KRAUSE v. PATHUMMA.

In the Matter of the Estate of Sellamma, Deceased.

KRAUSE v. PATHUMMA.

D. C., Galle, 3,314 (Testamentary).

Power to administrator to sell immovable property-Under what safeguards this power should be exercised.

Per Bonser, C.J.-The practice as to the sale of immovable property by an administrator in this Island differs from that obtaining in England, in that in this Island he is expressly precluded by the terms of his letters from selling immovable property without the special leave of the Court. That provision was inserted in letters of administration by authority of the Legislature in order to prevent the unnecessary sale of immovable property to the detriment of the persons entitled to that property. The administrator is entitled to sell all movables without asking anybody's leave, but if he wishes to sell immovable property, he must come to the Court and show conclusively that the sale is necessary for the payment of debts and costs of the administration. If the Court is satisfied that the movable property is insufficient, it would make an order for the sale of so much of the immovable property as would be necessary for the purpose, and only so much. It is not intended that the Court should give the administrator a general authority to sell the immovable property of the intestate.

I do not consider an administrator is justified in putting up a property for sale without taking measures to see that it is not sold at a great undervalue, and it seems to me that the Court ought to require the administrator, when he applies for leave to sell, to state under what conditions he proposes to sell, and to see that he does not sell under conditions of sale which may involve a sale at a ruinous sacrifice.

IN this case administration was granted to one Krause, the first respondent, as official administrator, on 6th August, 1900. On 8th August, 1900, the first respondent moved for and obtained a notice on Pathumma and the other heirs of the estate to show cause why the house and premises No. 44 in Church street, Galle, Fort, the boutique No. 23 in Galle Bazaar, and the movable property of the estate should not be sold. The first respondent, when he made this application to sell these properties, assigned as a reason for his application that the " sale was necessary to enable him to " meet all expenses he has to incur." This notice was served on the appellants and the other heirs of the estate, and on the 27th August, 1900, the learned District Judge allowed the application to sell property on these terms: " The property may be sold."

The first respondent thereupon, through a licensed auctioneer, advertised the sale, and ultimately sold the property. The movables fetched Rs. 22.65. The boutique No. 23 in Galle Bazaar was sold for Rs. 715, and the house and premises No. 44, Church street, was purchased by Abubaker, the second respondent, for Rs. 560.

On 19th October notices were issued on the appellants and other heirs of the estate and the purchasers to show cause why the different sales should not be confirmed. The appellants consenting, the sale of the movables and the sale of the boutique No. 23, Galle Bazaar, were confirmed, but the appellants objected to the sale of house and premises No. 44, Church street, being confirmed. The matter of this objection came on for inquiry on the 28th November, 1900, and on the 8th December, 1900, the learned District Judge confirmed this sale.

Pathumma and the other heirs of the estate appealed.

Bawa, for appellant.

Wendt, for respondent.

26th February, 1901. Bonser, C.J.

This is an important case illustrating the hardships which the heirs of persons who die intestate suffer in consequence of careless administration.

A person named Sellamma died in 1900 intestate, possessed of certain movable and immovable properties. Amongst the immovable property was a boutique in Galle Bazaar and a moiety of a house and premises in Church street in Ga

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