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August 28.EKANAYAKA v. APPU et ad.
D. G., Tangalla, 465.
Administrator of intestate estate—When functus officio—Sale by Fiscalin execution against administrator—Final account of administra-tor—Right of heirs to deal with acaets of the estate.
An administrator appointed by Court to administer the estate of adeceased person has power over every portion of his property withinthis Colony, and it endures for the life of the administrator or untilthe whole of the estate is administered.
The rendering of a final account, much less an account that is notfinal in fact, does not make him functus officio, without a judicialsettlement or a formal discharge or removal from office.
When a creditor holds a judgment against the administrator, theassets of the testator cannot be held or disposed of by the heirs totheir advantage or to his detriment.
TZJLAINTIFF in this case, claiming to be the owner of a fieldby virtue of a deed of sale made in his favour on the 16thNovember, 1896, by the Fiscal of Matara, who auctioned the landon the 10th May, 1890, under writ issued in case No. 33,520, C. R.,Matara, wherein the defendant was the official administrator ofone Tillekaratna who had died intestate in 1883 complained ofouster by first, second, and third defendants in June, 1896, andprayed for ejectment and declaration of title in his favour.
The defendants claimed the land as purchasers under thebrothers and sisters of the said Tillekaratna.
It appeared that the estate of Tillekaratna was administered bythe Secretary of the District Court; that in his final account filedin January, 1887, this land did not appearas one of the propertiesof the intestate on the supposition that it was subject to a fideicommissum; that that supposition was not well-founded, becausethe Supreme Court had decided in March, 1890, in case No. 35,584,D. C., Matara, that Tillekaratna took an absolute estate under thedeed of gift; and that an application to revive judgment in C. R.-,Matara, 33,520, and to issue writ in 1888, was allowed, notwith-standing the objection of the administrator that as he had filed hisfinal account he was functus officio.
The District Judge found that the seizure and sale to plaintiffof the land under writ No. 33,520 void, “ because at the time of“ the seizure the writ issued against a person that was not existing“ and the land seized was the property of third and innocent“ parties,” viz., the defendants in the present case. He dismissedplaintiff’s action and gave judgment for the defendants for the land.
Dornhorst, for appellant.
Bawa, for respondent.
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The Supreme Court set aside the decree of the Court below andgave judgment for plaintiff with costs, as follows :—
28th August, 1899. Lawbie, A.C. J.—
The issue, whether the land in question was liable to be sold forthe debts of Henry Dedrick Tillekaratna, must be answered in theaffirmative. I do not understand that the District Judge thoughtotherwise. He dismissed the action on another ground. He heldthat the land could not be sold in May, 1890, under the writ againstMr. De Silva, official administrator of the estate of Henry DedrickTillekaratna, because the land had never been administered bythe administrator as part of the estate, and at the date of the salehe had ceased to be administrator and the land had passed intoother hands.
I understand that the official administrator had not includedthis land in inventory; he was of the opinion that it was under afidei commissum, and on the death of the intestate that it passedto the substitutes.
On the footing that he had fully administered the whole estate,he filed a final account in 1887. In February, 1890, it was decidedby this Court (in appeal in D. C., Matara, 35,584) that the landwas not subject to any fidei commissum, and shortly afterwards(in May, 1890) the land in claim was sold under a judgment obtainedin 1883 against the administrator and was purchased by theplaintiff.
The 540th section of the Civil Procedure Code (in my opinion)does not enact new law; it states the law then and now existing ;the power of the administrator, which is authenticated by theissue of probate, or is conveyed by the issue of a grant ofadministration, extends to every portion of the deceased person’sproperty, movable and immovable, within this colony, andendures for the life of the executor or administrator or until thewhole of the estate is administered, according as the deathof the executor or administrator, or the completion of theadministration, first occurs.
There is no virtue or magic in calling an account a final accountif it be not in fact and law final. There was in the officialadministration of Henry Dedrick Tillekaratna’s estate no finaljudicial settlement, nor any discharge, nor removal from office ofthe official administrator.
At the sale in May, 1890, he was still administrator vested in allthe property of the deceased. Title to this land passed to thepurchaser.
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' The parties:agreed to limit the!issue to’be tried to one of title.The defendants purchased in 1884; and the District Judge is ofopinion that they remained in possession until the institution ofthis action in January, 1898 ; but though, the defendant pleadedprescription, the issue was framed, and on the only issue framedthe plaintiff certainly must succeed.1
I would set aside and give judgment for plaintiff witli costs.
Browne, A.J.'— ■1‘ "i.i 1
In execution, of a unit against the official administrator of theestate of D. H. Dassanaiko Tillekaratna, the land in question wasauctioned by the Fiscal on the 10th May, 1890, when plaintiff wasthe highest bidder, and the Fiscal conveyed it to him on the 16thNovember, 1896.. .
. It is stated to us that the judgment against the administratorwas entered in 1883.
The defendants claimed under title derived by deeds from thehoi^s of the intestate executed in February and June, 1884, so faras any of the same filed of evidence shows. The heirs or thoseclaiming under them had objected to the revival of the judgmentagainst tho administrator in 1888, but the execution of the writwas allowed.
The claim of title by the plaintiff is now resisted solely on theground that (to quote tho learned District Judge) in 1888 theSecretary (official administrator)* was functus officio: that heshould have been allowed to pro've that fact in 1888 ; and that theplaintiff should have sued the heirs of the estate to recover anyclaim he had. I cannot see how this can be advanced in any wisewhatever, if he had obtained (as would appear) decree against theadministrator in 18S3.
Nor’do 1 know that an administrator qua creditors of the estateever becomes fundus officio. Limitations of his liability to heirsor creditors by efflux of time or by judicial settlement, &c., mayarise in his favour, and so, too, possibly like limitation of his rightsagainst heirs or others in possession of the assets of the intestate ;but so long as his original duty and liability have not been soterminated, they, in my judgment, are capable of being exercisedin the fullest degree by or against him. And when a creditorholds a judgment against him still of full force, the assets of thetestator cannot be held or disposed of by the heirs to his detrimentand their advantage.
I would set'aside tho dismissal and enter judgment for plaintiffas prayed with costs.
EKANAYAKA v. APPU et al