PRIVY COUNCIL

                        (Soona Mayana Kena Roona) Meyappa Chetty

                                                  Vs.

                               Soona Navena Supramanian Chetty
        (Earl Loreburn, Lords Atkinson, Parker Of Waddington and Sumner. JJ)

                                               2.3.1916

                                            JUDGMENT
Lord Parker of Waddington J.

1. The facts of this case are not in dispute. Soona Ahna Supramanian Chetty, a native
of and domiciled in British India (hereinafter referred to as "the testator"), carried on
for some years prior to his death a money-lending business in Singapore, in the Straits
Settlements, in co-partnership with the respondent. He died on the 11th November,
1904, having by his will appointed Soona Ravenna Mana Ramasamy Chetty and
another to be his executors. Caveats were entered against the proof of this will, and in
August 1907, S. R. M. R. Chetty (his co-executor having renounced probate)
presented a petition in the Court of the District Judge of Madura, in the Madras
Presidency, propounding the Will in solemn form. Ultimately, after protracted
litigation, the High Court of Judicature at Madras ordered the District Judge at Madura
to grant probate of the will to S. R. M. R. Chetty, and such probate was on the 10th
March 1912 granted accordingly. An appeal from the order of the High Court of
Judicature in Madras has recently been dismissed by His Majesty in Council.
Meanwhile, on the 7th March, 1910, letters of administration pendente lite to the
estate of the testator, situate within the jurisdiction of the Supreme Court of the Straits
Settlements, were granted by that Court to Pana Lana Mana Avenna Vina Meyappa
Chetty, the attorney of the testator's widow, and on the 23rd October 1911, the
administrator pendente lite instituted the present action asking for a declaration that
the partnership existing between the testator and the defendant had been dissolved by
the testator's death and for the usual partnership accounts.

2. The first question their Lordships have to decide is whether this action was at the
date of its institution barred by Section 4 of the Straits Settlements Ordinance No. 6 of
1896, being an ordinance to amend the law relating to the limitation of suits. The 4th
section of this ordinance provides that (subject to the provisions contained in Sections
5 to 25 thereof inclusive) every suit instituted after the period of limitation prescribed
therefor by the second schedule thereto shall be dismissed, provided that limitation
has been set up as a defence. The period prescribed by the second schedule in the case
of an account and share of the profits of a dissolved partnership is three years from the
date of the dissolution. The date of dissolution was in the present case the testator's
death; and unless there is something to the contrary contained in sections 5 to 25 of
the ordinance, it is not disputed that time had run prior to the institution of the present
action.

3. Reliance is, however, placed on Section 17 (1) of the ordinance, which provides that
when a person who would, if he were living, have a right to institute a suit or make an
application dies before the right accrues, the period of limitation shall be computed
from the time when there is a legal personal representative of the deceased capable of
instituting or making such suit or application. It is contended that there was no legal
representative of the testator capable of instituting this action until the appointment, on
the 7th March 1910, of an administrator pendente lite, and that therefore the period of
limitation must be computed from the 7th March 1910.

4. Assuming, but without deciding, that this is to be deemed to be a suit, which the
testator would, if he were living, have a right to institute, their Lordships have come to
the conclusion that this contention cannot be upheld. It is quite clear that an executor
derives his title and authority from the Will of his testator and not from any grant of
probate. The personal property of the testator, including all rights of action, vests in
him upon the testator's death, and the consequence is that he can institute an action in
the character of executor before he proves the Will. He cannot, it is true, obtain a
decree before probate, but this is not because his title depends on probate, but because
the production of probate is the only way in which, by the rules of the Court, he is
allowed to prove his title. An administrator, on the other hand, derives title solely
under his grant and cannot, therefore, institute an action as administrator before he
gets his grant. The law on the point is well settled : (see Comyn's Digest
"Administration," B. 9 and 10; Thompson v. Reynolds2

5. It would seem, therefore, that an executor is not only the legal representative of his
testator, but capable of instituting an action within the meaning of Section 17 (1) of the
ordinance in question. There is nothing in the ordinance to confine "legal
representative" to a person to whom the Court has actually made a grant. But in their
Lordships' opinion, the words "capable of instituting an action" mean capable of
instituting an action in which a decree might be obtained. The Will under which the
executor claims must therefore be capable of probate; otherwise the action must fail. It
has to be determined; therefore, whether the testator's will was in the present case
capable of probate in the Straits Settlements. This question depends on the Civil
Procedure Code. Ordinance No. 31 of 1907.

6. Section (3) of that Code provides that where no other provision is made by the Code
or any law in force for the time being, the procedure and practice for the time being in
force in the Supreme Court of Judicature in England shall, as near as may be, be
followed and adopted. There is nothing in the Code or in any law in force in the Straits
Settlements precluding the Supreme Court of the Straits Settlements from granting
probate of the will of a person wherever domiciled. The English practice is therefore
applicable. According to English practice, probate may be granted of the will of a
person domiciled abroad upon proof that it is a valid will according to the law of the
domicile, and that there are assets within the jurisdiction. It is not necessary that it
should be first proved in the Courts of the domicile : See "Jarman on Wills," 6th Ed.,
Vol., I, p. 7; and Robinson v. Palmer It follows that the testator's will could have been
proved in the Straits Settlements (1) because it was valid according to the law of
testator's domicile as shown by its admission to probate in the Court of the District
Judge at Madura; and (2) because there were assets of the testator locally situate in the
Straits Settlements.

7. There was a good deal of discussion before their Lordships' board as to what would
have been the result had the English statutes of limitation been applicable. This
discussion, though perhaps not strictly relevant, was useful as illustrating the
principles which ought to guide the Court, and throwing light on the meaning of the
ordinances of the Straits Settlements. For the purpose of the English statutes of
limitation, time runs from the accrue of the cause of action, but a cause of action does
not accrue unless there be someone who can institute the action. In the case of a cause
of action arising in favour of the estate of a deceased person at or after his death, time
will at once begin to run, if there be an executor, even though probate has not been
obtained, Knox v. Gye3; but if there be no executor, time will run only from the actual
grant of letters of administration : Murray v. East India Company4. It is, in their
Lordships' opinion, probable that Section 17 sub section (1) of the ordinance in
question was intended to apply to this rule. A good deal was also said as to what
would be the effect if the executor who might have instituted proceedings
subsequently renounced probate.
8. Their Lordships at first thought that this might be important for the purposes of the
present case, because it is doubtful whether one of two joint executors can properly
institute proceedings on behalf of their estate. On reference, however, to the record on
the appeal from the order of the High Court of Judicature at Madras directing probate
to be granted, it appears that S. R. M. R. Chetty'g co-executor renounced probate at
some time before August 1907. Since August 1907, S. R. M. R. Chetty was therefore
sole executor and capable of instituting the action. The three years prescribed by the
ordinance must therefore in any case have elapsed before the action was instituted.

9. The 2nd question argued before their Lordships turns upon the effect of Section 22
of the Limitation Ordinance. That section provides that when after the institution of a
suit a new plaintiff is substituted or added, the suit shall as regards him be deemed to
have been instituted when he was so made a party; provided that when a plaintiff dies,
and the suit is continued by his legal representative, it shall as regards him be deemed
to have been instituted when it was instituted by the deceased plaintiff. It appears that
after the grant of probate by the Court of the District Judge at Madura, the letters of
administration pendente lite granted to the original plaintiff in this action were
cancelled, and in lieu thereof letters of administration with the will annexed were
granted by the Supreme Court of the Straits Settlements to the appellant as attorney for
the proving executor. Subsequently, on the 14th April 1913, an order was made in the
action striking out the original plaintiff and substituting the appellant as plaintiff in the
action. It is contended that, as regards the appellant, the suit therefore must, under
Section 22 of the ordinance, be deemed to have been instituted on the 14th April 1913,
at which date the action was barred, even if it was not barred when the action was
instituted by the original plaintiff. Having regard to their Lordships' decision on the
first question, it is not, strictly speaking, necessary to decide this point. In view,
however, of its importance in practice it may be desirable to deal with it.

10. Their Lordships are of opinion that Section 22 contemplates cases in which an
action is defective by reason of the person or one of the persons in whom the right of
action is vested not being before the Court Section 133 of the Civil Procedure Code
provides against the defeat of an action on this ground, and enables the proper party to
be added or substituted. If A is the right person to sue, it would be clearly wrong to
allow him, for the sake of avoiding the limitation ordinance, to take advantage of a suit
improperly instituted by B. Their Lordships do not think that Section 22 of the
ordinance has any application to cases in which the action was originally properly
constituted as to parties, but has become defective because there has been a change or
devolution of interest. Such cases do not fall within Section 133, but within Section
169, of the Civil Procedure Code, and the proper remedy is by way of an order to
carry on proceedings, and not of an order adding or substituting parties. The proviso to
Section 22 of the Ordinance may have been inserted per cautelam, and cannot be
relied on as controlling the operative words. The difficulty really arises out of the form
of the order of the 14th April 1913. What was required was an order under Section
169 of the code, and, if the order was competent, it was competent under this section
only. Their Lordships do not think that the respondent can take advantage of the form
of order to escape liability to which he would have been subject if the order had been
made in proper form.

11. Under the circumstances, their Lordships will humbly advise His Majesty that the
appeal should be dismissed with costs.

Appeal dismissed.

Cases Referred.

   1. [1901] 2 I.R. 489 - 6 I.R.L.R. 230.
   2. [1827] 3 Car. and P. 123
   3. [1872] 5 H.L. 656 - 42 L.J. Ch. 234
   4. [1821] 5 B. and Ald. 204 - 24 R.R. 325