Narasimmulu vs Gulam Hussain Sait and Another

This is an appeal by the plaintiff against a decree of Mr. Justice Wilkinson dismissing the suit.

The plaintiff, an infant, by his next friend, brought a suit against the defendants, alleging that the defendants were tenants of certain premises

under a lease granted by plaintiff''s adoptive father since deceased, that the rent of the premises is in arrear, and that defendants refuse to pay the

same to the plaintiff. It was alleged in the plaint that, since the death of testator, defendants held the premises as plaintiff''s tenants, but that point

was not pressed. It appears that the late C. Lutchminarasu Chetty, plaintiff''s adoptive father, granted a lease of certain premises on the 18th June

1886. In March 1887, G. Lutchminarasu Chetty died having made a will appointing his wife, Chenchammal, the executrix, and leaving the bulk of

his property to his adopted son, the plaintiff. It was not disputed that C. Lutchminarasu Chetty''s property was self-acquired. Chenchammal, the

executrix, took out probate of the will and proceeded to deal with the property, but before she had fully administered the property she died. By an

instrument dated 14th July 1887, Exhibit B, she appointed certain persons to be guardians of the minor son, the plaintiff. It must be taken for the

purposes of the present suit that Chenchammal died intestate and without having fully administered the estate. The defendants admit that the sum

claimed is due from them for rent and pay the amount claimed, viz., Rs. 3,230 into Court, but they allege that the plaintiff is not entitled to bring this

action on the ground that he is not the duly constituted representative under the will of C. Lutchminarasu Chetty. We are of opinion that the learned

Judge was right in dismissing the suit. The present plaintiff does not represent the estate of C. Lutchminarasu Chetty as, by his will, duly proved, the

whole of his estate vested in the executrix Chenchammal, and it is not suggested that the plaintiff sues either as representing the executrix or as

administrator de bonis non of the testator. We are of opinion that, as the executrix of the will died intestate and without having fully administered

the trusts of the will, an administration of another sort becomes necessary This is called administration de bonis non, that is, of the goods left

unadministered by the former executor. See Section 45, Probate and Administration Act No. V of 1881. We are further of opinion that the word

may "" in that section is not to be construed as merely permissive, but as directory as showing the course which the Legislature intends shall be

adopted. See De Sauza v. Secretary of State 12 B.L.R. 428. As at the present time the estate of the testator is absolutely unrepresented, this suit

must fail and we dismiss this appeal with costs.

Branson and Branson, Attorneys for Respondents.