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Present : Ennis J.
APPUKAMY v. BANDA
166—C. R. Kandy, 1,249,
Executor do sou torh—Person transferring all his property to anotherjust prior to death—Jetton, by creditor against donee as executorde son tort—Courts Ordinance, s. 81*—Appeal—No prejudice torights of' either party.
M executed a promissory note in favour of the plaintiff in Sep-tember, 1921, and in October, 1921, conveyed the whole of herproperty to defendant. M died three days later. Plaintiff suedthe defendant as executor de son tort on the note. The DistrictJudge gave judgment- for plaintiff on the footing that defendantwas an executor de son. tort, inasmuch as he had obtained the propertyon a deed of gift fraudulently a» against the donor's creditor.
Held, that defendant was not an executor de son tort. Thejudgment was, however, affirmed under section 31 of the CourtsOrdinance, as the substantial rights of either party was notprejudiced.
Ennis J.—It may be' that the plaintiff Bhould have sought firstto set aside the deed to the defendant, or adopted some otherprocedure to realize his claim against the estate of M, but I am 1satisfied that any irregularities there may have been during thetrial of this case have not prejudiced the substantial rights ofeither party, as it seems to me clear, on the admissions of thedefendant and the attitude he has taken up, that the propertyacquired by him on D 1 could, by a proper procedure, have beenmade liable for the payment of the debt. ”
T HE facts appear from the judgment.
H. V. Perera, for respondent.
September 21, 1922. Ennis j.—
This was an action on a promissory note. The note was executedby one Bandu Menika on September 15, 1921, in favour of theplaintiff. On October 80, 1921, Bandu Menika conveyed the wholeof her property to the defendant. She died three days later, onNovember 2. The plaintiff sued on this note, and made the defendantdefendant in the action, on the ground that he was an executor deson tort of the estate of Bandu Menika.
At the trial two issues were framed: first, as to whether BanduMenika executed the note sued upon ; and, secondly, whether the
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defendant was executor de eon tort of her estate. The evidenceseems to have been directed to the first issue. The defendantdid not give evidence in the case, but put in his document D 1 toprove the conveyance to him by Bandu Menika. The learnedJudge finally held that the note sued upon was executed by BanduMenika. With that finding of-fact there is no reason to interfere.
The question on appeal is as to whether the Judge is rightin holding that the defendant was liable as an executor de eon tort.The learned Judge apparently relied upon some obscure passage inHalsbury where a reference was made to some bygone opinion thata person who had obtained goods by a deed of gift fraudulentlyas against a donor's creditor is, after the donor’s death, liable tolus creditor as executor de eon tort in respect* of the goods while theyremain in his' hands. Counsel for the appellant, I think rightly,suggested that this passage is based on questions relating to billsof sale in England before delivery of possession is given.„
The petition of appe' complains that there was no issue as tofraud, and suggests that if fraud had been raised in a proper issue,the defendant could have proved that his sister, Bandu Menika,had married in diga, and so had forfeited all rights to the paternalestate, and had no right, title, or interest in the property conveyedto him on D 1. He also suggested that he could prove that BanduMenika’s estate was not insolvent and was able to meet her debts.With regard to the first of these conclusions he is confronted byhis own deed in which he practically acknowledges that the legalestate of Bandu Menika was vested in him three days before herdeath, and he put this deed in as the foundation of his own title,and made no suggestion in his answer that the land was his andhad been his all along independently of the deed.
With regard to the second of these contentions his answer suggests,in paragraph 3, that Bandu Menika left no property with which hecould interfere as executor, de eon tort, and the learned Judge hasrecorded in his judgment the cadmission by the defendant, thatBandu Menika left no property other than the property covered bythe defendant’s deed X) 1.
It seems to me that this case is peculiarly one where the provisionsof section 31 of the Courts Ordinance apply. However the issuesare framed, the question between the parties' was whether the estateof Bandu Menika was liable on the plaintiff’s suit. The attitudetaken up by the defendant that his title was based on the deed D 1preclude any possibility of an injustice having been done by thedecree under appeal. It may be that the plaintiff should havesought first to set aside the deed to the defendant, or adopted someother procedure to realize his claim against the estate of BanduMenika, but I am satisfied that any irregularities there may havebeen during the trial of this case have not prejudiced the substantial
rights of either party, as it seems to me clear, on the admissions ofthe defendant and the attitude he has taken ap, that the propertyacquired by him on D 1 could, by a proper procedure, have beenmade liable for the payment of the debt.
I accordingly dismiss the appeal, with costs.
APPUHAMY v. BANDA