P.A.N. SOMASUNDERAM, Appellant, and W.D. WIJERATNE, Respondent

046-NLR-NLR-V-66-P.A.N.-SOMASUNDERAM-Appellant-and-W.D.-WIJERATNE-Respondent.pdf


Somasunderam v. Wijeratne
193
1964Present: Basnayake, C.J., and Herat, J.P. A. N. SOMASUNDERAM, Appellant, and
W.D. WIJERATNE, Respondent
S. G. 46/1959—D. C. Kalutara, 31518
Administration of estates—Power of an executor to sell immovable property belongingto the estate—Scope—Applicability of English law—Civil Procedure Code,88. 518, 538, 540, 551-554, 712-739.
Where a testator dies owing no debts and leaving sufficient money for thepayment of estate duty, the executor bas no power to sell any of the immovableproperty that is left subject to the condition that the executor shall have theright only to take and enjoy all the rents and profits and shall not have thepower to sell or mortgage or alienate the same and that, after his death,the property shall devolve on and vest in certain specified legatees.
Where, after his power of administration has come to an end, an executorsells immovable property which the Will does not authorise him to sell, thesale conveys no title to the purchaser as against a person who subsequentlybuys the same property from the heirs of the deceased and institutes avindicatory action against the former purchaser. Even if his power ofadminstration bas not come to an end, the executor has power to sell onlyfor the purposes of due administration.
PPEAL from a judgment of the District Court, Kalutara.
A testator devised all his immovable property to his heirs subjectto a life interest in favour of his wife, who was appointed executrix underprobate granted on 8th March 1928. The deceased left no debts andhad sufficient money to meet the liabilities in respect of estate duty.The Will gave the widow no power to sell any of the properly.
In the course of the administration, the executrix obtained a hypo-thecary decree against a debtor of the testator and bought thehypothecated lands on 1st March 1937. After she had filed final accounton 7th September 1934 stating that she had carried out all the directionsin.the Will, and twenty-one years after the grant of probate, she mort-gaged on 22nd April 1949 for a sum of Rs. 6,000 the lands which shehad purchased on 1st March 1937. On 27th September 1949 she soldthose lands, in her capacity as executrix, to the defendant-appellantfor Rs. 9,000, out of which sum Rs. 6,000 was paid to the mortgagee. 'The sale took place pending proceedings for judicial settlement initiatedby the heirs.
The executrix died on 13th October 1954. On 9th February 1956the heirs of the testator sold to the plaintiff the above-mentioned landswhich the executrix had sold to the defendant. The defendant, whowas in possession of the lands, disputed the plaintiff’s ownership. In
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the present action instituted by the plaintiff for a declaration of titleand ejectment, the trial Judge gave judgment in favour of the plaintiff.The defendant thereupon filed the present appeal.
H. V. Pe.re.ra, Q.C., with E. P. S. R. Coomaraswamy, H. Mohideenand N. S. A. Goonetilleke, for Defendant-Appellant.
N. E. Weerasooria, Q.O., with H. W. Jayewardene, Q.G., and N. R. M.JDcduwatta, for Plaintiff-Respondent.
Cur. adv. vult.
February 10, 1904. Basnayaxe, C.J.—
The question that arises for decision on this appeal concerns the powerof an executrix to sell property devised to the testator’s heirs subjectto a life interest in her.
Briefly the facts are as follows :—Mariano Leity Ramanaden by hisLast Will (P2), after making certain religious bequests, left the restof his property to his heirs subject to a life interest in favour of his wifein the following terms :—
“ I do hereby give devise and bequeath all the rest of my propertyboth movable and immovable of whatsoever kind or nature the samemay be and wheresoever situate and lying including the several sumsof money invested on bond or lying in deposit in the banks unto mywife Philippa Adaman subject to the following terms and conditionsviz:—
(а)That my wife the said Philippa Adaman shall have the rightonly to take and enjoy all the rents and profits of the said immovableproperty and shall not have the power to sell mortgage or alienatethe same and after her death the same shall devolve and vest in thechildren of Nathalia Canjemanaden wife of Emanuel Anandappa inequal shares.
(б)That my wife the said Philippa Adaman shall only use and takeand enjoy the interest on the said monies during her life time and afterher death the principal sums shall devolve and vest in the said childrenof Nathalia Canjemanaden in equal shares. My household furnitureand jewellery shall be the absolute property of my said widow.
f
I do hereby constitute nominate and appoint my wife the saidPhilippa Adaman Executrix of this my Last Will and Testament.”
Leity Ramanaden died on 8th June 1927 and his widow the executrixproved his Will in D. C. Colombo Testamentary Case No. 3449 andobtained Probate on 8th March 1928. The Probate (P3) was in thefollowing terms:—
“ Be it known to all men that on the 11th day of August, 1927,the Last Will and Testament of Mariano Leity Ramanaden deceased,a copy of which is hereunto annexed, was exhibited, read, and proved
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before this Court, and administration of all the property and estate,rights, and credits of the deceased was and is hereby committed toPhilippa Adaman of Jampettah Street in Colombo the Executor inthe said Last Will and Testament named ; the said Philippa Adamanbeing first sworn faithfully to execute the said Will by paying thedebts and legacies of the deceased Testator as far as the propertywill extend and the law will bind, and also to exhibit into thisCourt a true, full, and perfect Inventory of the said property on orbefore the 31st day of August, 1928, and to file a true and justaccount of her executorship on or before the 29th day of August,1929.
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 payable,as assessed by the Commissioner of Stamps, amounts to Us. 196,398'60.
And it is further certified that it appears by a certificate grantedby the Commissioner of Stamps, and dated the 28th day of February,1928, that Rs. 9,819 93 on account of Estate Duty (and interest onsuch duty) has been paid.”
On 28th February 1929 Philippa Adaman filed an inventory and state-ment of the debts due to the deceased (P4). Among the debts showntherein is a debt of Ps. 12,000 due on bond No. 985 (PI) – dated16th September 1921 executed by Thomas Abraham Dias, JosephRaphaelMiranda, and John Nepomus Miranda for Rs. 12,000 hypothecatingcertain immovable property and undivided interests in immovablyproperty.
On 7th March 1932 action was instituted against the obligors on theBond for the recovery of the money. On that date a sum of Rs. 6,230was due as interest. On 27th November 1933 decree (P5) was enteredin a sum of Rs. 17,921'90 in the following terms :—
“ That the Defendants jointly and severally do pay to the Plaintiffas Executrix as aforesaid the sum of Rs. 17,921-90 together withinterest on Rs. 12,000 at the rate of 15 per centum per annum fromthe 3rd day of March 1932 to date hereof and hereafter on the aggregateamount of this decree at the rate of 9 per centum per annum tillpayment in full and costs of suit, within one month from the datehereof.
That the property described in the Schedule hereto together withall rights privileges easments servitudes and appurtenances what-soever to the said premises belonging or usually held occupied usedor enjoyed therewith and all the estate right title interest propertyclaim and demand whatsoever of the Defendants in to out of or uponthe same be and the same is hereby declared specially bound andexecutable for the payment of the said sum interest and costs on thefooting of Mortgage Bond No. 985 dated^l6th September 1921 attestedby S. R. Amarasekere of Colombo Notary Public.
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That, in default of payment of the said sum interest and costs withinthe said period, the said property declared specially bound andexecutable as aforesaid be sold by Public Auction by F. F. Krishna-pillai, Licensed Auctioneer, or by some other licensed auctioneernamed by Court, after such advertisement as the said auctioneermay consider sufficient upon conditions of sale approved by Court,the said auctioneer being directed and authorized to allow the Plain-tiff or any one else on her behalf to bid for and purchase the saidproperty at such sale and to do so upon such special terms as theCourt may impose, if the Court imposes any, and, in the event of thePlaintiff becoming .the purchaser thereof, to allow her credit to theextent of her claim and costs.
That the Secretary of this Court do execute the' necessary con-veyance in due form of law in favour of the purchaser or purchasersat such sale on,his or their complying with the conditions of sale andon being satisfied, if the purchaser be the plaintiff, that she has beenallowed credit, and, in the event of the purchaser or purchasers beinga third party or parties, that the purchase money has been depositedin Court.
That the proceeds of such sale be applied in and towards the paymentof the said sum interest and costs.
That, if such proceeds shall not be sufficient for the payment infull of the said sum interest and costs, the defendants jointly andseverally do pay to the Plaintiff as Executrix as aforesaid the amountof the deficiency with interest thereon at the rate of 9 per centumper annum until realization.
That the Deputy Fiscal, Kalutara, do deliver possession of the saidproperty to the purchaser or purchasers thereof. ”
The sale iu> execution of the decree did not take place, but on 1st March1937 Thomas Abraham Dias, one of the parties to Bond No. 985 (Pl)>executed deed of sale No. 2798 (P6) attested by Samuel Robert Amera-sekere, Notary Public, conveying to Philippa Adaman of Alutmawatte inColombo, executrix of the Last Will and Testament of the late MarianoLeity Ramanadan and her successor or successors in office, for a sum ofRs. 12,500 “ in full satisfaction of the claim and costs due upon thehypothecary decree entered of record in case No. 48088 of the DistrictCourt of Colombo ” the lands and interests secured by Bond No. 985,and in respect of which the hypothecary decree was entered. The twoMirandas who were parties to the Bond and the hypothecary action werenot parties to the deed. The material portion of the deed is as follows
“ KNOW ALL MEN BY THESE PRESENTS that I THOMASABRAHAM DIAS presently of No. 194, Chekku Street in Colombo(hereinafter calling myself the “ said Vendor ”) for and in considerationof the sum of RUPEES TWELVE THOUSAND FIVE HUNDRED(Rs. 12,500) in full satisfaction of the claim and costs due upon thehypothecary Decree entered of record in case No. 48088 of the
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District Court of Colombo to PHILIPPA AD AM AN OF Alutmawattein Colombo, Executrix of the Last Will and Testament of the lateMARIANO LEITIRAMANADEN (the receipt payment and applicationwhereof I do hereby admit and acknowledge) have granted bargainedsold assigned transferred and set over and do by these Presents grantbargain sell assign transfer and set over unto the said Philippa Adaman,Executrix of the Last will and Testament of the late Mariano LeityRamanaden (hereinafter called and referred to as the “ said Purchaser ”)and her successor or successors in office All those undivided shares ofland and premises described in the schedule hereto together with alland singular the rights of way easements advantages servitudes andappurtenances whatsovever thereto belonging or in anywise apper-taining or usually held occupied used or enjoyed therewith or reputedor known as part or parcel thereof and together with all the estateright title interest claim and demand whatsover of me the said vendorof into upon or out of the said undivided shares of the said lands andpremises and every part thereof and together with all the title deedsvouchers and other writings therewith held or relating thereto. ”
On 22nd April 1949, twenty-one years after the grant of probate toher, Philippa Adaman, by deed No. 2326 (Dl) attested by Henry Arnoldde Abrew, mortgaged the lands conveyed to her by deed No. 2798 (P6)to Wadduwage Don Agos Singho Appuhamy of Pahala Neboda for asum of Rs 6,000. She described herself therein as “widow andexecutrix of the Last Will and Testament of- the late Mariano LeityRamanaden ”. On 27th September 1949 by deed No. 2320 (D4) attestedby Stanislaus Marcus Casimir de Soysa, Notary Public, Philippa Adamandescribing herself as “ Executrix of the Last Will and Testament of thelate Mariano Leity Ramanaden of Aluthmawatte Road, in Colombo ”,sold the lands conveyed to her by deed No. 2798 (P6) to the defendant-appellant Perumal Arunasala Narayana Somasunderam of Neboda forRs. 9,000 the lands described in the Schedule thereto. The Schedules inP6 and D4 do not tally. The former has eight items, the latter has six,and their descriptions are not the same. In his attestation the NotaryStates—
“ Rs. 3,000 was paid in cash in my presence. Rs. 6,000 was paid tomortgagee on Bond No. 2326 of 22/4/49 attested by H. A. de AbrewNotary Public in settlement. ”
Philippa Adaman died on 13th October 1954. On 9th February 1956Lawrence Benedict Roque Anandappa, Mary Clare Casie Chitty, RoseAngela Perumal, Anid Augusta Anandappa and Julia Anthonia Saveri-muttu, all children of Nathalia Canjemanaden referred to in the Will ofLeity Ramanaden by deed No. 843 (P7) attested by ChinnathambyMuthuvelu Chinnaiya, Notary Public, sold to the plaintiff WaduwageDon Wijeratne of Neboda for Rs. 8,000 the lands dealt with in Bond 985(PI) and conveyed to Philippa Adaman by deed 2798 (P6). Thedefendant, who had a prior deed from Philippa Adaman and was inpossession, disputed the plaintiff’s ownership and hence this action.
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The main dispute as to ownership rests on Philippa Adaman’s powerto sell the lands in question. If she had no power to sell, the defendantcannot succeed ; but if she had power to sell, he is entitled to a decreein his favour.
Although there is no express enactment introducing the English Lawof Executors and Administrators into this country, in a series of decisionswhich have been discussed in my judgment in Malliya and others v.Ariyaratne 1 this Court has held that by implication the Royal Charter of1833 introduced the English Law on the subject. But those decisionsare silent on the question whether the law to be administered is the EnglishLaw in force at the time when the question arises for decision or theEnglish law in force in 1833. On the question whether the Englishstatute law was also introduced by the Charter, the decided cases containno definite pronouncement, but in the reported instances in which theEnglish statute law was invoked'the plea has been rejected. Learnedcounsel for the appellant however submitted that the law introducedwas not only the common law in force at the time of the Charter, but alsothe statute law in force at that time. In my judgment in Maliya andothers v. Ariyaratne (supra) I gave reasons for my being unable to agreewith the view of the learned Judges of the past that the Charter had theeffect of introducing the English law of Executors and Administrators.But, as successive judicial decisions have said so, and as the adoptionof a view different to that followed since 1833 may have the effect ofupsetting the basis on which the bench and the profession have so faracted, I shall, for the purposes of this judgment, proceed on the basisthat the English Law of Executors and Administrators was introduced-in 1833 and that the law that was introduced is the common and statutelaw in force in England in that year.
•
To ascertain the law in force in 1833 one has to resort to the legaltreatises and judicial pronouncements of that period. There is a fair bodyof law applicable to executors in the Civil Procedure Code. In manyrespects that law follows the pattern of the English Law in force at the timethe Code was enacted. It would be useful to examine that body of law.An executor is entitled to apply to have the will proved, and to have probatethereof issued to him (s. 518). Once probate is issued the executor is'■ bound to take the oath of office, file in Court an inventory of the deceasedperson’s property and effects with a valuation thereof verified on oath or. affirmation, and if so required by the Court to enter into a bond with twosureties for the due administration of the deceased’s property (s. 538).When no limitation is expressed in the grant, then the power of adminis-• tration which is authenticated by the issue of probate extends to everyportion of the deceased person’s property movable and immovable withinCeylon, and endures for the life of the executor or until the whole of thesaid property is administered, according as the death of the executoror the completion of the administration first occurs (s. 540). An executoris entitled to compensation by way of commission on the property subject
1 (1962) 65 N. L. R. 145.
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to administration at rates prescribed in. section 551. On or before theexpiration of twelve months from the date on which probate issued tohim, the executor is required to render a true account of his executorshipverified on oath or affirmation with all receipts and vouchers attachedand he may at the same time pay into Court any money which may havecome into his hands in the course of his administration to which anyminor or minors may be entitled (s. 553). An executor is also empoweredat any time before the filing of the account required by section 553 (calledthe final account) voluntarily to file an intermediate account (s. 723).He can also be compelled at the instance of a creditor, a party interested,or the Court itself, to file an intermediate account (s. 724). An executorwho fails to pay over to the creditors, heirs, legatees, or other persons thesums of'money to which they are respectively entitled, within one yearafter probate, is liable to pay interest out of his own funds for all sumswhich he shall retain in his own hands after that period, unless he canshow good and sufficient cause for such detention (s. 554).
Provision also exists in Chapters LIY and LV of the Civil ProcedureCode for aiding and controlling executors and for the judicial settlementof their accounts. An executor may seek the intervention of the Courtto discover property of the testator (ss. 712—716). An executor who hasfailed to file an inventory within the prescribed time can be compelledto do so (ss. 718—719). A creditor is entitled, at any time after twelvemonths have expired since the grant of probate, to seek the interventionof Court to compel the payment of his debt, and any person entitled toa legacy, or any other pecuniary provision under a Will, or a distributiveshare is entitled to seek the intervention of the Court to compel the pay-ment or satisfaction of such legacy or pecuniary provision, or of its justproportional part, at any time after twelve months after the grant ofprobate (s. 720). The Court has power in the cases specified in section 725to compel a judicial settlementof an executor’s account on the applicationby a creditor or by any person interested in the estate or by any ofthe others specified in section 726. The executor himself may petitionfor a judicial settlement (ss. 729 and 732). The effect of a judicial settle-ment is that it is conclusive evidence against all parties who were dulycited or appeared and all persons deriving title from any of them at anytime cf the facts enumerated in s. 739.
The above are the statutory powers and obligations of an executorcontained in the Civil Procedure Code. By virtue of section 540 thepower of administration of an executor endures for the life of the executoror until the whole of the property of the deceased is administered.Although the executor’s powers end on the occurrence of one or the otherof the events specified in section 540 his liability for his acts does notend with either of those events. He can be called upon to answer for hisacts at any time. But if there has been a judicial settlement of his account,
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such judicial settlement is conclusive evidence against all parties who wereduly cited or appeared and all persons deriving title from any of them atany time of the following facts and of no others :—
(а)That the items allowed to the accounting party for money paid to
creditors, legatees, heirs and next cf kin, for necessary expenses,and for his services are correct.
(б)That the accounting party has been charged with all the interest for
money received by him and embraced in the account, for whichhe was legally accountable.
That the money charged to the accounting party, as collected,is all that was collectible at the time of the settlement on thedebts stated in the account.
(<2) That the allowances made to the accounting party for the decrease,and the charges against him for the increase, in value of propertywere correctly made.
In the instant case the executrix died five years after the disputedsale on 27th September 1949. So the questions that arise for decisionare whether, on 27th September 1949, twenty-one years after the grantof probate to the executrix, when she sold the land in dispute, she hadadministered the whole of the property of the deceased, and even ifshe had not, whether she had the power to sell the lands in question.Now, what is meant by administered the whole of the property of thedeceased ? In order to answer this question it is necessary to examinethe import of the word “ executorAn executor is one that is appointed
by a man’s Last Will and Testament to # have the execution thereofafter his decease and the dispensing of all the testator’s substanceaccording to the tenor of the Will. He is as such an Heres Designatusor Testamentarius in the Civil Law as to Debts, Goods and Chattelsof the testator [Jacob’s Law Dictionary, Vol. I (1739) Executor]. Theexecution of the duties of the office of executor is called administrationboth in our Code and in the English Law. His duties are to bury thedeceased, to collect the estate, and, if necessary, convert it into money ;to pay the debts in their proper order, then to pay the legacies, anddistribute the residue among the persons entitled thereto. Under ourCode an executor is expected to do all these acts within a year from .thegrant of probate at the latest. Thereafter the executor becomespersonally liable for the payment of interest on the unpaid legacies.A like period was prescribed in the English Law in force in 1833[see Williams Vol. II (1832 ed.) p. 850].
On 7th September 1934 the executrix filed an account called the “ finalaccount ”, which being in order, the Court ordered the payment to herof her commission. At this point of time she claimed that she hadwholly administered the estate in the sense of collecting such debts
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as had to be collected, paying the debts that had to be paid includingestate duty, and carrying out the directions in the Will. After that shecontinued to draw through the Court the interest she was entitled tounder the Last Will as life-interest holder. But on 6th December 1941she moved, with the consent of the heirs, for an order of payment ofRs. 800 out of the money lying “ to the credit of the case ” for purchas-ing the property No. 592 Aluthmawatha Road, Mutwal, which wasmortgaged to the deceased for Rs 12,500. That application was allowed.On 7th August 1947, fifteen years after the final account had been filed,the children of Nathalia Canjemanadan petitioned the Court for ajudicial settlement of the account of the executrix. They alleged thatthe final account filed by the executrix was incorrect and that she hadfailed to prosecute the actions filed by her for the recovery of moneydue on bonds and promissory notes. They also alleged that by reasonof her negligence the heirs had suffered loss. A citation was issuedon the executrix. In answer to it, it was stated on behalf cf the executrixthat she abided by the account already filed. The petition was inquiredinto by the Court and the executrix was examined at length. On 18thMarch 1949 in answer to Court she said in regard to the disputedproperty (P8)—-
“ I remember I sued one T. A Dias on a mortage bond he had givento my husband (P3). In that case he transferred the properties to’ me. I know one of those properties. I do not know how manyproperties were transferred ; they were all mortgaged during myhusband’s lifetime. True the properties were transferred in 1937but I never went to those properties. I know the existence of the lands.They are at Neboda. I did not get possession of the properties.It was not necessary for me to get possession ; they are boutiquesand the rent is being paid. I used to get Rs 75 a month as rent.I have given a lease of those properties to a Tamil man calledMarkandan. Prior to him the lease was in the name of anotherperson. I do not know how many lands ; there are some houses andone land.
I do not know how much money is due from T. A. Dias to the estate.I do not know the amount for which the properties were taken overfrom Dias, I have now forgotten. I know the principal amountsbelong to the petitioners after my death. I know as executrix I gotto look after that money. Everything is there ; I am only takingthe profit and the interest.
Q : I put it to you the amount that T. A. Dias owes is more thanRs. 12,000 i — I do not know. I remembered everythingat that time, now I am forgetting.
Q : Are you incapable of looking after this estate as executrix ?Why ? — All this time I have been looking after it. NowI am taking what I am entitled to and I do not keep anaccount of those things.
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Q : I am asking whether you can look after this estate ? — Yes.
In lieu of this Rs. 12,000 I am holding some lands. After my deaththose lands must go to the petitioners. Hereafter these lands mustcome into my possession.
Q : Why hereafter ? — Nowhere is it said that I must keep anaccount and I must show an account. I can enjoy all; whenI depart all will go to the petitioners. Before I departall this property will not be lost.
Q : Who is in possession of these properties given to you byT. A. Dias ?— Marakandan.
This Markandan is at Neboda ; he is a man of Neboda. This placeis 12 miles or so from Kalutara. Markandan is in the Neboda bazaar.He comes to see me once in two or three months and pays me the rent.The last time he came to pay rent was five or six months ago. Icannot remember whether I gave him receipt. I do not have a bookfrom which to give receipts. I give receipts on loose sheets of paper.I never gave receipts for rent paid from a book. Even earlier noproper receipts were given to Dias. Receipts are given to tenants inthe Colombo area; to tenants away from Colombo I do not givereceipts. As he brings the money once in three or four months noreceipts are given to Markandan. Eor the tenants in the Colomboarea I have given receipts from a book. The Neboda tenants werenot given receipts for a long time. I do not know where the titledeeds of the Neboda properties are. I must search for the originalsof the deed by which the Neboda properties were transferred to me.I know I am the executrix of this estate. I know I have to look afterthe properties belonging to the estate. I am not willing to give up theestate; till I breathe my last I must carry on.”
After several postponements on account of the illness of the execturixthe inquiry came up for farther hearing on 30th September, 1949. Onthat day, as the executrix appeared to be too ill to act in her office, hercounsel informed the Court “the Executrix is not in a fit. state of healthfor this inquiry to be continued ”, and stated that he was willing to takesteps to have letters, with Will annexed, issued to an attorney or tosome other appropriate person. The Court thereupon made the followingorder—
“ I accordingly make order that, pending such application byMr. Wikremenayake’s client or any person interested on her behalf,the grant already made to the Executrix be revoked.”
Proceedings were adjourned for 1st December 1949.
On 19th June 1951 Laurence Benedict Roque Anandappa, whoapplied on 9th November 1949 for grant of Letters of Administrationwith the Will annexed on the revocation of the grant of probate to theexecutrix, was granted letters of administration.
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The order of the Court into the inquiry into a judicial settlement ofthe account of the executrix was delivered on 29th September 1950.The portion of the judgment which relates to the land in question reads—
“ In dealing with these items 9 to 29, one item, namely, item No. 11in schedule A requires further consideration. These relate to an actionbrought upon a bond against one T. A. Bias. The sale was stayedat the request of the plaintiff and by document E5, the judgmentdebtor conveyed eight lands in full satisfaction. E5 is the deedupon which this conveyance was made; a certified copy of theproceedings (P3) has been produced and the amount involved isRs. 12,000. The executrix’s position was that she has let these premisesto a lessee and gets Rs 75 per month as rent. The executrix admittedthat these premises which were transferred to her will go to the peti-tioners after her death. Learned Counsel who originally appeared'for the executrix intended to call her proctor who he said will giveevidence that she was holding these properties in trust. The proctor,however, was never called. These properties, the executrix appearsto have sold on deed No. 2320 of 27th September 1949 after theproceedings in this case had commenced, to a third party. PI6 isthis deed of sale and the sale is for Rs. 9,000. The consideration isalleged to have been paid as follows : Rs. 3,000 in the presence ofthe Notary and Rs. 6,000 against a certain mortgage bond to themortgagee. This money therefore the executrix is liable to makegood to the estate.”
There was an appeal from this order. It was dismissed on 23rd March1954.
On 30th September 1949 the Court revoked the grant of probateto her. It is not clear under what provision of the Code it was done.But it is not necessary to decide that point for the purpose of the presentappeal. The executrix, who also had a life interest in the propertyleft by the testator, had, at the time she filed the final account, carriedout the directions in the Will. As the testator regarded the loans securedby bonds as investments which were to devolve on his legatees after thedeath of his wife, the life-interest holder, and as the deceased left nodebts and had sufficient money to meet the liabilities in respect ofestate duty, the recalling of these investments was not necessaryfor the due administration of the estate. There was nothing left for herto do as executrix in the way of administration. The Will gave her nopower to sell any of the property that was left to the legatees, subjectto a life interest in her favour. Apart from the powers conferred bythe Will, an executor has no more power than an administrator. Williamsstates—
“ The office of au administrator, as far as it concerns the collectingof the effects, the making of an inventory, and the payment of debts,is altogether the same as that of an executor : But as there is no will,
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(except the administrator be cum testamento annexe,) to direct thesubsequent disposition of the property, at this point they separate,and must pursue different courses.” (1832 ed. Vol. H. p. 905).
“ After the administration is granted, the interest of the administratorin the property of the deceased, is equal to and with the interest ofan executor. Executors and administrators differ in little else thanin the manner of their constitution ” (1832 ed. Vol. I. p. 411).
In the instant case the Will did not authorise the sale of theproperty which was left to the legatees. Nor was a sale necessary forthe payment of the debts.
Learned counsel for the appellant referred us to certain dicta of theEnglish Courts in support of his submission that an executor has anabsolute power of sale and that property sold by him cannot be followedinto the hands of the purchaser. As would appear from the passagesfrom Williams (1832 ed.) cited below, those dicta refer to the sale ofmovable property, as the English Executor had no power over immovableproperty in 1833.
-** The. general rule is, that all goods and chattels, real and personal,go to the executor or administrator. By the laws of this realm, saysSwinburne, as the heir hath not to deal with the goods and chattelsof'the deceased, no more hath the executor to do with the lands,tenements and hereditaments. In other words it may be stated,that, both at law and equity, the whole personal estate of the deceasedvests in the executor or administrator.” (Vol. I. p. 411).
“ It is a general rule of law and equity, that an executor or adminis-trator has an absolute power of disposal over the whole personaloffsets of his testator or intestate.; and that they cannot be followedby creditors, much less by legatees, either general or specific, intothe hands of the alienee. The principle is, that the executor oradministrator, in many instances, must sell in order to perform hisduty in paying debts, etc. and no one would deal with an executoror administrator if liable afterwards to be called to account ”(Vol. II. p. 609).
“ But in equity it seems to be now established, (in contradiction,as it should appear, to some former cases), that the executor oradministrator can make no valid sale or pledge of the assets as asecurity for, or in payment of his own debt: on the principle that thetransaction itself gives the purchaser or mortgagee notice of the mis-application, and necessarily involves his participation in the breachof duty.
If the executor be also specific legatee, a sale or mortgage from himof the specific legacy for satisfaction of his private debt will be safe,unless it can be shown that the purchaser or mortgagee knew therewere debts unpaid.
BASNAYAKE, C.J.—Somasunderam v. Wijeratne
205
Where there exists such collusion as to render the dealing invalid,not only a creditor, but a legatee, whether general or specific, isentitled to follow the assets. But they must enforce their rightwithin a reasonable time, or it will be barred by their acquiescence.”(Vol. II. p. 612).
This Court had decided that in Ceylon the property of the testator,subject to the terms of the will, vests in the heirs. In the case of Silva v.Silva1, which is a decision of a Bench of three Judges, Hutchinson C.J’observed—
“I do not find any enactment vesting the immovables in the
executor or administrator and
in fact it has been held by the Full Court inDe Kroes v. Don Johannes1 2,following an earlier case, that no assent on the part of the executoris required to pass to the devisee the immovable property specificallydevised by the will.”
After referring to the cases of Fernando v. Dochehi 3, Ram (1866) p. 195.Ram. (1867) p, 273 Gavin v. Hadden4 *, Vanderstraaten’s Reports p. 273,Fernando v. Perera6, P. Chettiar v. C. Pandary6, Tikiri Menika v.T. M.7, Tikiri Banda v, Ratwatte8, Moysa Fernando v. Alice Fernando 9,Gunaratne v. Hamine10, Ponnamma v. Arumugam11, Hutchinson C.J.stated in his conclusion thus—
“ And in my judgment the cases which I have quoted establish thata conveyance by the heir or devisee of his share of the immovableproperty of the deceased is not void. The personal representativestill retains power to sell it (with the special authority of the Court,if the terms of the grant of administration so require) fot the pur-poses of the administration; but his non-concurrence in the con-veyance does not otherwise affect its validity.” In the same caseGrenier A. J. stated—
“ In applying therefore the English Law of Administration wemust, in the absence of special legislation as there is in South Africa,take into account certain conditions relating to the Common Lawrights of the heirs of an intestate, more especially those rights whichaccrue by succession and inheritance.”
Both Hutchinson C.J. and Grenier A.J. quoted with approval the caseof Tikiri Banda v. Ratwatte12, where Lawrie and Withers JJ. expressedthe opinion that it was competent for the heirs-at-law to alienate the
1(1907) 10 N. L. R. 234 at 239.
2(1905) 9 N. L. R. 7.
2 (1901) 5 N. L. R. 15.
4(1871) 8 Moore's P. C. Cases (&. S.) 90.
6 (1887) 8 S. C. G. 54 (F. B.).
* (1889) 8 S. C. G. 205.
(1890) 9 S. G. C. 63.
(1894) 3 G. L. R. 70.
8 (1900) 4 N. L. R. 201.
(1903) 4 N. L. R. 299.
(1905) 8 N. L. R. 223.
(1894) 3 C. L. R. 70.
206
BASNAYAJCE, C.J.—Somaaunderam v. Wijeratne
property pending the administration of the estate, and that suchalienation vested good title in the alienee, subject only to be defeated byany disposition of it by the administrator in due course of administration.This view was re-iterated in Horne v. Marikar 1—
“ It is settled law that title to immovable property belonging tothe estate of a person dying intestate does not vest in the adminis-trator but passes to his heirs, but that the administrator retains thepower to sell the property for the purposes of administration.”
Under our law an executor is not the owner of the property left bythe deceased. So was it in the English Law in 1833. Williams (1832 ed.Vol. I p. 400) states the law thus :
“ The interest which an executor or administrator has in the goodsof the deceased is very different from the absolute, proper, and ordinaryinterest which every one has in his own proper goods: For anexecutor or administrator has his estate as such in auter droitmerely, viz. as the minister or dispenser of the goods of the dead. ”
An executor’s absolute power to dispose of the testator’s assets underthe English Law is subject to the qualification that he may do so forthe general purposes of the Will (Williams 1832 ed. Vol. II. p. 610).The following passage in Williams (1832-ed. Vol. H. p. 609) :—
“ It is a general rule of law and equity, that an executor or adminis-trator has an absolute power of disposal over the whole personal effectsof his testator or intestate ; and that they cannot be followed by thecreditors, much less by legatees, either general or specific, into thehands of the alienee ”
must be read subject to our law and the principle that the power to sellis only for the general purposes of the will. Under the system of lawas obtaining in Ceylon, an executor is a person who exercises such powersas are conferred by the Will, by the Civil Procedure Code, and by ourlaw of executors. Anything done outside those powers is void and ofno effect. In the instant case as the executrix’s power of administrationhad come to an end, she had no power to sell the property in question.Even if the power had not come to an end, she had power to sell onlyfor the purposes of due administration. Here the sale was not for suchpurposes. The purchaser of land from a person who has no power tosell does not become its owner. The question that arises is whetherthe plaintiff’s remedy is a claim for damages alone, or for a declarationof title and ejectment of the person in unlawful possession of the land.As the sale was by a person who had no power to sell at the time she soldthe property, both as she was functus officio and the sale was neither autho-rised by the Will nor by law, the purchaser from the executrix did notbecome the owner. What a person with limited authority is not
1 (1925) 27 N. L. R. 185 at 188.
Nagoor Pitchai v. Kanapathy PiUai
207
empowered to do, he is by implication prohibited from doing. A personwho purchases immovable property from a person with limited authorityis under a duty to see that the person from whom he is purchasing theproperty is acting within his authority. The plaintiff having obtaineda conveyance from those in whom the property had vested is entitledto ask that his title be vindicated in these proceedings. The learnedDistrict Judge has in opr opinion rightly granted the plaintiff’s prayerfor a declaration of title and ejectment.
In regard to the amount of compensation allowed by the trial Judge,we see no reason to interfere. The award is not unreasonable and hasbeen made though no compensation has been claimed in the answer.
The learned District Judge was therefore right in giving judgmentfor the plaintiff who purchased the lands in dispute from the rightfulowners.
We accordingly dismiss the appeal with costs.
Herat, J.—I agree.
Appeal dismissed.