Singh and Others v Singh (Probate and Administration Cause No. 4 of 1932) [1938] EACA 173 (1 January 1938)

PROBATE AND ADMINISTRATION

Before Sir Joseph Sheridan, C. J.

IN THE MATTER OF THE ESTATE OF MAGHAR SINGH, DECEASED

PARTAP SINGH AND OTHERS, Appellant (Original Caveator Applicants)

HARBANS SINGH, Respondent

(Original Applicant for Letters of Administration)

Probate and Administration Cause No. 4 of 1932

Taxation of costs—Costs of application under section 4 (4) of the Public Trustee Ordinance, 1925, for grant of letters of administration for the protection of a deceased person's estate pending the institution of proceedings pursuant to a caveat—Whether order refusing such application an interlocutory or a final order—Time for taxation. Appeal from decision of the Registrar on taxation.

Respondent had applied for a grant of letters of administration. of the estate of M. S. deceased and the appellants had entered a caveat but no proceedings had been instituted pursuant to the caveat when the appellant applied for a grant of letters of administration for the protection of the estate to the Public Trustee under section<br>4 (4) of the Public Trustee Ordinance, 1925. This application being dismissed with costs the respondent applied for taxation forthwith. Appellant objected to taxation at that time as being premature on the ground that the order of dismissal was an interlocutory one and that consequently the costs thereby awarded could not be taxed before the rights of the parties and the matters in dispute had been finally determined. The Registrar ruled that the order was a final order.

Held $(14-9-39)$ .—That the order dismissing the application under section 4 (4) of the Public Trustee Ordinance, 1925, was a final and not an interlocutory order.

Khanna for the Appellant: Referred to Oza v. New India Assurance Co., Ltd. (17 K. L. R. 73); Salaman v. Warner and Others (1891) 1 Q. B. 734; Isaacs and Sons v. Salbstein and Another (1916 2 K. B. 139); and Re Gardner; Long v. Gardner (71 LT. 412).

Figgis, K. C. for the Respondent.

JUDGMENT.—In the estate of Maghar Singh s/o Khem Singh an application was made by Harbans Singh for the administration of the estate. A caveat was entered by the applicant in this application and others against the grant of letters. The question as to whether letters will be granted has not so far been decided. Subsequent to the entering of a caveat the applicant made an application under section 4 (4) of the Public Trustee Ordinance asking that letters of administration should be granted to the Public Trustee. This application was dismissed with costs. I agree with Mr. Figgis that this application is something separate and distinct from the caveat proceedings which have not yet taken place and which may possibly never take place. It has been argued by Mr. Khanna that the order made on the application under the Public Trustee Ordinance was an interlocutory order made in the proceedings as between the caveator and caveatee and he cited authorities said to support his contention. I have read those authorities and in my opinion they do not support it. They refer to orders made in actions between parties and the question to be determined was whether the orders made determined the rights of the parties and so are final orders. The application to have the Public Trustee appointed and the order of dismissal have no relation to the proceedings or the issue between the caveator and the

caveatee. It may be said that the decision not to appoint the Public Trustee did not decide the rights of the parties in the caveat proceedings, but it may equally well be said that it did not do so for the reason that the application and order had nothing to do with their rights which still remain to be decided if the caveat proceedings go on. The application is dismissed with costs. Costs measured and agreed at Sh. 80.