SESMA LEBBE MARIKAR v. MANATCHY UMMA et al.

 

Present: The Hon.  Sir Joseph T. Hutchinson, Chief Justice,

and Mr. Justice Wood Renton.

 

SESMA LEBBE MARIKAR v. MANATCHY UMMA et al.

 

D. C., Colombo (Testamentary), 2,925.

 

    Administration-Insolvency of applicant-Disqualification-English Law- Civil Procedure Code, ss. 523 and 544.

 

An undischarged bankrupt is not ipso jure disqualified for the office of administrator of a deceased person's estate under the Civil Procedure   Code.

 

APPEAL from an order of the District Judge of Colombo granting  letters of administration of the estate of Packeer Pulle Mustapha Natchia to the respondent Siddi Lebbe Marikar Sesma Lebbe  Marikar.      The   facts   sufficiently   appear  in  the   judgments.

 

F. M. de saram, for the third respondent, appellant.

 

Bawa, for the petitioner, respondent.

Cur. adv. vult.

June 29, 1908.   HUTCHINSON C.J.-

 

This is an appeal from an order made on February 13, 1908, granting letters of administration of the estate of Packeer Pulle Mustapha Natchia to the respondent Siddi Lebbe Marikar Sesma Lebbe Marikar.
 

The respondent is the only son of the deceased; the appellant is a grandson, and he opposed the respondent's application for a grant of administration, alleging that he is not a fit and proper person to administer the estate, but giving no reason for the allegation.
 

The District Judge took evidence, from which it appeared that the respondent was adjudicated insolvent thirty-six years ago, and had got no certificate, but had paid all his debts; and that the appellant had been in jail for five years about seven years ago for uttering a forged promissory note. The District Judge said that the respondent is a respectable old man, and that his insolvency is now matter of ancient history.
 

The appellant contends that an uncertificated bankrupt is by law incapable of being appointed administrator. Williams, on Executors, 1,336, 359, says that such a person is disqualified, giving as his authority the case of Hills v. Mills,1 which means that in England the Court will not appoint such a person. In Ceylon an application for a grant of administration of an intestate's estate is made under section 544 of the Civil Procedure Code, which places no restriction on the power of the Court to appoint any person interested in having
 

1 1 Salkeld 35.

 

the estate administered, except that when there is a conflict of. claims, regard is to be had to section 523, which enacts that the claim of the widow or widower is to be preferred to all others, and the claim of an heir to that of a creditor. But, of course, the Court will not appoint a person whom it thinks to be not a fit and proper person; and in considering whether a claimant is fit and proper, the Court may be guided by the English practice, although there is no law making that practice absolutely binding on it. I do not feel sure that an English Court would hold that a man who was bankrupt thirty-six years ago and has paid all his debts and lived a respectable life ever since is absolutely disqualified by the fact that he never obtained an order of discharge. But, whether that is so or not, I do not think that we should bind our Courts by laying down a hard and fast rule which the Legislature, in the elaborate provisions which it has enacted on the subject of administration, has not laid down.

 

I think the appeal should be dismissed, with costs.

 

WOOD RENTON J.-

 

This appeal arises out of a contest for the grant of letters of administration to the estate of Packeer Pulle Mustapha Natchia, who died intestate on May 2, 1889. The appellant is the grandson, and the respondent is the son of the intestate. The appellant is entitled to 7/60 and the respondent to 8/60 of the property. As regards character, the balance is decidedly in favour of the respondent. The learned District Judge has found-and Mr. Morg

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