HENDRICK APPU v. SIRIWARDANE

069-NLR-NLR-V-05-HENDRICK-APPU-v.-SIRIWARDANE.pdf


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HENDRICK APPU v. SIRIWARDANE.D. C., Galle, 6,211.1902.
February 14.
Sale of immovable property by administrator—Want of special authority fromCourt to sell—Improper conditions of sale—Liability of administratorto convey property sold—Actionby purchaser for conveyance—Juris-
diction of Court to entertain suit—Duty of purchaser.
.An order of court to sell the immovable property of a deceased perRouid order to pay his debts is not a proper order to make, in accordance-with the letters of administration.
What thelawrequiresis that there shouldbebefore thejudge
materials toshowthatasale is necessary, andthat the judgeupon
those materials should giveleave tosell acertain specified portion of
the immovable property asmay beinhisopinionsufficient for the
purpose.
In the case of a sale authorized by Court, it is an improper contractiu the conditions of the sale to make the purchase money payable to theauctioneer.
Nor is itlegal,whenthe purchase money hasnotreached thehands
of the administratrix, to order her to convey the land to the purchaser.
Where an administratrix,appointedbytheDistrictCourt of Colombo,
obtained the general leave of that Court to sell so much of the immov-able property of the estateas wouldbenecessary topay off its debts,
and entrusted thesaleofa property situate intheDistrict ofDalle
to an auctioneer who didnot paytoherall theproceeds realized,
and where the purchaser raised an action in the District Court of Galleagainst the administratrix and the auctioneer, praying for a conveyanceof the property to her,—
Held, that all questions arising out of the execution of the order ofsale by the DistrictCourtof Colombo should be referred to and decided
by that Court, and not by the District Court of Galle.
The proper course was for the purchaser to present a petition by wayof summary procedure in the administration suit pending before theDistrict Court of Colombo, and pray for adjudication on. the facts stated.
Held also,that- beforea persoDpurchases immovableproperty
from an administrator,heshould secthatthe vendor hadspecial
authority from the Court, and that all formalities connected with the salearc properly carried out.
I
N this action plaintiff alleged that the first defendant, asadministratrix oftheestate ofoneAnierasinheMudaliyar,
authorized the second defendant to sell by auction the land calledMeddadowawatta belonging to the deceased; that at the auctionheld the land was knocked down to the plaintiff for Rs. 450;that in terms of the conditions of sale signed by the plaintiff andthe first and second defendants, the plaintiff paid to them Rs. 450andpresenteda deedofconveyance fortheir signature, but
defendants refused tosignthe same.Heprayed that-the defend-ants be compelled tosignand deliver thesaid deed inhis favour.
The defendants filed separate answers. It appeared that thefirstdefendantrefusedtosign thedeedbecause thesecond
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1002, defendant did not pay to her a portion of the price receivedFebruary 14. by him from the plaintiff.
It appeared that the administratrix was appointed as such bythe District Court of Colombo, and had leave from it to sell somuch of the immovable property of the estate as was necessaryto pay off its debts; and that the land sold for this purpose wassituate in the District of Galle.
The District -Judge (Mr. J. D. Mason] held that, as the secofiddefendant had admitted receipt of the price of the land sold, itwas the duty of the first defendant to execute the deed of transfer.He decreed that she should sign and perfect it, and pay toplaintiff and second defendant their costs.
The first defendant appealed.
Van Langenberg, for appellant, opened the facts of the case.[Bonser, C.J.—In a similar case specific performance wasrefused by this Court.] Yes, jn Pathumma v. Krause (5 N. L. R.162). [Bonser, C.J.—How can the administratrix be compelledto transfer land which does not belong to her?]
E. Jayawardene, for respondent.—She had the leave of courtto sell the immovable property of the estate, and having enteredinto a contract with the plaintiff at the auction, and receivedpayment of the price through her agent, she must fulfil herpart of the agreement. [Bonser, C.J.—But special leave wasnot given to sell this property.] Nobody has been, nor will be,injured by the want of special leave. The first defendant inthe present cast? has, as plaintiff in suit No. 6,016, D.C., Galle,obtained judgment against the present second defendant (theauctioneer for the money received for the use of the firstdefendant. It has not been the practice in our Courts to givespecial leave. [Bonser, CJ.—Theletters of administration
prohibit the administrator from selling any immovable propertywithout the special leave of .the Court.] The authority givenby the Court in the present case must be treated as specialleave. [Bonser; C.J.—No. Special leave means special per-mission to sell a specific land (Pathumma v. Krause, 5 N. L. R.162): How can the Court compel the administratrix to conveytitle to a land which is not hers, and to do which special leaveis required?] There was no such issue raised in the Court below.[Bonser, C.J.—The issues are between the parties to the case,but she, being an administratrix, is an officer of the Court, whichmust maintain its authority over her, and safeguard the inter-ests of the heirs. If she has injured you, you have yourremedy against her personally ]
Bonser, C. J.—
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1902.
February 14.
This is another case which illustrates the carelessness withwhich administration matters are conducted. As I pointed out ina recent case (Pathumma v. Krause. 6 N. L. It. 162) the power ofan administrator to sell real estate of the intestate is a strictlylimited one. Under the letters, which are the administrator’stitle, he is prohibited from selling any part of the immovableproperty of the intestate, “ except with the special leave of theCourt.” There “ special ” means special, but apparently manypersons who ought to know better seem to think* special doesnot mean special but general.
In 1900 the appellant’s husband died intestate and letters ofadministration were granted to her. The intestate had fivechildren, two of whom were minors. On the 28th June theadministratrix’s proctor applied to the District Court of Colombo,in which the administration was pending, for leave to sell theimmovable property of the deceased as far as might be necessaryto pay the debts of the deceased. Upon that the judge madethis order: " Application allowed. Sale by public auction, andminors’ shares to be brought into Court within thirty days of thesale.” It seems to me that that was not a proper order to makein accordance with the letters of administration. That was ageneral authority and not a special authority, and it was in-definite: it was to sell so much as might be necessary. Whatthe law contemplates is that there should be before the judgematerials to show that a sale is necessary, and that the judge_upon those materials should give leave to sell a certain specifiedportion of the immovable property as may be in his opinionsufficient for the purpose.
Thereupon the administratrix went to some native auctioneer inGalle. where the immovable property was situated, and instructedhim to sell a certain estate called Meddadowawatta, about 2acres jtu extent. The auctioneer filled up certain conditions ofsale, which are apparently in a common form printed in Sinhalese,of which a translation has been put in and filed in the record.
If these conditions of sale are anything like the translation, theyare most extraordinary conditions. The first condition is that areward is to be given to the second highest bidder, so as to inducepeople to bid. Another is that if anyone bids he cannot stopwithout further bidding: he must go on. The fourth condition isthat immediately on the fall of the hammer the purchaser is to paya quarter of the purchase money to the auctioneer and also to paythe balance on completing the pin-chase. The fifth condition gives
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1902. him time to pay the balance, which had been stipulated for onFebruary 14. the fan 0f the hammer, till a later date. It is to be hopedBon8f.r, C.J. that much of what appears to be incomprehensible is due tothe fault of the translator, but one thing is plain, that thecontract provides for the purchase money to be paid to theauctioneer, and it seems to me that that is an improper conditionin the case of a sale with the authority of Court by a personwho is a mere trustee for others, specially for the estate of minors.Plaintiff in the present action appears to have been the highestbidder at the sale under these conditions, and he appears to havepaid, according to these conditions, the whole of the purchase-money to the auctioneer, and he signed the conditions of sale, thesignature being attested by a notary. Disputes arose between theauctioneer and the administratrix, who could not get the moneyfrom the auctioneer, and she consequently declined to execute theconveyance. Thereupon the purchaser brought this action in theDistrict Court of Galle, against the administratrix in her officialcapacity and against the auctioneer, asking for a declaration that-the administratrix was bound to execute a conveyance to him. TheDistrict Judge held that the defendant could not refuse to executea transfer of the land, which was sold by her agent the auctioneer,the auctioneer having admittedly received the purchase money,and he decreed that the first defendant do sign a transfer andordered the first defendant to pay the costs of the plaintiff and alsoof the second defendant, the auctioneer, in the case. The adminis-tratrix has appealed.
We think that the appeal ought to succeed. The Court ought not,in* the circumstances, make an order, on the administratrix to conveyland belonging to the estate when the purchase money has neverreached, and may never reach, the proper hands, and I do notsee how it was that the District Court of Galle had any jurisdictionto interfere in this matter. The sale was a sale ordered by theDistrict Court of Colombo in an action pending before it.. It seemsto me that all questions arising out of the execution of thatorder should be referred to and decided by that Court. If theplaintiff was of opinion that the administratrix, as the officerappointed by the District Court of Colombo, was not properly per-forming the duties of that office and carrying out the orders ofthat Court his course was to represent matters to the DistrictCourt of Colombo and obtain an order of that Court upon the matterscomplained of. The course was, it seems to me, to have presenteda petition on summary procedure in the action, and to have statedthe facts and asked for the order of the Court. But I do not thinkhe had any right to go to another Court and to ask that Court to-adjudicate on a matter which was within the cognizance of the
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District Court of Colombo. It was said that the plaintiff ought not 1903.to sufferbyreason ofthe District Court having improperly made14.
an orderforsale without taking proper precautions to see that the bonseb, GJ.
sale was properly carried out. But the answer to that is that itwas the purchaser’s duty to see that everything was in order. Hehad notice that his vendor was not the owner of the property, andthat she could only sell in a certain way upon special authority, andhe oughttohave seenfurther that his vendor had that authority.
If he chose to enterinto a contract without seeing that his
vendor had the requisite authority, he cannot complain if theCourt refuses to enforce that contract when it has discovered thatthere is no authority. If the purchaser has any cause to complainagainst the administratrix personally, the dismissal of this actionwill not interfere with his asserting his rights.
Wendt, J.—
I agree. So much injury and damage to the heirs comes to be•engendered in our Courts by the practice of giving adminis-trators general leave to sell property, that I think we ought to becareful' strictly to construe the conditions in the form of theletters of administration issued from the Court, and I think DistrictCourts would do well to insist on the conditions of sale beingsubmitted to them for approval by the administrator before thesale itself is carried out. In no case certainly ought these condi-tions to provide for payment of money to the auctioneer.
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