MUSTAPHA LEBBE v. MARTINUS.

MUSTAPHA LEBBE v. MARTINUS.

D. C. Colombo, No. 14,218.

Guardian and ward-Right of guardian to sell property settled on the ward- Necessity of order of Court-Power conferred by parents of ward on guardian to sell at his discretion.

A guardian can sell the immovable property of his ward only (1) when a sale is necessary for the payment of debts, (2) for the maintenance of the ward, and (3) when a sale is clearly for the benefit of the ward; but such sale is not valid if not sanctioned by the Court.

A, by deed of gift, transferred certain immovable property to the children of Mr. and Mrs. B, and empowered Mrs. B to sell it, if necessary for the benefit of the donees, and invest the proceeds in the purchase of another property, or deposit the same in a bank in favour of the donees. Mrs. B sold the property to C and spent the money.

Held, that as the sale took place without the previous sanction of the Court, whose duty was to see that the price was fair and the sale manifestly for the advantage of the ward, the sale to C was void, notwithstanding the power given by the donor to Mrs. B to sell the property at her discretion.

THE plaintif0f prayed that an undivided half of a certain land J be declared the property of one Sella Natchia, and as such liable to be sold in execution of the decree in plaintiff's favour obtained in suit No. 13,861 of the District Court of Colombo.

It appeared that the property in claim belonged to one Paulu Perera by purchase at a Fiscal's sale in 1886, and that he conveyed it to one Bernard, who gifted it to the children of one Martinus and his wife Josephine. The defendants were their children, two of them being minors at the time, and the other unborn.

This deed of gift contained the following provision:-" I, the said J. Don Alexander Bernard, do, by these presents, authorize and empower the said Josephine Sara Louisa Martinus with full power to sell and dispose of the said property hereby given and granted, if she shall see it necessary and expedient for the advantage and benefit of the said donees: Provided, however and it is hereby expressly declared that she shall, with the proceeds of such sale, purchase another property in its stead as soon as possible in favour of the said donees, or deposit the same in any of the banks in favour of the donees."

Acting under this power Josephine Martinus, by her deed dated 8th February, 1897, sold and transferred the property to Sella Natchia, the execution-debtor. With the proceeds Josephine did not buy another property for the donees, as required by the deed

but professed to carry out the other alternative, by depositing each child's share in the Ceylon Savings Bank under his or her name. The depositor was registered as Mrs. Josephine L. M. Martinus.

It appeared from the depositor's books that, within seven months of the deposits, they were withdrawn from time to time, presumably by the depositor, the mother, and only Re. 1, Rs. 5, and Re, 1 remained to the credit of each of the books. In 1898 Josephine died.

The question before the Court was whether, under the circumstances, Sella Natchia got a valid title to the three-sixth shares belonging to the defendants under the conveyance No. 2,733 in her favour.

The Additional District Judge (Mr. Felix Dias) held as follows: -

" It is quite manifest that the object of the donor was to benefit the children alone, and not to put any power in the hands of their mother to benefit herself by appropriating any part of the proceeds of the sale. It was the duty of the purchaser of property burdened with such a trust as this one was, to see the donor's directions fully carried out, leaving no chance for their being defeated. I note that in this matter the purchaser's lawyer was fully alive to the responsibility of the purchaser to see the purchase money properly disposed of, but I fear that he has set to work in the wrong direction by depositing (or allowing the

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