056-NLR-NLR-V-22-SILVA-v.-LOKUMAHATMAYA.pdf

HE faots are set out in the Judgment.
E. G. P> Jayatileke, for plaintiff, appellant.
R, L. Pereira, for defendant, respondent.
September 2, 1920. De Sampayo J.—
A point of procedure of some practical importance arises fordecision on the following state of facts. One Andrishamy, being theowner of a half share of the land Pahalawatta and a fourth shareof the land Acharigewatta, mortgaged the same to defendant, whosued him on the mortgage in action No. 13,158, C. R. Ratnapura,
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and obtained a mortgage decree on January 15, 1914. Before thedecree could be executed, Andrishamy died intestate on Maroh 25,1914, leaving as his heirs bis three children, Kapuruhamy, Anohamy,and Sedrishamy. On the application of the plaintiff in the mortgageaotion, these persons were on July 9,1914, substituted as defendantsin the room of the deceased Andrishamy. Execution was thenissued, and the mortgaged property was sold on September 3,1914,and was purchased by the defendant, and two Fiscal’s transfers. dated September 18, 1916, were by orders of Court duly issued todefendant as purchaser, and were registered on November 7, 1916.The title of the defendant would so far appear to he primd fadegood and valid. But the effect of certain administration proceed-ings has now to be considered. After the substitution of Andris-hamy’s children and the issue of writ, Kapuruhamy, the eldestson of Andrishamy, applied for administration to the estate of thelatter in testamentary suit No. 644, D. C. Ratnapura, and obtainedletters on October 2, 1914, and he with leave of Court had. the saidshares of land sold over again by public auction on September 8,1917,.when the plaintiff in this action became purchaser, and theadministrator executed a conveyance in his favour on September 10,1917. These proceedings on the part of the administrator aresomewhat extraordinary, seeing that he was one of the substituteddefendants in the mortgage action and was aware of the executionsale in that action and the purchase of the property by the defendant.The plaintiff must also have been aware of these facts, because hewas the administrator’s proctor’s clerk. It is difficult to avoid theimpression that some sharp practice has been resorted to in thismatter. It appears moreover that when the property was advertisedfor sale in the testamentary suit, the defendant petitioned the Courtand objected to the sale, as he had already become owner of theproperty by purchase at the sale under the mortgage decree. Butthe administrator’s proctor applied for leave to sell “ subject to theclaim ” of defendant, as, it was said, the Court did not warrant thetitle, and the District Judge somewhat incautiously allowed theapplication. The result is unfortunate, for the plaintiff has broughtthis action to eject the defendant and has questioned the validityof the sale to the defendant on the ground that the substitution dfthe heirs of Andrishamy in the mortgage action was irregular, andthat in view of the value of Andrishamy’s estate execution couldhave been issued only against his executor or administrator. This
is the point of law to be decided in this case.
• *Section 341 of the Civil Procedure Code provides that “ if the
judgment-debtor dies before the decree has been fully executed,
. the holder of the decree may apply to the Court which passed itby petition, to which the legal representative of the deceased shallbe made respondent, to execute the same against the legal representa-tive of deceased.” Section 338 declares that " for the purposes of
1920.
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DbSampayo
Silva v.Lokumakat-maya
this chapter (i.e., the chapter in which section 341 occurs) the term‘ legal representative ’ shall mean an executor or administrator, orin the case of an estate below the value oi Rs. 1,000, the next ofkin who have adiated the inheritance/' Now, the three children ofAndrishamy were his next of kin, and they had adiated the inherit-ance. The only question then is, whether the estate of Andrishamywas below the value of Rs. 1,000 within the meaning of the section.The inventory filed in the testamentary case valued the propertyleft by the deceased at Rs. 2,045,. and the mortgage debts due byhim were stated to be Rs. 1,620. In an amended inventory thedebts were stated to be Rs. 2,700, but whether all the debts dis-closed in the amended inventory were mortgage debts does notappear. In any case, it is' clear that the mortgage debts reducedthe true value of the estate to less than Rs. 1,000. In thesecircumstances, was it or was it not “ the case of an estate belowthe value of Rs. 1,000 ” as contemplated by section 338 ? It issection 547 which has the effect of compelling administration ofestates above the value of Rs. 1,000, and that section clearly hasonly a fiscal purpose in view. That being so, how does the lawprovide for the valuing of an estate for the purposes of the revenue ?Part HI. of the schedule of the Stamp Ordinance, No. 22 of 1909,which regulates the duties in testamentary proceedings and onprobates and letters of administration, has the following proviso :“ Provided that in determining the value of the estate the amountof the debts due by the deceased under mortgage or notarial bondsshall be deducted and also the value of any property to which thedeceased was entitled or in possession of as trustee for any otherperson or persons and not beneficially," and that part of the scheduleexpressly exempts from stamp duty all estates below the value ofRs. 1,000 as so determined. Estates below that value may, indeed,be administered, if the parties interested choose', but it is notobligatory to take out letters to such estates. I think that theexpression “ estate below the value of Rs. 1,000 " in section 338 ofthe Civil Procedure Code has the same meaning as in the StampOrdinance. Otherwise, estates which do not ordinarily require to beadministered must be administered merely for the purpose of recover-ing a judgment debt due by the deceased. I do not think thatsuch a construction is reasonable. In this connection it is noticeablethat the section provides, riot for the case where the property of thedeceased is below the value of Rs. 1,000, but for the case wherethe estate of the deceased is below that value. The estate must betaken to be the nett estate after the deduction of secured debts,and where something less than Rs. 1,000 is left to be distributedamong the next of kin, the section evidently means to provide thatthey need not be driven to further expense and obliged to take outadministration, but that execution may at once issue against themfor the recovery of a judgment debt due by the deceased by sale of
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the property in their hands. In this point of view I think thatthe .steps taken in. the mortgage action for the issue of executionwere in order; and the sale in execution was unexceptionable so faraethat-point is concerned.
That being so, the appeal fails, and .is dismissed, with costs.
Appeal dismissed.
1920.
Da SampayoJ.
Silva v.Lokumahal-maya