Hassen Hadjiar V. Levane Marikar

Present: Lascelles C.J. and Wood Renton J.

HASSEN HADJIAR v. LEVANE MARIKAR.

57-D. C. Galle, 10,347.

Civil Procedure Code, s. 547-Transfer of property without administration-Transfer not invalid-Is partition action an action for recovery of land?-Power of Court to give plaintiff an opportunity of obtaining administration after the institution of the action.

Section 547 of the Civil Procedure Code, while it penalizes, does not prohibit, the transfer of property which ought to have been, but has not been, administered.

In an action for the recovery of land a Court has the right to allow the plaintiff an opportunity of obtaining administration go as to get rid of the objection that the action was not maintainable.

Wood Renton J.-It may fairly be argued that the words in section 547, " no action shall be maintainable," mean only " shall be capable of being proceeded with."

Wood Renton J.-I do not understand the Privy Council in the case of Ponnamma o. Arumugam1 to have held that every partition action is an action for the " recovery of property " within the meaning of section 547.

THE facts are set out in the judgment of Wood Renton J.

H. A. Jayewardene, for the fourth defendant, appellant.-The transferring of a property by an heir without taking out administration is rendered an offence by section 547 of the Civil Procedure Code. A contract is void if prohibited by a statute, though the statute inflicts a penalty only because such a penalty implies a prohibition. The deed of transfer is therefore void. [Wood Renton J.-Do not the words " in the event of the property being transferred " suggest the possibility of, a valid transfer?] No. The imposing of the penalty shows that Courts will not lend their assistance to give effect to such transfers. [Wood Renton J.-If the Legislature intended to render the deed void, it would have been so simple for it to have said so.] The Courts will infer the intention of the Legislature from the fact of the penalty being imposed. [Lascelles C.J.--You must look into the law to see if the act was declared an offence merely for the purpose of protecting the revenue. Is not the penalty in this section imposed for the purpose of protecting the revenue only?] The object of the section appears to be partly for protecting the revenue, and partly for preventing persons from transferring bad titles." But in any case the penalty renders

1 (1905) 8 N. L. R.223.

the deed void. Counsel cited Peris v. Fernando,1 Mudianse v. Wilson,2 Krishnappa Chetty v. Carpen Chetty,3 Victorian Daylesford Syndicate, Ltd., v. Dott,4 Cope v. Rowlands.5

The action is not maintainable. Section 547 expressly prohibits such an action as this unless letters of administration are taken out. The Court cannot now allow letters to be taken out and then give the letters a retrospective effect. The rights of parties to an action should be determined as at the date of the action. Silva v. Nonahamine.6 The objection that no letters had been obtained is not a technical objection, but one of substance; a partition action is an action for the recovery of land. Ponnamma v. Arumugam.7

Bawa, K.C., for the plaintiff, respondent.-The penalty in section 547 was clearly imposed for the protection of the revenue. The section further provides that the Crown may recover from the transferor or transferee the stamp duty which would have had to be paid for the administration. This shows that the transfer is valid. The penalty is not imposed for the protection of the public, as title passes to the heirs without any administration. Silva v. Silva [(1907) 10 N. L. R. 234.] Where the penalty is imposed merely for protecting the revenue the contract is not void. See Melliss v. The Shirley and Fremantle Local Board of Health,6 Krishnappa Chetty v. Carpen Chetty.3

The Court has often stayed proceedings and allowed administration to be taken out. See Gooneratne v. Hamine.* The word in the section

Click Here to Read the rest of this document