De Zoysa V. De Zoysa

Present: Bertram C. J. and Schneider J.

DE ZOYSA v. DE ZOYSA.

67-D. C. Colombo, 4, 975.

Judicial settlement-Nature and scope of inquiry-Claim against executor for money not recovered through his default-Correctness of inventory challenged-Abandonment of debts-Discretion of executor-Civil Procedure Code, chap. LV., ss. 718 and 739.

Where the heirs of an estate took over certain properties in pursuance of an auction held among themselves, subject to the condition that the inequalities of the shares should be adjusted,-

Held, that such an adjustment can only be secured by an action for contribution among the heirs. An executor is under no obligation to make such an adjustment.

Proceedings under chapter IV. of the Civil Procedure Code for a judicial settlement of an estate provide no means by which it is possible to charge an executor in respect of a hypothetical sum "which he might have received had he administered the estate with greater foresight and diligence.

The correctness of an inventory filed by an executor should be challenged under section 718 of the Code.

An executor has a discretion to abandon a debt due to an estate; but where he abandons a mortgage debt, he is bound to give some prima facie evidence in explanation of his action in foregoing the debt.

Section 738 seems to indicate that an executor may be made accountable in a petition for judicial settlement for negligence in the collection of debts.

The nature and scope of proceedings for the judicial settlement of an estate explained.

APPLICATION for the judicial settlement of the estate of John Geogory Perera Amerasekera who died leaving a last will dated November 14, 1913. Probate was obtained on June 9, 1914. On February 28, 1916, the heirs executed a deed with reference to certain immovable properties. It had been arranged that an auction should be held of these properties among the heirs. Various properties were allotted to the heirs as a result of this auction, each heir being debited with the amount which he or she bid in respect of the properties assigned to him or her, and the deed gave effect to this arrangement by mutual conveyances. In pursuance of an order made by the District Judge, the executors. filed comprehensive accounts for the purpose of a judicial settlement. In the accounts filed the executors reported the distribution of the immovable properties, and stated that the remaining properties

were held in common. Certain objections were filed against the accounts by one of the heirs; among them being that the executors had not taken steps to adjust the inequalities in the shares enjoyed by the heirs resulting from the distribution of properties referred to. Various other objections were raised which are fully stated in judgment of the Chief Justice. The learned District Judge overruled them.

Elliot, K. C. (with him Jayasooriya), for appellants.

H. J. C. Pereira, K. C. (with him Samarawickreme and Ameresekere), for respondents.

September 9, 1924. Bertram C. J. -

The questions to be decided in this case arise out of a judicial settlement of the estate of John Gregory Perera Amerasekera, who died on February 10, 1914, leaving property valued at over Rs. 500, 000. By his last will dated November 14, 1918, he left the whole of his property to his five children, subject to two special requests of Rs. 1, 000 each, appointing his son, Mr. John Finguer Perera, and his son-in-law, Mr. Francis de Zoysa, his executors. The only material passages in the will are as follows: I do hereby desire that all the movable and immovable property now belonging to me, as well as those to which I may hereafter become entitled, wheresoever they may be situated, shall, after my death, devolve share and share alike on my five children, who can do whatever they please therewith.... I do hereby appoint my eldest son-in-law, Advocate Francis de Zoysa, and my, eldest son, John Finguer Perera, to pe

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