085-NLR-NLR-V-06-SAMARANAYAKA-v.-SIDEMBREM-CHETTY.pdf
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1908.March 9.
SAM AE ANAYAKA v. SIDEMBREM CHETTY.
D. G., Chilaw, 2#28.
Oitil Procedure Code, e. 247—Mortgage bond by executrix—Judgment againsther—8eieure of lands in her possession—Claim to such lands by deviseesunder the will of deceased testator—Dismissal of such claim—Actionpgainst writ-holder for release of lands—What to prove in the case—Natureof possession of executrix.
A, as executrix of her husband’s estate, granted a mortgage bond toB, who obtained judgment thereon and seized certain lands in her pos-session. 0 claimed them as devisee under the will of A's husband.His daim being rejected, he sued B, without joining A, for a declarationthat the mortgage bond granted by A was not made for the purpose ofpaying the debts of the testator, and that the lands claimed were there-fore not liable for seizure or sale under B’s judgment.
Held that, in an action raised under section 947 of the Civil ProcedureCode, the plaintiff must prove that he was in possession of the propertyat the time of seizure, or that it was in possession of the execution-debtor at such time in trust for the plaintiff; that the possession of theexecutrix was not as a trustee for the plaintiff, but only for the purposeof administering the testator’s estate; and that therefore the plaintiff’saction for an order on the Fiscal to release the seizure was notmaintainable.
Held also, that the plaintiff was not at liberty in this action to provebehind the back of the executrix that she mortgaged the estate for herown benefit, and not for the purpose of paying the debts of the testator.
A
CTION raised under section 247 of the Civil ProcedureCode. The facts of the case are fully set out in the judg-
ment of the Chief Justice.
Bawa (with Print), for appellant.
Domkorst, K.C., for respondent.
9th March, 1908. Layabd, C.J.—
The admitted facts of this case are as follows:—
An action was instituted by the first defendants against DonaMarihamy, as widow and executrix of the last will of the lateDon Elaris, notary, upon a mortgage dated 27th August, 1895,executed by her as executrix of the estate of her testator, and inexecution of a decree obtained in that case certain lands in herpossession as such executrix were seized, upon which plaintiffsand second defendant claimed them. The claim was inquired intoin a claim case and an order was made dismissing the claim withcosts.
The plaintiffs then brought this action under section 247 of the. Civil Procedure Code, in which they seek that it should be declaredthat the mortgage granted by the executrix was not made for thepurpose of paying the debts of the testator, and the properties
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olaimed are consequently not liable for sale under the judgmentobtained by the first defendant; and they further pray for adeclaration that they are entitled to have the property released■from seizure and for an order on the Fiscal to release the sameaccordingly.
It is admitted by appellant’s counsel that the executrix, who isno party to this action, is in the actual possession of her testator’sproperty, and that she has power to mortgage such property topay the debts of the testator.
In an action under seotion 247 the plaintiffs must prove thatthey were in possession of the property at the time of seizure, orthat it was' in possession of the execution-debtor at such time intrust for the plaintiffs, and that therefore the Court ought not tohave refused to release the property.
Now, admittedly in this case the property was in the possessionof the execution-debtor. It is not suggested that the executrixhad assented to the devise and that the devisees are in possessionof the lands devised to them. The executrix is in possession notas a trustee for the plaintiffs: she is there in her capacity of execu-trix and for the purposes of administration. She has the power ofselling or mortgaging the property of her testator, not merelyfor the payment of the debts of the testator; she may have incurredexpenses of administration, and she may have had to raise moneyby mortgage of the testator’s property, and these are mattersfor which it is essential that she should retain the power ofdealing with the assets of her testator.
The appellant’s counsel, however, argues that he is at liberty inthis action under seotion 247 to establish behind the back of theexecutrix that she mortgaged the estate, not for the purpose ofpaying the debts of the testator, but for her own benefit. Itwould be unjust, both on the first defendant and on the executrixthat the nature of the transaction between them should be goneinto behind the back of the executrix. Say it was held in thiscase that the executrix had wrongfully executed this mortgageand the estate was not liable. This judgment would not bebinding on her, and when the first defendant sued her personallyshe might be able to establish that the debt was either a debt ofthe testator or was incurred in the expenses of administration ofhis estate. The result would be, the first defendant would lose.hismoney altogether.
The plaintiff's action is unsustainable under section 247, becausethe executrix is in possession and her possession is not merely onaccount of or in trust for the plaintiffs; she is in possession for thepurpose of administering of the testator's estate,
1003.
March 9.
Lavabd.O.J.
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1003.The appellant’s counsel suggests that, if the District Judge's
March 9. judgment is affirmed, the order refusing to release the seizureLayabd,C.J wiU fee conclusive as to the appellants’ rights to the land claimed.
It appears to* me that it is only conclusive as to their rights ofpossession at the time of seizure. However that may be, respon-dent’s oounsel has expressly requested that in affirming thejudgment of the Court below we should reserve tp appellantsliberty to, establish in another action their rights to the landsthe subjeot of this suit. The judgment of the District Judge isaffirmed, reserving to the appellants the right to bring a freshaotion, if so advised, to establish their title to the land the subjeotof this suit.
Monobeiff, J.—I am of the same opinion.