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 which have been legally alienated by the executor. If an executor refuses (to file a bill), or if three is such a relation between the executor and the debtor as to interpose a substantial difficulty in the way of the executor calling the debtor to account, then the rule does not apply.

THE first plaintiff (executrix) and the second to ninth plaintiffs (legatees) brought this action to recover from the defendants a portion of the estate transferred by the executrix.

The learned District Judge (F. R. Dias, Esq.) ordered the second to ninth plaintiffs to be struck off the record. The facts are set out in the following judgment of the District Judge: -

The plaintiffs in this action are asking for three forms of relief: -

(1) A declaration that a certain conveyance No. 347 executed by the first plaintiff as executrix under the will of one Arnolis Fernando on December 31, 1907, in favour of the two defendants is fraudulent and void, on the ground that it was obtained by means of fraud and collusion on the part of the defendants, and by misrepresentations and the exercise of undue influence over the first plaintiff;

(2) That the consideration mentioned in the said conveyance was fictitious, and that it was executed without the authority of Court and contrary to the express provisions of Fernando's last will; and

(3) That the second to ninth plaintiff (the children of Fernando by first plaintiff) are entitled to seven-eighths of the lands and houses mentioned in that deed as special legatees under the will.

They also ask for possession and damages.....

The main facts of the case are not disputed, and they are these. The late Arnolis Fernando was a wealthy trader and landowner, who died in May, 1905. He was married, but had discarded his wife (who is still alive), more than twenty years ago. and lived with the first plaintiff by whom he had nine children, viz., the second to ninth plaintiffs and another who has since died.

All these children are minors, except the second plaintiff. The two defendants are Arnolis's brothers. In December, 1904, Arnolis executed a last will, naming the first plaintiff as his executrix, and by it he devised certain specified lands in Dumbara, to the first plaintiff, gave certain specific legacies in cash to his legitimate daughter, to his four sisters, and to his brother James, and of the residue, which formed the bulk of his estate, he devised seven-eighths to his children by the first plaintiff and the remaining one-eight to his brother, the first defendant.

The will was duly proved, and in January, 1906, probate was granted to the first plaintiff in case No. 2,435 of this Court. She began to administer the estate, but finding herself unable to settle certain large claims which the two defendants had agai

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