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SILVA v. SILVA
NLR5V262
SILVA v. SILVA
D. C., Galle, 5,273.
Plca of res judicata-Decree against administrator-His duty to judgment-creditors of intestate.
A. a creditor of B who had died intestate, obtained judgment against his administrator and caused certain properties of the estestate to be seized in execution of his decree. C's claim to them being upheld, A sued him to have the properties declarded as part of the intestate's estate and made executable. C pleaded in bar a decree entered in his favour in a previous suit between him and A, whereby (he lands in question were declared to be the property of the defendant.
Held, that the District Judge was wrong in upholding this decree as res judicata between the parties. It had no bearing on the present claim of the plaintiff, which was to have it declared that these lands are part of the intestate's estate.
When a debt is established against the estate of a deceased person and judgment given against his administrator, it is his duty to pay such debt by selling a sufficient portion of the estate, and not to allow the judgment-creditor to take out execution against the estate.
PLAINTIFF raised this action to have certain property declared liable to be sold in execution of the decree in his favour in suit No. 5,096.
It appeared that one Thiberis de Silva became indebted to the plaintiff on a promissory note and on a lease in a certain sum of money and died intestate; that the plaintiff sued the administrator
of T. de Silva in suit No. 5,090 for the amount due to him urn] recovered judgment in June, 1898; that before instituting the suit No. 5,096 the heirs of the deceased signed a deed in favour of plaintiff purporting to convey certain lands in settlement of the debt due; that plaintiff did not accept it, as he found that the grantors had no title; that plaintiff caused certain properties to be. seized under his decree, but they were claimed by the defendant; and that his claim was upheld. The plaintiff now sued the defendant under section 247 of the Civil Procedure Code, praying that those lands may be made executable for his debt as part of the intestate's estate.
Defendant pleaded that he was not bound by the testamentary proceedings had in suit No. 3,024 (in which the District Court appointed an administrator to the intestate's estate), nor by the decree in suit No. 5,096 (in which plaintiff received judgment against such administrator), and he pleaded in bar a decree entered in his favour in suit No. 4,750 against the plaintiff, whereby the shares of the lands now claimed by plaintiff were declared to be the property of defendant.
The District Judge (Mr. F. J. de Livera) dismissed the plaintiff's action by the following judgment: -
" In D. C., 4,750, the present defendant complained of being kept out of possession by the present plaintiff and another person since December, 1896, and prayed for a declaration of title. Present plaintiff pleaded in that case that certain heirs of P. Thiberis had by deed 17,227, dated 28th November, 1895, conveyed to him three-ninths of the property, but he restricted his claim to whatever shares those heirs were lawfully entitled to, and he further pleaded that, in order to recover the amount due to him on the promissory note and lease referred to in the first and second paragraphs of this judgment, he had taken steps to have the Secretary of this Court appointed administrator of P. Thiberis's estate.
" Rightly or wrongly judgment was entered in D. C., 4,750, on 27th November. 1897, in present defendant's favour for the shares claimed by him against plaintiff, the Court holding as follows: -
" It is not open to the defendant to dispute plaintiff's title, so long as they set up no superior title in themselves or superior title in others under whose authority they claim a right to. possess.' "
Plaintiff appealed.
Sampayo (with Pieris), for appellant.
Bawa, for respondent.
16th January, 1902. Bonser, C.J.-
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