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Present: The Hon. Mr. A. G. Lasceiles, Acting Chief Justice, and
1906.*Mr. Justice Middleton.
“POOWATCHY UMMA et al. v. CASSIM MABICAR et al.
D. 0., Colombo, 20,468.
Direction to. executors to sell property and purchase others—Failure to doso—Bights of heirs—Action against executors by creditor—Fiscal'ssale—Validity—Bights of purchasersat Fiscal'ssale—Prescription
K.S. by bis will dated 27th June, 1888, directed his executors tosell the property in dispute, and after payment of debts, to – pur-chase other properties which were to be divided between his child-renandheld subject to afidei commissum. Theexecutors didnot
selltheproperty; and ona judgment obtainedagainst themqua
executors theproperty wassold bythe. Fiscal andpurchased by
A. C. in 1890, who in the sameyearconveyed itto the added
defendant, who was then a minor. M. H. (a grandson of the saidK. S.) conveyed a half share of the property to the plaintiffs on10th April, 1902; and the said M. H. and the plaintiffs institutedan actionto compel the executors to executea conveyancein
favour of M.H. Judgmenthavinggone,against theexecutors, and
they having failed to execute a conveyance, the District Judge,under section 332 of the Civil Code, executed it on 14th July, 1904.
In an action by the plaintiffs for a declaration of title to a halfshare of the' property,—
Held, . thatthe plaintiffshad notitleas againstthe purchaser
at the Fiscal's sale held, in 1890 against the executors.
LascbllesA.C.J:—The authority of Fiscal’ssaleswouldbe
gravely unpaired, if it be held that purchasersatsuchsalesare
bound toassure themselves that the proceedingsonwhichthe
judgment is based are free from error in law or in fact.
Observations of the Privy Council in Bewa Mahton v. BamKishin Singh (1) referred to.
' Held, also, that the Prescription Ordinance (No. 22 of 1871) – doesnot prevent a minor from. obtaining title by prescription throughagency.
Thomas t>. Thomas (2) followed.
HIS was an action ret vindicatio. • The plaintiffs alleged thatRider Saibo Rader Saibo Hadjiar was the owner of the pre-
mises in question under and by virtue of deeds Nos. 2,954 and 2,955,
(2) K. and J. 79.
O) I. L. B. 14 Col. (P. C.) 25.
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both dated 16th March, 1880; that the said E. S. C. S. Hadjiardied on 18th August, 1888, leaving a last will and testament dated27th June, 1888, which was proved by the executors therein namedon 9th October, 1888, in case No. 4,871 of the District Court ofColombo; that the said E. S. C. S. Hadjiar by his said will desiredthat the said property and some others should be sold for the pay-ment of his debts, and that the balance proceeds, if any, should bedivided equally among his children Eader Saibo Mohamado Cassimand Eader Saibo SaSa Umma, the second defendant and wife of thethird defendant, and that out of each such share of the said divisionthe executors should buy and transfer severally in favour of eachof the said two children one or more land or lands subject to thecondition that each child to whom the same should have beentransferred as aforesaid should not sell or mortgage the same or anypart thereof or lease or otherwise alienate the same, but should onlyenjoy the rents and profits thereof, and that the same should not beliable to be sold in execution for any of his or her or their debt ordebts, and at his or her or their death the same should devolve onhis, her, or their lawful child or children; that all the debts of thesaid E. S. C. 8. Hadjiar were paid and settled by the sale of proper-ties other than the one in question, which was not sold by theexecutors, and that the two children mentioned in the will becameentitled to the same in equal shares; that the said Eader SaiboMohamado Cassim died on 24th August, 1893, leaving an only childMohamed Cassim Mohamed Haniffa, who by deed No. 7,079, dated10th. April, 1902, transferred his interest to the first plaintiff,the wife of the second plaintiff; that the executors of thewill on 14th July, 1904, transferred an undivided half share ofthe property in dispute to the said Mohamed Cassim MohamedHaniffa. The plaintiffs, averring that the first defendant hasbeen in the forcible and unlawful possession since the purchaseby the first plaintiff, prayed for a declaration of title, ejectment,and damages.
The defendants pleaded that under writ issued in case No. 2,514of the District Court of Colombo against the said executors for therecovery of a sum of Bs. 2,002.50 due by the said E. S. C. S. Hadjiar,the testator* the premises in question were sold by the Fiscal andwere purchased by Adinamalay Chetty, the judgment-creditor, whoobtained Fiscal’s transfers Nos. 4,528 and 4,529, dated 7th June,1890, therefor, and who by deeds Nos. 3.058 and 3,059, dated 26thJuly, 1890, conveyed the same to Mohisina Umma, the addeddefendant, who was then a minor.
The added defendant also pleaded' prescriptive title.
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The Additional District Judge (F. B. Dias, Esq.) held as follows:—
" In my order of the 29th May last I have sufficiently referredto the facts of this case. I then held that it was not competent forthe plaintiffs to seek to prove in these proceedings that thedebt for which Kader Saibo’s executors were sued, and in satisfa*ctionof which the two houses in claim were sold by the Fiscal, was not adebt of Kader Saibo’s estate, but a personal debt of the executors.The Appeal Court being of opinion that that ruling does not finallydispose of the matters in issue, it has become necessary for us toconsider the other two issues framed at the first trial, viz., whetherany fidei commisaum has been impressed on these properties byKader Saibo’s will, and whether the added defendant has acquireda valid title by prescriptive possession. A further issue has nowbeen proposed by plaintiff’s counsel, and accepted, as to whether ornot the plaintiffs are entitled to succeed by reason of the priorregistration of their deed P2 from Mohamed Haniffa.
“ The first and last of these issues depend entirely on the answerto the question, What was the interest in these two houses whichMohamed Haniffa had under his grandfather Kader Saibo’s will ?It will be remembered that the testator did not devise these housesto any of his children, so as to enable any of them to claim any titleunder the will. What he intended to do, and clearly expressedin his will, was to vest these particular properties and five otherin his executors, as trustees for a specfic purpose, viz., to sellthem and with their proceeds pay off his debts and liabilities.If any balance was left over, after payment of those debts, he directedhis executors to divide it into two and invest it in the purchase ofone or more lands for his two children Mohamed Cassim and SafiaUmma (the second defendant), to be possessed by. them duringtheir lives, and thereafter to pass to their respective children. . Thetwo houses in claim were never sold by the executors, nor did theytransfer them to the testator’s two children, nor do any act by whichthey divested themselves of the title vested in them by the will.Mohamed Cassim died in 1893, never having obtained any titleor possession, and left an only child, Mohamed Haniffa, who attainedhis majority in 1901. In April,. 1902, this young man, professingto have title under his grandfather’s will, conveyed a ‘half share ofthese two houses to the first plaintiff by his transfer P2, which hasbeen registered in July, 1903. This is the title which the plaintiffsare now claiming as against the added defendant, who in additionto a title by prescription is asserting a title derived through theexecutors themselves. It appears that in an action of this Court,No. 2,514C, brought by a Chetty against the two executors in their
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representative capacity, both these houses were sold "by the Fiscalso far back as 1890, and conveyed to the purchaser, the Chetty,by the two, transfers D1 and D2. These two deeds have never beenregistered. In July of the same year the Chetty sold them to theaddcftl defendant by the deeds marked D3 and D4, registered inNovember, 1890. ' From these circumstances it is perfectly clearthat there can be no* competition between Mohamed Haniffa’sdeed relied on by the .plaintiffs, and those relied on by the addeddefendant, for the simple reason that the interests involved arenot identical, nor are the grantors the same, and consequentlyno question of prior registration can arise.
“ It should also be noted that neither Mohamed Cassim nor his sonHaniffa had any title to these houses under the will, so that thelatter's conveyance P2 to the first plaintiff conveyed no title at all.The title always remained in the executors until such time as theysold the properties for the purposes named in the will. The utmostthat Mohamed Cassim or Haniffa was entitled to do was to compelthe executors to sell the lands, pay the debts, and buy fresh landsfor them in terms of the will. But that is not, and cannot possiblybe, the same thing as a freehold interest in these houses, whichHaniffa professed to convey to the first plaintiff. On the otherhand, the Fiscal’s sale in execution against the two executors undera solemn decree of Court had the effect of transferring all the right,title, and interest of those executors, and of their testator, to the.purchaser, whose rights have since July, 1890, been vested in theadded defendant. It has been proved conclusively, and practicallyadmitted by the plaintiffs, that from the Fiscal’s sale in 1890 up tothe present time neither the executors, nor Mohamed Cassim, norHaniffa, have had a single day’s possession of tbe premises, whichhave been continuously possessed and enjoyed by the addeddefendant. She is still a minor, and her possession has been exercised -through her grandfather Uduma Lebbe. and her own father (both ofwhom are now dead) till 1894, and ever .since then through heruncle and guardian, the first defendant. These men have beenregularly renting out the houses, recovering their rents, andpaying their# taxes, for and on behalf of the added defendant,and at this moment the first defendant .is in quiet possessionon her account, so that her title by prescription is abundantlyestablished. It has. been urged that no prescription could havebegun to run against Mohamed Haniffa until he had attained hismajority in 1901, as he was under legal disability at the time Jhehouses vested in him in terms of the fidei commissum created bythe will.
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" I am unable to subscribe to any such construction of this will,which in my opinion makes no pretence of impressing a fidei com-missum on any of the lands directed to be sold. Sven if we canput such a forced construction on this document, from the factthat the testator directed his executors to buy fresh landq andsubject them to a fidei commiaaum in favour of his grandchildren,it seems to me that the plaintiffs must still fail. Bightly or wrongly,the Fiscal sold these houses in 1890 as against the executors,in whom title was then vested, and possession at once passed fromtheir hands into those of the Chetty and of the added defendant.From that moment prescription began to run as against the exe-cutors and all those who could derive any title through them asrepresentatives of Kader Saibo’s estate, and the minority of thebeneficiary Mohamed Haniffa was of no avail to interrupt that,prescription.
“ In my opinion the added defendant has established a perfecttitle both on paper and by prescription. It was contended thatunder the Roman-Dutch Law a minor cannot acquire property byprescriptive possession, but in question of prescription we do hotat the present day look to that law. We are governed solely by ourlocal Ordinances relating to prescription, which have swept, awayall the antiquated Roman-Dutch Law on the subject (vide Pereira'sLaws of Ceylon, vol. II., p. 268, and cases there cited). There isnothing in either of our Ordinances which places a minor defendantin an action in a less advantageous position than if he were a major,if the question involved relates to prescriptive possession.j
“ I dismiss the plaintiffs’ action with all costs from the com-mencement.”
The plaintiffs appealed.
Walter Pereira, K.C., S.-G., for appellants.—The defendantsfounded their title on a Fiscal’s conveyance consequent on a saleunder a writ issued against the executor. The debt in respect ofwhich execution was issued was not a debt of the testator, but adebt on a promissory note contracted by the executor. The execu-tor had no power to bind the estate by contracting debts. Thatis quite clear from the case of Farhall v. Parboil (1). The case ofGavin v. Hadden (2) has in no way effected the ruling in Farhallv. Farhall (1). The order in the later case that the district Judgerelied upon was an order made prior to the judgment in Gavin v.Hadden (2), but the order relied upon by the appellants was one madeafter the case of Gavin v. Hadden (2), and it could not therefore beaffected by the case of Gavin v. Hadden (2). As the executor could not
(11 /• L. R. 7 Ch. ilp. 125.(2) (1871)8 Moore's P.C. eases
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bind the estate by his contract, the estate could not be bound by thesale in execution consequent on that contract. True, a purchaserat a Fiscal’s sale was not, as a general rule, prejudiced by the judg-ment having been erroneously entered; but surely there was adifference where the action was against an administrator or execu-tor. There, the property sought to be sold not being the propertyof the defendant individually, it was the duty of the would-bepurchaser to inquire whether the law allowed judgment beingentered against the estate. Then, registration gave the deed infavour of the plaintiff priority and the District Judge was wrongin refusing to frame an issue. No doubt, the deed was registeredafter the institution of the action, but the Code allowed issuesbeing framed and added to at any time before judgment. Theobjection to the framing of the issue suggested was too technical.On the question of prescription it is submitted that prescriptioncould not run against the minor for two reasons—first, because shewas a minor; and secondly, because her right to possession underthe fidei commisaum accrued within the last ten years. The provisoto section 3 of Ordinance No. 22 of 1871 is the authority for that.Of course, the question yet remained as to whether there was afidei commissum. Kader Saibo directed that all his property besold and his debts paid, and other property be purchased fromany balance left and settled on his children subject to a fidei commie-sum. It was found unnecessary to sell all the property to paydebts, and some property only was sold. The remaining propertythen stood exactly in the same position as property purchased withany balance that would have remained had all the property beensold. That was a common sense view to take. There was somemention of the doctrine of equitable conversion by the other side.That was a doctrine under the English Law, and had nothingwhatever to do with matters governed exclusively by the Boman-Dutch Law. The common sense underlying that law could nottolerate such a ridiculously useless proceeding as selling the wholeestate of the testator for the payment of- debts and investing the
balance in other property to be settled on the children when the.
debts at the date of the testator’s death were not. so heavy as tonecessitate Jhe sale of the whole estate and they might be paid bv asale of a portion only, leaving the remainder of. the estate to besettled on the children. . On all points urged the appellant wasentitled to judgment. .
Sam-payo. K.C. (with him Bawa), for the respondents.—Thejudgment in the previous case being against the executors in theirrepresentative capacity, the validity of the sale of the property of the
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testator in execurtion of the judgment cannot be questioned in thiscase. If the debt for which judgment was obtained was a personaldebt of the executor, those claiming under the will should look
for their remedy in some proceeding against the executors themselves,and not against the bona fide purchaser. The principle ofr theEnglish Law that the executors should first be personally sued ontheir contract and the assets of the estate should then be reachedin a separate proceeding at equity does not prevail in Ceylon, andtherefore the case of Farhall v. Farhatt is not applicable. Courtsin Ceylon are Courts both of law and of equity, and, as decided* bythe Privy Council in Gavin v. Hadden, not only may judgmentbe obtained against executors as such for debts incurred on behalfof the estate, but the assets of the estate may be sold directly inexecution of such judgment.. As regards registration, the plaintiffmust establish his title as at the date of the action, and thereforesubsequent registration does not avail him. Moreover, the plain-tiff’s deed is not one for consideration, but a mere transfer by theexecutors in favour of a supposed beneficiary under the will, andregistration therefore does not apply. It is submitted furtherthat the defendant has title by prescription. A minor is notincapable of possessing property (T7oef 26, 8, 2; Maasdorp’s Law ofPersons, p. 246). Moreover, in this case, a person in loco parentispossessed on behalf of the minor. Lastly, it is submitted that,whatever the title of the defendant may be, the plaintiff can onlysucceed on the strength of . his own title, and must therefore provethat a fidei commissum was impressed by the testator on this par-ticular property. In this he must necessarily fail, for the testatordirected this property as well as others to be sold, and the fideicommissum was to attach to some other property to be boughtout of the proceeds sale, and no authority has been cited to provethat in such a case, if there be no sale and no new property is bought,the fidei commissum would attach to the original property.
Walter Pereira, K.C., S.-G., in reply:—To take the last point urgedby counsel of respondent first, the property in .question must bedeemed to be impressed with a fidei commissum. True, the verbaldirection in the will is that property bought out of the proceedssale of the property in question was to be so impressed, but a rationalinterpretation must be placed on the direction in the will. Thetestator says: “ Sell property A if there be debts to be paid, and outof the balance proceeds buy property B and impress it with a fideicorgmigsum in favour of my children.” The executor finds itunnecessary to sell the whole of A to pay debts. He sells one halfonly. Surely the other half then remains exactly in the same place
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wiiere the balance proceeds would have been had there been a sale.As regards the power of an executor to bind the estate by contracts,it is submitted that there is no such power, especially as in Ceylonthe executor has power over immovable property as well. If suchpower is once conceded, the executor may in an indirect way disposeof tike whole estate to his own advantage.
Cur. adv. vv.lt.
13th August, 1906. Lasoelles A.C.J.—
It is unnecessary to recapitulate the facts of this case, which arefully stated in the judgment of the District Judge. The plaintiff'stitle is founded upon a conveyance by Mohamed Haniffa dated the10th April, 1902, of an undivided half share of the two houses inquestion to the first plaintiff.
Mohamed Haniffa’s right to make this conveyance depends uponthe contention that under the terms of the will of Kader Saibo(Mohamed Haniffa's grandfather) and in the events which havehappened the property in question passed to the testator’s childrenimpressed with the character of a fidei commissum.
Kader Saibo by his will directed his executors to sell the propertynow in dispute and with the balance of the proceeds, after paymentof debts, to purchase other properties which were to be dividedbetween his children and held by them subject to a fidei commie sum.The executors failed to sell the property. It is now argued thatthe property which ought to have been sold should be regarded asstanding in the place of that which should have been bought, andas having devolved in the manner and subject to the conditionswhich the will declared with regard to the property which theexecutors were directed to purchase.
This is a startling extension of the doctrine of equitable conversionfor which no authority was cited. In order to attach the conditionsof a fidei commissum the intention of the testator to do so must beshown with regard to a definite and specific property.
The heirs of Kader Saibo may have had a right after the executorshad failed to carry out the sale to compel the executors to executea conveyance, as was subsequently done, of this property to themBubject to the conditions declared in the will.
But apart from this conveyance, this property has not by virtueof any act or operation of law devolved On the testator’s childrenor their heirs subject to a fidei commissum.
The conveyance by Mohamed Haniffa was thus a nullity, MohamedHaniffa having no title under his grandather’s .will or otherwise.
The plaintiffs also claim under a conveyance dated the 14th July,1904.
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1006. During' the argument no reference was made to the circumtancesAugust is. ^this deed was executed, but on the following day the
Lasobiabs Solicitor-General brought to our notice the fact that the deed wasA.O.J. executed by the District Judge of Colombo under section ‘382, of theCivil Procedure Code. Upon reference to D. C., Colombo, No.18,853, it appears that Mohamed Haniffa and the first and secondplaintiffs sued the executors of the. will of Kader Saibo, claimingthat they should be ordered to convey to him an undivided halfshare in the two houses now in dispute. The defendants ultimatelyagreed to execute the conveyance, but failed to do so, whereuponthe District Judge executed the conveyance which was registeredsubsequently to the institution of the present proceedings. I canfind in .the record no reference to the previous sale of these housesunder a writ against the executors in 1890, and it is clear that theexistence of this sale was not disclosed to the Court.
The appellants complain of the refusal of the District Judge toframe an issue whether the deed registered on the 15th March, 1905,subsequently to the institution of the action, prevailed against theFiscal’s deed of 1890.
In my opinion the District Judge was right. The deed in questionwas registered after the pleadings had been closed, the issues fixed,and the hearing had been concluded.
It was not until the 2nd. March, after the case had been remittedfor re-trial, that application was made to add this issue. I do notthink that at that step the District Judge could properly haveadmitted an additional issue which would have altered the wholescope of the acton.
But the Fiscal’s conveyance of 1890 is impeached on the groundthat the judgment on • which it is founded could not have beenlawfully given against the executors in their representative capacity.This objection seems to be disposed.of by the judgment of the PrivyCouncil in Oavin v. Hadden (1).
Even if we sup'pose that the principles laid down in the subsequentcase of Farhall v. Farhall (2) are applicable to Ceylon, and that anexecutor cannot be sued as executor on a promise made by him,that case is no authority for the proposition that a purchase at aFiscal’s sale bond fide and for value can be set aside on the groundthat the judgment in execution of which the property* is sold wasimproperly given against the defendant in his capacity of executor.A purchaser who buys at a Fiscal’s sale under a decree of a competentCourt is not bound to assure himself 'that the proceedings on whichthe judgment is based are free from error in law or in fact. If it 1
(1) (1871) 8 Moore’s P. C. cases (N.S.) 90.-
(2) L. B. 7 Gh. Ap. 12S.
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were held that purchasers at judicial sales were bound, at their own 1906.risk, to make such inquiries, the authority of such sales would begravely impaired. See on this point the observations of the Privy LascellesCouncil in'Bewa Mahton v. Bam Kishin Singh (1).A'°'
With regard to the claim of the added defendant to have estab-lished a title by prescription, the conveyances, by AdinamalayChet-ty purported to be in consideration of a payment made by theadded defendant for and on behalf of the first defendant. Sinoethe date of these conveyances (1890) there is no question but thatthe rents of the premises have been received on the added defen-dant’s behalf by her grandfather, father, and by her guardian, thefirst defendant.
I can find nothing in the Prescription Ordinance to support thecontention that the minority of the added defendant prevented herfrom acquiring a prescriptive title.
The possession of the father and grandfather must be presumedto be, and that of the first defendant certainly was, on behalf of theadded defendant, Thomas v. Thomas (2).
For the above reasons I agree with the judgment of the DistrictJudge, and would dismiss the appeal with costs.
The primary intention of the testator in this case was that hisproperty should be sold and his debts paid by the executors; thatthe balance proceeds should be divided equally amongst his children,converted into immovables and impressed with a fidei commissum.Eightly or wrongly, the executors were sued for debt of the testator,and upon judgment writ issued against the property in question itwas sold and purchased by the added defendant’s predecessor intitle in 1890. If that judgment was wrongly given and the saleimproperly held, the Court had jurisdiction both to give the judg-ment and order the sale, and it is not the province of a fresh suitto show irregularity or error of fact or la,w in another suit, Gavinv. Hadden (3). Prima facie then the property was sold as thetestator intended for the payment of his debts, and could not there-fore have been impressed with a fidei commissum, which was onlyto alight bh the balance of the proceeds on conversion into im-movables. The case of Bewa Mahton v. Bam Kishin Singh (1) isalso authority for holding that the purchaser was not bound toinquire into efither the correctness of the order of execution or
d) I. L. R. U Cal. (P. C.) 26.(2) 1 K. £ J. T9..
(3) (1871) 8 Moore's P. C. .eases (N. S.) 90.
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1806.correctness of the judgment upon which it issued, and there is'no
August 13. qUeation that he purchased bona fide for value. She purchaserMiddleton sold to the added defendant on the 26th July, 1890, and his transfers^ were duly registered on the 14th November, 1890. (The addeddefendant, though a minor, has been in possession of. the propertyever since through her uncle and grandfather, who acted a/ heragents in the colection of the rents, neither the executors nor theheirs of the deceased having interfered. 1 do not see that thePrescription Ordinance debars a minor from obtaining a title byprescription through agency [see also Thomas v. Thomas (1)].
Against this title the plaintiff sets up a double title, (1) title bypurchase from Mohamed Haniffa in 1902, registered in 1903. It issufficient to say that Haniffa had no title to convey, inasmuch as theproperly had never passed to him by any transfer or operat:on of law.
The plaintiff further claims title under a conveyance dated the14th July, 1904, from the executors. The circumstances underwhich this deed was executed show that it was brought about inignorance of the existence of the sale in 1890 registered the same year.
In my opinion the added defendant’s title must prevail againstboth those set up by the plaintiff, and I agree that the judgmentshould be affirmed with costs of the appeal.
POOWATCHY UMMA et al. v. CASSIM MARICAR et al