Jamila Umma Et Al. V. Jailabdeen Et Al.,

Present : Hearne and Keuneman JJ.

JAMILA UMMA et al, Appellants and JAILABDEEN et al,
Respondents.

77- D. C. (Inty.) Colombo, 9,379.

Administration-Contest between widow and son of deceased-Son's interest in estate preponderant-Widow's claim preferred.

In a contest for letters of administration the preference given by law to the widow's claim cannot be displaced merely because her interest in the estate is small.

APPEAL from an order of the District Judge of Colombo.

H. V. Perera, K.C., (with him N. Nadarajah, K.C., and Chelvanayagam), for petitioner, appellant.

E. B. Wickremanayake for first respondent.

Cur. adv. vult.

KEUNEMAN J.-

In this case the petitioner, who is a son of the deceased intestate, applied for letters of administration. This was opposed by the first respondent, who is the widow of the deceased and the step-mother of the petitioner. First respondent claimed letters for herself. Letters were granted to the first respondent by the District Judge, and the petitioner appeals.

Counsel for the petitioner argues that although under section 523 of the Civil Procedure Code " the claim of the widow shall be preferred," the Court has a discretion to grant administration to another for good reasons. He cited the decision of the Divisional Court in Sethukavalar v. Alvapillai 1[36 N. L. R. 281.], where it was held that "under ordinary circumstances the widow or widower is to be preferred, but that the Court has a discretionary

power of preferring another person for good reasons. It is, of course. a discretionary power and the Court must give its reasons for its preference.

The " good reasons " urged by Counsel in this case are as follows : -

(1) that the petitioner and his brother and sister who support him are entitled to seven-eighth of the estate as against the widow's one-eighth. They have, therefore, a preponderant interest in the estate. Counsel argues that grant should follow interest ;

(2) that there is a dispute between the widow, who was the second wife of the deceased, and the children of the first bed as regards the gift by the deceased to the widow of immovable property three days Before his death;

(3) that there had been drawings on deceased's bank account before his death from time to time of large sums amounting in all to Rs. 21,000. Counsel suggests that these sums were improperly drawn by the widow, who has appropriated these sums for herself wrongly.

There was at the start of the inquiry another objection, viz., that the widow was not in a position to manage the business of the deceased. This has now ceased to be operative, because the petitioner has taken over the business at a valuation.

As regards the first objection, no doubt the fact that the widow has no claim or a very small claim to the estate may be one of the grounds which the District Judge may take into account in considering the question, but I am not satisfied that taken by itself it is a sufficient ground to displace the preference given by law to her claim for letters. As regards the second objection, all that need be said is that, in the present state of the evidence, more particularly in view of the evidence of the Notary, which has not been controverted in this case, there does not at present appear to be any ground for thinking that any genuine dispute can arise about the gift. As regards the third objection, here again on the available evidence there is no reason to think that the money was not drawn for the ordinary purpose of the deceased's business. But in any event, there is nothing to show in this case that the widow either drew or misappropriated these amounts.

I think that the second and third objections amount to nothing more than that the petitioner has a nebulous suspicion as to the conduct of the widow.

In my opinion, there is no ground for holding that the discretion of the District Judge has been wrongly exer

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