Page images




administrator. In the former case, the agent is as much a wrongdoer as the certificate-holder, the principal, because the latter Nga Tra Ya has no title to the estate ; but in the latter case, the agent might, under certain circumstances, be protected by reason of his having dealt with a person who represented the estate, and had a good legal title to it. It is clear therefore that the appellant, in acting as the agent of the certificateholder in the disposal of the estate, dealt with a party who had no legal title to the estate, and that he is as much a wrongdoer as his principal, the certificate-holder. The appellant is therefore as much liable to account as the certificate-holder, by reason of his having dealt with a person who had no title to the estate.

If the law would not protect the appellant, even if he had acted properly and fairly, it ought not, for a much greater reason, to give him any protection in this case, inasmuch as it has been found by the Recorder (which finding must, for the purposes of the legal objection under consideration, be taken to be correct) that he took advantage of his position as the agent of the certificate-holder, an ignorant woman, and possessed himself, by undue means, of the bulk of the property belonging to the estate. The appellant ought not therefore to be allowed to take advantage of his wrong, and has therefore very properly been made a party to the suit, and made to account for the property came to his hands.

The English cases, cited by the learned counsel on behalf of the appellant, do not apply to this case, inasmuch as, for the reasons already stated, there is a vast difference between the position of an administrator and that of a certificate-holder. The general doctrine recognised by Courts, in cases of misapplication of assets, is that any one who comes into possession of assets by a breach of trust or devastavit in the executor, if he be a party to, or is aware of, such breach of trust, is liable to account, and that such assets or their proceeds can be recovered from those who have received them with notice of such misapplication; Story on Equity Jurisprudence, Volume I, section 581. The assets in this case have been traced to the hands of the appellant, and he has therefore very properly been made to account.



The appellant has been made a party to this suit under the statutory NGA TUA YA provision, section 73 of Act VIII of 1859. The object of that secMI KAN

tion is to settle in a single suit the rights and interests of all persons
“who claim some share or interest in the subject-matter of the
“suit, or are likely to be affected by the result;" and with a view
to confer, on the Courts in this country, the powers of Courts of
Equity in England, which have power to make parties, having
different and even opposite interests, defendants, and the object
of which Courts is to put an end to litigation, and to bring
all parties having any interest in the subject-matter or likely to
be affected by result of the suit before the Court, and to settle, if
possible, the rights of such parties in one suit.–Story on Equity
Jurisprudence, Volume II, section 1526.

If, as contended, the appellant is liable to account, then it is clear that, under section 73, and having regard to the powers and the object of Courts of Equity, he has very properly been made a party defendant in this suit.

Mr. Montriou was heard in reply.

The Court intimated that they would consider their decision upon the questions argued, but desired in the meantime that the disputed items of account be gone into, which was accordingly done.

The judgment of the Court was delivered by


NORMAN, J.-The plaintiff, who is one of the widows of Nga Tha, brought this suit against Mi Kho Oo, another widow of Nga Tha, who had obtained a certificate, under Act XXVII of 1860, for the administration and division of the estate of Nga Tha.

The Recorder found that the property of Nga Tha, which had come to the hands of the defendant, Mi Kho Oo, since the decease of Nga Tha, consisted of 316 logs of teak timber; that the plaintiff, as one of the widows of Nga Tha, was entitled to a moiety of the clear residue of the property; that, from the accounts filed, it appeared that the greater portion of the assets



had come into the hands of, and had been disposed of by, Nga Tha Ya, as agent for Mi Kho Oo.

The Recorder ordered that Nga Tha Ya should be made a co-defendant. Nga Tha Ya appeared, and, by his advocate, contended that he ought not to be made accountable to any body but the defendant, Mi Kho Oo, whose agent he was. The Recorder overruled the objection. The case proceeded, and eventually the Recorder came to the conclusion that Nga Tha Ya was liable, as an accounting party to the estate, in rupees 10,128 actually realized by the sale of the timber by one Nga Mazin, or Moung Shoay Nyi, to Mr. Hannay. From this amount he deducted rupees 4,033-5, which he allowed as having been properly expended on account of the estate by Nga Tha Ya, and rupees 2,443 paid by him to Mi Kho Oo, on the like account; and directed that Nga Tha Ya should pay the balance, rupees 3,651-11, into Court.

Nga Tha Ya appeals from the decree so far as it affects him.

The first objection taken by Mr. Montriou was that the Recorder ought not to have made Nga Tha Ya a party to the suit, inasmuch as he was a mere agent accountable only to his principal, Mi Kho Oo, the holder of the certificate under Act XXVII of 1860, and that he had, in fact, rendered a full account to her.

But the defendant, Nga Tha Ya, is not a mere agent. He is not charged as an agent. The plaintiff does not seek to render him responsible as an agent. He got into his possession a large quantity of timber, which forms almost the whole of the estate of the deceased. If the Recorder is right in his findings, he has abused the confidence reposed in him by his employer, Mi Kho Oo, the holder of the certificate, and fraudulently misappropriated timber belonging to the estate of the deceased by a fictitious sale in the name of Moung Shoay Nyi.

Mr. Montriou then contended that, in a suit against an executor or administrator for the administration of an estate, persons who have improperly possessed themselves of, or have been allowed by the executor to retain in their hands, assets belonging to the estate of the deceased, cannot be joined as co-defendants,


[ocr errors]



[ocr errors]


except in cases where the personal representative is shown to be Nas Tua Ya colluding with them, or to be insolvent. He said that it would NI KAN be very hard if any agent employed by an executor was liable

to have his transactions with the executor called into question
in suits by creditors or legatees for the administration of the
estate of the deceased ; that the present suit contains no charge;
and that it is not found that Mi Kho Oo, in her dealings with
Nga Tha Ya, has not acted in good faith.

Now, we may observe, in the first place, that one of the several
co-heirs who has obtained a certificate, and is empowered to
collect debts, under Act XXVII of 1860, is in a very different
position from that of an executor or administrator under English
law. The executor fully represents the testator and his estate.
The executor has a legal title to the personal estate.
But the certificate does not vest in the holder of it any pro-
perty or interest in the assets beyond what he may be previous-
ly possessed of as an heir of the deceased. The grant
of a certificate does not clothe the holder of it with the character
of personal representative of the deceased, further than to enable
him to collect and give receipts for the debts due to the deceased.
There is nothing, therefore, in the position of the holder of a
certificate which would make it necessary for a creditor, or other
heir of the deceased, to have recourse to him in the first instance,
or which would prevent such creditor or heir from following the
property which belonged to the deceased into the hands of any
person other than the holder of the certificate in which he might
find it.

So far as English cases go, the case of Consett v. Bell(1) is a decision by the then Vice-Chancellor Knight Bruce that a person who prevailed upon executors to hand over some part of the testator's assets, under circumstances from which he must have known that the executors were acting hastily, improvidently, and contrary to their duty as executors, was properly made a party in a suit against the executors for the administration of the estate, though the bill contained no charge that the executors had colluded with him, or were insolvent.

(1) 1 Y. & C., 569.



[ocr errors]



We think that, in such a suit as the present, which is one for the administration and division of the estate of the deceased, Noa THA YA the plaintiff is entitled to have an account of the entire personal MU KAN estate; secondly, that a co-heir of the deceased is entitled to follow property into the hands of any person who has misappropriated it, and such right is not taken away by the certificate, which by section 4 is made conclusive only as against a debtor to the deceased, and in favor of debtors paying their debts to the person in whose favor it has been granted. Such right cannot

. be affected by any act done in excess of his authority of the holder of the certificate. It follows therefore that, in such a suit as above mentioned brought against the holder of a certificate, under Act XXVII of 1860, the plaintiff is entitled to join as a co-defendant any person who, with the consent of the person holding such certificate, has improperly possessed himself of property belonging to the deceased, and misappropriated it.

The next point made by Mr. Montriou was that section 73 of Act VIII of 1859 gives no power to the Court to introduce, as a co-defendant upon the record, a new accounting party.

I am strongly disposed to think that a very liberal construction should be put upon the words “persons who may be entitled “ to, or who claim, some share or interest in the subject-matter “of the suit, and who may be likely to be affected by the “result.” I would construe them as enabling the Court to add any persons to the list of plaintiffs or defendants, in whose absence the subject-matter of the suit, or the claim of the plaintiff in the suit, cannot be fully investigated and disposed of. I am inclined to think that the words“who may be likely to be affected “ by the result,” may be construed as likely, if added as parties, to be affected by the result of the investigation and determination of the question in the cause. This will shut out cases like Joy Gobind Doss v. Gouree Proshad Shaha (1), where the added defendant claimed adversely, both to the plaintiff and the original defendant, and consequently his interest could not be affected by the result of the decision of any question between them.

In one sense it may be said that a person who is not a party

(1) 7 W. R., 202.

« PreviousContinue »