1934 Present: Drieberg, Akbar, and Poyser J J.

SETHUKAVALAR v. ALVAPILLAI.

188-D. C. Jaffna, 8,030.

    Administration-Conflict of claims-Right of a widow or widower-Discretionary power of Court to pass over claim-Civil Procedure Code, s. 523.

Under ordinary circumstances the claim of a widow or widower to letters of administration to the estate of a deceased person is to be preferred, but the Court has power to pass over the claim in favour of another for good reasons.

CASE referred by Garvin S.P.J, and Poyser J. to a Bench of three Judges. Two questions of law were referred to to the Court-(1) whether section 523 of the Civil Procedure Code gives the District Court any discretion in the matter of the appointment of the widow or widower as administratrix or administrator, and (2) whether this prefer-entail right can be claimed also by the attorney of the widow or widower.

N. E. Weerasooria (with him D. E. Wijeyewardene and Batuwan-tudawe), for respondent, appellant.-This appeal raises a question relating to the interpretation of section 523 of the Civil Procedure Code. After the introduction of the Code, the Court has no discretion, except as to associating someone with the widow or widower in the grant of letters of administration.

In Mahamado Ali v. Sella Natchia1[1(1893) 2 C. L. R. 176.], the earliest case on the point after the introduction of the Code, a widow's claim was preferred. In In re Ukku Banda 3[3 (1904) 3 Bal. 59.], Bonser C.J. upheld a similar claim. In Habibu v. Aliar Marikar 2[2 (1900) 4 N. L. R. 257.], a Muhammadan widow's claim for letters to her deceased husband's estate was preferred to all others. In Appuhamy v. Menika4[4 (1916) 19 N. L. R. 149. ], (binna husband's claim), Wood Renton C.J. favoured the view that the wording in section 523 is imperative. In this case, a judgment of Sampayo J., at p. 151 of 19 N. L. R., was cited with approval. Counsel also cited Thambiah v. Parupatham 5[5 (1917) 4 C. W. R. 80.] and Pedurupillai v. Sewarichi 6[6 (1923) 2 Times of Ceylon L R. 83].

In Cornells Appuhamy v. Appuhamy 7[ 7 (1926) 28 N. L. R. 286.], Dalton J. held that a widower is entitled to letters even though he had been living apart from the deceased, in terms of a deed of settlement. In Moosajee v. Carimjee 8[8 (1927) 29 N. L. R. 387.], Fisher C.J. upheld " a widow's right to have her claim to letters preferred to all others ". In Kanagasunderam v. Sinniah 9[9 (1930) 32 N. L. R. 43.], the preferential right of a widow was recognized.

There are safeguards provided under the Code in regard to an administrator who may be guilty of misconduct. The draftsman, when he drafted section 523 of the Code, perhaps never contemplated the position arising under the Thesawalamai.

This interpretation of section 523 has been holding good for over thirty years and has been recognized so long by the Courts that it should not be disturbed now-see Boyagoda v. Mendis10[10 30 N. L. R. 321.].

S. Nadesan (with him A. W. Nadarajah), for petitioner, respondent.- The ordinary under the English law had no power to prefer others to a widower. See 32 Edw. III., st. 1, c. 11. Also 29 Car. II., c. 3, which enacts that "their husbands may demand and have administration". Though these words are peremptory, the Courts have in interpreting them refused to grant letters to a widower who did not have an interest in the estate-see Williams on Executors (11th ed.), p. 322. Similarly, in interpreting 21 Henry VIII., c. 5. s. 3, the Courts have given effect to the principle " grant follows the interest", and despite the letter of the law have given effect to the spirit of the law by granting letters to one possessing an interest. See Williams, pp. 377-378; In re Megson, (1899) 80 L. T. 295; In re Arden, (1898) 67 L. J. 70; In re Gill, (1828) 1 Haggard 342; Fielder v. Hangar, 3 Haggard 769.

The paramount consideration with the English Courts has been the safet