033-NLR-NLR-V-27-HORNE-v.-MARIKAR-et-al.pdf
I 186 )
Present: Branch C. J. and Schneider J.
HORNE v. MARTKAR el al.
81—D. C. Kandy, 31,387.
Registration—Letters of administration—Sale by administratrix forpurposes of administration—Execution sale against heir—Adverseclaim—Ordinance No. 14 of 1891f s. 16.
A grant of letters of administration is a registerable instrumentwithin' the meaning of section 16 of the Land RegistrationOrdinance.
A claim based upon a grant of letters of administration which hasnot been registered is void as against an adverse interest createdby a subsequent deed duly registered.
Fonseka v. Comelis1 followed.
A
CTION for declaration of title to a property called Amba-talawa estate. The property was purchased by the adminis-
tratrix of the estate of one Mishin an execution of a decree on amortgage bond entered in favour of Mishin. After the institutionof the action Mishin died and the widow, Rahamath Umma, asadministratrix was substituted as plaintiff in the mortgage action.The plaintiff as administratrix purchased the property in execution, *and the Fiscal’s transfer in her favour was executed on November24,1922, and registered on November 29,1922. In the testamentaryaction in which she was administering her husband’s estate,Rahamath Umma obtained the sanction of the District Judge onAugust 23, 1922, and March 11, 1923, to sell the estate for thepayment of costs of the administration. The land was, thereuponsold by her to the 2nd defendant on April 3, 1923. Theplaintiff stated that he had obtained a decree against RahamathUmma in her personal capacity, and in execution of that decreehad caused the Fiscal to seize and sell her right, title, and interestin the estate in question on May 27, 1921, and that he had obtaineda Fiscal’s transfer on November 22, 1922, which was registeredon January 27, 1923. It was admitted that neither the letters ofadministration nor the two orders of Court sanctioning the sale ofthe estate by the administratrix were registered. The District Judgedismissed the plaintiff’s action.
H. V. Perera, for plaintiff, appellant.
Keuneman, for defendants, respondents.
1625.
1 {1917) 20 N. L. R. 97.
( 180 )
1926* September 17, 1925. Branch C.J.—
Home v,It is unnecessary to recapitulate the facts of this case which are
Marikar f^y get out in the judgment of my brother Schneider which Ihave had the advantage of reading.
The conclusion arrived at in that judgment follows the viewI held at the close of the argument, and consideration hasnot altered that view. I concur and I agree with the orderproposed.
Schneider J.—
This action has been tried and decided in the District Courtupon a statement of facts in writing agreed upon by both parties.The learned District Judge dismissed the plaintiff’s action andhe has appealed. For the purpose of the appeal I take the followingfacts from the statement mentioned and from the other documentswhich have been put in evidence. One Miskin sued two persons asdefendants to recover judgment upon a mortgage bond in his favour.During the pendency of the action he died intestate leaving a wifeRahamath Umma and two sons as his heirs. Rahamath Umma,his widow, was appointed administratrix of his estate on August 24,1917, in testamentary action, D. C., Kandy, No. 3,329. She wassubstituted plaintiff in place of her deceased husband in the actionupon the mortgage bond. In execution of the decree entered inthat action the property mortgaged—Ambatalawa estate—wassold on September 11, 1920, and was purchased by one Saravana-muttu “ for and on behalf of the subtituted plaintiff, RahamathUmma, widow of A. D. Miskin, deceased.” Shepaidfor the purchaseby being given credit for a sum of Rs. 10,135 upon an order of Courtdirected to the Fiscal to give credit for that sum to the substitutedplaintiff. There was a balance sum of Rs. 165 due to the Fiscalin connection with the purchase which she appears to have paidin cash. Presumably this money also belonged to the estate of herdeceased husband or was a loan by her to that estate. In the orderof the Court requiring the Fiscal to give credit, the substitutedplaintiff is described as “ Rahamath Umma, administratrix of theestate of the deceased plaintiff, A. D. Miskin.” The sale of the landwas confirmed by the District Judge on November 14,1922. In theorder confirming the sale, Rahamath Umma is described as the“ administratrix of the deceased plaintiff, A. D. Miskin.” TheFiscal executed a transfer of the land on November 24, 1922. Thistransfer was registered on November 29, 1922. In the recitalsin this transfer the Fiscal set out the relevant facts which 1 havealready mentioned regarding the sale in execution, the purchase,and the manner of payment of the price, but he conveyed the sale
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to “ Rahamath Umma, widow of A. D. MiBkin, deceased/’ Thistransfer, it would appear, was not regarded by the District Courtas being in accordance with the order of the confirmation of the sale.This is evidenced by the deed of rectification dated December 10,1923, issued by the same Fiscal. In this deed it is recited that theSecretary of the District Court had called upon the Fiscal to rectifythe error in his transfer to Rahamath Umma by inserting thedesignation of the purchaser as “ the substitued plaintiff, RahamathUmma, administratrix of the estate of the deceased plaintiff, Ad uruDarwasse MiBkin.” The deed then proceeds to rectify the transferin accordance with the direction of the District Court. In thetestamentary action No. 3,3*29, in which she was administering herhusband’s estate, Rahamath Umma obtained the sanction of theDistrict Judge on August 23, 1922, and on March 11, 1923, to sellAmbatalawa estate for the payment of the costs of the administra-tion of her husband’s estate. The land was sold to the 2nddefendant and conveyed to him by her on April 3, 1923. Thepurchase money is still lying in deposit in the testamentary actionpending the decision of this action which was instituted inDecember, 1923.
In this action the plaintiff prayed to have it declared that he wasentitled to all the interest of Rahamath Umma in Ambatalawaestate. He also prayed for an order on the defendants to pay himhis share of the profits, if any, of that estate from November 15,1923. He did not specify what share it was that he claimed. Hestated that he had obtained a decree against Rahamath Ummain her personal capacity, and in execution of that decree had causedthe Fiscal to seize and sell her right, title, and interest in the estatein question on May 27, 1921, and that he obtained a transfer of theestate from the Fiscal on November 22, 1922, which he dulyregistered on January 27, 1923.
It was admitted that neither the letters nor the two orders of theCourt sanctioning the sale of the estate by the administratrix wereregistered, and that plaintiff was not noticed of the application bythe administratrix for sanction to sell the estate. The learnedDistrict Judge dismissed the plaintiff’s action holding that in theevents which had happened the 2nd defendant was entitled to theestate in question.
On appeal it was contended by Mr. Perera, on behalf of theplaintiff, that the Fiscal’s transfer of the estate to Rahamath Ummawas in her personal capacity, and that the plaintiff was, therefore,entitled to the whole of the estate. This contention is not entirelyconsistent with the plaintiff’s claim as laid in the plaint. It wouldnot probably have been made if Counsel had noticed, that his Proctorin the District Court cleared whatever ambiguity there was in the
1925.
SOHNBXDBB
J.
Home v.Marikar
( 188 )
1925.
SoHNBiba
J.
Home v.
Marikar
plaint by stating that he “ claimed only the share of RahamathUmma as an heiress of Miakin.” This statement must be regardedas an admission that the purchase of the estate by RahamathUmma enured to the benefit of her husband’s estate. That being soit makes no difference in what light the Fiscal’s transfer in herfavour is to be viewed. But had it been necessary to consider thequestion of the effect of that Fiscal’s transfer, I should have hadno hesitation in holding that it was conveyed to her in her capacityas administratrix, and this for several reasons. One of them isthat the Fiscal is a ministerial officer of the Court deriving hisauthority to sell or transfer property from the Court. As at presentminded I would hold that he can transfer property which he hassold only in strict accordance with the orders of the Court. In thisinstance he had obviously made an error in his transfer and theCourt had the power to direct, a rectification of that error. Thecombined effect of his transfer and of its rectification was to vestthe title to the estate in Rahamath Umma in her capacity solely as. administratrix, beyond any doubt whatever.
Mr. Perera’s next contention has to be carefully considered. Hesubmitted that the decision in Fonseka v. Comelis (supra) governedthis case. The same argument appears to have been addressed tothe District Judge. But the Judge thought that the circumstancesof this case were different. He thought that the estate in questionat no time formed part of the estate of the deceased Miakin and,therefore, never vested in his heirs. He thought that RahamathUmma as one of the heirs had a “ personal saleable interest ” andthat this interest was vested in the plaintiff. He thought that if anyportion of the “ land ” remained available after the deceased’sestate had been duly administered the heirs were entitled to demandfrom the administratrix that such remaining portion should beconveyed to them in the proportions laid down by the MuhammadanCode.
I am unable to agree with the District Judge that the land neverat any time vested in the estate of the deceased Miskin. Miskinhad obtained the decree in the action on the bond in his lifetime.The land was bought with the proceeds which were realizable uponthat decree. The land therefore formed part of his estateundoubtedly from the date of its purchase. It might be regardedas having formed part of that estate even earlier if it be correct todeem that upon its purchase it took, among the assets of the estatethe place of the money of the estate which was expended upon itspurchase. But it is sufficient if it formed part of the estate from thedate of its purchase for the heirs of the estate to be vested with titlefrom that date. It is settled law that title to immovable propertybelonging to the estate of a person dying intestate does not vest inthe administrator but passes to his heirs, but that the administrator
( 189 )
retains the power to sell the property for the purposes ofadministration. See Gopdlsamy v. Ramasamy Pvlle1 and Silva v.Silva (Full Bench).2
Rahamath Umma accordingly became vested with title to a shareof the land as one of the heirs o6 irdestaio. When the plaintiffcaused her interest to be seized and sold by the Fiscal, after thepurchase of the land by her as administratrix, and obtained atransfer of that interest from the Fiscal he became vested with thatinterest. He could be deprived of it only by a sale of the landfor the purposes of administration. As a matter of fact the landwas sold for those purposes, and the 2nd defendant in thecircumstances would have a title superior to the plaintiff even asregards the share of Rahamath Umira.
The question which arises upon these facts is whether the registra-tion of the transfer in favour of the plaintiff while the letters ofadministration were never registered enables the plaintiff to defeatthe 2nd defendant’s claim which is adverse to his claim. It is thie-very question which came up for decision before the Bench of threeJudges which according to the report was a “ Full Bench ” of thisCourt in Fonseka v. Cornells (supra). The only difference is thatin that case the “ instrument ” which had not been registered wasa probate of a will, whereas in this case the instrument is a grantof administration. But this difference does not matter. A grantof administration is expressly mentioned in section 16 of theOrdinance alongside with a probate of a will among “ instruments ”which are registerable. The question for decision in this casewould, therefore, appear to be identical with the question decidedin Fonseka v. Comelis (supra). It was held in that case that theprobate of a will was an “ instrument ” registerable under theprovisions of the Ordinance by virtue of the provisions in sections16 and 17, and that by virtue of section 17, a duly registered deedaffecting land belonging to a deceased person’s estate gets priorityover any claim based on an unregistered probate. The sectiondeclares that the grant of administration in this case upon whichthe 2nd defendant 'l ases his title to the whole land “ shall bedeemed void as against ” the plaintiff who claims upon a dulyregistered grant a share adversely to the grant which, has notbeen registered.
I would, therefore, set aside the decree of the District Judgedismissing the plaintiff’s action and hold that he is entitled to theshare to which Rahamath Umma would have succeeded by intestatesuccession. That share appears to me to be an undivided one-eighth, but I would leave the District Judge free to determinewhat is that share when the case comes again before him for finaladjudication. The plaintiff will be declared entitled to the share1 (2911) 14 N. L. B. 238.* (1907) 10 N. L. B, 234.
1926.
SCHHEIDEB
J.
Home v.Morikar
( 190 )•
192S,
S OHNKIDEB
J.
Horne v.Marikar
in the land to 'which R&hamath Umma would have taken as anheir of her husband, and the case will go back to the District Courtfor the determination of the other matters in dispute between theparties. The plaintiff will have his costs against the defendants,both of the trial which has already taken place and of thisappeal.
Appeal allowed.