MALLIYA and others, Appellants, and ARIYARATNE, Respondent

033-NLR-NLR-V-65-MALLIYA-and-others-Appellants-and-ARIYARATNE-Respondent.pdf


BASNAYAEZE, C.J.—Malliya v. Ariyaratp&
145
1962 Present: Basnayake, C.J., and H. U. G. Fernando, J.MALLIYA and others, Appellants, and ARIYARATNE, Respondent
S. C. 486/59—P. G. Gampaha, 5611/P
Executors and administrators—Powers of an executor—Scope of applicability ofEnglish law■—Payment of testator’s debts—Sale, by executor, of fideicommissaryproperty in which minors are interested or of property specially demeed to minors—Requirement of sanction of Court—Entail and Settlement Ordinance.
An executor is not entitled to sell, for the payment of the testator’s debts,any fideicommissary property in which minors are interested, unless sanctionof the Court has been obtained. Nor can he sell, without the authority of theCourt, property specially devised to minors. In such cases, a sale by theexecutor without the authority of the Court is invalid as against the minor,who can, therefore, while he is still a minor, institute a partition action if theproperty sold was his undivided share of a land owned in common.
Scope of the applicability in Ceylon of the English law of executors andadministrators considered.
Appeal from a judgment of the District Court, Gampaha.
E. A. Koattegoda, with N. R. M. Daluwatte, for 3rd and 4th Defendants-Appellants.
W. D. Gunasekera, for 7th Defendant-Appellant.
Ananda Karunatileke, for Plaintiff-Respondent.
Cur. ctdv. vuU.
March 16, 1962. Basnayake, C.J.—
The question that arises for decision on this appeal is whether thesale of the land called Godakumbara of about 10 kurunies paddy sowingextent described in the Schedule to the plaint by the executrix of thelast will of one Charlis Silva without the authority of the District Courtis valid. As it will be helpful to the discussion of the question to setout the material portions of that will and the probate issued to theexecutrix I set them out below.
The relevant parts of the will read—
“ I, the said Kurugamage Charlis Silva do hereby will and desire• that all property movable and immovable now belonging to me orthat may hereafter belong to me wherever in this Island of Ceylonsituated devolve on my wife and two children, Wanigasuriya AratchigeSomel Nona, Kurugamage Piyasena and Kurugamage Ariaratne all ofPattalagedera aforesaid in equal shares subject to the conditions andorders hereinafter contained.
7—LXV
2—B, 11930 (0/68)
146
BASNATt AJEB, O. J.-—Malika v. Anyoratno
“ The conditions and orders above referred to—
The said Wanigasuriya Aratchige Somel Nona, out of the afore-said three persons .Wamgaenriya Aratchige Somel Kona, KurngamagePiyasena and. Kurugamage Ariaratne shall not during her life time sell,mortgage, execute, donate or otherwise alienate but possess the just one-third share that may devolve on her out of the immovable property,and after hex death the said share of ixxmiovahle property devolveon her said two children Kurugamage Piyasena and KurugamageAriaratne in equal, shares who shall have the right to possess and doany act deed pleased by them to do with the same.
The said Wanigasuriya Aratchige Somel Kona shall receivefrom the Colombo Electric Tramways Company the pensio .1 andgratuity due to me therefrom and out of same pay the principal andinterest due from me the said Kurugamage Charlis Silva uponMortgage bond No. 25541 dated 10th November 1939 attested byJohn S. Gunawardena of Talgasmote, Notary Public, and the twonotes to Seena Sinnaiyapillai of Hiripitiya in Veyangoda and obtain adischarge of the property mortgaged thereby and if there is any balanceleft that may be expended towards the purposes of educating the saidtwo children Kurugamage Piyasena and Kurugamage Ariaratne.
The said Wanigasuriya Aratchige Somel Nona, the mother ofthe said Kurugamage Piyasena and Kurugamage Ariaratne shall bein charge of the income and produce of the two-third shares of thesaid immovable property till they attain their lawful age and expendthe same towards their meals, drink, clothes et cetra and if there isany balance left have the same deposited in the post office SavingsBank in their names.”
The material portions of the probate are as follows :—
“ Be it known to all men that on the 17th day of November 1942,the Last Will and Testament of Kurugamage Charlis Silva of Pattala-geda-ra, deceased, a copy of which is hereunto annexed, was exhibited,read and proved before this Court, and administration of all theproperty and estate rights and credits of the deceased was and ishereby committed to Wanigasooriya Aratchige Sornel Nona ofPattalagedara the executor in the Last Will and Testament named ;the said Wanigasooriya Aratchige Somel Nona being first affirmedfaithfully to execute the said Will by paying the debts and legacies ofthe deceased Testator as fax’ as the property will extend and the lawwill bind, and also to exhibit into this Court a true full and perfectInventory of the said property on or before the 23rd day of March1944, and to file a true and just account of her executorship on orbefore the 22nd day of June 1944.
And it is hereby certified that the Declaration and Statement ofProperty under the Estate Duty Ordinance have been delivered,and that the value of the said estate on which estate duty is payableas assessed by the Commissioner of Stamps, amounts to Ks. 360/-.”
BASNAYAK„fi, C- J.—MaUiya v. Ariyaraine
147
It would appear from a comparison of mortgage bond No. 25541 oflOtk November 1939 and the inventory dated 1st November 1944filed by the executrix that two of the lands left by the deceased weresubject to mortgage. From the description one of them appears to bethe land in suit and the other is an undivided 1/4 share of the field calledGodakumbara at Hiripitiya in extent 12 kurunies of paddy sowingextent. The present action for a partition of the field called Goda-kumbara in extent 10 kurunies is instituted by Kurugamage Piyasena,a minor son of the deceased Charlis Silva. He claims that he is entitledto an undivided 4/27 share of the land. The action is brought on thefooting that the sale of the land in suit by the executrix is invalid. Thatland and three others left by the deceased were sold by the executrixfor a sum of Rs. 1,700/- by deed No. 5496 of 27th October 1944 toNotary Gunawardena who by deed No. 6619 of 16th May 1948 soldit and another for Rs. 5,000/- to the 2nd, 3rd and 4th defendants.
Those defendants resisted the action and claimed that they were thesole owners of the land by right of purchase. The 2nd defendant diedin the course of the action and his elder brother Malliya was appointedas his legal representative. The learned District Judge held that asthe authority of the District Court had not been obtained for the saleof their shares the deed of sale by the executrix did not pass the title ofthe plaintiff and his brother Ariyaratne who is named as the 5th defendantto this action. The present appeal is from that judgment.
To decide the main question involved in this appeal it is necessary toascertain the powers of an executor in Ceylon. It has been repeatedlystated in judgments of this Court that the law that governs executorsand administrators in thi country is the English law ; but I have notbeen able to find any satisfactory statement of how the English law wasintroduced and whether by English law is meant the English law whichobtained in England at the particular date or the English law bothcommon and statute which obtains in England at the correspondingdate at which the question arises for decision in this country. In thecase of subjects to which the English law is made applicable by theCivil Law Ordinance there is no difficulty as that enactment is explicit.The material portion of it runs thus :
“. … the law to be administered shall be the same as would be
administered in England in the like case, at the corresponding period,if such question or issue had arisen or had to be decided in England,unless in any case other provision is or shall be made by anyOrdinance now in force in this Island or hereafter to be enacted.”
On account of the vagueness attending the introduction of the Englishlaw of executors and administrators it is necessary to examine at lengththe relevant judioial dicta in order to ascertain how much of the Englishlaw obtains in Ceylon. What appeared at the outset to be a simplematter has in the course of time proved to be full of difficult problems.
14S
BASHAYAKS, 0. J.—MaTMpa v. jSttyvratm
Even at the risk of ovmburdemng-this judgment with well known judicialpronouncements I shall set them out in chronological order so that theprocess of judicial evolution of the law of executors may be seen. Therelevant portions of the Charters of 1801 and 1838 which are cited inthem as the instruments by which the English law was introduced arereproduced in full in Appendix * A ’ to this judgment as they are notreadily available in many provincial libraries.
The first of the line of decisions is Staples v. De Sararn et al.1. Inthat case the Court proceeded to expound the law of executors andadministrators—
,c We think it right, however, to add some remarks of our own asto our law of executors and administrators being entirely a graft ofEnglish law, and not a mixture of the old laws of Holland and those ofEngland. We take it that the Charter of 1801 introduced the Englishlaw on the subject here as to Europeans other than the Dutchinhabitants. Executors and administrators were to be appointedwith respect to such Europeans’ estates, and the testamentary law wasto be followed, as is prescribed in the Diocese of London, in England.The same Charter provided that the Dutch inhabitants should, in suchmatters, retain their old laws and usages. Then came, in 1833, theRoyal Charter, which is still in force, and which, by its 27th clauseempowers the district courts generally to appoint administrators tothe estates of intestates, to grant probates to executors, and to exerciseother powers in matters connected with such officers. The last-mentioned charter is not, in this respect, limited to any class of personshere ; but it applies to the estates of all and any persons dying withinany of the respective districts of the district courts of the Island. Wethink that these charters introduced—the first as to one class of ourpopulation, the last as to the whole population of the Island—anentirely new law, and one that could never be blended, or co-exist,
, with the old Roman Dutch Law, which dealt with heirs ex testamentoand heirs sine testamento. This old system was, in our opinion, entirelyabrogated, as being quite incompatible with the English which wasordained.
“ There was no such office as that of Administrator under RomanDutch Law.
“ In cases of intestacy, the heir by descent (or heir appointed bylaw, heres legitimus, as he was sometimes called) came in as heir ;and proceeded to * adiate * purely, or under benefit of inventory, orto take out the act of deliberation, just as the heir nominated by will.All this has ceased to exist, and the English forms and practices as toadministrators are oopied. So as to executors. Such an office wasnot wholly unknown to the Roman Dutch Law in its later times ; butthe Romani Dutch executor was ft very different functionary from the
1Samanathan't Report* 1886—08, p. 206 at 276-270.
BASNAYAKE, C. J.—Mattiyct v. AriyarcUne
149
one who bears that name under the English system. He was littlemore than the agent of the heir appointed by the will. He could notalienate or sell without the heir’s consent, and if the heir would notaccept the inheritance the executorship became a nullity.
“ It has been said that the English law as to executors and adminis-—trators could not be fully adopted here, on account of the peculiardistinctions which the English law makes as to real and personalproperty.
“ But that has never been found to cause any difficulty or incon-venience. We recognize the same power of executors and administra-tors over land and other immovable property here which the Englishlaw gives them over chattels real; and thus an entire estate, landed aswell as personal, is administered.’5
It will be seen from what has been said in the last paragraph of theabove quotation that, at the very outset, the English law obtaining atthat time [The English law itself has undergone change since then(vide Land Transfer Act 1897 and Administration of Estates Act)] inits application to our country underwent a very important modificationin that immovable property was regarded as vesting in the executorin the same way as movable property. Staples v. De Saram {supra) isfollowed by Ondaatjie v. Juanis 1 wherein Clarence J. explained howthe property of the testator is transmitted :
“ Under our law here, land passes to an executor exactly as personalproperty passes to an executor in England, and the same considera-tions will apply as would apply to the case of a bequest of a chattelreal or a movable article under English Law. Now the law is, thatthe subject-matter of all such gifts vests in the executor ; and not untilthe executor has assented to the bequest—that is assented to thelegatee’s assuming and enjoying the gift, on the ground that the subject-matter is not required by the executor for any other purpose—can thelegatee assume the gift. After that assent the legatee may recoverthe subject-matter by action, even from the executor himself. Untilthat assent has been given, he cannot retain it against the will of theexecutor, and the executor could recover it from him.”
The view expressed in the above two cases that the property bothmovable and immovable left by the testator vested in the executorunderwent a significant change in 1892 when a full bench of this Courtin Cas8i7n v. Marilcar2 expressed the opinion that the title toimmovable property specially devised passed not to the executorbut to the devisee by virtue of the will subject to the testator’s debtsand that, only in due order of administration. Burnside C.J. observedin that case—
“It is only in my opinion when specially devised land is requiredby the executor for the purpose of administration that he acquired 1
1 U888) 8 S. O. C. 192.
2® B. 11030 (0/03)
a (1892) 1 S. C. R. 180.
150
BABNAYAKB, a J.—M'aWya «. Ariyarcint
an interest in it, and that interest is an interest in land, which, canonly be divested in the way that the law requires. So that it is alwayssafer that the executor should recognise the title of the special devisee,and join him in any conveyance he may make; yet if property benot required for the purpose of administration, then the special deviseeof it would take a clean title unburdened by any right of executoror creditor.”
Lawrie J. in the same case said—
" The devise of this land to the plaintiff was made by the testatorby a deed executed before a notary and witnesses. It fulfilled therequirements of the Ordinance No. 7 of 1840. That devise in myopinion passed the title to the land to the devisee, taking it away,on the one hand, from the heirs at law, and on the other, from theexecutor of the will. Holding this opinion I differ from part of theopinion of my brother Clarence reported in the 8th volume of theSupreme Court Circular p. 192. But though the title passed to thedevisee, the land so devised, like the whole property of the testator,was primarily liable for payment of his debts. The title of the deviseewas liable to be defeated by the creditors or by the executor in thecourse of realizing the estate for the payment of debts.
” Until these were paid, the devisee might be required either torelinquish the land or, if he preferred to keep it, to contribute to thepayment of the debts to the extent of its value.
“ As between himself and the executor the devisee might terminatethe suspense by obtaining assent to the devise.
“ In my opinion such assent need not be signified by deed notariallyexecuted ; it need not be an express assent, for in some cases the assentmay be presumed from the conduct of the executor. In other cases(and this is said to be one) the assent may be expressly given eitherverbally or in writing.
c: The question, in what way an executor can legally give his assentis a totally different question from whether, assuming the title to theland to be in the executor, he can pass that title in any other way thanby notarial deed. It must at once be considered that if the title bein the executor, a deed i3 necessary ; but as my opinion is that thetitle passed by the w'H to the devisee, no transfer is necessary fromthe executor.”
Withers J., the third member of the Bench, in the course of his judgmentin the same case, referring to an observation in. an earlier case thatthe Privy Council itself had accepted the view that all property vestedin the executor observed that the words—•
" It is stated in the Judgment in Ceylon (and the form of the probateand all the proceedings in this case and in the other cases with which
BASNAYAKE, C. J.—Malliya v. Ariyaratne
151
they have been furnished show their Lordships that it has been correctlystated) that an executor in Ceylon has the same power as an Englishexecutor with this addition, that it extends over all real estate justas in England it extends over chattels personal. ”
in the judgment of the Privy Council in Gavin v. Hadden 1 do not mean-that-the title to all property passes to the Ceylon executor in the sameway as it does to the English executor, and went on to point out thedifference.
“ By the English law the executor’s assent is necessary to givetitle to even a special legatee, and if our law is the same, the executor’sassent, in order to give title to a special devisee, can only he given inthe way required by our law, that is, by a duly executed notarialinstrument. So it really comes to this, that if a man specificallydevises parcels of land to several children, and there are no claimsagainst the testator’s estate, the executor is bound to assign eachparcel to a particular devisee by a notarial instrument. What burdenis thereby laid upon the inheritance ? ”
and summed up his opinion in the following words :—
“ I humbly conceive that no assent of the Ceylon executor or adminis-trator is necessary to pass title to the heirs appointed in the will orthe heirs at law ; for they have this title on the death of the testatoror intestate subject to suspension of enjoyment pending administra-tion and subject to the limited estate or title of the executor andadministrator which I have spoken of before. An executor’s dutiesconcluded, his powers and estate disappear, and what remains afterliquidation is left free for enjoyment by the heirs.”
Further difficulties in ascertaining the extent to which the Englishlaw of Executors obtained in Ceylon soon arose. In Kulendoeveloe v.Kandeperumal 1 2 it was sought to call in aid section 6 of 3 & 4 WilliamIV. c. 27, an Act enacted in the very year of our Charter of Justice,described as “ an Act for the Limitation of Actions and Suits relatingto Real Property, and for simplifying the Remedies for trying theRights thereto ”. That section provided :
“ And be it further enacted, That for the Purposes of this Act anAdministrator claiming the Estate or Interest of the deceased Person ofwhose Chattels he shall be appointed Administrator shall be deemed toclaim as if there had been no interval of Time between the Death ofsuch deceased Person and the Grant of the Letters of Administration.”
18 Moore P. C. E. S., p. 90 at 122; 17 E. R. 247 at 258.
2(1905) 9 N. L. R. 350.
152
BABHA.YA.im, C. S.—MaOSm v. AHyOratne
t.
In ‘rejecting the argument Layard C.J. sought to explain to whatextent the English Law had -undergone modification in its applicationto Executors in Ceylon thus :
“ I understand that what has been introduced into Ceylon is theEnglish Law as regards executors and administrators, subject howeverto the provisions of our local statutes, and I find that our Ordinanceof Prescription is silent in respect to executors and administrators,and no mention is made of them. For questions of prescription andof limitation we must look to our own Ordinance, and with regardto executors and administrators we are bound to administer the generallaw of England which affects them, or any Statute Law dealinggenerally with the rights of executors or administrators or treating ofthe manner in which property is vested in them. We ore howevernot bound by the English Law, which lays down the limitation ofcauses of action in England, unless the Statutes dealing with themhave been introduced into this Colony.
“ Now 3 and 4 Will. IV, c. 27, is not in force in this Colony, and noneof the provisions for the limitation of actions laid down in that statuteare binding on us; consequently section 6 of that statute will not beoperative in this Colony, unless it in any way affects the English Lawwith respect to executors and administrators outside the provisionsof 3 and 4 Will. IV, c. 27. ”
But his explanation does not solve the difficulties. He says :
“ With regard to executors and administrators we are bound toadminister the general law of England which affects them, or any statutelaw dealing generally with the rights of executors or administratorsor treating of the manner in which property is vested in them.”
With the greatest respect to so eminent a Judge as LayaTd C.J.I find it difficult to see how it is possible to say that the English Law ofExecutors and Administrators was introduced to Ceylon by the Charterof 1S33 and, at the same time, exclude a provision such as section 6,a provision affecting administrators, enacted in that very year. Englishlaw is not a static legal system and the law governing executors hasundergone change since the Charter of 1833 and is now largely statutelaw. The latest legislation on the subject is the Administration ofEstates Act 1925 (15 Geo. 5 c. 23) which makes detailed provision as tothe estates of deceased persons and their administration. It is sufficientto quote therefrom the following section which makes special provisionin regard to the payment of the debts and liabilities of a deceased person:—
“ 32. (1) The real and personal estate, whether legal or equitable,of a deceased person, to the extent of his beneficial interest therein,and the real and personal estate of which a deceased person in pursu-ance of any general power (including the statutory power to disposeof entailed interests) disposes by his will, are assets for payment of
BASNAYAKE, C. J.—MaMvya v. Ariyaratne
153l
his debts (whether by specialty or simple contract) and liabilities,and any disposition by will inconsistent with this enactment is voidas against the creditors, and the court shall, if necessary, administerthe property for the purpose of the payment of the debts and liabilities.
This sub-section tabes effect without prejudice to the rights cfincumbrancers.
(2) If any person to whom any such, beneficial interest devolves,or is given, or in whom any suchinterest vests, disposes thereof in goodfaith before an action is brought or process is sued out against him,he shall be personally liable for the value of the interest so disposedof by him, but that interest shall not be liable to betaken in executionin the action or under the process. ”
Several questions arise for answer. What is the general law of Englandwhich affects executors and administrators ? Is it the common law?Where may one find a statement of that law ? What are the statutesdealing generally with the rights of executors and administrators ?How do they become applicable to Ceylon ? Are the statutes thatare applicable those dealing with the rights of executors and administra-tors obtaining at the time of the Charter of 1833 or those for the timebeing in force ? Is the Administration of Estates Act 1925 (supra)applicable ? If the statutes introduced from time to time are to apply,to what extent is the prohibition in section 1 of the Ceylon IndependenceAct 1947 in the way of such statutes being applicable ? If the Englishcommon law and statute law are replaced by a composite enactmentenacted after 1947 what will our law be ?
With this brief digression I shall resume the examination ofour judicial decisions. In 1906 in Cantlay v. Elkington 1 it was sought tocall in aid the English Land Transfer Act 1897 as being part ofour law of Executors and Administrators. It would appearthat Moncrieff J. at the hearing of the appeal was inclined to favourthe view that the English statute applied ; but at the hearing in reviewthe argument was rejected. Lascelles A.C. J. said :
“ With regard to Moncrieff J.’s reference to the English Land Trans-fer Act, I desire only to state that I do not concur in the view thatthe English statutes relating to executors and administrators are inforce in Ceylon. ”
Wood Renton J. said :
“ Again I cannot follow Moncrieff J. in his references to the LandTransfer Act, 1897. If his remarks are intended only as a reductio apabsurdwn of the argument of Burnside C.J. in Perera v. Silva (1893)2 C. L. R. 159 as to £ walking abreast with the law as it now exists ’, I thinkhe has misapprehended Sir Bruce Burnside’s meaning. If they implyanything more, I can only respectfully dissent from them.
H1906) 9 N. L. B. 168 at 173.
154
BASNATAEI0,0, if.—MaQfya v. JLriyaratno
“ When we speak of the introduction into Ceylon of the English,law of execu tors and administrators we refer to the general law alone—to the English conception of executorship and administratorship ascontrasted with that of the heir under the Civil and the Roman DutchLaw. It does not follow—and in my opinion it is not the case—thatevery English statute dealing with executors and administrators andespecially a statute so closely associated with the incidents ofEnglish real property law as the Land Transfer Act, 1897, have beenincorporated into the law of the Colony. ”
Now the Land Transfer Act makes special provisions relating to thevesting of a deceased person’s property as would appear from the provi-sions of the Act set out in Appendix “ B ” to this judgment.
The provisions of the Act deal with very important aspects of thelaw of Executors and Administrators and if we are not to turn to themfor the law on those matters we shall have to resort to our common lawas the English Law is to be found in English Statutes which have noapplication here. When Wood Renton J. says in Cantlay v. Elkington{supra) that it is not the case, “ that every English statute dealing withexecutors and administrators and especially a statute so closelyassociated with the incidents of English real property law as theLand Transfer Act, 1S97, have been imported into the law of theColony ”, does he mean that there are English Statutes which wouldbe applicable ? If so what are they ?
Having regard to the trend of decisions the answer is not easy to findand has not been given since that decision. Have any English statutesdealing with Executors and Administrators been incorporated in ourlaw ? I, for one, know of none. Lascelles A.C.J. was more criticalthan Wood Renton J. of the situation caused by the introduction of theEnglish law by a side wind as it were. He said :
“ The difficulty of adapting the English system of administrationto the principles of the Roman-Dutch Law has led to considerableconfusion.”
I have cited the earlier dicta in extenso in order to show thedevelopment of the law. The net result of the decision is—
that the executor has power over both movable and immovable
property and may sell the property left by the testator inaccordance with the directions in the will.
that the immovable property specially devised vesta not in the
executor but in the heir to whom it is devised subject to theexecutor’s right to have recourse to it in its due order for thepayment of the testator’s debts.
that the executor’s assent or a conveyance by him is not necessary
to pass title to heirs appointed in the will or the heirs at law.
BASNAYAKE, C. J.—Malliya v. A-rvyaralne
155
that the executor has power to sell the property left by the testatorfor the payment of his debt3, but that power must be exercisedwith due regard to the provisions of our law.
I now come to the executor’s power to sell fideicommissary property.for the payment of the testator’s debts. As that power has to beexercised with due regard to the previsions of our law we must turn toRoman Dutch Law in order to ascertain in what circumstances, in whatmanner, and by whom fideicommissary property may be sold, especiallyas fideicommissa have no place in English law. When the executor hasto resort to the sale of the property of minors he must observe the lawrelating to the sale of such property. The District Court by virtue ofits jurisdiction over the persons and estates of minors has a supervisorypower over the sale of their property, and an executor cannot sell theproperty that has vested in minors on the death of the testator without" submitting his decision to the scrutiny of the Court, even where he isauthorised by the will to sell the property left by the deceased to payhis debts, as would appear from the cases that I shall refer to later inthis judgment.
The general rule is that property subject to a fideicommissum cannotbe alienated by the fiduciary. There are recognised exceptions to it.Fideicommissary property may be alienated—
(а)to pay the testator’s debts and the legacies left by him provided
that no other funds are available for the payment of these.(Yoet 36.1.62) Vander Linden Institutes 1.9.8. Sande Restraints(Part 3 Ch. 8 secs. 2, 8).
(б)if all those who are interested give their consent.
ob causam necessariam.
to prevent destruction of the property.
in exchange for the benefit of the fideicommissary.
(/) where the fideicommissary is expressly authorised by the fiduciary.
For the purpose of this judgment I shall confine myself to the excep-tion for the payment of the testator’s debts. On this topic Voet (supra)says (Bk. 36 Tit. 1 s. 62 Gane, Yol. 5 p. 430):
“ So often however as goods are liable to be handed over on thecause of fideicommissum, they cannot be alienated except to paydebts of the founder of the trust and legacies granted by him, whenno other funds are found from which the payment of these things maybe made ; or unless all those who have an interest in regard to thefideicommissum give their consent. ”
Van der linden summarises the position thus (1.9.8.):
“ The person in possession of any fideicommissary property has,however, no power to pledge or alienate that property as he pleases,except for the payment of the debts with which the property itself is
156
BASNAYAEB, 0. J.—MuOiya v. Artyaraint
charged, o; with the consent of all the remaindermen, or for reasonsof pressing necessity. In which ease, however, the previous authorityand release of the court ought to be obtained. ”
Sande states the law in this wise [3.8.2. (8) ] :
<e A necessary cause for alienating arises from the testator, if anhereditary creditor distrains, according to the right of creditors, goodspledged to him by the deceased, or if, on account of debts contractedby the testator, the inheritance is, under the Praetor's edict, soldby auction, owing to the impatience of creditors; and among thesegoods the property prohibited from alienation outJde the family isalso sold. Such an alienation is binding, nor can it be set aside onaccount of the fideicommissum. ”
The matters that arise for decision before fideicommiasary propertycan be legally sold are such a3 can only be decided by a Court. It wouldappear that from the earliest times the sale of fideicornmissary propertywas subject to the authority of the Praetor, the State or a State Agency.
Apart from the provisions of Act No. 2 of 1916, which provides for theremoval or modification of restrictions on immovable property imposedby Will or other Instrument and is the South African counterpart ofour Entail and Settlement Ordinance, the practice in South Africa aswould appear from the decided cases has been to seek the authority ofthe Court whenever it became necessary to mortgage or sell fideicommis-sarv property. It is sufficient to refer to the decisions of Ex parteBlomerus1 and Ex parte Strauss and another3. In the latter caseDe Beer J.P. after a review of all the available sources stated theconclusion that the Court has power to permit an alienation ormortgage of fidei commissary property only if such power is conferredby Statute or Common Law.
In our country too the practice has been the same and comes downfrom the earliest times. In the case of Cassim v. Dingihamy(3 Judges)3 which affirmed the earlier decision in Marikar v. Cosy Lebbe 4Middleton J. stated:
“ The law regulating fidei commissa is laid down by the Dutchjurists and collected by Burge, and it seems that- property in fideiccmmissum can only be sold in cases of proved special circumstancesrendering it necessary (Burge Vol. II, p. 129), and in Ceylon by theauthority of the Court (Marshall’s Judgments, p. 191).
“ It has not been proved here to the satisfaction of the DistrictJudge that any of these special circumstances existed or that theleave of the Court has been obtained.
1 (1936) a, P. D, 368.* (1949) 3 S. A. L. B. 929.
* (1906) 9 N. L. B. 267 at 274.«1893-88 Bamanathan 283.
BASNAYAKE, C. J.—Malliya v.:Ariyaratne
157
“ The executor who in Ceylon has power to deal with immovableproperty in my opinion would only have a right to act according tothe law in Ceylon affecting the property with which he was empoweredunder the will to deal.
“ If that property was saddled with a fidei commissum, it would be–the.executor’s duty in dealing with it to observe_the special rules ofthe Roman-Dutch Law which apply to fidei commissa in substanceand in practice so far as his office is compatible therewith, and byEnglish Law a purchaser from an executor is affected with notice ofthe contents of the -will ”.
In answering the precise question that arose for decision in the caseMiddleton J. stated:
“ On the first point, as to whether the sale by an executor of aproperty burdened with a fidei commissum is good without the leaveof the Court on proof of special oircumstances according to the blendof English and Roman-Dutch Law administered in Ceylon, I am ofopinion that it would not be good.”
The passage in Marshall’s judgments referred to above is as follows :
“ Thus, where, for want of other property, it becomes necessary todispose of the fidei commissum in order to pay debts or legacies of thetestator, etc. or the public taxes, Or, where the property would bedeteriorated by being kept, Or, where it might be exchanged for otherproperty, with advantage to the estate. Other circumstances mayarise, which may make it necessary or benefioial to the estate, to disposeof the property so tied up. But in all instances, application should,in Ceylon, he made to the District Courts for authority so to disposeof it. ”
Apart from the requirement of the sanction of the Court laid downin the decisions above quoted we have had since 1876 the Entail andSettlement Ordinance under which the District Court is empowered toauthorise the sale, lease or exchangeof fideicommissary property. Whenit comes to the sale of fideicommissary property in which minors haveinterests the law is still more strict. It has been so in the times of theearly Roman-Dutch Law and later in both Ceylon and South Africa.On this topic Sande says (1.1.4.51—Webber, p. 30) : (I quote in extensoas this work is not available in most libraries.)
“55. If the matter is one of the sale, or exchange, or giving in pay-ment to a creditor, or incurring any obligation over the property of apupil or minor, the ground for alienation should be one of necessity.A necessary ground for alienating is defined in the oration of SeverusDivus thus, that the debt is so great that it cannot be paid from theremaining property.
65. Again, a careful inquiry into the reason for alienation isrequired. And in this inquiry the Judge will observe the precepts laiddown by Ulpian. ‘ For, first, the Judge should inquire who watches
158
BASNAYAEE, O. J —Matiiya r. Artyom**
■ ■ c-■
over the fortunes of the pupil, and he should not too readily rely upontutors and curators, who sometimes, for the sake of their own gain,are wont to assert that it is neoeesary that the pupil’s property shouldbe sold. He should therefore seek for the kinsmen of the pupil, or hisparents, or someone else who has knowledge of the pupil’s affairs; orif they cannot be found, or those who are found are not trusted, heought to order the reasons to be set forth and a synopsis.’ i.e., a shortstatement in writing and inventory of the pupil’s property, to be madeout. And on the authority of the same Ulpian * It comes within theduty of a Judge to make careful inquiries whether money to pay thedebt can. be procured from any other source. He ought therefore toinquire whether the pupil has money, either in cash or in bonds, whichcan be sued upon, or in expectation of rents and income. Moreover,he should inquire whether there is any other property besides the landedproperty which can be sold, and with the price of which the debt can bepaid. If then it shall be found that in no other way can the debt bepaid, than by the sale of the landed property, then he will allow it to besold, only if the creditor presses or the rate of interest should favour thepayment of the debt
“66. In an inquiry into the cause of alienating he should alsoconsider in what order the things are sold, namely, the movables, theless valuable, and the useless things first; then rents from land; and,lastly, the landed property ; and a large sale should not be made to paya small debt, as the same Jurisconsult says. And Charondas bearswitness that decrees have often been reversed by the Supreme Court,because an inquiry as to the movable property has not been held, theminor being allowed to refund the purchase price. ”
Now in regard to the sale itself Sande says (1.1.5.72 Webber p. 38) :
“ 72. After the sanction of the Court has been obtained, and thedecree has been granted, the property of the pupil ought to be sold atpublic auction, and be put up to bidding ; nor should private sales beallowed, lest it should be in the power of the tutor to cheat the pupil,for it is well known that some tutors are not inclined to act in goodfaith. ”
and the effect of a sale without good ground and an order of Court isstated thus :
“ 79. If the immovable property of a pupil, minor, or madman, orthat movable property which can be safely kept, is sold without goodgrounds for alienation, and without an order of court, the alienation isipso jure void ; nor does the dominium pass from the pupil or minor. ”
The same author says as to the minor’s remedy :
“ 80. A pupil or minor, whose landed property has been alienatedin spite of a prohibition, retains an actio in rem, that is, a vindication,which he can maintain not only against the purchaser, but also againstany third person who has possession. ”
BASNAYAKE, C. J.—MaUiya v. Ariyaratne
159
The view expressed by Sande has been adopted by the Courts bothhere and in South Africa. First as to the latter country. In Ex parteBlomerus1 the Court held that:
" The principles upon which the Court will assent on behalf of minorato the mortgage or sale of property subject to a fideicommissum are thesameas those upon which the Court will allow the property of minors tobe sold. Before the Court will grant such assent it must be fullysatisfied beyond all reasonable doubt that a mortgage or sale is to theadvantage of such minors. ”
The position should not be different where the minor is only afideicommissary heir to the property. The South African view is that nosale or mortgage of fideicommissary property by which minors are likelyto be affected can take place without good ground and the authority ofCourt. In Odendaal’s case 2 De Villiers, J.P. said :
“ Now I take the position to be that when there is a fideicommissumon property, then the fidei commissaries, if they are actually in existence,can consent to the property being mortgaged by the fiduciary. Indeedthey can consent to the alienation of the property if they choose, andthey can even extinguish their own fideicommissary rights altogether.Such consent can be given by the fideicommissaries themselves, if theyare majors. If, however, the fideicommissaries are minors, theirconsent can only be given on their behalf by their guardians, if any, and,in addition to the consent of the guardians the authority of the Master,as upper guardian, and of the Court as uppermost guardian, is necessary,but in spite of that it remains a matter of consent. The position inlaw is still that the land is mortgaged by consent of the fideicom mis-saries, major or minor. ”
In Exports Blomerus {supra) Davis J. in considering the question of theright of the Court to consent on behalf of minors and those yet unborn tothe sale or mortgage of fideicommissary property said :
“As a general rule, of course, the mortgage or alienation of fidei-commissary property is prohibited (Voet 36.1.62) but there areexceptions. All the authorities, e.g. Voet {ibid); Sande, Restraints onAlienations (3.8.27); van der Linden, Institutes (1.9.8), agree that theconsent of those interested can make the mortgage or alienation valid.In a long and uninterrupted line of cases the Court as upper guardianof minors, when all the major heirs have consented, and where it hasthought it right to do so, has interposed its consent also on behalf ofthe minors. Though, as far as I have been able to find, the Koman-Dutch authorities do not refer to the power of the Court to authorisethe mortgage or sale of fideicommissary property where the fidei-commissary heirs are minora this seems to follow from its power toauthorise the guardians of minors to deal with the property actually
1 (1936) C. P. D. 368.
2 (1928) O.P. D.218.
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BASNAYAKE, C. J,~JUaBiya « Arryarutne
belonging to them. The Court has evidently felt that the minorcannot be in a different position where he is only a fidei commissaryheir to the property, that is to say when it may some day belong tohim, from that which he is in when he in fact already owns the propertyhimself. ”
The principles which govern the Court in giving its consent are the sameas those governing the alienations of the immovable property of minors.But on this point there is no unanimity in South Africa for Be Beer, J.P.says in Ex parte Strauss & another {supra) at p. 944 :
“ There is no express Roman Law authority which permits theremoval of a fideicommissum in which minors are interested on consentbeing given by the Court on their behalf, and if the Court is to exercisethis power it would seem that it should be conferred by the Legislatureby an amendment of Act 2 of 1916. For the purpose of this applicationit is, however, not necessary to express a definite opinion on this point. ”
De Beer, J.P., proceeds to sum-up his review of the authorities thus :
“ On a review of the Roman-Dutch authorities and the decided casesin our Courts I am of opinion that the Court’s power to authorise themortgage of fideicommissary property ob ccmsarn necessariam is limitedto the following :—
to pay the debts of the testator and to make provision for thelegacies bequeathed by him, when there is no other propertyavailable for these purposes.
To discharge statutory burdens imposed on the fideicommissaryproperty where the fiduciary has not the means to do so.
To provide necessary maintenance for the children of the fiduciarywhere the latter is indigent. I have grave doubt whether in viewof Voet's and Van der KesseVs statement above referred to this is agood ground to-day. ….
To pay expenses which are necessary for the preservation andprotection of the property. ”
Now turning to our law I find that the Courts have always maintainedthat the property of minors cannot be sold except on good grounds andthen only with the sanction of the Court. The fact that it is the Executorthat wants to sell does not affect that indexible rule. The Executor inour country, even when exercising the rights of an executor under theEnglish law, cannot do bo in disregard of our law. If any of his rightsqua executor under English law are in conflict with our law,they must yield to our law. In Cassim v. Peria Tarnby1,where the sale by an executor of immovable property devised by a Muslim 1
1 {2296) 2 N. L, R. 200.
BASNAYAK-B, C. J.—Malliya v. Ariyoraine
161
to his minor children was challenged, the Court sent the case backfor ascertaining the laws and usages of the Muslims. In doing soBonser C.J. observed :
" The principal questions, it seems to me, on which it will be necessaryto ascertain what the Mohammedan Law is, are, (1) as to whether,under the circumstances of the case, the executor had power to sellthis property : it is quite clear that had it been a will governed by theRoman-Dutch Law the executor would not have had power ; (2) to whatextent, if any, the clause restricting alienation binds this property. ”
It would appear from the above remarks that an executor cannotexercise his powers without regard to our common law.
In the instant case we have not only to consider whether an executormay sell fideicommissary property in which minors are interested withoutthe authority of the Court, but also whether an executor has power tosell property specially devised to minors without such authority. Asindicated above an executor cannot do so even where there is good groundwithout the sanction of the Court. In the instant case the sale is not bythe minor but by a third person. The greater is the need therefore for thesanction of the Court. Voet says of such a sale (Bk. IV Tit. 4 s. 16) :
“ But take the case where it is not the minor who has himself soldoff his property, but another who has sold it and delivered it as hisown. If the sale has indeed been made privately or even indeed bypublic action, but has been followed by delivery made privately in freewill without previous order of a judge and the formalities of such order,there appears to be no doubt that the minor does not even needrestitution. An ordinary vindicatory action for the property willhave to be raised against the buyer as the person in possession;since my property cannot without act of mine be transferred toanother at the mere whim of some other private person.
“ But take the case where after a sale made publicly or privately theproperty (as for greater security is by present-day custom frequentlywont to happen) has been delivered with the prefaced formalities ofjudicial orders, after the calling upon everyone who deems himself toenjoy a right of stopping the delivery to gainsay it if he can, and thusan order of Court has been passed. It is indeed certain nowadays thatownership has then been transferred to the buyer because of the weightgiven to the formal order of Court. But it is also certain that throughthe hazards of his youth the minor could have missed interveningagainst the passing of the judge’s order. There is therefore no reasonwhy in this case too he should not have the assistance of the relief dueto youth and, his ownership being restored, possession of the propertyalso go back to him. ”
162
BASNAYAKE, O. J,—Maiifty» v. Aiiyaralna
For the above reasons 1 am of opinion that the sale of the bad calledGodajmmbura by the executrix of the last will of Charlis Silva withoutthe authority of the District Court is not valid,
I would accordingly dismiss the appeal with costs.
H. N. G. Febstastdo, J.—I agree.
Appeal dismissed.
APPENDIX ‘A’
Charter of 1S01—
‘ ‘ LV. And We do hereby farther grant, ordain, establish, and appoint, Thatthe said Supreme Court of Judicature in the Island of Ceylon, shall grant Probatesunder the Seal of the said Court, of the Wills and Testaments of such Personaas are herein-bofore in that Behalf described, dying within the said Island of Ceylon,and commit Letters of Administration under the Seal of the said Supreme Court,of the Goods, Chattels, Credits, and othsr Effects whatsoever, of such Personsas hereinbefore in that Behalf described, who shall die intestate within the saidIsland of Ceylon ; or who shall have left Goods, Chattels, Credits, and Effectswithin the said Town, Port, or District of Colombo : or who shall not have namedan Executor resident within the Jurisdiction of the said Supreme Court ; or wherethe Executor, being duly cited according to the Eorm now used for that Purposein the said Diocese of London, shaLl not appear, and sue forth such Probate ;annexing the Will to the said Letters of Administration, where such Personsshall have left a Will without naming any Executor who shall then be alive andresident within the said Island of Ceylon, and who, being duly cited thereto,will appear and sue forth Probate thereof; and to sequester the Goods, Chattels,Credits, and other Effects whatsoever of such Persons so dying, in cases allowedby Law, as the same is and may now be used in the said Diocese of London ;and to demand, require, take, hear, examine, and allow and if occasion require,to disallow and reject the Account of them, in such Manner and Form as is nowused in the said Diocese of London, and to do all other Things whatsoever needfuland necessary in that Behalf.
“ LVT. Provided always, and We do hereby authorize and require the saidSupreme Court of Judicature, in the Island of Ceylon, in such Cases, as aforesaid,where Letters of Administration shall be committed with the Will annexed, forwant of an Executor appearing in due Time to sue forth the Probate, to reservein such Letters of Administration full Power and Authority to revoke the same,and to grant Probate of the said will to such Executor whenever he shall dulyappear and sue forth the same.
“ LVTL And We do hereby further authorize and require the said SupremeCourt of Judicature in the Island of Ceylon, to grant and commit such Lettersof Administration according to the Form now used, or which lawfully may beused, in the said Diocese of London, to the lawful next of Kin of such Personsso dying as aforesaid, being then residing within the jurisdiction of the said Court,and of the full Age of Twenty-one Years•. And in the case no such Person thenbe residing within the Jurisdiction of Our said Supreme Court of Judicaturein the Island of Ceylon, or being duly cited, shall not appear and pray the sameand make out such their Claim to the Administration of the Effects of the In-testate deceased, to the Satisfaction of the said Court, it shall and may he lawfulfor the Registrar of the said Supreme Court of Judicature in the Jurisdictionaforesaid, and he is hereby required to apply for, and such Court is hereby requiredand directed to grant such Registrar, such Letters ad Cottiffmda or of Adminis-tration, as to such Court shall seem meet; by virtue whereof such Registrar
BASNAYAKE, C. J.—Mallvya v. Ariyaratne
163
"*•v,
shall collect the Assets of the Deceased, and shall, under the Direction and subjectto the Control of the said Supreme Court, bring in such Assets, or where it shallbe necessary, shall seE and convert the same into Money, and from Time toTime, as often as the same shall amount to the Sum of Five hundred Rix DoEarsof Current Money of Ceylon, or Fifty Pounds of lawful Money of Great Britain,shaE pay the same into our Treasury in the said Island, in which proper anddistinct and separate Books and Accounts thereof shaE be regularly kept, and suchRegistrar shaE regularly account for such Assets, and the Disposal thereof to thesaid Supreme Court of Judicature, at such Periods, and in such Manner, as thesaid Court direct; and the said Supreme Court is hereby authorized and requiredto assign to the said Registrar, and the said Registrar shaE be entitled to retainout of and from the Amount of such Assets, such AEowance or per Centage,as the said Court shaE in their Discretion think reasonable for his Trouble, inthe Collection and Administration of the Estates of such Persons dying Intestateas aforesaid : Provided always, That when any next of Kin, who, at the Timeof the Return of the above mentioned Citation, shaE have been absent in Europeor elsewhere, shaE make and establish his or their Claim to the Administration. of the Assets of such Intestate, the Letters ad Cottigenda or of Administration,so granted by virtue hereof to the said Registrar shaE be recaEed, andAdministration in due Form granted to such next of Kin respectively. ”
■Charter of 1833-—
“ 27. And We do further give and grant to the said District Courts respectivelyin their said respective Districts fuE power and authority to appoint Adminis-trators of the Estates and effects of any Perons dying within Buch respectiveDistricts Intestate or who may not have by any Last WiE or Testament appointedany Executor or Trustee for the Administration or execution thereof, and likepower and authority to enquire into and determine upon the validity of anyDocument or Documents adduced before them as and for the Last WiE andTestament of any Person who may have died within such Districts respectively,and to record the same and to grant Probate thereof with like power and authorityto appoint Administrators for the Administration or execution of the trustBof any such Last WiE or Testament as aforesaid in cases where the Executorsor Trustees thereby appointed shaE not appear and take out Probate thereof,or having appeared and taken out such Probate shaE by Death or otherwisebecome incapable to carry any such trusts fuEy into execution. And We dofurther authorise and empower the said District Courts in their said respectiveDistricts to take proper Securities from all Executors and Administrators of theLast Wills and Testaments of any deceased Persons or of the Estates and Effectsof any Persons who may have died intestate for the faithful performance of suchtrusts and for the proper accounting to such Courts respectively for what maycome to their hands or be by them expended in the execution thereof, with likepower and authority to call aE such Executors and Administrators to accountand to charge them with any Balances which may be due to the Estates of anysuch deceased Persons, and to enforce the payment thereof and to take orderfor the secure investment of any such Balances, and such Executors and Adminis-trators from time to time to remove and replace as occasion may require. ”
APPENDIX ‘B’
Land Transfer Act 1897—
“ 1.(1) Where real estate is vested in any person without right in any other
person to take by survivorship it shaE, on his death, notwithstanding any testa-mentary disposition, devolve to and become vested in his personal representativesor representative from time to time as if it were a chattel real vesting in themor him.
“ (2) This section shaE apply to any real estate over which a person executesby wiE a general power of appointment, as if it were real estate vested in him.
164
BASHAYAKB, 0. T—Ma&iy&v. ArtydNtine
" (3) Probate and loiters of administration m&y be granted in respect of realestate only, although there is no personal estate.
“ (4) The expression 'real estate’, in this part of this Act, shall not be deemedto include land of copyhold ieont or customary freehold m any earn in ■whichan adirriwstow or any act by the kvd of the bmhsop & necessary to perfect the titleof a purchaser from the customary tenant.
“ (5) This section applies only in cases of death after the commencement ofthis A.ct.
“ 2.(1) Subject to the powers, rights, duties, and liabilities herein-after
mentioned, the personal representatives of a deceased person shall hold the realestate as trustees for the persons by iaw beneficially entitled thereto, and thosepersons shall have the same power of requiring a transfer of real estate as personsbeneficially entitled to personal estate have of requiring a transfer of such personalestate.
“ (2) AH enactments and rules of law relating to the effect of probate or lettersof administration as respect chattels real, and as respects the dealing with chattelsreal before probate or administration, and as respects the payment of costs ofadministration and other matters in relation to the administration of personalestates, and the powers, rights, duties, and liabilities of personal representativesin respect of personal estate, shall apply to real estate so far as the same are appli-cable, as if that real estate were a chattel real vesting in them or him, save thatit shall not be lawful for some or one only of several joint personal representatives,without the authority of the court, to sell or transfer real estate.
“ (3) In the administration of the assets of a person dying after the commence -ment of this Act, his real'estate shall be administered in the same manner, subjectto the same liabilities for debt, costs, and expenses, and with the same incidents,as if it were personal estate ; provided that nothing herein contained shall alteror affect the order in which, real and personal assets respectively are now appli-cable in or towards the payment of funeral and testamentary expenses, debts,or legacies, or the liability of real estate to be charged with the payment of legacies.
“ (4) Where a person dies possessed of real estate, the court shall, in grantingletters of administration, have regard to the rights and interests of personsinterested in his real estate, and his heir-at-law, if not one of the next-of-kin,shall be equally entitled to the grant with the next-of-kin, and provision shallbe made by rules of court for adapting the procedure and practice in the grant ofletters of administration to the case of real estate,
“ 3.(1) At any time after the death of the owner of any land, his personal
representatives may assent to any devise contained in his will, or may conveythe land to any person entitled thereto as heir, devisee, or otherwise, and maymake the assent or conveyance, either subject to a charge for the payment ofany money which the personal representatives are liable to pay, or without anysuch charge ; and on such assent or conveyance, subject to a charge for all moneys(if any) which the personal representatives are liable to pay, all liabilities of thepersonal representatives in respect of the land shall cease, except as to any actsdone or contracts entered into by them before such assent or conveyance.
“ (2) At any time after the expiration of one year from the death of the ownerof any land, if his personal representatives have failed on the request of the personentitled to the land to convey the land to that person, the court may, if it thinksfit, on the application of that person and after notice to the personal representativesorder that the conveyance be made, or, in the case of registered land, that theperson so entitled be registered as proprietor of the land, either solely or jointlywith the persona! representatives.
“ (3) Where the personal representatives of a deceased person are registeredas proprietors of land on his death, a fee shall not be chargeable on any transferof the land by them unless the transfer is for valuable consideration.
“ (4) The production of an assent in the prescribed form by the personalrepresentatives of a deceased proprietor of registered laud shall authorise theregistrar to register the person named in the assent as proprietor of the land.
“4.(1) The personal representatives of a deceased person may, in the absence
of any express provision to the contrary contained in the will of such deceasedperson, with the consent of the person entitled to any legacy given by the deceasedperson or to a share in bis residuary estate, or, if the person entitled is a lunaticor an infant, with the consent of his committee, trustee, or guardian, appropriateany part of the residuary estate of the deceased in or towards satisfaction of that
165
WEERASOORIYA, J.—Be Jong v. Demalagoda Police
legacy or share, and may for that purpose value in accordance with the prescribedprovisions the whole or any part of the property of the deceased person in suchmanner as they think fit. Provided that before any such appropriation is effectual,notice of such intended appropriation shall be given to all persons interested inthe residuary estate, any of whom may thereupon within the prescribed timeapply to the court, and such valuation and appropriation shall be conclusiveBsve as otherwise directed by the court.
‘-‘(2)-Where any property is so appropriated a conveyance thereof by the per-sonal representatives to the person to whom it is appropriated shall not, by reasononly that the property so conveyed is accepted by the person to whom it is con-veyed in or towards the satisfaction of a legacy or a share in residuary estate,be liable to any higher stamp duty than that payable on a transfer of personalproperty for a like purpose.
“(3) In the case of registered land, the production of the prescribed evidenceof an appropriation under this section shall authorise the registrar to registerthe person to whom the property is appropriated as proprietor of the land. ’