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SOYSA v. WEERASURIYA
NLR5V196
SOYSA v. WEERASURIYA.
D. C., Galle, 4,775.
Dowry from father to daughter-Gift to her by deed in pursuance of last will of parents-Merger of gift in inheritance,-Insolvency of father-Power of administrator to sell immovable property for debt of testator-Irregularity of order of Court granting leave to sell-Right of creditors of the father to sell the land gifted, for payment of his debts.
W and G made a joint will in 1887, in which, after making certain requests, they directed that " the immovable property belonging to their estate should devolve on their daughter J. " After G's death. W made a deed of gift in favour of J, conveying certain lands which the testators had intended to give her, but the donor was to remain in possession of them till his death, and he reserved to himself the power of selling them, should circumstances compel him. W died in 1893, without revoking the will or exercising the power of sale under the deed of gift.
S. having been appointed administrator of W as regards the properties acquired by W after C's death, obtained the leave of Court to sell the intestate's property for the payment of his debts, but the order granting the leave did not specify the property to be sold. S sold to A a part of the, property gifted by W to J,
In an action brought by A's vendors against J and her husband who were in possession of the land in question,-
Held, per Bonser, C.J.-That the sale by the administrator to the plaintiff's vendors could not be supported, as the order granting the leave to sell did not specify the property to be sold, and the sale was grossly mismanaged by the administrator.
The administrator put up Kittanduwebedde to public auction on 2nd June, 1894, but so grossly was the sale mismanaged that, although the property had been valued in the administrator's inventory at Rs. 10,000, he allowed it to be sold for Rs. 650. A conveyance was executed by the administrator to the purchasers, who were relations of his, on the "29th of June, and they on the 1st September following sold and conveyed the property to plaintiff, who is a connection by marriage of the administrator, for Rs. 1,000, The plaintiff himself in his plaint values the property at Rs. 5,000. Such a transaction as this should be very closely scrutinized, and ought not to be supported except on the strictest proof that it is in every respect in accordance with law; and no intendment should be made in its favour. I venture to think that it would be a serious blot on the administration of justice in this Island if we are obliged to uphold this transaction.
Held, also (Moncreiff, J., and Browne, A.J., disagreeing), that so long-as the deed of gift stood unreduced by a decree in a Paulian action, the administrator could not convey title to A; and that the only persons who could sue to recover property given in dowry are the creditors of the donor.
Held further, that a creditor could not sue a daughter, who had abstained from her father's inheritance, to make her dowry liable to pay her father's debts, except when the dowry deed was made in fraud of creditors, and that there was no evidence to show that the daughter in the present case had accepted her father's inheritance.
It is doubtful whether under our law it is possible to accept an inheritance in the sense in which that phrase is used in the Roman and Roman-Dutch Law seeing that the English Law of Executors and
Administrators prevails in the island, and the Roman-Dutch Law of inheritance so far as it is inconsistent with that law is no longer in force.
Per Moncreiff, J.-When a daughter accepts her father's succession and the estate of her father is insufficient to meet his debts, property given to her by way of dower by her father in his lifetime is available for administration.
It is true the remedy belongs to the creditors, but the administrator who was sued by them was justified in admitting and acting on their claim.
Browne,
