054-NLR-NLR-V-22-EHELIYAGODA-et-al.-v.-SAMARADIWAKARA.pdf
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Present: Ennis A.G.J. and Schneider A.J.
EHELIYAGODA el al v. SAMARADIWAKARA.
84—D. G. Colombo, 50,65%.
Same person appointed executor and curcttor—Sale of land after obtainingleave of Court in curatorship case—Claim by widow and childrenof testator—Prescription.
By his last will A left his property to his minor children, andgave a life interest in the property to his wife. B was appointedexecutor under the will, and curator of the minor children. Byleave of the Court obtained in the curatorship case B sold theproperty. In an action by the widow and minor children, theDistrict Judge held that as the widow had the life merest, theclaim for interest was prescribed for the period in excess pf threeyears.
Held, that as the executor was a trustee prescription did not runagainst the widow.
rJ^HE {actg appear from the judgment of the District Judge :—
This is an action by the widow and children of the late Mr. Eheliya*goda, who died on February 7, 1903.
The plaintiffs allege that the late Mr. James Samaradiwakara provedMr. Eheliyagoda’s will and obtained probate in case No. 1,898 of theDistrict Court of Colombo, He was also appointed curator of theproperty of the second and fourth plaintiffs in case No. 395, D. C.Colombo.
On September -1, 1904, Mr. Samaradiwakara .obtained lekve to sella number of lands belonging to the estate, and sold them betweenOctober 8, 1904, and April 10, 1915, but never rendered an account,and plaintiffs estimate the amount realized by the sale of the lands atRs. 16,435. Part of the sum realized he invested in the purchase oflands described in the schedule to the plaint.
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1016. ■
«. Samara*diwahara
Mr. Samaradiwakara died on May 26, 1916, and probate issued to thedefendant, his executrix and residuary legatee. *
The plaintiffs pray for judgment against the defendant, directingher to convey the lands to plaintiffs and pay over the balance proceedsof sale, and for an accounting of the rents and profits. In the alter-native, they pray for judgment against the defendant for the sum ofBs. 16,435, and for a sum of Bs. 11,445*34 being legal interest on thesaid sum from the date of realization to the date of action.
The defendant admits liability to the extent of Bs. 8,161*56 asprincipal and Bs. 2,331 * 72 as interest.
The defendant alleges that only a sum of Bs. 13,981 was realized bythe sale of the goods, from which she claims to deduct a sum of Bs. 5,800spent by the late Mr. Samaradiwakara in legal expenses and in themaintenance of the second and fourth plaintiffs.
The defendant denies that the proceeds of sale were invested in thepurchase of lands referred to in .the plaint.
I framed the following issues :—
For what amount were the lands mentioned in Schedule A to theplaint sold ?
What sum, if any, is due as interest on the said amount ?
Is any portion of the interest prescribed ?
(a) Did the late James Samaradiwakara incur any expenseson account of the maintenance and education of second and fourthplaintiffs and for protection of this estate in the curatorship case ?
(6) If so, how much ?
(c) Is defendant entitled to such amount ?
The plaintiffs did not press their claim for a conveyance of the landsalleged to have been ^purchased with the proceeds of sale.
The defendant did not press her claim for the sum of Bs. 5,800alleged to have been incurred in maintaining the children and in legalexpenses, and I answer the fourth issue in the negative.
Two questions remain :—
Whether the amount realized was Bs. 16,435 or Bs. 13,981.
What interest the plaintiffs are entitled to.
In proof of the amount realized, the plaintiffs called Mr. Gunaratne,•the auctioneer employed by Mr. Samaradiwakara to sell the lands.He established that he had sold the lands he was commissioned to sellfor Bs. 16,435 ….
I find on the first issue that the lands mentioned in Schedule A to theplaint were sold for Bs. 16,345.
As regards the interest, the plaintiffs contend that Mr. Samaradi-wakara was in the position of a trustee, and that the defendant cannotplead that the claim-for interest is prescribed. This argument mighthave had some weight if the persons entitled to the interest were thelate Mr. Eheliyagoda’s children, the second and fourth plaintiffs. But,under terms of Mr. Eheliyagoda’s will, the first plaintiff, his widow,was entitled to a life interest in the lands sold, and the person entitledto claim the interest is the first plaintiff. With regard to her, Mr.Samaradiwakara was not in the position of a trustee, and I am ofopinion that the claim for interest prior to July 5, 1915, is prescribed,and I answer the second and third issue accordingly. I enter judg-ments (1) in favour of the second and fourth plaintiffs for the sum of
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Rs. 16,436, subject to a life interest in favour of the first plaintiff; 1919.(2) in favour of the first plaintiff for interest at the rate of 9 per cent. ' ~—per annum from July 5', 1916, on the said sum of Rs. 16,435. -■ v Samara-
The defendant will pay plaintiffs their costs.diuiakara
A. St. V. Jayawardene, for the first plaintiff, appellant.—Theorder of the District Judge, that the first plaintiff was not entitledto recover life interest for a period exceeding three years, is wrong.
The executor was in the position of a trustee, and prescription doesnot run in his favour as against the heirs. Counsel cited 15 N. L.
398; 15 N. L. B. 403; 1 N. L: B. 120; 3 S..C. B. 63; 3 Gtren.
(1874) 49.
Bawa, K.G., for the respondent.—The properties were sold bySamaradiwakara in his capaoity as curator, and not as executor.
In his capacity as curator he was holding the'interest due on moneyas against the widow. There is nothing to stop the running ofprescription as against the widow.
July 14, 1919. Ennis A.C.J.-^-
In this case it appears that one Richard Eheliyagoda died onFebruary 14, 1903, and by his last will and testament left as hisexecutor one James Samaradiwakara, and also nominated the sameperson curator .of his two minor children. He gave a life interestin his property to his wife, who is the first plaintiff. The secondand fourth plaintiffs are the minor children, and the third plaintiff .is the husband of the second plaintiff. James Samaradiwakaradied on May 26, .1916, having appointed by his last will and testa-ment the defendant to be the executrix of his will. The plaintiffsclaimed that, the deceased executor had sold certain lands belongingto the estate, and had invested the money again in his own name inthe purchase of other property; They claimed a conveyance of theestate and an account of the proceeds, or in the alternative a sum ofRs. 16,435 and interest at .the rate of 9 per cent. The learnedJudge entered decree in favour of the plaintiffs for the sum ofRs. 16,435, and allowed interest to the wife as from July 5, 1915,namely, three years before the institution of aotion. The appeal •is from the refusal to grant interest to the first plaintiff as prayed.
The appellant contends that the original executor, James Samara-diwakara, had never divested himself of his capacity as executor,and had never, closed the testamentary proceedings, and that -therefore, prescription could not run in his favour. Th^espon-dent to the appeal urged that the judgment, was right on twogrounds; first, that the income in the property was taken by JamesSamaradiwakara in his- capacity as curator of the minor childrenand not as executor, and that the first plaintiff had a cause of actionwhen the money was received; secondly, that it has not been
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1919.
Ennis
A.C.J.
BkeUyagodav. Samara-diwakara
proved that any interest accrued prior to July 5, 1915. It isimpossible to hold that James Samaradiwakara took the incomeof the property in his capacity as curator, because he obtained thbleave oi the Court to sell in the curatorship case. He would beliable as executor until he had proved that he had laid down hisoffice of executor. With regard to the second point raised by therespondent, this does not appear to have been in issue. Theplaintiffs asked for an account, or in the alternative for interest at9 per cent. The defendant in answer claimed the benefit of thePrescription Ordinance, and admitted that interest at that rate wasdue from July 5, 1915. , Inasmuch as the defendant was preparedto pay 9 per cent, on the amount realized at the sale of the propertyshe practically conceded that 9 per cent, was the interest which shewould be liable to pay. It seems to me that the second objectionfails, not only because it was not raised as an issue in, the case, butalso because it has no substance. In regard to the- first issue, itis a well-established principle that a trustee cannot prescribe againsta cestui que trust I would, therefore, allow the appeal, with costs.
Schneider A.J.—I agree.
Appeal allowed..
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