Ramalingampillai V. Adjuward Et Al.,

1942 Present: Howard C.J. and Soertsz J.

RAMALINGAMPILLAI v. ADJUWAD et al.

292-D. C. Colombo, 4,458.

Administration-Estate closed-Property in possession of devisees-Right of creditor to sue heirs in possession-Contingent debt-Roman-Dutch Law.

Where the administration of an estate has been completed and the heirs are actually in possession of the property devised to them, a creditor, whose debt fell due after the estate was closed, is entitled to sue the heirs in possession in proportion to the extent to which they have benefited from the estate. Minor heirs in possession of the property devised to them may be sued by a creditor under such circumstances.

The judgment of Bonser C.J. in Pattiman v.Kanapati Pulle  (1 Browne 118) explained.

APPEAL from a judgment of the District Judge of Colombo. The facts appear from the judgment of Soertsz J.

N. Nadarajah, KC. (with him H. W. Thambiah and V. K Kandasamy), for the plaintiff, appellant.-The finding of the District Judge is that the administration of the estate had been de facto completed. On that finding the defendants would be liable to the extent of the property that had passed to them. It has been held in de Silva v. Rambukpota[(1939) 41 N. L. R. 37] that the property of a deceased person vests in the administrator for purposes of administration. In the present case the shares due to the defendants had been already conveyed to them by the executor. The moment an executor executes a deed of conveyance to the devisees or heirs he loses title to the properties belonging to the estate and relinquishes all claims to the properties as being necessary for the purpose of administration. He is then in a position to plead plene administravit when claims are made thereafter by creditors. It is not obligatory on an administrator to obtain a formal judicial settlement before the plea of plene administravit can be taken. 143-C. R. Colombo, 72,628[S. C. Minutes of 26.3. 42] is exactly in point. See also Arunasalam Chetty v. Moqtatamby[.(1906) 2 A. C. R.90.] and Don Nicholas v. Mack[ (1891) I. C. L. Rep. 81.] .

H. V. Perera, K C. (with him S. J. V. Chelvanayagam), for the defendants, respondents.-As long as there is a single debt of the estate remaining unpaid the executor cannot be said to have completed his administration.

[SOERTSZ J.-By virtue of the adiation of the estate by the heirs, cannot the heirs be sued?] According to section 472 of the Civil .

Procedure Code the proper party to be sued is the executor. A person can cease to function as executor in three ways, (a) by death, (b) by obtaining an order of discharge from court, (c) on completion of administration. Before there can be completion of administration all debts of the estate must be paid-Williams on Executors (11th ed.) p. 1077 et seq. Independently of any arrangements between the executor

and the heirs the executor is always liable for the debts of the estate. No handing over of the assets by the executor to the heirs affects the rights of the creditor to sue the executor.

[SOERTSZ J - On the basis of Silva v. Silva [(1907) 10 N. L. R. 234] cannot the heirs be sued The creditor would have two concurrent remedies, but the statutory provision of section 472 of the Civil Procedure Code makes only one action available when there is an executor. For the purpose of payment of debts title which has already vested in heirs goes back to the executor.

Even it heirs who have adiated can be sued, they should not be minors. A minor cannot adiate an inheritance and is not -liable to be sued for the debts of the ancestors, Robert v. Abeywardene et al[(1912) 15 N. L. R.323]. At the date of the present Case the defendants were minors.

N. Nadarajah, K.C., in reply.-The proposition that minors cannot adiate an inheritance is not true in all cases. Grotius' Introduction to Dutch Jurisprudence, p. 158 (Maasdorp Translation) is in conflict wit

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