1923.   Present  Ennis A.C.J., Porter J., and Jayewardene A.J.

HASSAN v. SILVA.

 383-D. C Matara, 177.

Executor de son tort-Application for probate by executor named in the will-Order nisi made absolute--Action against executor-No probate issued-Administration cum testamento annexo issued to another-Is decree obtained by executor binding on estate ?

In March, 1917, I applied for probate of the last will of N, and order nisi was made absolute in June, 1918. The defendant, in August, 1917, sued I as executor, on a mortgage bond granted by N. I admitted the debt, and decree was entered in December, 1917. The mortgaged property was sold in July, 1918, and bought by defendant in August, 1918. I, purporting to act as executor, moved to set aside the sale, and subsequently withdrew his application, and Fiscal's transfer was issued to defendant in November, 1918. I took no steps, to have probate issued to him, and plaintiff obtained letters of administration cum testamento annexo, and brought this action to oust the defendant from the possession of the property on the ground that the decree against I was ineffectual to bind the estate.

Held, on the facts that I had intermeddled with the estate and that the decree was therefore valid.

This case was referred to a Bench of more than two -Judges by Schneider J. by the following order :-

SCHNEIDER J.-

One Neina Marikar died leaving a last will, application for probate of which was made by one Idroos Marikar as executor ; the order nisi granting him probate was made absolute on June 25, 1918
.
The defendant, appellant, to whom Neina Marikar was indebted on a mortgage bond dated December 6, 1909, sued Idroos Marikar, the executor named in the will, in realization of his mortgage, and obtained decree in his favour on December 5, 1917. The property mortgaged was sold on July 27, 1918, and the Fiscal executed a transfer of the property in favour of the defendant, appellant, who was the purchaser, in November, 1918.

 Idroos Marikar took no steps to have probate issued to him. The plaintiff in the present action obtained letters of administration cum
testamento annexo, and sought, in this action, to oust the defendant from the possession of the property." The defendant set up his title under the Fiscal's transfer, the validity of which was questioned by the plaintiff, on the ground that the decree against Idroos Marikar was , ineffectual, inasmuch as probate had not been issued to him at any time.

The learned District Judge held in favour of the plaintiff's contention. The defendant appealed, and Mr. Samarawickreme, on his behalf, cited the decision in 133-D. C. (F.) Matara, 9,845 (supra), as supporting his

contention that the order of June 25, declaring Idroos Marikar executor,  and that probate should be issued to him, was effectual to render the decree binding upon the estate of Neina Marikar. He also pointed to the provision in section 8 of Ordinance No. 7 of 1840 and of section 41 of the Evidence Ordinance, 1895, as supporting his contention that the case of Mohideen Hadjiar v. Pitchey (supra) decided by the Privy Council was not applicable to the present case, inasmuch as that was a decision upon facts which had existed before the enactment of the Civil Procedure Code and of the Evidence Ordinance.

In view of Mr. Samarawickreme's contention and the conflict of the decisions, and the practical importance of the point raised by Mr. Samarawickreme, it seems to us that the appeal should be listed before a Bench of more than two Judges.

PORTER J.-I agree.

E. J. Samarawickreme (with him Navaratnam), for defendant, appellant.-The appellant's title to the land in question is founded on a Fiscal's transfer, the validity of which is questioned, on the ground that the decree, in execution whereof the Fiscal's sale took place, was obtained before probate had been granted to the executor. This contention, no doubt, would pre