1936 Present : Akbar and Koch JJ.

RANASINGHE v. RANASINGHE.

1-D. C. (Inty.) Kalutara, 2,622.

Administration-Application for letters-Choice of majority of persons interested-Discretion of Court.

In an application for letters of administration to the estate of a deceased person the Court should grant the order in favour of that person amongst those of the same degree of kindred for whom the majority of the parties interested have expressed preference.

APPEAL from an order of the District Judge of Kalutara.

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

Molligoda, for the petitioner, respondent.

Cur. adv. vult.

July 8, 1936. AKBAR J.-

The question in this appeal is as regards the right for the issue of letters of administration to the intestate estate of a woman named Serah Ranasinghe, who died leaving a considerable estate on October 2, 1934. She died childless and unmarried. The only heirs were the respondent and the appellant to this appeal and three others, brothers and sisters. The respondent to this appeal, Simon Ranasinghe, was the eldest brother

in the family and he applied for letters of administration himself. This was opposed by the appellant, another brother of the deceased, on the ground that Simon Ranasinghe was not a fit and proper person to be entrusted with the letters of administration. An inquiry was held in this matter and the only persons who gave evidence were James, the appellant, and his sister Catherine. Both objected to the granting of letters of administration to the eldest brother Simon, and the Court also recorded the further fact that the other two heirs, a brother and sister of the deceased, also objected to letters being granted to Simon. The appellant gave evidence, trying to prove the bad character of the respondent Simon. He stated that Simon Ranasinghe had removed barbed wire from the fences, cut down and sold some trees and damaged the rubber plantations. James also stated that Simon had assaulted his sister Catherine and that there was a case pending in the Police Court and that he also used to ill-treat the deceased, too. He further stated that there was a writ against Simon in a certain case the number of which he gave. So far as I can see from the cross-examination of this witness, nothing was alleged to counteract the evidence that James had given in his examination-in-chief regarding the character of Simon. The point that was emphasized in cross-examination was the fact that James was living in Rambukkana and not within the judicial district within which the property of the deceased was situated, a fact which Simon had alleged in his own affidavit. James, on the other hand, gave definite evidence that he stayed away from the judicial district for only one or two months in the year in a house which he had in Rambukkana. No question was put with regard to the points affecting Simon's character which I have already mentioned. Catherine definitely stated that she had been assaulted by Simon when the deceased died, and she was assaulted to such extent that she had to be in hospital for 15 days, and that she had charged him and his son in the Police Court. No question has been put to disprove what the woman stated on this point nor has Simon given evidence. It is however, not necessary for me to decide this question of fact, because it seems that this appeal can be decided on a question of law.

The learned District Judge states five reasons for granting letters of administration to Simon in preference to James, and one of the reasons is, in my opinion, based on a wrong conception of the law. He states as reason No. 2 that Simon is the eldest brother of the deceased and as such has a superior claim to administer the estate. If this was a correct statement of the law, it would go a long way to justify the learned Judge's order; but it is not so. What section 520 of the Civil Procedure Code contemplates is tha