Soysa V. Abeydera

Present: Mr. Justice Middleton and Mr. Justice Wood Renton.

SOYSA v. ABEYDERA.

D. C., Galle, 2, 948.

Civil Procedure Code, s. 551-Compensation to executors and administrators for trouble-Reimbursement of out-of-pocket expenses. An executor (or administrator) is entitled to his out-of-pocket expenses in addition to the compensation provided for by section 551 of the Civil Procedure Code.

Section 551 deals only with compensation in the sense of remuneration for trouble; the first part of the section prescribes the maximum rates allowable; the second part limits the gross amount recoverable by the executor; but neither that amount nor any additional compensation allowed by the Court may increase the rates prescribed by the earlier part of the section.

APPEAL from a judgment of the District Judge of Galle.

Walter Pereira, K. C. (with him Samarawickrama), for the appellant (4th heir).

A. St. V. Jayewardene, for the respondent.

Cur. adv. vult.

November 12, 1909. Middleton J. -

This was an appeal by Regina, the so-called 4th heir of her deceased father, together with her husband, against an order made in testamentary proceedings in favour of the executor-respondent, on August 23, 1909, allowing the respondent to withdraw the sum of Rs. 2, 931, and the interest accrued thereon from March 24, 1904, said to be lying in deposit to the credit of the 4th heir in the present action, she being permitted by the same order to draw the balance.

On April 27, 1901, a claim was made by the executor that he should be allowed by the Court to charge Rs. 7, 200 for travelling expenses and Rs. 14, 578 for compensation as executor. This claim was considered by the Court and allowed in the presence of Mr. Goonewardene, a proctor, who apparently then held the proxy of Francis Perera, who at that time was the duly appointed curator of the infant heirs, including Regina.

It would seem, however, from the evidence of Arthur de Soyza (p. 1, 380/12), uncontradicted, that he was married to Regina on February 1, 1899, and there is no evidence pointed out to us in the record to show that Regina or her husband received notice of that particular application.

On August 6, 1901, Francis Perera appealed against this order, apparently as heir and not as curator, and on October 6, 1901, this appeal was allowed to be withdrawn by the Supreme Court.

On October 13, 1902 (record, p. 138), the executor, by consent of the three remaining heirs, excluding Regina, obtained leave to withdraw three-quarters of an amount then said to be in deposit. Regina received no notice of this application, except through the curator, and on August 17, 1903 (record, p. 138), a proxy from herself and her husband in favour of Mr. W. E. Weerasuria was filed in Court.

The question is (1) whether Regina, being a married woman at the time, is affected with notice of the order of April 27, 1901, through her curator appointed by the Court. By the form given, No. 94, of a certificate of curatorship, it remains in force until the minor attains the age of twenty-one years.

The executor (p. 138M/11) admits that when the order of April 27, 1901, was made Regina was still a minor though married, and he did not give her notice of the application for that order because he thought she was still represented by her curator. By section 502 of the Civil Procedure Code a minor shall, for the purposes of chapter XXXIV., be. deemed to have attained majority or full age on marriage. It seems to me therefore that Regina and her husband ought to have had notice of the application for the order of April 27, 1901, and they are not bound thereby, not only by parity of reasoning derived from a comparison of the position of a guardian ad litem with a curator, but also because on marriage a woman, though she does not under the Roman-Dutch Law (Voet 4, 4, 9) attain majority, yet, if she brings to her husband movable property, he as her guardian by marriage and by virt

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