079-NLR-NLR-V-19-PERERA-v.-LEBBE.pdf
( 306 )
1916.
Present: Wood Benton C.J. and De Samp ayo J.PERERA v. LEBBE.
411—D. C. Kandy, 24,464.
Purchase of property sold under order of Courb-^Is purchaser bound to
inquire into the regularity of the order t
A property, the sale of which the owner had prohibited by hislast will, and which was subject to a trust, was sold under theauthority of the Court, and was purchased by defendant from oneof the executors.
The plaintiff, who is the sole surviving executor and trusteeunder; the last will, brought this action for declaration of title.
Held, defendant could not be deprived of the property on theground of any irregularities in the order for sale, or in the procedureby which that order waB obtained, if' he purchased the propertybona fide for- value and without notice of the trust.
HE__facts are set out in the .judgment.
«
Bawa, K.G. (with him J. W. de Silva), for defendant, appellant.
A. St. V. Jayawardene (with him E. W. Jayawardene), for plaintiff,respondent.
December 5, 1916. Wood Renton C.J..—
This case raises a short but important point of law.' The defend-.ant purchased house No. 310, Trincomalee street, Kandy, fromMr. R. Estrop, one of the executors and trustees of the will of thelate E. Tj Gerlitsz of Badulla. The sale was carried out under theauthority of an order of the Badulla District Court. But Mr.Gerlitsz in his will had prohibited the sale of his immovable propertyin Kandy; and, moreover the. property itself was subject to a trustin favour of the destitute poor of the Burgher community. The.plaintiff, w)io is the sole surviving executor and trustee of the will,brings this action for a declaration of title to the property conveyedby Mr. Estrop to the defendant, and for the ejectment of the defend-ant therefrom, on the ground that the sale was fraudulent and incontravention of the terms of the will. Although fraud is mentionedin the pleadings, no issue on the point was raised at the trial. Thelearned District Judge held that the District Court of Badulla hadno power to authorize the sale of this property in view of the termsof the will; that the trust in favour of the Burgher community was apublic charitable trust; and that, if an application for the sale of it
( 309 )
was to be made at all, it should have been made under section 689of the Civil Procedure Code. The learned Judge, therefore, gavejudgment in the plaintiff's favour. The defendant appeals.
I agree with the learned District Judge that the trust in favour ofthe Burgher community in Mr. Gerlitsz’s win was a public charitabletrust, and that the proper procedure, if any portion of the real estatein Kandy was to be sold, was an application under section 639 ofthe Civil Procedure Code. But, on the other hand, it would becontrary to the principle laid down by the Privy Council in RewaMahton v. Ram Kaisheen Singh1—that, if the Court ordering a sale inexecution of a decree has jurisdiction, the purchaser of the propertysold is not bound to inquire into the correctness of the order forexecution any more than into the correctness of the judgmentupon which the execution issues—if we were to decide that thedefendant, assuming him to . be a bona fide purchaser for valuewithout notice of the trust, under the authority of an order of theDistrict Court, can be deprived of the property purchased on theground of any irregularities in the order for sale, or in the procedureby which that order was obtained. Section 64* of the Courts Ordi-nance confers on the District Court jurisdiction over the estates ofcestuis que trust. Section 639 of the Civil Procedure Code merelyprescribes the manner in which in the cases with which it deals thatjurisdiction is to be exercised. The proposition that where a willcontains a prohibition against the sale of a particular property aCourt of competent jurisdiction has no power to order any part ofthat property to be sold is one that we cannot accept withoutqualification. It is clear that such sales may be ordered whereverand in so far as they may be necessary for the salvage of the estate.
But there is no need to consider that point further. The defend-ant is, in my opinion, entitled to shelter himself under the authorityof the order of the District Court of Badulla if he can show—for asto this the burden of proof is on him—that he made the purchase ingood ijaith for valuable consideration and without notice of thetrust. I would set aside the decree of the District Court and sendthe case back for the framing and trial of an issue on that point.If the defendant should succeed upon that issue, the plaintiff'saction should be dismissed with costs. If he should fail upon it,the plaintiff is entitled to the benefit of the judgment which heobtained at the original trial. The defendant must have the costsof this appeal in any event. All other costs should be costs in thecause.
De Sampayo J.—I agree.
Sent back.
1 (1866) I. L. B. 14 Cel. 18.
1916,.
Wood
Rkittok C JT.
JPerera
v. Lebbe
25-