Bakor v Bakor (Civil Appeal No. 66 of 1950) [1951] EACA 30 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

# SALEH BIN MOHAMED BIN OMAR BAKOR, Appellant (Original Defendant)

### NOOR BINTI SHEIKH MOHAMED BIN OMAR BAKOR, Respondent

(Original Plaintiff)

Civil Appeal No. 66 of 1950

(Appeal from decision of H. M. Supreme Court of Kenya-Modera, J.)

Administration of deceased estate by Public Trustee-Final Accounts-Registrar's<br>certificate-Effect of section 82 Indian Probate Act-Beneficiaries right of action.

Letters of Administration of a deceased's estate having been granted to the Public Trustee, he closed the accounts of his administration and filed them in Court under rule 3 of the Public Trustee's Rules, 1925. The Registrar Supreme Court as taxing officer issued the certificate prescribed under the rules. The accounts contained no reference to the income from the deceased's immovable property which had been collected by the appellant both prior to and after the passing of the final accounts by the Registrar. The appellant, a beneficiary, was sued by one of the other beneficiaries for money had and received being her share of the collections. The Supreme Court held that the action was a simple one for moneys had and received and the respondent's plaint disclosed a good cause of action and that section 82 of the Indian Probate Act was not relevant to respondent's claim. On appeal the appellant argued that:-

(i) section 82 of the Indian Probate Act applied to the suit;

- (ii) the respondent had no right of action against the appellant; - (iii) that the final accounts were not final; - (iv) that the only person entitled to receive any moneys was the Public Trustee.

Held (29-5-51).—(1) The certificate by the Registrar issued under rule 3 of the Public Trustee's Rules effects a complete and final discharge to the Public Trustee.

(2) A beneficiary was entitled to follow the assets into the hands of the person wrongly receiving them without necessarily revoking the Letters of Administration.

Appeal dismissed.

#### Bryson for appellant.

Inamdar for respondent.

JUDGMENT (delivered by SIR NEWNHAM WORLEY, V. P.).-This is an appeal from the decision of a Judge of the Supreme Court of Kenya dismissing with costs an appeal from a judgment of the Liwali's Court at Lamu whereby the appellant was ordered to pay to the respondent Sh. 1,251. The material facts are simple and are not in dispute. The appellant is the son and respondent is one of the daughters of Sheikh Mohamed bin Omar Bakor, a Mohammedan, who died intestate on 25th August, 1944, and they are two of his four heirs-at-law. The deceased left certain immovable property and the Public Trustee with the consent of all the next-of-kin, applied for and on 5th January, 1945, was granted Letters of Administration in accordance with section 4 (3) of the Public Trustee Ordinance (Cap. 37 of the Laws of Kenya) and the Indian Probate and Administration Act, 1881, which was applied to this Colony by order of the Secretary of

State in 1898 (hereinafter in this judgment referred to as the Indian Probate Act). On 17th January, 1945, the Public Trustee closed the accounts of his administration and on 6th July, 1945, acting in pursuance or purported pursuance, of<br>rule 3 of the Public Trustee's Rules, 1925, filed them in Court together with the required affidavit of verification. On the 26th of the same month the Registrar of the Supreme Court, as taxing officer, issued the certificate prescribed under the same rules. On the 14th, the Public Trustee had sent to his *ex officio* agent at Lamu the Certificates of Ownership relating to the deceased's immovable property together with a transfer to the heirs. These documents were subsequently handed to the appellant but the transfer has never been registered and has no validity in law.

The appellant admits that from the death of the deceased up to the institution of the respondent's action he has collected rents and revenue from the immovable properties and has not accounted for them to the Public Trustee. The respondent's claim was one for moneys had and received to her use, namely, the moneys representing her share of these collections: the amount was not in dispute.

The Supreme Court Judge held that the action was a simple one for moneys had and received by the appellant for the use of or on behalf of the respondent, that the respondent's plaint disclosed a good cause of action and that section 82 of the Indian Probate Act was not relevant to her claim.

The main grounds of appeal are:—

- (a) The learned Judge erred in law in holding that the respondent had any right of action against the appellant and in particular any right of action for the recovery of any sums alleged to be owing by the appellant prior to the 17th day of January, 1945, the date when the Public Trustee purported to file his final accounts. - (b) The learned Judge erred in failing to appreciate that, as money was alleged to be owing by the appellant to the estate of Sheikh Mohamed Omar Bakor, the said final accounts were not in fact final and the said estate still remains to be wound up. - (c) The learned Judge erred in holding that the case was a simple one for moneys had and received by the appellant for the use and on behalf of the respondent when the only person entitled to receive the said moneys was the Public Trustee. - (d) The learned Judge erred in law in holding that section 82 of the Indian Probate and Administration Act, 1881, did not apply to this suit.

Section 82 of the Indian Probate Act, on which Counsel for the appellant mainly relied, provides: -

"After any grant of probate or letters of administration, no other than the person to whom the same shall have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the province in which the same may have been granted, until such probate or letters of administration shall have been recalled or revoked."

Founding on this Mr. Bryson argued, firstly, that at least for the period from the death of the intestate until the date of the certificate issued under rule 3, the Public Trustee alone could sue for any moneys due to the estate which have come into the hands of the appellant; and, secondly, that the so-called final accounts filed by the Public Trustee were not in fact final accounts, that the estate had not been distributed, the Public Trustee not discharged and he is still the administrator of the estate; as such the estate is still legally vested in him and he alone can sue

Mr. Inamdar for the appellant, founding upon the Indian case of Kulwanta Bewa v. Karam Chand Soni (1939 I. L. R. 1 Cal. 21), has argued-

- (a) that the beneficiaries of an estate are not incompetent to deal with their interest in the estate merely because it is in the hands of an administrator; and - (b) that the moment the administration was completed (scil. by the issue of the prescribed certificate) the purpose of the grant was fulfilled and the Public Trustee as administrator became functus officio and the grant stood revoked in effect, if not by formal order of Court.

The crux of the matter is, therefore, what is the effect in law of the certificate given by the taxing officer under rule 3? The rule provides an elaborate procedure for the passing of the accounts by the taxing officer after notice given in the prescribed manner to person interested and after hearing objections, with provision for a review by the Court. It is further provided that: "a certificate under the hand of a taxing officer or of a Judge of the Court to the effect that the accounts have been examined and found correct shall be a valid and effectual discharge in favour of the Public Trustee as against all persons whatsoever".

There can be no doubt then that the legislative authority (in this case the Governor in Council) intended and so enacted that the certificate should effect a complete and final discharge and that any Order of Court revoking or recalling the grant of administration should be a mere formality. One may doubt whether the form of notice prescribed in the rule is likely to come to the knowledge of the beneficiaries interested; one may wonder why the Public Trustee verified his accounts and why the taxing officer certified them without either any explanation as to why no income had been accounted for or any evidence that the assets had been transferred to the beneficiaries. But, unsatisfactory as these features of the administration may be, they cannot in my opinion affect the certificate given, the effect of which was to discharge the Public Trustee from the administration.

Counsel for the appellant suggested that the respondent's proper course would have been to induce the Public Trustee to take action to recover from the appellant or even to join him in this action; but had she done so, she would in my view have been met with the answer that she should have brought her objections to his accounts before they were passed. Since she is now debarred from so doing, I know of no rule of law or equity which will debar her from the alternative remedy she has sought in this action. She is entitled, if she can follow the assets into the hands of a person who has wrongly received them, to seek to recover them, without necessarily revoking the letters of administration: see Mohan v. Broughton (1900) L. R. p. 56.

In my view, therefore, the learned Judge rightly held that in the circumstances, section 82 of the Indian Probate Act was no bar to the respondent's claim and that she had a good cause of action. For these reasons I would dismiss the appeal with costs and affirm the judgment appealed from.

SIR BARCLAY NIHILL, P.—I concur and have nothing to add. The appeal is dismissed with costs.

LOCKHART-SMITH, J. of A.—I also concur.