124-NLR-NLR-V-14-BASTIAN-v.-ANDRIS-et-al.pdf
( 437 )
{Full Bench.]Sept-St 1911
Present: Lascelles C.J., Middleton J., and Grenier J.
BASTIAN v. ANDRIS et al117—D. C. Matara, 4,873.
Conveyance by ike Fiscal in favour of a purchaser after his death—No titlepassed—Civil Procedure Code, ss. 286 and 289.
A Fiscal’s transfer in the name of a purchaser after his deathpasses no title. In such a case the proper course is for the re-presentative of the deceased purchaser to apply to the Court for anorder directing the Fiscal In make out the conveyance in his favour.
f^HE facts appear sufficiently from the judgment.
This case was reserved for a Full Bench by Lascelles C.J. and
Middleton J.
( 438 )
Sept. 6,1911 H. A. Jayewardene (with him Rosairo), for the eighth defendantBastion v.appellant.—A Fiscal’s conveyance in favour of a deceased person
Andrisis good, as the conveyance relates back to the date of sale. The
principles that apply to private sales are not applicable to sales,by the Fiscal. A private conveyance in favour of a dead person isinvalid, but a Fiscal’s conveyance is valid. Under section 286 ofthe Civil Procedure Code the Fiscal has no power to execute aconveyance in favour of any one but the purchaser.
If the Fiscal conveys to the administrator of the deceased pur-chaser, there would be this anomaly—the administrator would bevested with title under the doctrine of relation back even in thelifetime of the purchaser. Buchchi Appu v, Abeyasuriya was wronglydecided. Counsel also referred to Ukku Menika et ah v. Lape?
PrittSy for ninth, twelfth, thirteenth, and fourteenth defendants,respondents.—The point is covered by authority. (Jaldin v. Nurma?Buchchi Appu v. Abeyasuriya} Ukku Menika et ah v. Lape? Pon-namma v. WeerasuriyaJ)
The fact that section 286 of the Civil Procedure Code does notempower a sale to the legal representative is not a good argument.The section says that the deed shall be delivered to the purchaser ;how could it be delivered if he be dead ? The procedure in such caseswas clearly indicated in Jaldin v. Nurma.*
Jayewardene, in reply.
Cur. adv. vult.
September 5, 1911. Lascelles C.J.—
This appeal raises the question whether a Fiscal’s transfer executedafter the death of the purchaser, in favour of the purchaser, “ hisheirs, executors, administrators, and assigns,” passes a valid titleto the administrator of the purchaser’s estate.
The eighth defendant is the administrator of the estate of oneSiman Perera, who on July 8, 1903, purchased at a Fiscal’s sale ashare in the property ; the sale was confirmed in 1905 ; Siman Pereradied, it is stated, about 1908 ; and the eighth defendant, the adminis-trator of his estate, on August 10, 1910, obtained a Fiscal’s transferin the form I have mentioned.
It has hitherto been uniformly held that a Fiscal’s transfer infavour of a purchaser after his death passes no title. In AnnamaleChetty v. Rawter? Bonser C.J. considered the fact that the Fiscal’sconveyance was in favour of a man who was dead to be a seriousobstacle to the plaintiff’s success. In Buchchi Appu v. Abeya-suriya} Mr. Justice Wendt and Mr. Justice. Grenier decided againstthe validity of such a conveyance. The former learned Judge, indelivering the judgment of the Court, stated, “ sale and purchase ofland is a contract which is not completed until a conveyance from the
1 (1905) 2 A. C. li. 127.' a (1S92) 1 ,S C. It. 1X7.
• (1903) 6 N. L. R. 361.-4 (1908) 11 N. L. R. 217.
• (J*M) 2 A. C. R. 128.
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vendor has assured the properly to the purchaser. If before thathas been done the purchaser died, the contract cannot possibly becompleted by the execution of a conveyance to the dead man. Inthis respect I see no distinction between a private sale and onecarried out by the Fiscal.” In Ukku Menika et al. v. Lape,1Mr. Justice Grenier held that a Fiscal’s transfer in favour of a deadman is invalid and inoperative. A similar view as to the value ofsuch a conveyance was taken in Pomanuna v. Weerastiriya.- InJaldin v. Nurma,3 Lawrie J. held that in such a case the proper coursewas for the representative of the deceased purchaser to apply to theCourt for an order directing the Fiscal to make out the conveyancein his favour, and this appears to be the practice which is usuallyfollowed in such cases. We are now asked to over-rule thesedecisions, mainly on the ground that the decisions to which I havereferred are based on a mere obiter dictum of Bonser C.J., and thatsection 289 of the Civil Procedure Code, which provides that thetitle of the grantee under a Fiscal’s conveyance is deemed to havebeen vested with the legal estate from the time of the sale, may beconstrued so as to authorize the execution of a transfer after thepurchaser’s death nunc pro tunc. I cannot agree that the principlenow under discussion is one which is founded only upon a passingobservation of a Judge. As Wendt J. pointed out in the passagewhich I have cited, the objection to making a conveyance to a deadperson rests on very substantial grounds.
Personally, I entirely agree with the ruling, which, I think, isfounded on fundamental principles. A conveyance in the name ofa dead person would be a legal ainomaly. A dead man in the eye ofthe law is no longer a person. He does not possess the attributes ofa legal person ; he has no proprietary capacity, and is incapable ofholding property or of having rights or liabilities.
It is conceivable that the Legislature, for purposes of convenience,might have sanctioned such a form of conveyance. But that is not’the case here, and there is nothing in the Civil Procedure Code fromwhich such an intention can fairly be deduced. In my opinion theprevious rulings of this Court on this point have been founded onsound reason, and* should not be disturbed.
The appeal therefore fails, and must be dismissed with costs. Ithink, however, that the appellant, as a matter of indulgence, mightbe allowed to move the District Court for an order directing theFiscal to make a conveyance in favour of the legal representative ofSiman Perera. For this purpose I would set aside the decree, anddeclare that eighth defendant shall be at liberty within twenty-onedays from the receipt of the record to move the Court for an orderdirecting a Fiscal’s conveyance in the name of the administrator ofSiman Perera, and that on such conveyance being made the sharesof the parties be adjusted accordingly.
1 (1903) 6 N. L. R. 361.2 (1903) 11 iV. L. R. 217.
3 (1392) 1 S. O. R. 187.
Sept. 5. 1911
L>ASOEXiIiES
C.J.
Bastion v.Andris
( 440 )
Sept, s, mi
Baetian v.
Andris
Middleton J.—
The only question to be decided on the reference of this case to theFull Court was whether a Fiscal’s conveyance in the name of a deadperson is valid to convey title. The dictum of Bonser C.J. in2 Appeal Court Reports 127, followed by Mr. Justice Wendt andMr. Justice Grenier, as reported in the same place, is to the contraryeffect, and we are now asked to over-rule it.
It is conceivable that a Fiscal, unaware of the death of a purchaser,might convey the property in his name, but such a conveyancewould confer title on a non-existent person ; therefore, practically,on no one, and it would be necessary to apply to the Court fordirections. If the Fiscal knew, or had reason to know, of the deathof the purchaser, section 286, by its provisions as to the terms of theconveyance being such as the Court deems expedient, enables himto apply to the Court for directions as to whose name the conveyanceshould be drawn in.
The doctrine of relation back applied to a Fiscal’s conveyance bysection 289 is designed to give a starting point to the title in thepurchaser, and I think must be deemed rather to do this than toimply the necessity of beginning it in the name of such purchaserif a non-existent being. A further consideration of Mr. JusticeWendt’s reasoning in his judgment has dispelled the doubts I had onthe subject, and I think that the dictum of Bonser CJ. is foundedboth on reason and common sense.
The Legislature, might, if it had chosen to do so, have enabledthe Fiscal to convey in the name of a dead purchaser, but asit has not done so, the Court must be resorted to for directions, asI think is provided. The appeal must, therefore, be dismissed onthis point.
In the case, however, under consideration, 1 think the Court oughtto have allowed the alternative application to make good the defectof title, and I would now permit the appellant to apply to the Courtwith a view to the correction of the transfer by inserting the nameof the legal representative of the deceased as the grantee. Theappellants must bear the costs of the appeal.
Grenier J.—
I agree that a conveyance in favour of a purchaser at a Fiscal’ssale is void in law, if at the date of the conveyance he is dead. Itwas so held by Bonser C.J., and Mr. Justice Wendt and myselffollowed his ruling in several subsequent cases.
I agree to the order proposed by the rest of the Court, and 1 mayadd that the procedure suggested was adopted by me when I was onthe Colombo District Court Bench.
Appeal dismissed.