030-NLR-NLR-V-22-ALAGAKAWANDI-v.-MUTTUMAL.pdf
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Present: Shaw J. and Schneider A. J.
ALAGAKAWANDI ». MUTTUMAL.
35—D. C. Kandy, 27,682.
Civil Procedure Qode, s. 547—Action by widow before obtaining tetters ofadministration.)
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It is open to any one who has an interest in the property of adeceased to institute an action in respect of such property and toproceed to get, at any rate, an interim injunction prior to letters ofadministration being granted.
The words “ no action shall be maintainable ” in section 547 ofthe Civil Procedure Code does not amount to the same thing as“ no'action shall be instituted.”,
A. St. V. Jayawardene, for plaintiff, opellant.—The loathedDistrict Judge was wrong in dismissing the action altogether. Theplaintiff is suing in her personal capacity. Where a person isdevastating §n estate it would create great hardship to wait tillbetters of administration are issued. The issue of an interiminjunction would obviate irreparable damage. The proper ordershould he to suspend the action pending administration. See" Haseen Hadjiar v. Levane Marikah1
/i. >
Cooray, for defendant, respondent.—The plaintiff sues in hercapacity as administratrix. She describes herself as such in thecaption of the plaint (see section 40 of the Civil -Procedure Code).As die has not obtained letters of administration the action ispremature and was therefore rightly dismissed. When the aotion isnot rightly instituted an injunction cannot be allowed.
1 (1912) 15 N. L. R. 275.
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1920.
Alagaka-
toandiv.
Muttumal
July 14,1920. Shaw J.—
In this case .the plaintiff, who is the widow of on,e Pena Selem-bram Kangany, deceased, sued the defendant claiming possession ofa certain property, and claiming that “ the defendant is damagingthe land of the deceased, and is catting down valuable trees on theproperty and causing damage.” The plaint does not make it veryclear in what capacity the plaintiff is suing. The caption of theplaint calls her the administratrix of the estate of the deceased, andin the first paragraph of the plaint she alleges, not only that sheis the widow of the deceased, but that she is administering theestate in D. C. Kandy, Testamentary No. 3,591. It is admittedthat'she has not, in fact, obtained letters of administration, althoughshe has applied for them. In the body of the plaint, however, itappears that she is suing, not as administratrix, but in her capacityas widow, who is entitled to rights in the property. The DistrictJudge has ruled that the proceedings are irregular, and that theaction must be dismissed, with costs. In my opinion, the .realmeaning of the plaint is, not that the plaintiff is suing as adminis-tratrix, but that she is' suing in her capacity erf ujdow, who has aninterest in the property and who is intending to take out letters ofadministration. The reason for dismissing the claim appears to beeither that she was suing in representative capacity, and, therefore,did not comply with section 42 of the Code or under section 547.If she is not suing as administratrix, then no action under thatsection could be maintained for the recovery of any property whenthe estate amounts to over Rs. 1,000, which it does not in thepresent' case. It has been held that the words “ no action shall be"maintainable” did not amount to the same thing as “no actionshall he instituted.” In the case of Rassen Hadjiar v. Levena-■ Marijcar1 the action was allowed to be held up, whilst the plaintiffwas given an opportunity of obtaining letters of administration.But section 547 does not say that no person shall bring an actionto prevent damage being done to an estate when it amounts toabove the value of Rs. 1,000, and it appears to me that it is opento any one who has an interest in the property to institute anaction and proceed to get, at any rate, an interim injunction priorto letters of administration being granted. If that were not so,irreparable damage might very often be done to a deceased man’sestate without any one being able to stop it. In my opinion the-present action should not be dismissed. The plaintiff shotdd beallowed to proceed in her capacity as widow for the protection ofthe property, ai.d should be allowed to retain the interim injunctionshe has Obtained for the protection of tho property in which she has•an interest if the circumstances should justify it when the-defend-ant' has shown cause to the contrary. Should administration be
(1912) 16 N. Lt R. 276.
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taken out with regard to this property before other steps are takenwith regard to the recovery of possession, it is possible that theplaintiff may satisfy the Court that she is then in a position tocontinue the present action for possession. I need not, however,give any definite.ruling on that point at the present time.
I would allow the appellant the costs of this appeal.
Schneideb A.J.—I agree.
Appeal allowed.
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1920.
Shaw J.
Alagaka-
wandiv.
MuttumaJ