038-NLR-NLR-V-29-SORLENTINA-v.-DE-KRESTER.pdf
( 174 )
1927.
Present: Schneider J. and Maartensz A.J.SORLENTINA i>. DE KRETSER.
142—D. C. Colombo, 3,090.
Administration—Secretaryappointedadministrator—Saleof properly
by order of Court before issue of letters—Estate Duty Ordinance,No. 8 of 1919, s. 19 {4).
An administrator, to whom letters of administration have notbeen issued, has no authority to sell the property of the estate*even with the sanction of Court.
Where an order was made declaring the Secretary of the Courtentitled to apply for letters of administration to an estate, theCommissioner of Stamps has no right to have a citation issued onthe Secretary under section 32 of the Estate I>uty Ordinance*until the latter has obtained letters of administration
A
PPLICATION to sat aside a sale of land held in pursuance ofan order of Court entered in testamentary proceedings.
The Secretary of the Court applied for letters of administration, onNovember 2, 1926. Order nisi was entered, and eventually opMarch 16, 1927, the order was made absolute. The only respondentto the application was the widow, the present petitioner, who bypetition requested the Court to appoint the Secretary a$ adminis-trator. On March 10, 1927, the Commissioner of Stamps by hisletter addressed to the official administrator drew attention to his.notice of assessment and threatened to take steps under section 32of the Estate Duty Ordinance unless the money was paid within14 days. On April 14, 1927, a citation was issued on the Secretary.On May 13, 1927, the official administrator moved .to sell by-public auction the premises in question. The motion was allowedand the property sold, whereupon the widow moved to set asidethe sale.
A. Hayley, K.C. (with M. C. Abeywardene), for appellant.—All the proceedings in the case are of an extraordinary nature. Nonotice of sale was given to the widow. The conditions of sale areirregular, as no provision is made for confirmation or otherwiseby Court of the sale. Section 19 of Ordinance No. 8 of 1918 makessome person liable for the payment of estate duty. The respond-ent was not- liable as he was not an administrator. In any eventthe estate consisted of movables as well as immovables, and theformer might have been sold for recovery of the estate duty.The respondent had no power Ao make the application for sale asadministrator, as an administrator's status is dependent on his
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having obtained letters oi administration. In this case letters had 1987.not been granted up to the date of filing of the petition (see- Sorlentina v.1 Williams on Executors 314 and 1 Salkeld at p. 301). The sale was deKreteera nullity, and the Court could not confirm a sale which was void.
Counsel also referred to Krause v. Pathumma. 1
H. V. Pereraf for respondent.—The District Court had jurisdictionto make an order for sale. The purchaser obtained the landat a sale in pursuance of an order of Court. The conditions of salewere approved by Court. A bona fide purchaser for value need onlylook to the order for sale.
The respondent has acted as administrator, and when letters aregranted the doctrine of relation back will operate.
Respondent by inter-meddling with the estate became anexecutor de son tort.
The order absolute is sufficient authority for the respondent tol ave made the application for sale as administrator.
The appellant having taken up one attitude in *the lower Courtcannot take up an inconsistent attitude here.
The word jurisdiction must be construed broadly. The Courtfras jurisdiction to make a right order as well as a wrong order.
Counsel cited Perera v. LebbeAndirishamy v. Silva,3 Hassemt. Silva,4' Silva v. Salman,5 Babun Appu v. Vaidasekera* Fernandov. Soysa,7 and Abdinkhan v. Alikhan.8
A. Haylcy, in reply.—Court has no jurisdiction to make an orderto sell a third party’s property. Under the Estate Duties Ordinancethe Court itself can make an order for sale.
Counsel referred to Hendrick v. Siriicardcue.0
October 17, 1927. Schneider, J.—
I would affirm the District Judge's order dismissing the appellant'sapplication with costs. She cannot be heard to say that the ordernisi declaring the Secretary entitled .to letters of administrationshould not have been made adsolute without notice to her. Itwas at her instance, and upon her wish, that- steps for the appoint-ment of the Secretary as administrator had been taken. In my■opinion the order for the sale of the properties on the applicationof the Secretary’s proctor should not have been made, because atthat time letters had not been issued to the Secretary and he, there-fore, had no status to make that application. An administrator
5 N. L. R. 162.5 19 N. L. R. 305.
19 N. L. R. 308.• 20 N. L. R. 62.
18 N. L. R. 454.7 21N. Lt R. 114.
* 25 N. L. R. 314.• 10 All. 166 (F.</.).
• J X. L. R. 247 and 27 X. L. R. 269.
( 176 )
1927.
Schneider
J.
Sorlentina v.de Kretser
as the Judge rightly remarks, derives his authority from the lettersissued to him. I km unable to accede .to the argument advancedat the hearing of the appeal that the order absolute entitled theSecretary to make that application. That order, as the order itselfshows, is simply a declaration that the Secretary is entitled to haveletters issued to him. It does not clothe him with the powers ofan administrator in any sense.
I am also of opinion that the Commissioner of Stamps had noauthority to issue citation on the Secretary purporting to act undersection 32 of the Estate Duty Ordinance, No. 8 of 1919. Sucha citation can issue only upon a “ person in default " of payment ofestate duty. Before the Secretary could be said to be in default itmust appear that he was under a legal obligation to pay the estateduty and had failed to pay when required to do so. He was underno such obligation because he was not an administrator. Hecannot be regarded as “ a person required to pay the estate duty ”within the meaning <of section 19. Those words, in sub-section (4),refer to the person to whom any property passes for any beneficialinterest spoken of in sub-section (2). In this case that would meanthe widow and her children who are the heirs of the deceased whoseestate is being administered. The words “ required to pay " meanrequired by the provisions of the Ordinances; not by a demandmade by the Commissioner.
I would regard the conduct of the appellant in these proceedingsas putting forward the Secretary as having her complete authorityto deal with .the estate for all the purposes of its administration.The payment of estate duty is one such purpose. It was notnecessary to sell the two most valuable properties of the estatefor the purpose of paying the estate duty. That payment couldhave been made by the sale of the small property indicatedin the application for execution made by the Commissioner of.Stamps. The estate duty amounted only to the small sum ofRs. 37.94. If the sale of the properties be now set aside I dp notbelieve that the heirs of the estate will benefit. The mortgageeof the properties will bring actions immediately to realize hismortgages, and the cost of those actions will outweigh any benefitwhich the estate might derive by a resale of the properties. Itappears to me that the widow is being badly advised by somescheming persons, and that her behaviour is likely to prejudiceher as well as her children who are all of tender years.
The statement in writing submitted by the Secretary to theJudge, which is to be found filed at the end of the record, showsthat some of the material allegations made in the appellants'petition and affidavit are not truthful or correct. She appears tohave been aware of the sale of these properties some time before
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the sale took place, to have endeavoured to raise money to avertthe properties being sold, and to have failed to obtain the sum ofmoney required for that purpose. I would, therefore, dismiss herappeal. The estate must bear the costs incurred by the Secretaryin this proceeding.
I make no order as to the costs of the purchaser-respondent.Maaktensz A.J.—I agree.
Appeal dismissed.
1927.
SCUNJfilDKB
J.
Sorlentina v.de Kretstr