Vyraven Chettiar V. Segappai Achy

1940     Present: Soertsz and Keuneman JJ.

VYRAVEN CHETTIAR v. SEGAPPAI ACHY.

29-D. C. Colombo, 8,010. 

Administration-Application for letters by attorney of deceased's widow- Absence from the Island-Conflict of interest with duty-Discretion of Court.

The attorney of a widow, who is resident in India, should not be appointed to administer the estate of a deceased person, where the attorney resides for the most part in India or where his interest conflicts with his duty

APPEAL from an order of the District Judge of Colombo.

H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and E. B. Wikremanayake), for fifth respondent, appellant.

N. Nadarajah (with him C. Thiagalingam), for petitioner, respondent. 

Cur. adv. vult. 

March 3, 1940. KEUNEMAN J.-

The present case involves a contest for letters of administration to the estate of Peria Caruppen Chettiar, deceased. The petitioner is the widow of the deceased, and the fifth respondent is an adopted son and, under the

Hindu law, entitled as sole heir to the property of the deceased, subject to the right of the widow and her unmarried daughter to maintenance. Admittedly, in Ceylon, the fifth respondent is the heir to the bulk of the estate, which consists of a business and other movable property. But the deceased also left certain immovable property in Ceylon. The title to this immovable property will be in the widow and her daughters, and the fifth respondent has no interest in it.

On June 3, 1937, the widow (petitioner) through her attorney filed petition and affidavit in D. C. (Testy.) Colombo, No. 8,010, claiming letters of administration. In her petition the widow claimed letters of administration for herself, and the order made thereon was : " Let order nisi be issued for service and publication". The order nisi, however, declared that " the petitioner be and he is hereby declared entitled as attorney of the widow " to letters of administration.

On being served with the order nisi, the fifth respondent intervened, opposed the grant of letters to the petitioner, and claimed the letters for himself. After inquiry, the District Judge made order aganist the fifth respondent, who now appeals.

It is not quite clear in the order whether letters of administration have been granted to the petitioner or to her attorney. In the earlier part of his order, the District Judge treated the contest for letters as being between the petitioner and the fifth respondent, but towards the end of his order the District Judge deals with the question whether the attorney of the widow had a preferent claim to letters of administration, and speaks of granting letters to the attorney. The journal entry of that date runs as follows : " Judgment delivered and filed. Letters to issue to the widow's attorney". This is subject to the giving of certain security. It is not clear from the proceedings how there was a transition from the claim of the widow to that of her attorney for letters of adminis­tration, and I cannot find that the widow at any

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