[FULL BENCH]

Present: Wood Renton C.J. and Shaw and De Sampayo JJ.

FONSEKA v. CORNELIS

313-D. C. Kalutara, 6,923.

    Land Registration Ordinance, No. 14 of 1891, ss. 16 and 17-Probate- It it an " instrument " within the meaning of s. 17 9-Widow appointed sole devisee and executrix under her husband's will- Probate not registered-Sale of land in execution for a private debt of widow-Registration of Fiscal's conveyance-Subsequent sale in execution by a creditor of the testator-Fiscal's conveyance not registered-Fiscal's sale pending a Paulian action against executrix and another by creditor of the testator-Is sale subject to the result of the Paulian action?-Sale by or against an executor- Is there a presumption that he is acting in his representative capacity ?

Solomon died in February, 1902, leaving a last will, by which be appointed his wife Francina his sole devisee and executrix. Francina took out probate in 1902, but the probate was never registered. In October, 1902, Francina sold the land in question, which formed part of Solomon's estate, to her brother Marthenis. In 1903 Pedro, who had obtained judgment against the executrix for a debt of the testator, seized the land in execution, when Marthenis claimed the same. This claim having been upheld, Pedro brought a Paulian action against Francina and Marthenis to have it declared that the transfer to Marthenis was fraudulent, and that the land was available for sale under his writ. Pedro obtained judgment in June, 1904, and bought the land himself at the Fiscal's sale held under his writ, and obtained a Fiscal's transfer in October, 1905. While the Paulian action was pending, Letchiman sued Francina and Marthenis for a personal debt of theirs and obtained judgment, and sold the land on his writ in April, 1904, and purchased it himself, and registered the Fiscal's transfer in August, 1904, and subsequently sold the land to the defendant.

Held [per FULL BENCH], that a probate of a last will is an " instrument " within the meaning of section 17 of the Registration Ordinance, 1891, and the non-registration under section 16 of the probate of a will affecting immovable property renders it void as against a person claiming an adverse interest under a duly registered deed of subsequent date.

Held, further [ per WOOD RENTON C.J. and DE SAMPAYO J.], that though Letchiman (defendant's predecessor in title) was entitled to a half share (Francina's share as intestate heir) by reason of prior registration of his Fiscal's conveyance as against Pedro (plaintiff's

predecessor in title), yet, as Letchiman bought the land pending the Paulian action, the sale was subject to the result of it, and,  consequently, the sale under Pedro's writ, though subsequent in date, prevailed over the sale under Letchiman's writ.

" The effect of the decision on the point referred to the Full Bench, so far as this case is concerned, is that where property of the estate is disposed of by a devisee, who is also an heir of the deceased, or is sold against him in execution upon an instrument which is registered prior to the probate of the will, the transferee obtains, in respect of any share or interest to which the devisee would have been entitled by law but for the will, a superior title to that of the executor or a party claiming under him. "

" I think that this matter requires the attention of the Legislature, and in the meantime I would impress on all District Courts and practitioners the importance of seeing that the probate and letters are duly registered. "

THE facts are set out in the judgment of Wood Renton C.J., as follows: -

The point of law reserved in this case for consideration by a bench of three Judges is whether the non-registration under section 16 of the Land Registration Ordinance, 1891, 1[1 No. 14 of 1891.] of the probate of a will affecting immovable property, will render it void as against a person claimi