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NAGAHAWATTE et al. v. WETTESINGHE et al.
NLR23V70
1921 Present: Bertram C. J.
and De Sampayo J
NAGAHAWATTE et al v. WETTESINGHE et al.
124-D. C . Galle, 17,640.
Action by heirs against debtor
to estate-Collusion between debtor and administratrix-Administratrix made
defendant-Right of heirs to pay the additional duty in testamentary action and
proceed with the action against debtor-Civil Procedure Code, s. 547.
Plaintiffs, as heirs of S, sued the first defendant for the recovery of a
sum due to the estate of S, and made the administratrix of the estate second
defendant, alleging that the administratrix bad neglected to include the debt in
the inventory, and that she was acting in collusion with first defendant, who
was her brother, and that the debt was about to be prescribed.
Held, that the action was maintainable by the plaintiffs (heirs), and
that the heirs themselves may pay the additional duty in the testamentary action
to enable them to maintain the action.
Ordinarily, a legatee or other beneficiary cannot be a party to an action for
the recovery of an asset of the estate unless collusion is alleged, or unless
there 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.
THE
facts appear from the judgment.
Samarawickreme, for plaintiff, appellant,
Bawa, K.C. (with him Jayawardene), for respondents.
December 5, 1921. BERTRAM
C.J.-
This is an action in which the plaintiffs, appellants, as heirs of one Don
Cornelia de Siva, claim to sue the first defendant, who is said to be a person
indebted to the estate of Don Cornelis do Siva. The widow of Don Cornells de
Silva, who is the administratrix of his estate, is made the second defendant.
The first defendant is the brother of the administratrix, and the plaintiffs in
the plaint allege that the administratrix has neglected to include the debt sued
on in the inventory of the estate ; that she is acting in collusion with her
brother, the first defendant, and that there is danger that, owing to this
action on her part, the debt may be prescribed. The defendants contest the right
of the plaintiffs as heirs to sue for a debt due to the estate and the learned
Judge having considered this question of law without going into the facts of the
case, has given judgment in favour of the defendants.
Mr. Samarawickreme, who appears for the appellants in this case, in the first
instance, baaed his argument entirely upon section 472 of the Civil Procedure
Code. It was objected that that section has no application to this case. It was
contended that the cases to which that section applies are cases in which an
action is brought by an executor or administrator, and some person interested is
added as a party by special order of the Court. It Was even contended that the
indirect effect of the section was that no beneficiary of an estate had any
status to sue a person indebted to it, either as original plaintiff or as an
added party, unless a preliminary order is first made granting him a right to do
so.
In my own opinion section 472 has nothing to do with the case. It does not
contemplate a case of this kind, nor, on the other hand, is it fatal to an
action brought outside that section. It does not say that the consent of the
Court is a condition precedent to an heir or other beneficiary being party to an
action by an executor or administrator. All that it says is that, ordinarily
speaking, such heir or beneficiary is not a necessary party, but that if it
transpires that the addition of such an heir or other person interested as a
party to the suit is desirable, the Court may make order to that effect. That
section was fully considered by the Full Court in Muttu Menika v. Fernando,[
(1912) 16 N. L. R. 429.]
and it was determined that in applying that section the Court would be guided by
a certain principle of the English law of executors and ad
