129-NLR-NLR-V-18-APPUHAMY-v.-SILVA.pdf
496 )
1915.
Present: Ennis J. and De Sampayo J.
APPXJHAMY v. SILVA.244—D. 0. Kalutara, 5,853.
Power of administrator 1o sell land*—Civil Procedure Code, ss. 589 end 540.
Am administrator is entitled to sell landed property of so intestatewbu tbs letters of administration contain no limitation of hitpowers as- to, such sales.
PJpHE foots are set out in the judgment.
A. St. 7. Jatjewardene (with him Mahadeva), for appellant.
Bawa, K.C. (with him Drieberg and Samarawickreme), forrespondent.
September 14, 1916. Ekhxs J.—
The only point for determination in this appeal is whether an.administrator is entitled to sell the landed property of an inte&atewhen the letters of administration contain no such limitation of hispowers.
( 497 )
In this case letters o9 administration to the estates (of fathersaid son) were granted on the printed form, in which the clause“ you are nevertheless hereby prohibited 'from selling any movableproperty of the estate unless you shall be gpSoaally authorized* bythe Court to do so ” has been struck out* In one oase this deletionhas been initialled by the learned Judge (the initialling % datecf12-7-94, t.e., July, not September, as stated in the judgment appealedfrom), and in the other case the circumstances leave no doubt thedeletion was made by the Court before the letters issueg.
It was argued that the clause which I have set out above is asubstantive enactment of the Legislature, without which no lettersof administration should issue. The clause is. found in form 87 inthe schedule to the Code, and is there put in brackets. It is con-tended that the form in the schedule is as much a part of the Codeas any of the numbered sections, notwithstanding that no referenceis made to it in any of the sections. In my opinion this is not so.The Code nowhere prescribes the use of this form; it has not there-fore been incorporated in the Ordinance, and its use is optional.The fact that certain portions of the form are contained withinbrackets also shows that these portions are for use as circumstancesmay require, and are not applicable in every case where a grantof letters of administration is made. Further, assuming that thecontention is sound, the enactment would not go beyond the enact-ment of a form, t.e., a conventional method of expression adoptedto meet, as circumstances may require, the needs of the substantiveenactment to which it is subservient. It is nowhere incorporatedas part of the substantive enactment, and, being a form, could notbe construed as substantive law in the absence of express provision.
Section 519 provides that a grant of letters of administration“ may be limited or not in manner hereinafter provided, as theCourt thinks, fi?. ” Section 540 enacts that if no limitation is expressedin the order making the grant, the power of administration extendsto ail the property of the deceased person; and section 589enumerates the cases in which the Court may limit the power of* dealing with property; e.g., it may be limited (sub-section ($)) forany particular purpose where the Court considers a larger grantunnecessary.
These sections show that the limitation of the powers of an ad-ministrator is in the discretion of the Court at the time the grantof administration is made. Ordinarily it would be desirable, forthe purpose of securing to the heirs the ancestral lands, to limit anadministrator’s powers of alienating immovable property. In thepresent case an examination of the two testamentary suits in whichthe grants were made shows that the proceeds of sale were applied,inter alia, in satisfaction of certain decrees against the deceased;further, in both oases application for administration was originally 'made by creditors for administration, so the Judge at the time of
1915-
ExfNnSJi
Appuhamgi v. Silva
( «*» )
1MB. the grant must have had in mind the necessity for the sale of the
larid to provide for the liquidation qg the debts. The graxh were
-— ’ thdtyfore made without any limitation of the administrative powers,
d« the absence ol such limitation, the administrator had,* under
* *section 540, full poVers. *
X world add that the judgment in Kmuee «. Paiku-mma1 fe not a.
sufficient authority, if it be an authority at all, for the contention
put forward in this appeal. The point was not raised in that ease,
was not neceSsaty for the decision of the case., and it is doubtful
if .the point was considered or decided. in that casq, and the
subsequent case of Hendrick AppuStriwardene,* the powers of
the administrator were limited in she grant itself.
•
I would dismiss the ap^aal, with costs.
Db Sawpavo J.—I agree.
Appeal dismissed.
❖