POOWATCHY UMMA et al. v. CASSIM MARICAR et al.

Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice, and
Mr. Justice Middleton.

POOWATCHY UMMA et al. v. CASSIM MARICAR et al.

D. C., Colombo, 20,468.

Direction to executors to sell property and purchase others-Failure to do so-Rights of heirs-Action against executors by creditor-Fiscal's sale-Validity-Rights of purchasers at Fiscal's sale-Prescription

K.S. by his will dated 27th June, 1888, directed his executors to sell the property in dispute, and after payment of debts, to purchase other properties which were to be divided between his children and held subject to a fidei commissum. The executors did not sell the property; and on a judgment obtained against them qua executors the property was sold by the Fiscal and purchased by A. C. in 1890, who in the same year conveyed it to the added defendant, who was then a minor. M. H. (a grandson of the said K. S.) conveyed a half share of the property to the plaintiffs on 10th April, 1902; and the said M. H. and the plaintiffs instituted an action to compel the executors to execute a conveyance in favour of M. H. Judgment having gone against the executors, and they having failed to execute a conveyance, the District Judge, under section 332 of the Civil Code, executed it on 14th July, 1904.

In an action by the plaintiffs for a declaration of title to a half share of the property,-

Held, that the plaintiffs had no title as against the purchaser at the Fiscal's sale held in 1890 against the executors.

LASCELLES A.C.J.-The authority of Fiscal's sales would be gravely impaired, if it be held that purchasers at such sales are bound to assure themselves that the proceedings on which the judgment is based are free from error in law or in fact.

Observations of the Privy Council in Rewa Mahton v. Ram Kishin Singh(1) referred to.

Held, also, that the Prescription Ordinance (No. 22 of 1871) does not prevent a minor from obtaining title by prescription through agency.

Thomas v. Thomas(2) followed.

THIS was an action ret vindicatio. The plaintiffs alleged that Kider Saibo Kader Saibo Hadjiar was the owner of the premises in question under and by virtue of deeds Nos. 2,954 and 2,955,

Foot Notes :

(1) I. L. R. 14 Cal. (P. C.) 25.

(2) K. and J. 79.

both dated 16th March, 1880; that the said K. S. C. S. Hadjiar died on 18th August, 1888, leaving a last will and testament dated 27th June, 1888, which was proved by the executors therein named on 9th October, 1888, in case No. 4,871 of the District Court of Colombo; that the said K. S. C. S. Hadjiar by his said will desired that the said property and some others should be sold for the payment of his debts, and that the balance proceeds, if any, should be divided equally among his children Kader Saibo Mohamado Cassim and Kader Saibo Saffa Umma, the second defendant and wife of the third defendant, and that out of each such share of the said division the executors should buy and transfer severally in favour of each of the said two children one or more land or lands subject to the condition that each child to whom the same should have been transferred as aforesaid should not sell or mortgage the same or any part thereof or lease or otherwise alienate the same, but should only enjoy the rents and profits thereof, and that the same should not be liable to be sold in execution for any of his or her or their debt or debts, and at his or her or their death the same should devolve on his, her, or their lawful child or children; that all the debts of the said K. S. C. S. Hadjiar were paid and settled by the sale of properties other than the one in question, which was not sold by the executors, and that the two children mentioned in the will became entitled to the same in equal shares; that the said Kader Saibo Mohamado Cassim died on 24th August, 1893, leaving an only child Mohamed Cassim Mohamed Haniffa, who by deed No. 7,079, dated 10th Ap

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