EKANAYAKA v. APPU et al

EKANAYAKA v. APPU et al

D. C, Tangalla, 465,

Administrator of intestate estate-When functas officio-Sale by Fiscal in execution against administrator-Final account of administrator-Right of heirs to deal with assets of the estate.

An administrator appointed by Court to administer the estate of a deceased person has power over every portion of his property within this Colony, and it endures for the life of the administrator or until the whole of the estate is administered.

The rendering of a final account, much less an account that is not final in fact, does not make him funetus officio, without a judicial settlement or a formal discharge or removal from office.

When a creditor holds a judgment against the administrator, the assets of the testator cannot be held or disposed of by the heirs to their advantage or to his detriment.

PLAINTIFF in this case, claiming to be the owner of a field by virtue of a deed of sale made in his favour on the 16th November, 1896, by the Fiscal of Matara, who auctioned the land on the 10th May, 1890, under writ issued in case No. 33,520, C. R., Matara, wherein the defendant was the official administrator of one Tillekaratna who had died intestate in 1883 complained of ouster by first, second, and third defendants in June, 1896, and prayed for ejectment and declaration of title in his favour.

The defendants claimed the land as purchasers under the brothers and sisters of the said Tillekaratna.

It appeared that the estate of Tillekaratna was administered by the Secretary of the District Court; that in his final account filed in January, 1887, this land did not appear as one of the properties of the intestate on the supposition that it was subject to a fidei commissum; that that supposition was not well-founded, because the Supreme Court had decided in March, 1890, in case No. 35,584, D. C, Matara, that Tillekaratna took an absolute estate under the deed of gift; and that an application to revive judgment in C. R., Matara, 33,520, and to issue writ in 1888, was allowed, notwithstanding the objection of the administrator that as he had filed his final account he was functus officio.

The District Judge found that the seizure and sale to plaintiff of the land under writ No. 33,520 void, " because at the time of " the seizure the writ issued against a person that was not existing " and the land seized was the property of third and innocent " parties," viz., the defendants in the present case. He dismissed plaintiff's action and gave judgment for the defendants for the land.

Plaintiff appealed,

Domhorst, for appellant,

Bawa, for respondent.

The Supreme Court set aside the decree of the Court below and gave judgment for plaintiff with costs, as follows: -

28th August, 1899. Lawrie, A.C.J.-

The issue, whether the land in question was liable to be sold for the debts of Henry Dedrick Tillekaratna, must be answered in the affirmative. I do not understand that the District Judge thought otherwise. He dismissed the action on another ground. He held that the land could not be sold in May, 1890, under the writ against Mr. De Silva, official administrator of the estate of Henry Dedrick Tillekaratna, because the land had never been administered by the administrator as part of the estate, and at the date of the sale he had ceased to be administrator and the land had passed into other hands.

I understand that the official administrator had not included this land in inventory; he was of the opinion that it was under a fidei commissum, and on the death of the intestate that it passed to the substitutes.

On the footing that he had fully administered the whole estate, he filed a final account in 1887. In February, 1890, it was decided by this Court (in appeal in D. C, Matara, 35,584) that the land was not subject to any fidei commissum, and shortly afterwards (in May, 1890) the land in claim was sold under a judgment obtained in 1883 agai

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