Ramalingam Chettiar o. Mohamed Adjwad.
Present: Moseley A.C.J., Soertsz S.P.J., and Nihill J.
RAMALINGAM CHETTIAR v. MOHAMED ADJWAD et al.
317—D. C. Colombo, 4A58.
Warranty of title—Notice to warrant and defend—Notice to mother of minorheirs and co-executor—Sufficiency of notice—Compromise by naturalguardian—How far binding on the heirs—Liability of heirs for damagesfor failure to warrant and defend.
Where notice of an action, in which title conveyed is challenged,is given to the mother, the natural guardian of the minor heirs liable onam express covenant to warrant and defend title and executrix of thelast will and testament of the minor’s deceased testator, and to herco-executor,—
Held, that the minors were bound by the result of the action.
Where, as the result of such a notice, a compromise is entered intobetween the mother as natural guardian and co-executrix and the otherco-executor on the one hand and the party giving notice on the other,the compromise would be binding on the minors subject to a right toclaim restitution if they have been prejudiced by the compromise.
The liability of the heirs depends upon proof that administration hasbeen completed by the executors and that property belonging to theestate has passed into their hands and is limited to the extent of suchproperty.
HIS was an action to recover damages brought by the vendee ofa certain land against the heirs of the vendor for failure to warrant
and defend title. The heirs were the wife of the vendor, who was alsoexecutrix of the last will of her husband, and her minor children.
The defendants pleaded (a) that they were not properly noticed towarrant and defend title; (b) that at the time the action for eviction wassettled, proper steps had' not been taken to secure their valid participationin the. settlement; (c) that plaintiff’s claim, if any, was against theexecutors. –
The learned District Judge entered judgment for the plaintiffs.
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and E. B.Wikremanayake), for defendants, appellants.—The cause of action is setout in the plaint. It is one which is not known to our law.
There is no plea of express warranty of title in the plaint. The plaintmerely states that there was a covenant by Marikar to warrant anddefend title. Although there had been a warranty of title, the presentaction is not based on a breach of it. If the action is on an expresscovenant it is necessary to plead a breach of it. The trial Judge has notappreciated the difference in legal effect between a covenant to warrantand defend title and an express warranty of title. He has thought thatthe two things are the same or are different aspects of the same thing.It is clear that the present action is, in reality, based on the covenant towarrant and defend title. The defendants, therefore, should have beengiven proper notice in the previous action relating to the same property.In the former action the two executors were noticed to appear not asexecutors but in their personal capacity. The present defendants toowere noticed, but at that date they were admittedly minors; the notice,therefore, should have been served on a duly appointed guardian ad litem.The resulting legal position is that the present defendants cannot be said
50Ramalingam Chettiar v. Mohamed Adjioad.
to have consented to the settlement in the former action. The provisionsof section 500 of the Civil Procedure Code were not complied with.
Further, the wrong persons have been sued. It was the estate, i.e., theexecutors of the vendor who should have been made defendants—see section 472 of the Civil Procedure Code. On this ground alone, theappeal ought to succeed. The present defendants are only two of thethree heirs of the deceased. Nor is there any evidence as to what theirshare of the inheritance is. There is no reason why they alone of theheirs should be liable for the debts of the testator. One of the defendantsis a minor. A minor cannot adiate an inheritance and is not liable to besued for the debts of the ancestor (Robert v. Abeywardene et al.').
N. E. Weerasooria, K.C. (with him N. Nadarajah), for plaintiff,respondent.—There was no mistake in the-District Court as to what thisaction was. The action was on the deed of sale. In the deed, there werethe two covenants, viz.:—Warranty of title and covenant to warrantand defend title, and we are entitled to rely on both. That we relied onthe former covenant also is manifest from the fact that the very firstauthority which was cited in the District Court on plaintiff's behalf wasDingiri Amma v. Mudiyanse et al.1 That case decided that expresswarranty of title may be enforced without the preliminary condition ofnotice and eviction.
In regard to the covenant to warrant and defend title, the notice to theexecutors in the previous case should be taken as notice to the minors.Alternatively, the notice to the mother (one of the. executors) wassufficient, as a mother is the natural guardian of her minor children—Voet 21.2.21 (Berwick’s Translation, p. 527).
At the trial no isue was raised by the defendants whether the executorsshould have been sued. “ Should this action be brought against theexecutors, and not against the heirs? ”—such an issue might have beenraised. It is probable that the testamentary case is over and that theexecutors are not functioning now. The position, however, is thatthe defendants are heirs under the will. They became liable as soon asthe property vested in them. We are only asking that our claim shouldbe limited to the amount which the defendants actually received underthe will. All the relevant facts are before the Court and there is noreason why justice should be denied. See dictum of the Privy Council inJayawickreme v. Amarasuriya’.
H. V. Perera, K.C., in reply.—As regards the proper party to be sued,the executor only is responsible for the debt of the estate. An executornever ceases to be executor—section 540 of the Civil Procedure Code.Heirs can be sued only as executors de son tort. But once executors areappointed, the executor de son tort is displaced. In the present case, boththe executors are alive. Administration involves the payment of debtsand goes on until all the debts are paid off (Suppramaniam Chetty et al. v.Palaniappa Chetty et al. ) The executors represent the heirs always.
Cur. adv. vult. *
(1912) 15 N. L. R. 323.
(1931) 33 N. L. R. 282.
* (1918) 20 N. L. R. 289 at 297.« (1904) 3 Bed. Rep. 57.
SOEBTSZ S.P.J.—Ramalingam Chettiar v. Mohamed Adjwad.
October 23, 1938. Soertsz S.P.J.—
By deed No. 593 dated October 13, 1926, Thambirajah Sinne LebbeMarikar sold a block of land 37 acres 2 roods and 23 perches in extent toRamalingam Chettiar, and the vendor for himself, his heirs, executors,and administrators declared, covenanted, and agreed with his vendee—
that he had good and legal right and title to the land conveyed, and
undertook that he and “ his aforewritten shall and will at all timeshereafter warrant and defend the same and every part thereof untothe said vendee and his aforewritten against any person or personswhomsoever
On May 5, 1927, the incumbent of a Buddhist Vihare sued RamalingamChettiar for declaration of title to this land. The trial Judge found in hisfavour, but awarded Ramalingam Chettiar compensation for certainimprovements. There was an appeal. The decree entered was set asideand the case was remitted for trial de novo.
While the retrial was pending, Ramalingam Chettiar, through hisProctor, moved for a notice on four respondents “ to show cause why thefirst respondent should not be appointed guardian ad litem over thesecond and the third minor respondents, and to warrant and defend thepetitioner’s (i.e., Ramalingam Chettiar’s) title ”. Notice was allowedfor June 30, 1932. The journal entry of that date is as follows: —“ Notice served on respondents pointed out. Mr. C. files proxy of thefirst and fourth respondents. He has cause to show. Second and thirdminors ”. The first respondent is the widow of Tambirajah Sinne LebbeMarikar the vendor, and she is co-executrix with the fourth respondentof her husband’s last will and testament. The second and third respond-ents are her children by Sinne Lebbe Marikar. It is to her and herchildren that Sinne Lebbe Marikar bequeathed and devised his estate.It will be noticed that although the motion of November 15, 1932, askedthat the first respondent be appointed guardian ad litem of the second, andthird respondents, that was not done. But, there was really no occasionfor such an appointment, for all Ramalingam Chettiar had in view at thatstage was to notify the respondents of the action brought against him, sothat they might take such steps as they thought fit to warrant and defendhis title. The necessity for a guardian ad litem for the minors would havearisen only in the event of their becoming parties to the litigation. Thisthey never became, for when on March 23, 1933, Ramalingam Chettiar’sCounsel inquired whether respondents would “ take charge of thedefence ”, the first and the fourth respondents said they would afford himevery assistance, that is without becoming added parties to the litigation.
On May 12, 1933, the case came up for trial, and the proceedings of thatday are recorded in these terms. “ Parties noticed present. Substitutedadded plaintiff present. Mr. B. for the plaintiff. Mr. P. and Mr. A.for first defendant. Mr. P. for parties noticed by first defendant towarrant and defend title. With the consent of the parties noticed,plaintiff and defendant have settled the case as follows:—Judgment fortrustee for 12£ acres ”…. This settlement resulted in Rama-
lingam Chettiar losing 12J acres of the land sold to him, and he institutedthe present action against the defendants-appellants who were the minorrespondents referred to in the journal entries I have quoted, to recover
SOERTSZ S.P.J.—Ramalingam Chettiar v. Mohamed Adjwad.
Rs. 15,000 at which sum he assessed the damages sustained by him. Hiscause of action was that the defendants-appellants being liable to warrantand defend the title conveyed to him, and having been duly noticed to doso, had failed to fulfil this obligation in respect of the 12J acres whichhad gone to the temple in consequence of the settlement to which theyconsented.
The defendants-appellants filed answer, and the defences they putforward were—(a) that they are not liable because they had not beenproperly noticed to warrant and defend title; (b) that at the date of thesettlement they were minors and proper steps had not been taken tosecure their valid participation in the settlement, and that, therefore,any loss occasioned by that settlement could not be imputed to them;(c) that, in any event, they were not liable because the plaintiffs’ claim,if he had any, was against the executors of Sinne Lebbe Marikar.
Issues were framed to cover these defences and after trial, the learnedtrial Judge entered judgment for the plaintiff for Rs. 11,954.17 andcosts.
In regard to plea (a) in one part of his judgment, the learned Judge heldthat this was an action on an express warranty of title and that, therefore,notice and eviction were not conditions precedent to a claim for damagessuch as this. In a later part of his judgment he found that the defendantshad been given sufficient notice. As for plea (b) it is difficult to gatherthe view of the trial Judge in regard to it. I can only say that he foundagainst the defendants but I cannot follow the reasoning which led himto that view. So far as plea (c) is concerned, he held that “ the defendantsas heirs of the vendors are liable to warrant and defend the title conveyedby the deed in view of the express warranty of title ”.
I understood from Counsel who appeared before us that these were thematters discussed when this appeal was before my brothers Wijeye-wardene and Cannon JJ., and in view of the general terms of thereference to us, I assume that these are the questions we have been calledupon to decide.
I will deal with these pleas in the order in which I have set them forth.The deed of conveyance to Ramalingam Chettiar contained both anexpress warranty of title and a covenant to warrant and defend the titleconveyed, and it was open to the plaintiff to frame his action on one orother or both of these. If he chose to proceed on the express warranty oftitle, all he had to prove in order to sustain his claim for damages was thatthe vendor had not a good title. He was under no obligation to wait tillthat title was disputed or challenged, or till he was evicted, nor was heunder any obligation to give his vendor or those liable on the expresswarranty, notice of the defect in the title or of any threat to it. Ifhowever, he was basing himself on the covenant to warrant and defendtitle, he would have no cause of action against his vendor or against anyothers liable on the covenant, till he had suffered judicial eviction inconsequence of litigation of which he had duly apprised them. In thisinstance, the plaintiff appears to have failed to appreciate this difference.This failure on the part of the plaintiff seems to be shared by the learnedJudge himself, and the view taken is that the covenant to warrant anddefend title is dependent on the express warranty of title. In other
SOERTSZ S.P.J.—Ramalingam Chettiar v. Mohanted Adjwad.
words, that the two things are counterparts of one single obligation.That, of course, is not correct, and Mr. Weerasooria sought to escapefrom the difficulty created by this confusion of thought by submittingthat this action is based on both the express warranty of title and on thecovenant to warrant and defend title. It is impossible to accede to thissubmission. Paragraphs 3, 5, 8, 9, and 10 of the plaint show unequivocallythat the cause of action is based on the covenant to warrant and defendtitle. There is no reference whatever to the express warrantly of title.
This action, then, being on the covenant, to warrant and defend titlethe question is whether the defendants, if they are ultimately liableon this covenant, had proper notice of the action in whichRamalingam Chettiar’s title was challenged. It was contended beforeus that the notice alleged to have been served on the defendantswas ineffective, whether the service be regarded as effected on themother of the defendants for and on their behalf, or on the defendantsthemselves. It is urged that in view of their admitted minority atthat date, the proper course would have been to serve the notice on aduly appointed guardian ad litem. I am unable to agree with thiscontention. As I have already pointed out, a guardian ad litem isrequired only in cases in which it is sought to sue minor defendants.The plaintiff was not seeking to sue these defendants. Indeed, at thatstage, he had no cause- of action against them. He was taking steps toarm himself with a cause of action by giving them notice of the actionbrought against him. It was at their option whether they would takesteps to have themselves added as defendants so that they might takecontrol of the litigation. The journal entry of March 23, 1933, shows thatthey did not choose that course. In those circumstances, my view is thatthe service of notice effected in this case is sufficient to bind the defendantsfor two reasons, firstly, because there was service on their mother whowas their natural guardian, and secondly because there was, in effect,service on the executors of the estate of Sinne Lebbe Marikar. VanderLinden in his Institutes of the Laws of Holland, Chapter 4, section 1, says,“ this parental power with us is possessed not only by the father but alsoby the mother, and after the death of the father, by the mother alone..It consists of the entire direction of the maintenance and education oftheir children and the management of their estates But, over and abovethat service, there was in this case service of the notice of the earlieraction on the executors of the last will and testament of the testator whoseestate was sought to be charged with liability for the plaintiff’s claim. Itis true that in the petition filed for the purpose of giving notice, theexecutor and executrix were not described in the caption as such, nor didthey so describe themselves in the proxy they gave to their Proctor.But it seems clear that the petitioner when he sought to give them notice,envisaged them as executor and executrix. Paragraph 4 makes thatquite clear. It says “ the said Thamby Rasa Sinne Lebbe Marikar diedleaving a last will and appointing Sitti Nabisa and Ahamadu LebbeMarikar Mohamed Ameen as executors and giving and devising hisproperties to the said Sitti Mohamed Ajwad and Sitti Pathumma bothof whom are minors and his estate was administered in D. C. Colombo,case No. 3,368". Moreover, Ameen’s liability to warrant and defend
SOERTSZ S.P.J.—Ramalingam Chettiar v. Mohamed Adjtoad.
title is ascribable only to his executorship. There was no other reasonfor making him a respondent. In these circumstances we must, I think,pay attention to the substance of the proceeding more than to its formand hold that, in this case, there was service of notice on the executorand the executrix. Such a service clearly binds those beneficiallyinterested in the estate. The fact that the plaintiff sought to give noticeto the minors themselves makes no difference. It is surplusage and canbe ignored.
In regard to (b), the authorities indicate that the natural guardian ofthe minor is entitled to enter into a compromise on his behalf, and that theminor would be liable on such a compromise subject to his right to claimrestitutio-in-integrum, within a certain period if he has been prejudiced bythe compromise. In this instance, no prejudice is alleged. On the faceof it, the compromise appears to be beneficial to those liable on the deedon the express warranty and on the covenant to warrant and defend title.The temple sought to be declared entitled to the whole land, and by thecompromise, obtained only one third of it. In the first trial they hadjudgment for the whole land. That is one view of the matter. Thedefendants are bound by the compromise in that way. But, as I havealready indicated there is another view according to which they must beheld to be bound. The record shows that their mother and the otherexecutor consented to the compromise.
I need only add that this is not a case to which section 500 of the CivilProcedure Code, to which reference was made, applies because NabisaAmmah and her children were not parties to the action.
The only question left for consideration is (1) whether although thedefendants were properly noticed, and must be held to have consented tothe compromise or to be bound by the consent given on their behalf, theyare liable in damages for the loss sustained by the plaintiff in consequenceof that compromise, on the action as it is framed at present. The learnedtrial Judge held “ that the defendants as heirs of the vendor are liable inlaw to warrant and defend the title conveyed by the deed ”. This, in myview, is much too wide a proposition and cannot be supported. Itsaddles devisees and legatees or those who would have been heirs in theevent of an intestacy with absolute liability for all the debts and obliga-tions of their testator or intestate. The defendants are two of the threeheirs of the plaintiff’s vendor. They are intended to take under his will.But, there is no allegation in the plaint, nor is there any evidence, thatthere is in their hands property of the testator sufficient to cover the claimmade by the plaintiff or any part thereof, and in these circumstances, Ifail to understand the legal basis on which this'liability is founded. Toseek to fix the defendants with liability by a bare allegation that they areheirs is to relegate tfiem to the position occupied by the heres suus etnecessarius, and the heres necessarius, of the early Roman Law, as theuniversal successor of his testator or intestate. In the later Roman Law,the position of an accepting heir, was that he was liable only to the extentof the assets in his hands. Maasdorp in his Institutes of Cape Law,volume 1, page 106, et seq (2nd edition) says that the: later Roman systemwas adopted in the United Provinces and became the common law of the
SOERTSZ S.P.J.—Ramalingam Chettiar v. Mohamed Adjwad.55
Cape Colony till it was swept away by statute law. He says “at thepresent day, the administration of the estate of a deceased person devolvesno longer upon his heir but is vested in testamentary executors whoseduty it is to liquidate the estate under their care,’ to pay the debts of thedeceased and the legacies left by them, and to hand over the nett balanceof the estate to the heir who is only liable for the payment of such legaciesas may have been imposed upon him by will …. The inheritanceis the nett balance of the estate of a deceased person which is left after thedebts and legacies have been paid …. The heir, therefore,• isonly a residuary legatee and is in no worse position as regards the debts• of the deceased testator than any other legatee with this exceptionthat he will before all other legatees be liable, at the suit of the executor, toa conductio indebiti or action for refund for any money paid to him insettlement of his inheritance before the debts of the testator were fullypaid, and also to a direct action for such refund at the suit of the creditors ofthe deceased; but beyond what he has actually received out of the estate hewill not be liable This is the position in our law too. Section 540 of theCivil Procedure Code provides that “ if no limitation is expressed in theorder making the grant (i.e., of probate) then the power of administrationwhich is authenticated by the issue of probate …. extends toevery portion of the deceased person’s property …. and enduresfor the life of the executor …. or until the whole of the saidproperty is administered, according as the death of the executor ….or the completion of the administration, first occurs ”. In this instance,both the executor and executrix appointed by the will are alive, and it isnot at all clear to me why the plaintiff singled out these defendants whowere the minor heirs, and one of whom is still a minor to make his claimagainst. Be that as it might, a direct action will lie against the heirs onlyif the administration of the estate has been completed by the executors, .and property belonging to the estate of the deceased testator has passedinto the hands of the heirs, and they would be liable only to the extent ofthe property that has so passed. But as I have observed, there is nomaterial on the record to show that the executors have completed theiradministration, and that property belonging to the deceased vendor hasdevolved on these defendants, while this claim against his estate isoutstanding. In that state of things, no case has been made out againstthese defendants, and the judgment entered against them cannot besustained.
I have considered carefully the question of what the order should be onthis appeal, and I have come to the conclusion that, in all the circum-stances, the fairest course would be to set aside the decree entered in theCourt below and to remit the case to enable the plaintiff, if so advised,to allege and prove the facts upon which he fixes the defendants directlywith liability on his claim. For this purpose, an amendment of thepleadings will be necessary. The plaintiff must, however, as a conditionprecedent, pay to the defendants all the taxable costs incurred by themup to date. If the plaintiff does this and files an amended plaint withintwo months of this record being received back in the trial Court, the casewill proceed to trial in due couse. If he fails to comply with theseconditions, the District Judge will, on the expiry of the two months’
de Silva v. Rosinahamy.
period, send the" case back for decree to be entered here, allowing theappeal and dismissing the plaintiff’s action with costs in both Courts.
I need hardly add that this order does not preclude the parties fromcoming to a settlement if they so desire.
Moseley A.C.J.—I agree.
Nihill J.—I agree.
Set aside. ,Case remitted.
RAMALINGAM CHETTIAR v. MOHAMED ADJWAD et al