1939     Present: Soertsz and de Kretser JJ.

DE SILVA v. RAMBUKPOTA.

293-D. C. Ratnapura, 6,352. 

Administration-Right of administrator to sue for property,-Legal representative of heirs--Plea of res judicata available to him as to heirs-Civil Procedure Code, s. 472. The property of an intestate vests in the administrator for purposes of administration.

The administrator is the representative in law of those who have been found in administration proceedings to be the lawful heirs of the intestate and in an action by the administrator a plea of res judicata, which is available to the heirs, would also be available to the administrator.

THIS was an action brought by the official administrator of the estate of one Mudiyanselage Podi Singho, to recover the value of rubber coupons issued in respect of two lands purchased by the defendant from one John Singho, who professed to be the sole heir of Podi Singho. The question whether John Singho was the sole heir of the deceased arose between him and some others, who applied for administration. While this question was pending the District Judge appointed the present plaintiff as official administrator of the estate.

The District Judge held that John Singho was not an heir and his finding was affirmed in appeal.

The District Judge thereupon made order directing the plaintiff to continue as administrator.

The defendant pleaded that the order made and the findings in the testamentary case were not binding on him.

The learned District Judge gave judgment for the plaintiff.

N. K. Choksy (with him N. L. Jansz), for defendant, appellant.-The parties to the present case are not bound by the order in the testamentary case No. 987. That order would bind only the parties to the proceedings- Chinniah v. Suppramaniam et al[1 (7929) 10 C. L. Rec. 152.].  It has been held that a judgment against some of the heirs does not operate as res judicata against the other heirs, although they derive title from the same source-Silva et al. v. Kumarihamy [2 (1923) 25 N. L. R. 449 at 452].

The plaintiff was not a party in the testamentary case. The finding in that case cannot operate as a finding in rem-Punchirala v. Kiri Banda et al [3 (1921) 23 N. L. R. 228.]. where section 41 of the Evidence Ordinance is considered. See also Velupillai v. Muthupillai et al [4 (1923) 25 N. L. R. 261. ]  and Spenser Bower on Res Judicata, para 242. The only effect of the former proceedings on the defendant is to debar him from taking letters of administration.

Furthermore, the plaintiff, being administrator, has no title to the immovable property and is therefore not entitled to bring this action. There is a fundamental distinction between English law and Ceylon law in regard to the position of an administrator. In Ceylon, on the death of a person intestate, his estate passes at once to his heirs and the dominium vests in them and not in the administrator-Silva v. Silva et al.[5 (1907) 10 N. L. R. 234.]; in England, it vests in the administrator appointed by Court-Hukum Chand on Res Judicata p. 196, Art. 91.

H. V. Perera, K.C. (