028-NLR-NLR-V-11-PINHAMY-v.-PIERIS.pdf
( 102 )
1908.
March 24.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
PINHAMY v. PIERIS.
D. C., Chilaw, 1,296.
Curator, saleby—LeaveofCourt—Insufficientmaterial^—Validity —
Private sale—Bona fide purchaser—Procedure—Irregularities.
Where thecuratorof theestateofcertain minors, with the
leaveof Court, soldcertainlandsbelonging tothe minors tothe
defendant,whopurchasedthem, bona fide,forthepurpose of
payingoff a debtincurredby the minors' father, and wherethe
curator dulyaccountedto theCourtforthe purchase money, and
wheresubsequentlyone ofthesaid minorsobtained lettersof –
administrationto hisfather'sestate,andsued, as such adminis-trator. to recoverthesaidlands, andimpeachedthesale by the
curator onthe.grounds (1)that the leave oftheCourtwas impro-perlygiven, and (2)that thesalewas notbypublic auction,—
Held, that thesalebythe curatorcould notbeimpeached in
these proceedings.
Held, also,that thesale was, inthecircumstances, valid, not-
withstanding the said irregularities.
The remarks of Lord Justice James in Gavin v. Hadden 1 referredto and followed.
A
CTION rei vindicatio. The facts are fully stated in the judg-ment of the Chief Justice.
Bawa, for the defendant, appellant.
H. A. Jayewardene (with him G. E. Ghitty), for the plaintiff,respondent.
Cur. adv. vult.
March 24, 1908. Hutchinson C.J.—
The plaintiff sues as the administrator of the estate of the lateH. Namburala for a declaration of his title to an undivided half ofeach of two lands, and to eject the defendant, and for damages.The District Judge gave judgment for the plaintiff as prayed; andthis is the defendant’s appeal from that judgment.
The shares claimed belonged to Namburala at the time of hisdeath. .He died about ten years ago intestate, leaving an estatebelow Rs. 1,000 in value, and leaving his widow and two minorchildren, viz., the plaintiff and Wannihansy, as his sole heirs. Hehad mortgaged the land, and after bis dealh his widow paid off the 1
1 (1871) L. R. a P. C. 726.
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mortgage, raising the money for that purpose by granting anothermortgage on the land. The uncle of the children then applied tothe Court, upon an affidavit setting out the above facts, asking tobe appointed curator of the minors for the purpose of selling theland and paying the debt; the Court appointed him curator andguardian, and on September 20, 1899, he duly gave security, andhis appointment was formally confirmed. On September 25 heapplied to the Court for authority’ to sell the half share of theland for the purpose of paying the debts of Namburala; and onOctober 23 an order was issued authorizing him to sell the halfshare for that purpose.
By deed dated November 8, 1899, the curator joined with theperson who was said to be entitled to the other half of the land inselling the entirety of the land. The defendant is the successor intitle of the purchaser under that deed.
Namburala’s widow did not join in the sale. It does not appearwhether she was then dead, or why she did not join. The curatorfiled his accounts in April, 1900; they were passed by the Court;and on June 13, 1900, his account was declared to be closed.
On March 2, 1904, the plaintiff obtained letters of administrationto the estate of Namburala, and on December 16, 1904, he broughtthis action. The important issue, the one upon which the casenow turns, was whether the'sale by the curator was valid.
The District Judge held that “ the permission to sell given bythe Court on September 25, 1899, was improperly given,” and hesaid that he could see nothing in the record of the curatorshipproceedings to justify the Judge in making that order. He furthersaid that, admitting the order to have, been correct, the sale wasirregular, because it should have been by public auction and witha reserve price fixed by the Court, which should have given directionsas to the manner of sale, and that, it does not appear from therecord that these requirements were complied with. He accordinglydeclared the sale void, and gave judgment for the plaintiff.
The order of September 25, 1899, was one which the Court hadjurisdiction to make; it is valid until set aside by competent autho-rity; and the District Court had no power to declare it to havebeen improper or unjustifiable. It is true that the Court in makingit ought to have given directions as to mode of sale; and it mighton appplication to confirm the sale have refused to confirm it, ormight perhaps have set it aside on application made in due timeand for good cause shown, and upon due notice to the curator andthe purchaser. But the sale was made in pursuance of the orderand in good faith five years before this action; the purchase moneywas paid to the curator, and he duly accounted for it, and hisaccounts were approved and passed by the Court. The order mayhave been irregular, but it was not -ultra vires, and the Court whichmade it afterwards condoned the irregularity by approving of the
MS.March 24.
Hutchinson
C.J.
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1908.
March 24.
Hutchinson
C.J.
curator’s accounts. In my opinion there is no ground for declaring,the sale to have been void.
Another issue at the trial was whether the estate of Namburalawas over Bs. 1,000 in value. The District Judge expressed noopinion upon it, and I cannot see how it is material in this case.
The judgment of the District Court should be set aside, and theaction dismissed with costs, in both Courts;
Middleton J.—
I agree. It seems to me that Lord Justice James’s ruling in thecase of Gavin v. Hadden 1 which was a case decided on appeal fromthe Supreme Court of Ceylon by the Privy Council, is very muchin point here. There it was said “it is not the province of a freshsuit to show irregularity or error of fact or of law in another suit,otherwise there would be no end of litigation, and the humblestCourt in the kingdom might be called on to set aside the decisionof the highest.
“ Irregularity, error of fact or of law, must be shown in the suititself, must be rectified by application to the original Court, or byway of appeal from or review of the judgment. It makes nodifference that the' fresh suit is not by the original defendant. Itwould cause most incalculable mischief if it were once supposedthat an action and judgment against an executor or other legalrepresentative as such is not as binding against the testator’s estateas any action or judgment against any defendant is binding againsthim.
“ The only ground on which it is competent for any other executoror any person interested in the estate to question in a new suit theproceedings in a former action which has resulted in a judgmentagainst the property of the testator, is fraud.”
Appeal alloived.
♦1 U871) L. R. 3, P. C. 728, and, 8 Moon P. C. (N. S.) 90.