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Present; Fisher C.J., Garvin and Drieberg JJ.
GIRIGORISHAMY v. LEBBE MARIKAR.
303—D. C., Galls, 23,856.
Guardian—Right to mortgage minors' property—Authority under will—
Sanction of Court.
The testatrix bequeathed all her property to her two minor sonsand appointed her husband the executor of the will and her unclethe guardian of the children.
The will further authorized “ the said husband in associationwith the uncle, the guardian, to deal with a certain defined landas he .pleases, in case any necessity shall arise, for the expenses ofmy said children.”
The husband and the uncle acting under tho said authoritymortgaged the land by bond, which recited, among others, thenecessity of raising money for the purpose of paying the expensesincurred and to be incurred in connection with the minor sons.
Held, that mortgage was invalid without the sanction of Court.
Mustapha Lebbe v. Martimis1 followed.
CTION instituted to recover a sum of Rs. 1,250 on a mortgagebond executed by the mortgagors, hypothecating a land, in
pursuance of an authority given to them under the last will of oneJaleelath Umma. By the last will the testatrix bequeathed all herproperty to her two sons and appointed her husband as executorand her uncle guardian of the children. The husband and the unclewere the mortgagors. They acted under a clause of the will whichauthorized them to deal only “ with the defined and surveyed landcalled Dangaragahawatta, in case of any necessity shall arise
1 6 N. L. R. 364.
ISJ. X. 94S7UJ/40)
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for the expenses of my said children.” The learned DistrictJudge held that the mortgage was invalid without sanction ofCourt.
H. V: Perera (with Wijewardene), for plaintiff, appellant.—Themortgage is valid as the husband, who had executed it, wasthe executor, and acted as such in fact, though he did not say so inexpress words. He purported to act under the will which authorizedhim to mortgage, as executor. His act could only be referred to thepower given to him by the will.
Counsel cited Bentham v. Wiltshire1 and Soysa v. Cecelia2.
JV. K. Choksy (with L. A. Rajapakse), for respondents, was notcalled upon.
November 11, 192S. Fishes C.J.—
In this case one Jaleelath Umma made a will, the materialportions of which are as folows :—
And I do hereby bequeath and donate unto my two sons,Ahamadu Sultan Mohamedo Saiko and Ahamado SultanMohammedo Adunan, all the movable and immovableproperty belonging to me and also all the movable andimmovable property which I shall become entitled tohereafter.
And I do hereby appoint my husband, Omeru Lebbe MarkarAhamadu Sultan, as executor of my estate, and my uncleUduma Naina Markar Ahamadu Lebbe Markar as guar-dian over the said children.
And I further do hereby authorize that my said husband, OmeruLebbe Markar Ahamadu Sultan, may, in association withthe said uncle the guardian, deal with only the surveyedand defined land called Dangaragahawatta, situate atDangedera in Galle, as he pleases, held and possessedby me, in case of any necessity shall arise for the expensesof my said children.
The said Ahamadu Sultan and Ahamadu Lebbe Markar purportingto act under authority conferred upon them by the last paragraphof the will executed a mortgage bond (PI) by which, after recitalsas to the necessity of raising money for the purpose of payingexpenses incurred and to be incurred in connection with the twominor sons, the said Ahamadu Sultan and Ahamadu Lebbe Markar,
1 4 Mtublocks 44; Yol. 2, Yermon’s Chancery Cases, p. 153; Jarman onWilts, p. 015 ; 3 Borrows Reports 102S, at 1031.
■ 23 X. L. 11. 74.
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bound themselves to pay a sum of B.s. 1,250 and mortgaged the 1928.property Dangaragahawatta to the plaintiff to secure the repaymente.j.
of that sum.——_
On that bond the present action was brought, and the questionfor our decision is embodied in the third issue : “ Had Ahamadu LeCbeSultan and the guardian defendant full authority to give the Marikarmortgage bond without permission of the Court ” ? It was urgedby Counsel for the appellant that Ahamadu Sultan had power in hiscapacity as executor to execute the bond. There are two groundson which that argument cannot prevail, firstly, because the moneywas not required for the purpose of the administration of the estate,and, secondly, the recitals in the bond show that it was not executedby Ahamadu Sultan in his capacity as executor. In my opinion,on the construction of the will, the property in question was givenabsolutely to the two minor children and the clause under discussionwas inserted to give authority to the testatrix’s husband, actingwith the approval of the guardian, to deal with the propertymentioned for the purpose of providing for the expenses of theinfants should the occasion arise. I do not think that it is possibleto construe the will in any other way.
That being so, the question is whether a person can be investedwith authority to deal with property, the title to which is vestedin minors, without the sanction of the Court. This question wasvery fully discussed in the case of Mustapha Lebbe v. Marlimis.1That was a case in which, by a deed of gift, certain immovableproperty was given to children of whom two were minors at thetime and the other was born subsequently. The deed of giftcontained a provision giving the mother of the children full powerto deal with and dispose of the property “ if she shall see it necessaryand expedient for the advantage and benefit of the said donees.”
Purporting to act under this authority the mother of the childrensold the property, and one question for decision was whether the salewas valid, having been made without the sanction of the Court.
In giving judgment in that case Layard C.J., at page 367, said :
“ It is a clear principle of the Roman-Dutch law that a miner’simmovable property cannot be alienated without the decree of aCourt of competent jurisdiction,” and he cited a number of author-ities in support of that proposition.- And Moncreiff J. in hisjudgment, at page 368, said : “ The plain policy of the law is thatguardians shall not sell the property of their wards without theleave of the Court, and that policy is contravened by the powerconferred by the deed of gift upon the guardian in this case.”
It was sought to draw a distinction between that case and thepresent case based on the difference in standpoint'from which theCourt construes wills and transactions inter vivos. In view, however,
1 G N. L. R. p. 364.
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of the construction which, in my opinion, must be put on the termsof the will there is no distinction in principle between the twocases. The accuracy of the proposition of law laid down in thatcase is not open to question, and on the basis of that proposition oflaw, section 71 of the Courts Ordinance, 1889, provides that thecharge of the property of minors is vested in the District Courts andthe procedure for dealing with it is dealt with in sections 582 and585 of the Civil Procedure Code. (See also Form 94, LegislativeEnactments, Volume IV., p. 693.) This case is not and cannot betreated as a case of property vested in a trustee, the property isactually vested in the minors, and Ahamadu Sultan had thereforeno power to deal with it except with the sanction first obtained ofthe Court.
The appeal, therefore, must be dismissed with costs.
Garvin J.—I agree.
Drieberg J.—I agree.
GIRIGORISHAMY v. LEBBE MARIKAR