Thornton Et Al. V. Velaithan Chetty

1938 Present: Maartensz and Moseley JJ.

THORNTON et al. v. VELAITHAN CHETTY.

79-D. C. Galle, 24,593.

Administrator-Right to continue action brought by predecessor in office-Legal representative summoned to defend action-Objection to be urged in first instance-Right of administrator to vindicate title to land-Civil Procedure Code, s. 404.

Under section 404 of the Civil Procedure Code a succeeding administrator may continue an action brought by his predecessor in office.

Where a person is summoned to defend an action as legal representative an objection that he is not the legal representative must be raised and determined in the first instance.

An administrator is entitled to bring an action to vindicate title to-immovable property belonging to the estate without joining the heirs unless the Court so directs.

APPEAL from an order of the District Judge of Galle declaring the substituted plaintiffs as administrators entitled to the premises of the intestate in place of the plaintiffs, whose letters had been recalled.

H. V. Perera, K. C. (with him E. B. Wikramanayake), for first substituted defendant, appellant. -An administrator cannot continue an action brought by his predecessor in office; when he succeeds to the office, he must bring a fresh action. On the death of the administrator the action would abate, and a fresh action has to be brought by the new administrator. The right to sue is personal to the administrator. With him the right dies and does not survive, because it is a right personal to him. In the Trusts Ordinance, No. 9 of 1917, for example, express provision is made in section 77 giving the right to a new trustee to continue an action on the death of a trustee. There is no similar provision in the Civil Procedure Code to enable a new administrator to continue an action brought by his predecessor. Further, in England and New York express provision is made for the continuance of an action when an administrator dies. See Williams' Law of Executors and Administrators, pp. 464 and 465 (10th edition).

[MAARTENSZ J. -Cannot section 404 of the Civil Procedure Code apply?]

No. ?Any interest? in section 404 must be construed according to the context. The earlier sections refer to cases where the interest in some property devolves. ?Any interest? does not include the right to bring an action.

An administrator cannot bring an action to vindicate title to land. See Silva v. Silva 1.

The appellant was made a party defendant in his capacity as executor de son tort, i.e., in a personal capacity; but judgment has been entered against him in a representative capacity. Under section 35 (2) of the Civil Procedure Code, no claim can be made against a defendant partly in his personal capacity and partly in his representative capacity.

The document P 13 must be read as a whole, although it was put in for the admissions contained there-Ameer Ali's Law of Evidence, p. 234 (9th edition); Chowdhry v. Shikdar 2; Sooltan Ali v. Chand Bibee et al. 3

N. Nadarajah (with him J. R. Jayawardene), for plaintiff, respondent. - Order 22, rules 1-10 of the Indian Code correspond to Chapter 25 of our Civil Procedure Code. Rules 4 and 10 are particularly relevant. Rule 4 corresponds to section 398 of our Code. The appellant was originally brought into the case as executor de son tort. He did not deny his representative character at the stage mentioned in the proviso to section 398. Where the legal representative of a deceased defendant is already a party though in another capacity, no special application is necessary to implead him as legal representative. See Chitaley and Rao's Commentary on the Code of Civil Procedure, p. 2118, note 12. Any person acting in any representative manner may be made a party-Arunaselam Chettiar v. Arunaselam Chettiar 4; Rahman Dole v. Abesiriwardene 5; Saminathan Chetty v. Silva 6; Webster v. Webster 7.

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