Lebbe Marikar V. Mohamed Kalid

1936 Present : Akbar S.P.J. and Maartensz J.

LEBBE MARIKAR v. MOHAMED KALID.

14-D. C. (Inty.) Colombo, 5,582.

Administration-Death of executor-Right of his executor to administer estate of original testator-Civil Procedure Code, s. 549.

The executor of an executor is not entitled to administer the estate of the original testator without a fresh grant of administration.
APPEAL from an order of the District Judge of Colombo.

H. V. Perera, for first respondent, appellant.

C. X. Martyn, for second respondent, appellant.

N. Nadarajah (with him C. Thiagalingam and D. W. Fernando), for petitioner, respondent.

November 14, 1935. AKBAR S.P.J.-

Under a last will of 1905 of a Muslim lady who died in 1916 her husband was named as the executor and a request of Rs. 2,000 was made to the petitioner-respondent which was to be paid to him on his attaining 21 years, if " the executor shall deem him deserving of the said legacy ". The executor proved the will and filed his final account on November 20,.

1916, in which he showed that he had retained the Rs. 2,000 being amount of legacy payable to the petitioner-respondent. According to the petitioners affidavit he attained majority about a month after final account was filed, namely, December 27, 1916.

The executor himself died on September 7, 1922, leaving a last will which was proved by the two appellants as executors in D. C. Colombo, 1,096, and final account was filed in this case on September 11, 1923. The petitioner filed his present application under section 720, Civil Procedure Code, on July 20, 1933, alleging that he had not. been paid this legacy and that he came to know of it only recently. On June 6, 1934, the petitioner filed a petition stating that the appellants as executors of the original executor were " the executors de bonis non" of the lady's will and asked the Court to appoint them " executors de bonis non", for a judicial settlement of the accounts of the estate of the testatrix and for payment of the legacy with interest.

On October 26, 1934, in spite of objection offered by the appellants they were appointed administrators de bonis non of the estate of the testatrix and on December 13 the Court entered a decree directing the appellants to pay the legacy with interest to the petitioner. Under section 549 of the Civil Procedure Code when a fresh grant of administration is made on the death of a sole executor the rules prescribed in the Code for a first grant must be followed.

In this case the learned District Judge dispensed with all these formalities as he was of opinion that the lady's will had been proved and all the formalities had been gone through. In my opinion this was a fatal .omission which vitiated the whole proceedings. None of the heirs under the will of the testatrix were cited and the District Judge forced the two appellants who were unwilling to be the administrators de bonis non of the estate of the testatrix. At the inquiry on the December 6, 1934, the appellants took up the position that they did not know whether the first executor had paid the legacy to the petitioner or had exercised his discretion and had refused to pay the legacy. If the other heirs had been cited they might have helped the Court on this point. As it is there is only the affidavit of the petitioner to prove that the legacy was not paid to him.

Faced with this objection Mr. Nadarajah argued on the remarks of Lord Romily in Brooke v. Haymes [1 L. R. 6 Equity 25. ] that the appellants were the executors of the original testatrix without any grant of fresh letters of administration. I am not prepared to hold that this is the law in Ceylon for several reasons. In the first place by the order of the Court of October 26, 1934, the Court did issue letters of administration to the appellants without .following the formalities for a first grant. In the second place our law is to be found in statutor

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