Usoof Joonoos V. Abdul Kuddoos

1939 Present : Soertsz A. C. J., de Kretser and Wijeyewardene JJ.

USOOF JOONOOS v. ABDUL KUDDOOS.

159-D. C. Colombo, 47,499.

Costa-Action by administrator-Decree for costs-Liability to pay costs- Property of intestate not liable to be seized-Civil Procedure Code, s. 474.

An executor or administrator who brings an action in right of the testator or intestate is personally liable to pay the costs of the defendant, should the action be dismissed, unless the Court otherwise orders. In such a case property belonging to the estate of the deceased is not liable to be sold in execution of the decree-for costs.

Edirishamy v. de Silva (2 N. L. R. 242) followed; Nonnohamy et al. v. Podisingho et al. (23 N. L. R. 319) not followed.

CASE referred by Moseley and Soertsz JJ. to a Bench of three Judges.

The question referred was whether the property of an intestate was liable to be sold on an order for costs made in favour of a defendant against a plaintiff who sues on behalf of the intestate in the capacity of an administrator.

C. Thiagalingam (with him E. B. Wikremanayake and S. Mahadeva) for defendant, appellant.-The question to be decided is how far the estate of an intestate is liable where the administrator is ordered to pay the costs of an action brought by him. This question cannot arise in the English Courts. Under the English law, when a person dies, his estate is at an end and vests in the Probate Court which delegates to the executor or administrator certain functions. In the Roman-Dutch law, on the contrary, the estate is an entity which has an existence even after the death of the deceased?Sohm's Roman Law (3rd ed.) p. 501; Lee on Roman-Dutch Law (1915 ed.) p. 285. Section 69 of Chapter 6 (Courts Ordinance) and the Charter of 1833, no doubt, introduce the English law. But to what extent? Section 69 of the Courts Ordinance vested in the Courts only the right to appoint executors and administrators. This was interpreted in (1863-8) Ramanathan's Reports 265 and Vanderstraaten's Reports (1869-71) 273 as introducing into Ceylon the English law of executors and administrators. It is not necessary to challenge the correctness of those, decisions. But that does not mean that the concept of an estate as juristic person should be abandoned. It is in that view that section 474 of the Civil Procedure Code came in and confirmed the liability of the estate for costs. Section 474 clearly assumes that the rule is that the estate is liable for costs and merely provides for an additional remedy against the executor or administrator. Where, therefore, an administrator brings an action as administrator and is ordered to pay costs, the defendant may seize the property of the intestate in execution of his decree for costs-Nonnohamy et al. v. Podisingho1; Wessel's History of Roman-Dutch Law p. 535. Nanayakkara v. Juan Appu2 is not applicable because, in that case the administrator entered

1(1922) 23 N. L. R. 319.
2(1920) 21 N. L. R 510.

into a personal contract. Fernando v. Fernando 1 recognizes the settled rule in Ceylon regarding the liability of the estate. Section 474 is designed merely to prevent rash and hasty litigation on the part of the administrator-Nugara v. Palaniappa Chetty2. In Edirishamy v. de Silva3, the judgments of the two Judges do not appear to be in accord. Charles Boynton v. George Boynton4would have been dealt with differently in our Courts. It illustrates the difference between the English law and our law. There is no section like section 396 of the Civil Procedure Code in English practice.

The party to the action is the estate. We have to apply the Roman-Dutch law concept of the estate as a juristic person. Nonnohamy et al. v. Podisingho (supra) represents the correct view to be taken regarding section 474.
 
S. J. V. Chelvanayagam (with him A. Muttucumaru), for second plaintiff, respondent.-The estate of a deceased person is

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