In the Matter of the estate of the Late Walji of Geita, 11-m-70; 26/8/71. El-Kindy, J.

 

In the Matter of the estate of the Late Walji of Geita, 11-m-70; 26/8/71. El-Kindy, J.

The applicant, the wife of the deceased who was appointed administrator of his estate together with another, applied for the removal of her co-administrator and the appointment of another on the ground that her co administrator had left

the country and his whereabouts were unknown. She asserted that as a consequence she could not administer the estate properly as she could not act without his signature. In particular, she referred to the impossibility of making payments towards the education of the children, as cheques had to be signed by the two of them. She further said that as a widow without any source of income, she wished to wind up the estate of her late husband so that the can leave for India where she intended to settle permanently.

            Held: (1) “Subsection 2 of section 49 of the Probate and Administration Ordinance, Cap. 445 provides that where the court is satisfied that, for the purposes of due and proper administration of the estate and the interest of the persons beneficially entitled thereto, it may suspend or remove an executor or administrator, except the one specified therein, and provide for the succession of another person to the office of administrator or executor and vest, in such person any property belonging to the estate. Where an application is made under this a provision, the rules (Rule 28(2) of the Probate Rules, 1963, G. Ns. 10, 107 and 369) provide that notice should be served on the person or persons to whom the grant was made. In this application, no notice was served or sought to be served on Mr. Bachu Walji. However, accepting as I do, that the whereabouts of Mr. Bach Walji is not known, it was not possible for him to be served with the requisite notice, and therefore I proceed to hear this application ex parte.” (2) “It was held in number of English cases, quoted in Halsbury’s Laws of England, third Edition. Vol. 16 at p. 274 footnotes, that the disappearance of an administrator could be sufficient cause for revoking and substituting a name of another. These authorities are not binding on this Court, but they deserve due consideration, in this application, as they are persuasive. In this case, I am satisfied that a sufficient cause has been disclosed by the applicant.”  (3) Application granted.