081-NLR-NLR-V-57-SARAVANAMUTTU-Appellant-and-NADARAJAH-Respondent.pdf
332SAXSOXI, "J_—Saravanamutlu v. Xadarajah
1955Present : Gratiaen, J., and Sansoni, J
SARAVANAMUTTU, Appellant, and NADARAJAH,Respondent
S. C. 447—D. C. ChavaLachchcri, 54S
Thcsavalamai—Debts of a deceased person—Right of surviving spouse to settle' them,by sale of deceased’s property—Applicability of Roman-Dutch late.
"Where the Thcsavalamai is silent the Roman-Dutch law is applicable."
Tho rule of Roman-Dutch law that the surviving spouse may validly sellimmovable property of a deceased person in order to pay his debts is applicableto parties governed by the Thesavalamai.
j^^PPEAL from a judgment of the District Court, Chavakaehcheri.
S. J. I*. Chclvanayakam, Q.-C., with P. Somali talcum and C. Skanmu/ja-nayagam, for the plaintiff appellant.
II. IF. Tambiah, with II. L. de Silva, for the defendant respondent.
Cur. adv. vult.
March 15, 1955. S.axsox/, J.—
The land which is the subject matter of this partition action waspurchased by one Vairamuttu in 1917. He died in 1929 leaving his widowSinnamninh and his minor child Saravanamuttu, the present. plaintiff,ancl it is common ground that each of them thereupon became entitledto a half share of the land. Vairamuttu had borrowed two sums ofRs. 150 and Rs. 170 on two mortgage bonds in 1925. In 1930 Sinnammahsold the entire land to one Velauthapillai for a sum of Rs. 500. The deedof sale contains recitals to the effect that two sums of Rs. 23S andRs. 262 respectively were due on the bonds, and that the mortgageeswere pressing her for payment. There is no question that the mortgagedebts were settled by Sinnammah with the money she obtained bjr thissale. The plaintiff, however, claims that Sinnammah had no right to-sell his half share and that the title to that share is still in him.
The parties arc admittedly governed by the Thcsavalamai, but theredocs not appear to be any statutory provision or decision of this Courtdealing with the particular point under that special law. The RomanDutch Law is therefore applicable—Sabapathypillai v. SinnalambyhNow there is an unbroken line of decisions to the effect that the survivingspouse may validly sell the movable and immovable property of adeceased person in order to pay his debts. The earliest case is Fernando v.Fernando 2 decided by a Hull Bench, the principle applicable being thatthe survivor represented all the parties interested in the common estateand the}' must- bear the burdens of the estate equally with the survivor ;they should therefore stand by an alienation bona fide made for thepurpose of discharging that burden—See Ainaris Appu v. Sadris Perera
1 (1940) 00 X. L. Jl. 307.- (1SS9) 3 Lor. 23$.
* (1SS >) Wendt 343.
Perera v. Pathumma x. Later cases have decided that the surviving spousemay be considered as acting in the capacity of an executor de son fortif the circumstances justify tliat conclusion, even though there maybe only one act of dealing with the property. See Prins v. Pieris s, BabunAppu et ul. v. Waidasekera 3.•
It is too late now for us to reconsider this matter. Mr. Ghelvanayakamrelied on the case of Mont ford v. Gibson4 to support his argument thatan executor rfe son tori has no power to sell immovable property, butthat authority has been referred to in Babun Appu et al. v. Waidasekera(supra) so that tire judges who decided that case were well aware of it.It follows that the plaint iff has no title to the land sought to be partitionedand his action was rightly dismissed. The appeal must therefore bedismissed with costs in both Courts.
A ppced dismissed.
Gratia ex, J.—I agree.