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Present: Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWood Renton, and Mr. Justice Grenier.
SILVA u. SILVA et al
D. C. Kandy, 17,764.
Heirs, . rightsof •—Administration—Concurrenceof administrator un-necessary—Vesting of property inheir—Extent of administrator's
title—Conveyance by minor—Ratification after attaining majority.
Title to immovable property belonging to the estate of a deceasedperson does not vest in the administrator of the estate of suchperson; and a conveyance by the heir of the deceased without theconcurrence or assent of the administrator is valid, subject to theright of the administrator to deal with the property for purposesof administration.
HutchinsonC.J.—Thepersonal representative retains the
power to sell the property for the purposes of administrationbat his non-concurrence in the conveyance by the heirs does nototherwise affect its validity.
Gbenibr A.J.—On. the death of a person his estate, in theabsence of a will, passes at once by operation of law to his heirs,and the dominium vests in them. Once it so vests they cannotbe divested of it, except by the several well known modes recognizedby law.
Dictum of Bonsbr C.J. in Fernando v. Dochchi1 disapproved.
CTION rei vindicatio. Don' Lewis de Silva/was the owner of theproperty in dispute; he died in August, 1903, leaving as
his heirs his brother-, the first defendant, and Mendis Appu, hisnephew ; letters of administration to his estate were grantedto the first defendant by the District Court of Kandy in caseNo. 2,321. Mendis Appu, who was then a minor, by deed No. 7,786,dated 24th March, 1905, registered on 25th March, 1905, sold toplaintiff one-half share of the property. Mendis Appu, afterattaining tKe age of majority, by his deed No. 1,359, dated 25thJanuary, 1906, confirmed the sale to the plaintiff in these terms:“ I do hereby declare that I have sold, assigned, and transferred
the landsin .the schedule hereto described to Gardiye Mana-
waduge Nonis de Silva, his heirs, executors, administrators, andAssigns, and that I have no further- right or interest* therein, and• that I shall warrant and defend the same to him and them for eyer.On 6th February, 1906; the estate of the deceased was judiciallysettled, and Mendis Appu, as an heir of the deceased, was declaredentitled to half share of the estate. The first defendant claimed title
i (1901) 5 N. L. R. 15.
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to the said half share by virtue of transfer No. 7,399, dated the fithApril, 1906, executed by the said Mendis Appu; and the seconddefendant claimed to be a mortgagee with possession under the firstdefendant.
The following issues were framed at the trial: —
Are the deeds pleaded by the plaintiff bad and invalid in
law, and do they convey any title ?
Whether the defendants are estopped from raising the
objection that the plaintiff's title deeds are invalid inlaw ?
The District Judge (J. H. Templer, Esq.) held as" follows: —
“ This case is one of no little difficulty. There can be no doubtthat G. P. H. Mendis Appu by his deed No, 7,786 on 24th March,1905, conveyed his half-share in ten lands to the plaintiff. Mendis. Appu, it is admitted, at that date was a minor, and he appears atthat by his deed No. 1,359 of 25th January, 1906, Mendis Appu,favour for the lands in question. There can be no doubt eitherthat by his deed No. 1,359 of 25th January, 1906, Mendis Appu, .having then attained his majority, confirmed his sale of the landsin question to the plaintiff. Meanwhile he had applied for andon 6th February, 1906, he obtained from this Court an order in.the testamentary suit declaring him entitled to a half share of thelands in dispute, and thereafter in fraud of his two deeds to theplaintiff he executed a conveyance of all his interest in the landsin question to his uncle S. T. D. E. S. Silva.
“ Mr. LaBrooy, for the defendants, raised the legal point whetherplaintiff took, anything’ under his deed and the deed of confirmation,and this was the real issue in the case.
“ Mr. Beven, for the plaintiff, has urged that section 115 of theEvidence Ordinance estops the defendants from raising this objection,and I am asked to decide this point first. 1 must over-rule thisobjection, as I do not think section 115 of the Evidence Ordinanceapplies to the state of facts presented in this case. And, howeverfraudulent the conduct of Mendis Appu may have been, it seemsto me it is open to the defendants to take the objection they havetaken.
“ It was admitted in argument that a deed from a minor duringhis minority is void and not voidable, and the next question I haveto decide is, Can such a deed be confirmed by the minor when hecorned of age? I am of opinion that .the original deed being void,it cannot be confirmed by the minor when he comes of age, andI must find this issue also against .the, plaintiff.*
“I have now to deal with the last point taken by Mr. Beven:Does the deed of confirmation No. 1,359, which was registered on9th April, 1906, one day before the first defendant's deed for thesame lands was registered of itself, constitute a conveyance of the
1907.July lm ‘
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1907. lands in question to the plaintiff independently of that portion ofJuly 1. the deed which confirms the conveyance No. 7,786 ? – The languagerelied on runs as follows :—‘I do hereby declare that I have sold,
assigned, and transferred the landsin the schedule hereto
described to Gardiye Manawaduge Nonis de Silva, his heirs,executors, administrators, and assigns, and that I have no furtherright or interest therein, and that I shall warrant and defend thesame to him and them for ever/
“ Now, if the language used had been * I do hereby sell, assign,and transfer, * that is, present instead of past, there can, I think,be no doubt that this deed would have amounted to a conveyanceindependently of the deed No. 7,786, and although it may be con-tended that the use of the past shows an intention on the part ofthe grantor to refer thereby to the deed No. 7,786, I think it opento the construction Mr. Beven has put upon it, and that it may beread as though it ran * and I hereby declare that I have this daysold,' &c. The lands in dispute are all given in full in the scheduleto this deed No. 1,359, and this would have been unnecessary hadthe sole object of the deed been to confirm deed No. 7,786. Iuphold deed No. 1,359 as giving title to the plaintiff independentlyof the dee'd No. 7,786 to' the lands in dispute.
“ I have now to deal with *Mr. LaBrooy’s last objection, viz., thatas Mendis Appu claimed as one of the heirs of his uncle's estate,he could not convey to the plaintiff until he himself had obtained aconveyance in his favour from the administrator, and he citedFernando v. Dochchi 1 and D. C., Kandy, No. 14,383, in supportof this contention. I do not think either of these cases apply tothe present case. Both these cases were cases where administrationhad not been taken out, whilst in the present case not only hadadministration been taken out, but Mendis Appu had actuallyobtained a judicial settlement in his favour for .the lands in questionunder chapter LV. of the Civil Procedure Code in the course of thatafore-mentioned administration proceedings.
“ I do not think that the fact that the actual date of the judicialsettlement is 6th February, 1906, whereas the date of deed No. 1,359>is 25th January, 1906, made any difference, as on the 25th January,1906, Mendis Appu's. title, though incomplete until the Judge'sorder had established it, nevertheless had a marketable value asa chose in action, and the judicial settlement subsequently madewould ensure to the benefit of the purchaser.
“ I must presume for the purposes of this case .that the procedurelaid down in chapter LV. of the Civil Code has been followed m. thetestamentary case, and that the Judge's order of the 6th Februaryr1906, is equivalent to a decree under section 740 of the Civil Code.
i (1901) 5 N. L. R. 15.
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“ Accordingly, I give judgment for the plaintiff with costs-1907;
The defendants appealed.
H. A. Jayewardene (with him E. W. Jayewardene), for theappellants.
Van Langenberg (with him Bawa)> for the respondent.
Cur. adv. vvlt..
1st July, 1907. Hutchinson C.J.—
The plaintiff claims an undivided half of immovable propertywhich formerly belonged to Don Lewis de Silva. De Silva diedintestate in 1903, leaving as his heirs his brother (first defendant)and his nephew Mendis Appu, and letters of administration to his*estate were granted to the first defendant.
On 24th March, 1905, Mendis Appu, whilsjb still a minor, purportedto sell and by deed of that date to convey his one-half of theproperty to the plaintiff. This deed was registered on the 25th-March, 1905.
On the 25th January, 1906, Mendis Appu by deed of this date,after reciting this former deed and that he had since attained hiamajority and wished to confirm the sale, declared that ‘ I herebyratify and confirm the deed No. 7,786, dated 24th March, 1905,.and the sale and conveyance thereby effected; and I do herebydeclare that I have sold, assigned, and transferred the lands therein
mentioned, viz., , to G. M! N. de Silva
and that I shave no'further right or interest therein/' This deedwas registered on the 9th April, 1906.
On the 6th February, 19U6, the District Court of Kandy madean order in the testamentary action that the administrator “ render‘ his account on the footing that he and Mendis Appu are the heirs ofthe deceased, and are each entitled to a half share of- the deceased’s-estate.
On the 5th April, 1906, Mendis Appu sold and by deed of that« date conveyed to the first defendant the same share which he hadpreviously sold to the plaintiff; and on .the same day the firstdefendant mortgaged it to the second defendant. This conveyanceto the first defendant was registered on the 10th of the same month.
The defendants claimed under the deeds of .the. 5th April, 1906;and contended that the first conveyance to the plaintiff was void ,because Meddis Appu was then a minor, and that the deed of*,ratification was void because a void conveyance cannot be rati-fied, and that, moreover, both the deeds on which the plaintiff relied*would have been ineffectual, even if Mendis Appu had been of fullage at the date of the first of them, because no conveyance from tte-administrator had been obtained.
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1007. The District Judge heard and decided the above points withoutaDly evidence except that of the documents. He held (1) that theHutchinson defendants were not estopped by section 115 of the Evidence CodeC*J' from setting up the above defence; (2) that the deed of the 24thMarch, 1905, was void, and therefore could not be ratified; (3)that the deed of the 25th January, 1906, amounted to conveyance;(4) that a conveyance by the administrator was not necessary. Onthese rulings he gave judgment for the plaintifE; and the defendantsnow appeal against that judgment.
No question of fraud on the part of the defendants was raisedat the trial; and therefore, although the first conveyance to theplaintiff was registered a year before the first defendant's purchase,and it seemed unlikely that the defendants were ignorant of theplaintifE’s purchase, we must assume that the defendants paidtheir money in good faijh, and that this is a contest as to which oftwo innocent persons must suffer for the fraud of Mendis Appu.By the deed of 25th January, 1906, Mendis Appu says in effect:
“ The former deed was ineffectual because I was then a minor;
1 want to confirm it; and I accordingly declare that I have soldand conveyed the property to De Silva.” In my opinion theDistrict Judge was right in holding that it was in effect a conveyance..
The objection that it was' ineffectual because the administratordid not concur in it is founded on a dictum of Bonser C.J.,1 in whichhe repeats what he had said in a previous case a few days before:" It seems to me that if a person desires to prove title to property,and finds it necessary to deduce title to that property either fromor through a former owner who died intestate, he must prove oneof two things, either that administration has been takeh out to theintestate and that the administrator has conveyed the intestate’s'estate to him or to his predecessor in title, or that the intestate’sestate was 6f less value than Rs. 1,000 so that administration wasunnecessary. ”
A grant of administration empowers the administrator, accordingto the common form, ” to administer and faithfully dispose of theproperty aijd -estate, rights, and credits of the deceased.” Bysection 540 of the Civil Procedure Code “ the power of administration,
which isconveyed by the issue of a grant of administration,
extends to every portion of the deceased person’s property, movableand immovable,and endures for the life of the administra-
tor or until the whole of the said property is administered-.” Doesthat mean that when the administrator has discharged«^afl the debtsand liabilities and has handed over to the heirs or allowed them totake the movables and has filed his accounts and obtained a judicialsettlement of them there is s.till something else for him to do, viz., i
i (1901) 5 N. L. B. 15.
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that tibe immovables are still vested in him and he must convey 1907.them to the heirs ? I do not find any enactment vesting theimmovables in the executor or administrator. Section 547 of the hutchiksomCivil Procedure Code enacts that no action shall be maintainable C.J.for the recovery of any property belonging to the estate of thedeceased (where the estate amounts to Bs. 1,000) unless grant ofprobate or letters of administration duly stamped shall have firstbeen issued to some person as executor or administrator, and that,if any such property is transferred without probate or administra-tion being first taken out, the transferor and transferee shall beliable to fine and to pay the costs of the stamps which ought tohave been affixed to the probate or letters of administration.
There is nothing there to vest the property in the executor oradministrator; and in fact it has been held by the Full Court inDe Kroes v. Don Johannes,l following an earlier case, that noassent on the part of the executor is required to pass to the deviseethe immovable properly specifically devised by the will.
We are asked to hold, not merely that an alienation by the heirwithout the administrator's concurrence does not deprive theadministrator of his power to resort to the alienated property, ifnecessary, for .the purposes of the administration, but that thealienation is absolutely void. The dictuna of Bonser C.J. to thiseffect was quite unnecessary for the decision of either the case in5 N. L. R. 15 or the Kandy case there referred to; in the latter caseLawrie J. founded his judgment on the short point (which had notbeen taken in the Court below) that the case was one within section547, and that the action was not maintainable, because no probateor administration had been taken out; and that was the only pointin either of those two cases.
In a case reported very shortly in Ram, 195 (1866) the adminis-trator was ordered to join in a conveyance, because “ nothing hasoccurred to divest the administrator of the legal estate which isvested in him by the letters of administration"; but it does notappear what the property was, and no reasons are given.
In Ram. 273 (1867) the- Supreme Court said that, since theCharter of 1833, which gave power to District Courts'*.to appointadministrators and grant probates, the law of executors andadministrators is the English Law. And .the Judicial Committee ofthe Privy Council in the judgment in Qavin v, Hadden* said:
“ It is stated in the judgment in Ceylon (and the form of the pro-bate and ail the proceedings in this case with which they have beefifurnished show their Lordships that it is correctly stated) that anexecutor in Ceylon has the same power as an English exocutor, withthe addition that it extends over all real estate, just as in Englandit extends over chattels personal."
> (1905) 9 N. L. R. 7,2 (1871) 8 Moore's P. C. Cases [N. 8.) 90.
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1907. In V anderstraaten 273 (Full Court, 1871) the Court said that thejtdyl. lands of a deceased person “pass to his representatives in theHutchinson fiam0 manner as his personal property*’; but that “we wish notC-J. to be understood as implying any intention to break in upon thelong-established course of law here, according to which our Courtshave given validity to conveyances made by the heirs and widowsof intestates, although there has been no grant of administration.’*And in that action, which was brought by a purchaser from an heirof an undivided share for declaration of title to and possession ofthe purchased share, one of the defendants being the administrator,the Court, finding that all the debts had been paid, gave judgmentfor the plaintiff.
In Fernando v, Perera,1 the heirs of an intestate had sold andconveyed to A a part of the intestate’s land, and with the proceedsof sale -paid off mortgages on the land. Afterwards the plaintifftook out administration and sued A in ejectment for recovery ofthe land. The majority of the Court ’ held that the conveyance, passed the land to A.
In P. Chettiar v. G. Pandary 2 it was held that-purchaser fromthe heir took title, subject to be avoided by the legal representative.
In Tikiri Menika v. T. M. 3 the plaintiff, claiming to be oneof the heirs of an intestate, ‘sued, the co-heirs for declaration of histitle; the defendants disputed the plaintiff's legitimacy. Burnside
J. and Dias J. held that the plaintiff could sue without takingout administration, as the judgment dealt only with the title andmade no order for possession, and did not conflict with the adminis-trator's right to deal with the property.
In Tikiri Banda v. Ratwatte4 the intestate difed in 1883;administration was taken out in 1884; . the heir sold in 1886;then the administrator sold, but not for the purposes of the admin-istration; Lawrie and Withers JJ. held that the purchaser fromthe heir was entitled.
In De Kroes et al. v. Don Johannes 5 the plaintiffs sued in eject-ment. The Court, found that under the will of W. M. de Kroes theproperty was vested in his son G, and. had to be divided after G’sdeath amongst his children. G having died, his widow and childrenbrought this action. The Court, following Cassim v. Marikar*held that, the devise being specific, the concurrence of G*s executorwas not necessary..
There are several cases (Moysa Fernando v. Alice Fernando 7ihinaratne v. Hamine* Ponnamma v. Arumogam9) fie'ciding that,since section 547 of the Civil Procedure Code, the Court pught,
i (1887) 8 8. C. C. 54 (F. B.)
(1889) 8 S. C. C. 205.
* a (1890) 9 5. C. C. 63.
0894) 3 C. L. A. 70.
(1906) 9 N. L. A. 7.
(1892) 1 5. C. A. 180.
(1900) 4 N. L. A. 201.
(1903) 4 N. L. A. 299.
• (1905) 8 N. L. A. 223.
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for the protection of the revenue, to insist on administration being *907.taken out, notwithstanding any admissions by the parties as to thevalue of the estate; but these cases do not seem to have any bearing Hutchinsonon the present question.
It appears therefore that, since the Charter of 1833, the executoror administrator in Ceylon has the same power as regards theimmovables as an English personal representative had at thatdate as regards chattels. And under the English Law a conveyanceby the personal representative was not essential, but only his assent,to the validity of a conveyance of chattels, including chattels real,by the next of kin or devisee.
And in my judgment the cases which I have quoted establishthat a conveyance by the heir or devisee of his share of the immov-able property of the deceased is not void. The personal representa-tive still .retains power to sell it (with the special authority of theCourt, if the terms of the grant of administration so require) for thepurposes of the administration; but his non-concurrence in theconveyance does not otherwise affect its validity.
1 see that by section 79 of the new Begistration Ordinance, No. 5of 1907, on the death of a registered owner his legal representative“ shall be registered as the owner/' What the effect of this enact-ment may be on the law as laid down in De Kxoes v. Don Johannesand the other cases above quoted I need not now consider.
•In my judgment this appeal should be dismissed with costs.
Grenier A.J. —
The two main questions argued before us on this appeal were:(1) whether it was competent in law for heirs to .alienate immovableproperty without the assent or concurrence of the administrator,and (2) whether such an alienation was absolutely void. Indetermining these two questions it is necessary to bear in mindprominently that there is no distinction observed in Ceylon between.movable and immovable property in the administration of a testateor intestate estate, and executors and administrators are entitled todeal with either kind of property in the due course of administration.The introduction of the English Law relating to executors andadministrators did not, in my opinion, as submitted by Mr. VanLangenberg for respondent, affect, much less-destroy, the distinctivecharacter, status, and rights of the heir as the term is understoodboth in thp Boman Law and the Boman-Dutch Law. Administra-tion as knoWln to English Law formed no part of the jurisprudenceeith& of the Boman Law or its later development the Boman-Dutch Law at any stage. The most that can be said is that anexecutor under the English Law corresponds to. the hexes designatusor testamentarius in the Civil Law as to the goods, debts, afidchattels of the testator. The heir, however, by undertaking
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administration, made himself personally liable for the debts of thedeceased’s estate. This liability he was afterwards allowed toavoid by means of the benefit of Inventory and the Act of Delibera-tion. The benefit of Inventory and the Act of Deliberation, I needhardly say, have no place now in our law. In applying thereforethe English Law of Administration we must, in the absence ^ofspecial legislation as there is in South Africa, take into accountcertain conditions relating to the Common Law rights of the heirsof an intestate, more especially those rights which accrue by succes-sion and inheritance. On the death of a person his estate, in theabsence of a will, passes at once by operation of law to his heirs, andthe dominium vests in them. Once it so vests they cannot bedivested of it except by the several well-known modes recognizedby law.
Such being the position of heirs, the point which nekt arisesfor determination is, what relation an administrator bears to themwhen such a person is appointed by the Court. It is clear that thetitle cannot be in both the administrator and the heirs at one andthe same time. Indeed, this is rendered impossible by the titlehaving passed already to the heirs on the death of the intestate.An administrator is invariably appointed some time after the deathof the intestate, and if by the mere fact of his appointment thetitle passes to him, then it means that the heirs have been divestedof it in a manner which is not recognized or supported by any ruleof positive laws relating to the transfer of immovable property.Besides, in strict law, it is impossible to conceive a state of thingsby which title to immovable property is temporarily suspended, oris vested in no one, for that is what will inevitably result if- theheirs do not become vested with the title of their intestate immedi-ately on his death, and there is an interval of time, long or shortrbetween that event and the appointment of an administrator.
Clearly a grant of administration, viewed by itself, is not aconveyance or assignment by the Court to the administrator ofthe title of the intestate. The very terms of a grant negative sucha contention.
Now, there is express provision in the Civil Procedure Code,sections 331 to 333, which enables the Court, in cases where thedecree is for the execution of a conveyance and the judgment-debtor neglects or refuses to comply with the decree, to executeand pass a conveyance to the judgment-creditor in the form pre-scribed by section 333; such a conveyance has. the same legal effectas one executed by the party ordered to execute the same, althoughnot attested by and executed before a notary public.•
A practicb, not uniform perhaps as to details only, has, in conse-quence of the anomalous position which an administrator occupiesas regards the immovable property of intestate, grown up in ourCourts, and which I think may correctly be described now as
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inveterate, by which the Court, where it has ordered the sale ofimmovable property belonging' to an intestate estate, permits andsometimes expressly orders the administrator to execute thenecessary conveyances.
These orders are really in effect decrees of Court, and are boundto be carried out. In a generality of cases, if not in all, there is■attached to the conveyance by the administrator the order of Courtauthorizing the sale, obviously in order to prevent any future•question as to the power of the administrator to sell.
Apart from this practice, however, the Court has undoubtedlythe power to require an administrator, or even an- auctioneer dulyappointed by it, to convey; and the very terms of the conveyanceexecuted on all such occasions sufficiently indicate the source fromwhich the authority to convey is derived. At the same time, in the.case of all such conveyances the requirements of .the law in regardto notarial attestation of all instruments affecting land or otherimmovable property are strictly complied with.
It is a fallacy therefore to suppose, as urged by appellant’s•counsel, that an administrator obtains an absolute title to the•estate of his intestate. What happens is that, on letters of adminis-tration being granted to him by the Court, he is entrusted andcharged with the estate of the deceased for purposes connectedwith the proper administration and settlement of it; the personaoi the deceased is, by a legal fiction, continued in him until underthe provisions of chapter LTV. of the Civil Procedure Code theestate is finally settled by the Court, or a distribution of the same ismade amongst the heirs.
An administrator, as the same is understood in the English Law,■cannot deal with any part of his intestate’s property as if it werehis own absolute property, or, to use the language of the Koman-Dutch Law, as if he had~tfae dominium or the plena proprietor, theright of full and complete ownership. He cannot sell, mortgage,
. or in any way alienate except for the payment of debts, and when hedoes so, he has almost invariably, according to the practice whichhas obtained amongst us for considerably over half a century, toobtain the permission of .the Court. The necessity for tins permis-sion is accentuated by the language employed in grants of adminis-c* tration, and in my own experience, which now covers a period ofnearly one-third of a century, an administrator, as a rule, seeks thepermission of the Court before dealing with immovable property,although p&rhaps,. in some instances, the grant may be absoluteand unfettered.
There is a very old definition in English Law of the term*4’' adminis-trator,” which is very suggestive of his powers and duties, viz., “ Hethat hath the goods of a man dying intestate committed to hischarge by the Ordinary, for which he is accountable when, theretorequired.” It goes without saying that the rights, • powers. and
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duties of executors and administrators are in many respects similar.Originally the Ordinary was bound to pay the debts of the intestate,so far as his goods would permit, as executors were bound in caseof a will. In order to prevent the continued abuse of the powerwhich the Ordinary had over the residue in his hands, Statute 81,E 4, C 11, a.d. 1857, was enacted, which provided that, in caseof intestacy, the Ordinary shall depute the nearest and most lawfulfriend of the deceased to administer his goods; and administrators-were placed on the same footing with regard to suits and to account-ing as executors. The next and most lawful friend was interpretedto mean the next of blood who was under no legal disabilities. TheStatue 21, H 8, 0 5, enlarged the power of the EcclesiasticalJudge, and permitted him to grant administration either to thewidow or the next of kin, or to both of them, at his discretion.Under our law the widow of the intestate is, as a rule, preferred toall others.
There is nothing in the English Law to support the contentionfor the appellant that the assent of the executor is required .to passimmovable property specifically devised, nor does that law requirethe assent of the executor to pass title to chattels real and personalsuch as leases for years, rent due, corn growing and cut, grass cutand severed, &c., cattle, money, plate, household goods, &c. Cer-tainly no assent in the shape of a conveyance is necessary. But.whenlands are devised to executors to be sold for payment of the testator’sdebts, and they are sold for this purpose, the executor has then toexecute a conveyance in favour of the purchaser for obvious reasons.An .administrator in Ceylon deals with immovable property as wellas with movable property, and applying the English Law it seemsclear that bo conveyance from an administrator is necessary to passtitle to the heirs, for that has already passed by operation of law.
Thus far I have stated certain propositions which, in my humbleopinion, are beyond controversy, as they appear to me to be sup-ported both by the Common Law so far as the legal position of heirs isconcerned, and by the English Law in relation to the powers andduties of administrators and executors. The point of practiceI have referred to must be regarded as the inevitable resultant ofithe introduction of a system of mixed law and procedure into asystem which was ill-adapted to receive it in its entirety, much lessto assimilate it, for the simple reason that in English Law anadministrator only deals with the personal estate of the intestate,find the necessity for a conveyance is thus obviated. ’The propertyin the goods and chattels of the intestate, when sold for paymentof debts, passes, I presume, by delivery. The immovable propertyin case of intestacy is governed by the law of primogeniture, andtherefore never falls to be administered.
It may be safely asserted that there is no legislative enactmentin Ceylon which vests immovable property in an administrator in
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the sense that he is the absolute owner of it and is at libertyto deal with it in any wav he pleases. Mr. Jayewardene in thecourse of his argument referred us to section 547 of the CivilProcedure Code in support of the position he took up on this partof the case. That section was primarily intended, for the protectionof the revenue, as'it had been long the practice for large estates to-be unadministered and for heirs to convey their interests withoutreference to the debts and liabilities of their ancestors. I wouldread the section as recognizing the existence of a right in certainpersons, presumably the heirs, to transfer immovable propertybelonging to an intestate estate; and the section was intended to*prevent the exercise of that right without probate or administrationhaving been first taken out. The word " first M connotes that if ad^ministration or probate has been taken out transfers may be effected.
Now, it is clear that the words** grant of probate of letters ofadministration to some person as executor or administrator M canonly mean, taking them with the context, an act of the Court by whichit gives certain persons certain powers with reference to a testateor intestate estate. The section cannot possibly be taken to meanas enacting that the immovable property vests in some particularperson, nor can it be said with any reason that the mere grant ofprobate or letters of administration has this effect. There areabsolutely no words of vesting anywhere in the whole of the section,,and I have no hesitation in holding against the appellant’s counselon this point.
We are thus reduced to* a consideration of the effect of somedecisions of this Court bearing on the two questions I have stated.But before I* deal with them I should like to point out that in case&where an estate is under the value of Rs. 1,000, and administrationis not compulsory, the heirs can deal with it by transfer or assign*menfc, and the title that they pass is recognized by our law as a goodtitle. In such cases it is manifest that the rule of our Common Lawregulating intestate succession applies, and on the death of theintestate the heirs by operation of law become vested at once withhis title. Now, it can hardly be said that the mere grant of probateor letters of administration results directly in divesting the heirsof their title simply because their intestate has left an estate of thevalue* of Rs. 1,000 and upwards. If in . the one case the heirs arenot divested of their .title, with equal reason may it be asserted, inthe absence of any express provision of the law vesting the title inthe administrator, that in the other case, too, the same rule of lawapplies. The argument that Was founded on this aspect of the caseappeared to be irrefutable. The law, surely did not intend’ to makea distinction between the two cases, but only ‘required, in theinterests of the revenue, that large estates should not go unadminis-tered, because that would mean loss of stamp duty on probate andletters of administration.
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I am confirmed in this view by the terms of section 647 of theCivil Procedure Code, which enacts that where property is trans-ferred without probate or administration being first taken out toestates amounting to Bs. 1,000 the transferor and transferree shallbe liable to fine and to pay the costs of the stamps which ought tohave been affixed to the probate or letters of administration. 1
As regards local decisions, the case of De Hives v. Don Johannes, 1which was heard before the Full Court, of which 1 was a member,is in point. The Court held there, that the devise being specific,the assent of the executor ■ was not necessary to vest title in thedevisee.
The Full Court followed in this respect the decision of anotherFull Court in the case of Cassim v. Marikar, 2 and there is thereforeundoubted authority in support of the position which the respond-ent has taken up on this appeal.
In Cassim vt Marikar2 Burnside C.J. was of opinion that thecase was one primes impresaionis, and therefore dealt with it onprinciple rather than on any decided authority.
He held, following apparently some previous rulings, to whichno specific reference is made, .that on the death of an intestate hisimmovable property passes to his administrator, and that in cases oftestacy, immovable property,-the title to which is not derived orspecially appropriated by the will, passes to the executor as againstthe heir, but as regards immovable property specially devised thetitle to it passes to the devisee, but subject to the right of theexecutor to deal with i.t in due course of administration. I cannotgather either from the judgment of Burnside C.J. or Withers J. whatprecisely were their views in regard to the natUre and extent of theestate or title of the executor and administrator. But, in theresult, Withers J. held that the assent of the Ceylon executor oradministrator is necessary to pass title to the heirs appointed in thewill, because they have this title on the death of the testator orintestate, subject to the suspension of enjoyment pending adminis-tration. He seemed to have thought, however, that the executorhad a limited estate or title which could be extracted out of theinheritance and given by operation of law to him. If he meant bythis that the executor or administrator when he entered into posses-sion of the testator's or intestate's estate under the grant of probateor letters of administration had full and complete control over itfor purposes of administration, I am quite in accord with him.
•In the case of Pasupathy Chettiar v. Gantar Pandary * the FullCourt held that although the purchaser of a deceased person'sproperty wh© takes from any other than a legal representative takesa title which may be avoided by the administrator in the due course
* (1906) 9 N. L. R. 7.■* (1692) 1 S. C. R. 180.
3 (1889) 8 S. C. C. 205.
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of administration, yet when a bona fidje alienation had been made bythe heirs and a legal representative appointed, who after a consider-able times sought .to reach the property alienated as assets necessaryto be applied in payment of outstanding debts, he should makeout a primd facie case showing that it was necessary to resort to theparticular piece of property in question.
In the case of Tikiri Banda v. Ratwatte, 1 Lawrie and WithersJJ. were of opinion that succession to the estate of an intestatedevolved immediately upon his death, and that it was competentfor the heirs at law to alienate the property pending the adminis-tration of the estate, and that such alienation vegted good title inthe alienee, subject only to be defeated by any disposition of itby the administrator in due course of administration.
The learned author of “ The Laws of Ceylon/' on page 299, vol. EL,says, that it may now • be accepted as settled law that if aperson desires to prove title to property deduced through a formerowner, he must prove either that administration has been takenout and that the administrator has conveyed the intestate’s estateto him or to his predecessor in title, or that the intestate’s estatewas of less value than Rs. 1,000. A. close examination of the autho-rities cited by him has not helped me to come to the same conclusionas regards conveyances by administrators being the sole mediafor the transmission of title.
In the case of Fernando v. Dochchi* Bonser C.J., withoutreferring to any authorities, laid it down broadly that title toproperty can only be proved in one of the two ways just mentionedabove. I can only regard "what he said as mere obiter and of nobinding effeot. There is, however, an old case reported in Vander-straaten 203, in which it was held by the Full Court consistingof Creasy C.J. and Templer and Lawson JJ., that the immovableproperty belonging to a deceased person passed to his representativesin the same manner as his personal property, but the Judges werecareful to add: “ We wish not to be understood as implying anyintention to break in upon the long-established course of law here,according to which our Courts have given validity to conveyances1 made by the heirs and widows of the intestates, although there hasbeen no grant of administration.”
o I apprehend that since this important, pronouncement was madeby the Full Court in 1871 there has been no change whateverin our law either by legislative enactment or by an uninterruptedseries of jodiciaE decisions establishing the contrary view. Possiblyit may be advisable to amend the law on the subject and makeconveyances from executors- and administrators the only means fortransmission of title, but so long as the law remains unaltered, Icannot see how it can be laid down that it- is not competent for heirs
i (1894) 3 C. Lt. R. 70.* (1901) 5 N. L. R. 15.
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to alienate immovable property without the assent or concurrenceof the administrator, and that such alienations are absolutely void-I shall only refer to one other case, 222, D. C-, Galle, 6,398, 1 inwhich Layard C.J. avoided pronouncing any opinion as to whetherthe property of the intestate vested in the administrator and aconveyance from him was necessary, although Wendt J., who satwith him, expressed an opinion to that effect.
The reason given by Layard C.J. was that until .the point wasproperly raised and argued, he would not decide it- In the casenow before us we have had the benefit of an exhaustive argument,and at the conclusion of it the learned counsel for the appellantseemed unable to support the appeal.
I would dismiss the appeal with costs.
Wood Renton J.—
I concur. Mr. Van Langenberg’s clear and able argument hasconvinced me reluctantly that the dictum of Bonser C.J. in Fer-nando v. Dochchi * to which my Lord the Chief Justice and Grenier J.have referred, is not good law. .On grounds of policy I would haveadopted it if I could. I have been unable to find any direct Englishauthority on the point. But the view that we are now takingappears to me tp derive some support by way of analogy.from thearguments and the judgment in the recent case of Kemp v. InlandRevenue Commissioners.3
S. C. Min. Oct. 10, 1903.* (1901) 5 N. L. R. 15.
3 (1905) 1 K. B. 581.
SILVA v. SILVA et al