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Present: Bertram C.J. and Schneider J.
PETER et al. v. CAROLIS et al.
491—D. C. Qalle, 18,808.
Lease by administratrix—Conveyance to heir after lease—Lessee oustedby administratrix after she became functus officio—Action fordamages and cancellation of lease against administratrix by lessee—Judgment for lessee—Seizure of leased property by lesseeunder writ for damages—Action by heur under section ■ 247, CivilProcedure Code—Paulian action—Wrongful seizure.
The second defendant as administratrix leased a property tothe first defendant in 1916, and in 1919 conveyed the leased . pro*perty to plaintiff. who was an heir, and other propertiesto other heirs, and the administratrix became functa officio. In1929 the second defendant ousted the first defendant from the leased pro*perty. The first, defendant sued the second defendant for damagesand cancellation of the lease and obtained judgment, and proceededto seize their property. The plaintiff brought this action undersection 247 of the Civil Procedure Code. The first defendantpleaded that the transfer was in fraud of creditors.
Held, that second defendant was not sued as administratrix andcould not have been so sued, as she was functa officio.
(2) That the seizure was illegal, and that the transfer was not infraud of creditors.
“ Upon the judgment recovered in that action against a personguilty of a personal tort, it was illegal to seize property vested inother persons who are not parties to the action, simply on thieground that at some previous time the judgment-debtor had beenthe administratrix of the property which was vested in the personnow claiming it. "
J. S. Jayawardene (with him Soertsz and Obeyesekere), forappellant.
E. W. Jayawardene, for respondent.
August 1, 1922. Bertram C.J.—
This is an appeal from a judgment of the Galle District Court inan action under section 247' of the Civil Procedure Code. Thejudgment of the learned Judge proceeds upon two grounds. Inthe first place, it deals with an allegation of fraud. The defendantin the action sets up a claim to cancel a conveyance made by themother of the plaintiffs in the action in her capacity as adminis-tratrix on the ground that the conveyance was made to defraudcreditors. In point of fact he sets up a claim in reconvention of
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the nature of the Paulian action. Apart from that the learnedJudge appears to hold that execution has been rightly issued againstthe property in question as the property of the plaintiffs, on theground that it was part of the estate of which the plaintiff’s motherwas the administratrix.
With regard to the question of fraud, 1 will consider that sub-sequently. I will deal first with the suggestion that execution inthe original action was rightly issued against the property nowclaimed. The facts are as follows: On December 16, 1918, themother of the plaintiffs, as administratrix of her husband, leasedtbia property to the first defendant. Subsequently, the estate wasduly administered, and was closed on May 29, 1919. Distribution• was ordered on June 25, 1919, and on July 10, 1919, the adminis-tratrix executed, a conveyance of this particular property on herminor children, taking as her own share under the estate certainother property. This property was thus definitely vested in theminor children, and the administratrix was functa officio. She hadno further duties to discharge in connection with the estate, andunder the conveyance of July 10, 1919, this property passed to herchildren, the minor heirs, subject to the lease already granted to thefirst defendant in this action. What now happened was, after theestate was closed and after it was vested on the minor children, thatis to say, on February 14, 1920, the widow invaded this property andousted the first defendant. The price of coconuts had gone up; shefelt that the land had been disadvantageously leased, and sheapparently desired to resume possession of the property. That acton her part was a tort, and she was liable personally for the tort. Itis difficult to see how she could have been liable as administratrix.The lessee thereupon proceeded against her. On March 7, 1920, hebrought an action claiming damages for her trespass, and at the sametime claiming that the lease be cancelled. She was sued in herpersonal capacity ; nothing was said about her as administratrixof the estate. The first defendant recovered judgment, and thenproceeded to seize this property, which, as I have already explained,many months previously had been conveyed to the plaintiffs. Thequestion is, was he entitled to do so? It seems to me that he clearlywas not. Mr. Jayawardene argued, and the learned Judge foundthat though the action was launched against the second defendantin her personal capacity, yet in substance and intention it wasdirected against her in her capacity as administratrix, and oughtto be so regarded. I am unable to accept that. It was not broughtagainst her as administratrix, and I do not think that, in fact, itcould have been so brought, long after she haci handed over theadministration of the estate. She was responsible for the tort, andI fail to see how any other person could have been made responsible.Indeed, I do not think that in this action a claim for cancellation ofthe lease should have been joined.
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It seems to be perfectly clear that upon the judgment recoveredin that action, against a person guilty of a personal tort, it wasentirely illegal to seize property vested in other persons who are notparties to the action, simply on the ground that at some previoustime the judgment-debtor had been the administratrix of the pro-perty which was now vested in the person now claiming. It seemsto me, therefore, that from that point of view the judgment of thelearned Judge is wrong.
With regard to the question of the Paulian action, here it isobvious that the claim by the first defendant was wholly miscon-ceived. In the first place, the conveyance to the minor heirs tookplace many months before any question could have arisen about theclaim of the lessee. In the next place, it is obvious that no fraudcould have been intended, as the real substance of the conveyancewas an exchange of property. In the third place, it was not thisconveyance which divested the first defendant of any property whichcould be used for the satisfaction of the judgment, tf there is anytransfer which has made her incapable of satisfying the judgment,it is the transfer to the Begistrar of Magalla, and it is against thisperson, if anybody, that the claim in the Paulian action should bemade.
On all grounds it seems to me the appellants are entitled tosucceed. I would therefore allow this appeal, with costs.
Schneider J.—I agree.
PETER et al. v. CAROLIS et al