Thornton Et Al. V. Emanuel Et Al

1933 Present: Macdonell C.J. and Drieberg J.

THORNTON et al v. EMANUEL et al.

127-D. C. (Inty.) Jaffna, 5,408.

Administration-Estate of person with foreign assets-Power of Ceylon Court to give preference to Ceylon creditors-Concurrence-Seizure of money in administration case-Assets realized in execution-Preference-Civil Procedure Code, s. 352.

Where administration is granted in Ceylon to the estate of a person who was also possessed of assets in a foreign country, which were being administered in that country,-

Held, that the Ceylon Court was not entitled to give priority to creditors in Ceylon unless the foreign court gave preference to creditors of its nationality.

The eleventh respondent obtained judgment in D. C, Colombo, No. 18,082, against the estate of one S for Rs. 16,000. He applied for execution and on April 23, 1928, seized money in deposit in the testamentary case of the District Court of Jaffna, sufficient to meet the claim. The seizure was effected by a notice under section 232 of the Civil Procedure Code to the District Court of Jaffna requesting that the money be held subject to the further orders of the District Court of Colombo. On May 20, 1929, the Jaffna Court was requested by the Colombo Court to bring the money to the credit of D. C. Colombo, No. 18,082. The appellants obtained judgment against the same estate on November 29, 1929, in D. C. No. 24,796, but had not proceeded to execution at the time the claim of the eleventh respondent was considered.

Held (in an application for concurrence by the appellants), that the eleventh respondent was entitled to preference.

APPEAL from an order of the District Judge of Colombo, made in testamentary proceedings of the intestate estate of A. R. A. R. S. M. Somasunderam Chetty who died in India on July 31, 1923. Letters of administration were granted to the attorneys of his two sons, who were in India, and the administration being unsatisfactory, they were

eventually granted to the first respondent, the Secretary of the District Court of Jaffna.

The sons of the intestate who carried on business in Colombo and India under the same vilasam were adjudged insolvent and the administration of their insolvent estate was in the hands of the official assignee of Madras. While the estate of the intestate was being administered under letters granted by the District Court of Jaffna, a last will executed by Somasunderam was found in India and administration with the will annexed was granted by the High Court of Madras to the official assignee. The appellants who are the attorneys of the official assignee applied for grant of administration with the will annexed to the District Court of Jaffna. The District Judge held that the appellants were entitled to administration but on condition that the Ceylon creditors should be given preference.

Hayley, K.C. (with him Subramaniam and Batuwantudawe), for petitioners, appellants.-English law is clear that there is no distinction between local and foreign creditors. There is one proviso, viz., if it is found that a foreign court owing to peculiar law differentiated foreign from English creditors, then English law will intervene to protect its own subjects. See In re Kloebe1[(1885) 28 Ch. D. 175.]; Hay v. Administrator of Estate of Minor 2[9 N. L. R. 161]; Kurukulasekera v. de Silva 3[8 C. W. R. 73.],

Our general law of administration is the English law. An administrator is entitled to pay creditors as he chooses. See Littleton v. Cross 4[3 B. and Cr. 317 at, 382.].

[DRIEBERG J.-Here he is an executor.]

The same principle applies to both executors and administrators. See Williams on " Executors ", 11th Ed., Vol. I., p. 793.

The Court has disciplinary powers over an administrator who misbehaves. Here, the Judge has exaggerated his powers. It is the administrator who has to administer the estate, not the Court. The administrator can decide priorit

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