillai, has obtained judgment against the defendants for Rs. 1,662.19 representing the rents and profits of certain lands of the intestate occupied by the defendants.

From this judgment the defendants now appeal on several grounds.

First, it is said that judgment should not have been entered against the second defendant. The foundation of the claim is the action of the first defendant in taking the produce of the lands of the estate without accounting to the beneficiaries. There is no presumption that first defendant's wife participated in the produce taken by her husband, and I think the action, so far as it relates to her, has no foundation and should have been dismissed. The next point raised by the appellant is that part at any rate of the claim is prescribed.

The material dates are the following. On 7th September, 1895, the intestate died, and the first defendant took possession of his lands the following November. On 3rd July, 1901, the plaintiff took out letters of administration, and on 1st July, 1904, this action was instituted.

Leaving out of consideration the provisions of section 6 of the Real Property Limitation Act (3 and 4 Will. IV., c. 27), which this Court has already decided are not in force in Ceylon, it is clear that the cause of action accrued when the plaintiff took out letters. In Gary v. Stephenson(1) the claim was for money belonging to the estate received after the intestate's death by the defendant. The defendant pleaded non assumpsit intra sex annos. The Court was of opinion that the statute would be no bar, because the plaintiff's title began by taking out letters of administration (vide also Murray v. East India Company)(2).

It is thus clear that in this case the period of limitation began to run on the date when plaintiff took out letters, namely, on 3rd July, 1901. But, it is urged by the appellant, if the plaintiff's cause of action accrued only in July, 1901, he cannot sue for debts to the estate which became due before that date. This argument of course is fallacious. It is well settled that for certain pu

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