Present: Jayewardene A.J. and Akbar A.J.

WIMALASURENDRA v. DIAS.

122,122A-D. C. Galle, 21,775.

    Administrator-Sale of property with leave of Court-Warranty-Liability of administrator.

Where property was sold by the defendant as administrator of an estate, with leave of Court and on conditions of sale approved by Court, and where after the sale was confirmed, the defendant executed a deed in favour of the plaintiff containing an express clause by which he covenanted to warrant and defend title, although the conditions of sale had no reference to such a covenant.

Held, that the estate was not bound by the act of the defendant and that the defendant was personally liable on the covenant.

PLAINTIFF was the purchaser of a land belonging to the estate of one Peter Weerawickrama Gunawardene, which was sold by the defendant, as administrator with the leave of Court and on conditions of sale approved by Court. The conditions of sale as approved by Court contained no reference to a special covenant to warrant and defend, but the administrator after the sale was confirmed executed a deed containing the warranty clause. Plaintiff, being unable to get possession, instituted eviction proceedings against the disputant calling on defendant to warrant and defend, but this case proved abortive. Subsequently plaintiff instituted this action against defendant as administrator claiming damages for the breach of the covenant to warrant and defend contained in the deed. The District Judge dismissed the action against the defendant as administrator, but gave judgment against him in his personal capacity.

Drieberg, K.C. (with him Chas. de Silva and Jansz), for plaintiff, appellant.-Apart from the special insertion of the warranty clause the contract of sale is incomplete as no vacant possession has been granted, and the estate is therefore liable. The sale is only complete after " vacant possession " u granted, and once this has been done the seller must warrant and defend against eviction, Jamis v. Suppa Umma.1[1 17 N. L. R. 33.]

[AKBAR A.J.-In James v. Suppa Umma (supra), there is an implied warranty which is not the case here.]

The administrator, having warranted and defended, his liability is analogous to that of an executor de son tort.

Counsel cited Perera v. Amaris Appu,1 Francisco v. Peresenty2 Krause v. Pathumma.3

H. V. Perera, for defendant, respondent.-The action is against the defendant as administrator, and the judgment has gone against him personally, or in other words, judgment has gone against one who was no defendant. The defendant is prejudiced, as other issues might have arisen.

Drieberg, K. G., in reply.-

November 27, 1925. AKBAR A.J.-

This is an action brought by the plaintiff against the defendant as administrator of the estate of one Peter Weerawickrama Gunawardene. The plaintiff was the purchaser of a land belonging to the estate of the deceased, which was sold by the defendant as administrator with the leave of the Court, and on conditions of sale approved by the Court.

Although an administrator is not bound in law to warrant and defend title and such a covenant cannot be implied (see Francisco v. Peresenty (supra)), and although the conditions of sale as settled by the Court contained no reference to a special covenant to warrant and defend, the administrator after the sale was confirmed by Court executed a deed in favour of the plaintiff containing an express clause by which he covenanted to warrant and defend title. Plaintiff not being able to get possession of the property instituted eviction proceedings against the person who was disputing his title, and called on the defendant to warrant and defend. The defendant took an active part in these proceedings and was added as a co-plaintiff in the eviction action. He filed a statement, and otherwise helped the plaintiff in this case, which ultimately went up in appeal, and there th