Haniffa V. Cader Et Al.,

 

1941     Present: Soertsz and Wijeyewardene JJ.

 

HANIFFA v. CADER et al.

 

75-D. C. (Inty.) Kurunegala, 216

 

Administration-Action by widow-Application for letters by widow-Recall of letters and reissue to attorney-Irregularity in proceedings-Evidence Ordinance, s. 44-Application to add attorney-Defendants bound by order in testamentary suit-Amendment of pleadings-Civil Procedure Code, ss. 42, 472, and 547.

 

The plaint was instituted by the widow of a deceased person, R, asking for a declaration that she and her children were entitled to a business carried on by the deceased under the name of S. R. M., the profits of which it was alleged were being misappropriated by the defendants, who were employees of the deceased.

 

On November 25, 1939, the widow obtained letters of administration to the estate of the deceased but on January 20, 1940, the letters were recalled on her application and issued to her attorney H, with the consent of the heirs.

 

On February 7, 1940, application was made in the action to have H made an added-plaintiff and to make certain amendments in the plaint to enable the widow and children as heirs of the estate of R, represented by the added-plaintiff, the administrator thereof, to claim a decree of Court in respect of the entire business.

 

Held, it was not open to the defendants to question the validity of the appointment of H as administrator on the ground of any irregularity that may have occurred on the administration proceedings.

 

Held, further, that the amendments should be allowed as they do not enlarge the scope of the action or cause any prejudice to the defendants.

 

APPEAL from an order of the District Judge of Kurunegala.

 

N. E. Weerasooria, K.C. (with him E. A. P. Wijeyeratne), for appellants.

 

H. V. Peirera, K.C. (with him N. Nadarajah), for respondents.

Cur. adv. vult 

 

 

May 5, 1941. WIJEYEWAHDENE J.-

 

The plaint in this case was filed on October 7, 1939, by one Pathumma through her attorney K. M. M. Haniffa. It was stated in the plaint by Pathumma-

 

(i.) that one Rawther was the sole owner of a business in rice and sundries carried on under the name of S. R. M. (ii.) that Rawther died in India in September, 1939, leaving her as his widow and five minor children.

 

(iii.) that the defendants who were employees of Rawther-the first defendant being in addition an attorney of Rawther-were misappropriating the profits of the business, falsifying the accounts and removing the goods with the object of defrauding her and her children.

 

(iv.) that irreparable los

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