Bastian V. Andris Et Al.,

[Full Bench.]

Present: Lascelles C.J., Middleton J., and Grenier J.   Sept.5,1911

BASTIAN v. ANDRIS et al.

117-D. C. Matara, 4,873.

Conveyance by the Fiscal in favour of a purchaser after his death-No title passed-Civil Procedure Code, ss. 286 and 289.

A Fiscal's transfer in the name of a purchaser after his death parses no title. In such a case the proper course is for the representative of the deceased purchaser to apply to the Court for an order directing the Fiscal to make out the conveyance in his favour.

THE facts appear sufficiently from the judgment.

This case was reserved for a Full Bench by Lascelles C.J. and Middleton J.

H. A. Jayewardene (with him Rosairo), for the eighth defendant appellant.-A Fiscal's conveyance in favour of a deceased person is good, as the conveyance relates back to the date of sale. The principles that apply to private sales are not applicable to sales, by the Fiscal. A private conveyance in favour of a dead person is invalid, but a Fiscal's conveyance is valid. Under section 286 of the Civil Procedure Code the Fiscal has no power to execute a conveyance in favour of any one but the purchaser.

If the Fiscal conveys to the administrator of the deceased purchaser, there would be this anomaly-the administrator would be vested with title under the doctrine of relation back even in the lifetime of the purchaser. Buchchi Appu v. Abeyasuriya was wrongly decided. Counsel also referred to Ukku Menika et al. v. Lape.2

Prins, for ninth, twelfth, thirteenth, and fourteenth defendants, respondents.-The point is covered by authority. (Jaldin v. Nurma,3 Buchchi Appu v. Abeyasuriya,1 Ukku Menika et al. v. Lape,2 Ponnamma v. Weerasuriya.4)

The fact that section 286 of the Civil Procedure Code does not empower a sale to the legal representative is not a good argument. The section says that the deed shall be delivered to the purchaser; how could it be delivered if he be dead ? The procedure in such cases was clearly indicated in Jaldin v. Nurma.3

Jayewardene, in reply.

Cur. adv. vult.

September 5, 1911. Lascelles C.J.-

This appeal raises the question whether a Fiscal's transfer executed after the death of the purchaser, in favour of the purchaser, " his heirs, executors, administrators, and assigns," passes a valid title to the administrator of the purchaser's estate.

The eighth defendant is the administrator of the estate of one Siman Perera, who on July 8, 1903, purchased at a Fiscal's sale a share in the property; the sale was confirmed in 1905; Siman Perera died, it is stated, about 1908; and the eighth defendant, the administrator of his estate, on August 10, 1910, obtained a Fiscal's transfer in the form I have mentioned.

It has hitherto been uniformly held that a Fiscal's transfer in favour of a purchaser after his death passes no title. In Annamale Chetty v. Rawter,5 Bonser C.J. considered the fact that the Fiscal's conveyance was in favour of a man who was dead to be a serious obstacle to the plaintiff's success. In Buchchi Appu v. Abeyasuriya,1 Mr. Justice Wendt and Mr. Justice Grenier decided against the validity of such a conveyance. The former learned Judge, in delivering the judgment of the Court, stated, " sale and purchase of land is a contract which is not completed until a conveyance from the

1 (1905) 2 A. C. R. 127.                                    3 (1892) 1 S. C. R. 187.

2 (1903) 6 N. L. R. 361.                                                 4 (1908) 11 N. L. R. 217.

                                                                                              5 (1896) 2 A. C. R. 128.

vendor has assured the property to the purchaser. If before that has been done the purchaser died, the contract cannot possibly be completed by the execution of a conveyance to the dead man. In this respect I see no distinction between a private sale and one carried out by the Fiscal." In Ukku Menika et al. v. Lape,1 Mr. Justice Grenier h

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