SAMARANAYAKA v. SIDEMBREM CHETTY.

SAMARANAYAKA v. SIDEMBREM CHETTY.

D. C., Chilaw, 2,228.

Civil Procedure Code, s. 247-Mortgage bond by executrix-Judgment against her-Seizure of lands in her possession-Claim to such lands by devisees under the will of deceased testator-Dismissal of such claim-Action against writ-holder for release of lands-What to prove in the case-Nature of possession of executrix.

A, as executrix of her husband's estate, granted a mortgage bond to B, who- obtained judgment thereon and seized certain lands in her possession. G claimed them as devisee under the will of A's husband. His claim being rejected, he sued B, without joining A, for a declaration that the mortgage bond granted by A was not made for the purpose of paying the debts of the testator, and that the lands claimed were therefore not liable for seizure or sale under B's judgment.

Held that, in an action raised under section 347 of the Civil Procedure Code, the plaintiff must prove that he was in possession of the property at the time of seizure, or that it was in possession of the execution-debtor at such time in trust for the plaintiff; that the possession of the executrix was not as a trustee for the plaintiff, but only for the purpose of administering the testator's estate; and that therefore the plaintiff's action for an order on the Fiscal to release the seizure was not maintainable.

Held also, that the plaintiff was not at liberty in this action to prove behind the back of the executrix that she mortgaged the estate for her own benefit, and not for the purpose of paying the debts of the testator.

ACTION raised under section 247 of the Civil Procedure Code. The facts of the case are fully set out in the judgment of the Chief Justice.

Bawa (with Prins), for appellant.

Dornhorst, K.C., for respondent.

9th March, 1903. Layard, C.J.-

The admitted facts of this case are as follows: -

An action was instituted by the first defendants against Dona Marihamy, as widow and executrix of the last will of the late Don Elaris, notary, upon a mortgage dated 27th August, 1895, executed by her as executrix of the estate of her testator, and in execution of a decree obtained in that case certain lands in her possession as such executrix were seized, upon which plaintiffs and second defendant claimed them. The claim was inquired into in a claim case and an order was made dismissing the claim with costs.

The plaintiffs then brought this action under section 247 of the Civil Procedure Code, in which they seek that it should be declared that the mortgage granted by the executrix was not made for the purpose of paying the debts of the testator, and the properties

claimed are consequently not liable for sale under the judgment obtained by the first defendant; and they further pray for a declaration that they are entitled to have the property released from seizure and for an order on the Fiscal to release the same accordingly.

It is admitted by appellant's counsel that the executrix, who is no party to this action, is in the actual possession of her testator's property, and that she has power to mortgage such property to pay the debts of the testator.

In an action under section 247 the plaintiffs must prove that they were in possession of the property at the time of seizure, or that it was in possession of the execution-debtor at such time in trust for the plaintiffs, and that therefore the Court ought not to have refused to release the property.

Now, admittedly in this case the property was in the possession of the execution-debtor. It is not suggested that the executrix had assented to the devise and that the devisees are in possession of the lands devised to them. The executrix is in possession not as a trustee for the plaintiffs: she is there in her capacity of executrix and for the purposes of administration. She has the power of selling or mortgaging the property of her testator, not merely for the payment of the deb

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