Present: Dalton and Lyall Grant JJ. 1929

MUHEETH v. WAHID et al.

107-D. C. Colombo, 1,338.

Administration-Judicial settlement-Default of administrator-Civil Procedure Code, Chapter LV.

In proceedings for the judicial settlement of an estate an executor may be charged with the value of property, which he has failed through negligence to sell and realize.

APPEAL from an order of the District Judge of Colombo.

H. V. Perera, for executor, appellant.

Keuneman (with him, Ferdinands), for respondents

November 27, 1929. DALTON J.-

The appellant here is the eldest son and executor of the late M. M. H. Cassim Lebbe Marikar, The appeal arises out of an application by the respondents, heirs of the deceased, for a judicial settlement of the accounts of the executor. The deceased died as long ago as January 12, 1923. The inquiry was fixed, as the learned Judge says, in the interests of the Parties that the matter should be finally and conclusively decided at the earliest opportunity. As a result of the inquiry he directed, amongst other things,-

(1) that the executor do charge himself with the sum of Rs. 50,000 as the value of the premises No. 76, Messenger street,

(2) that he be charged with rent for the premises Nos. 7 and 8, Keyzer street, at the rate of Rs. 500 per mensem.

The executor appeals against this order, whilst there is a cross- appeal by the respondents in respect of the second item. They urged that the amount of rent for the premises at Keyzer street' should be Rs. 725 per mensem, and not Rs. 500.

The appeal of the executor is based solely on the argument that in an application for a judicial settlement under the provisions of Chapter LV. of the Civil Procedure Code no order can be made against an executor in respect of any money or property that has not in fact come into his hands, and that questions of negligence, waste, or anything involving damage to the estate, except in respect of money or property that has actually come into his hands, must be the subject of a separate action. In support of this argument we

were referred to the case of Mohamado Jan v. Ussen Bebe [1 (1909) 1 Current Law Rep. 53.], where Middleton J. expressed the opinion that the Court, on a judicial settlement, cannot charge an administrator with moneys that have not reached his hands, but that if parties entitled to distribution think he has been negligent or fraudulent, they should bring an action based upon such allegations.

This view, it seems to me, may possibly have been influenced by the procedure in force prior to the enactment of Chapter LV. of the Civil Procedure Code, for which we appear to be indebted to the (State of New York. Unfortunately no New York authorities are available here for guidance as to the extent of an order? for judicial settlement there. Under the old practice in Ceylon, however, there was no right to compel a judicial settlement (vide In re Estate of A. P. Dharmagoonawardena [2 1 S. C. R. 296.] ), and if any question arose in the ordinary course of testamentary proceedings of a character unfit to be settled therein, the interested party was referred to an administration or other appropriate action in which the questions raised could be dealt with. The argument adduced in support of this appeal would in effect, so it seems to me, place an interested party in a position no more advantageous than that in which he was prior to the enactment of the provisions to compel a judicial settlement. Even under the old practice and procedure to be pursued in taking accounts, as pointed out by Phear C.J. in Fernando v. Fernando [3 1 S.C.C. 52. ], the accounts directed to be made might include an account of not only the estate of the deceased that comes to the hand of the administrator, but also what might, but for his default, have come to his hands. As pointed out by Pereira J. in Koranchihamy v. Angohamy [4 4 Balasingham Notes of Cases 15.], the old