Muttu Menika V. Fernando Et Al.,

[Full Bench.]

Present: Lascelles C.J. and Pereira and Ennis JJ.

MUTTU MENIKA et al. v. FERNANDO et al.

111-D. C. Kandy, 21,203.

Action by legatees and executrix against persons to whom executrix had alienated property-May legatees join as plaintiffs in action to recover property?-Civil Procedure Code, ss. 11 and 472.

The executrix and the legatees under the will brought an action to recover a portion of the estate which had been transferred by the executrix to the defendants. It was alleged in the plaint that the executrix was induced by fraud and undue influence of the defendants to make this transfer.

Held (by LascellEs C.J. and Pereira J., Ennis J. dissentiente), that the legatees should not have been joined as plaintiffs in the circumstances of this case.

Lascelles C.J.-Although it would be competent to the Court, as a matter of procedure, to direct the legatees to be made parties under section 472 of the Civil Procedure Code, the question is one of substantive law rather than one of procedure.

As a general rule, in the absence of collusion or special circumstances the legatees cannot sue for the recovery of assets whic

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