1926 Present: Jayewardene A. J.

FERNANDO v. ROSA MARIA et al.

 31-C. R. Negombo, 32,251

Administrations-Share by payment of debts-Heirs hold estate in trust for creditors-Partition suit.

Where the heirs of a deceased person take possession of his estate, they hold the property in trust for the legal representative, as representing the creditors, to the extent necessary for the payment of the debts of the estate.

Where such property becomes the subject matter of a partition action, the shares allotted to the heirs in severalty are held in trust for the creditors to that extent.

THIS was an action brought by the plaintiff for a declaration that certain lands were liable to be seized and sold in execution of his decree. The property formed part of the estate of one Marianu Fernando, who died leaving, as his heirs, a widow (the first defendant) and two minor children (the third and fourth defendants). The estate was administered by the first defendant who had been appointed administratrix. In case No. 30,041 of the Court of

Requests, Negombo, the present plaintiff had sued the first defendant both personally and as administratrix of her husband's estate on a mortgage and obtained judgment in 1922. In the year 1923, a partition action was brought for the partition of the lands by a person who had purchased the widow's interests in them. An Interlocutory decree was entered declaring the plaintiff in that action entitled to three-fourth share and the children to the balance one-fourth; and final decrees were entered in August, 1928, and January, 1924, allotting the lots now in question to the third and fourth defendants. In October, 1924, the plaintiffs seized these lots when they were claimed on behalf of the defendants and their claim was upheld. The learned Commissioner of Requests dismissed the plaintiff's action.

Croos Da Berera, for plaintiff, appellant.- The heirs hold the property in trust for the creditors. This trust is not wiped out by the partition decree. There is a charge on the property. The mere filing of a final account does not close the estate. (Gopalsamy v. Ramasamy Pulle,1 Vallipilla v. Ponnusamy,2 Marikar v. Marikar.3)

E. G. P. Jayatilleke, for defendants, respondent.- The partition decree creates new title (Bernard v. Fernando 4). All previous charges are extinguished. The title by inheritance has been wiped out. The estate has been closed. The proper remedy is to ask for a judicial settlement. The creditor has been guilty of delay.

Cross Da Brera, in reply.

May 13, 1926. JAYEWARDENE A. J.-

This case raises an interesting question with regard to the effect of section 9 of the Partition Ordinance, that is, whether a block of land allotted under a partition decree to a party who claimed it by inheritance is liable to be seized and held in execution of a decree obtained against the estate of the person from whom he inherited it.

Two lands called Ambagahawatte and Siyambalagahawatte belonged to one Mariano Fernando, who died leaving a widow (the first defendant) and two minor children (the third and fourth defendants), who are represented in this action by their guardian ad litem the fifth defendant. Under our law, these lands vested in the widow and the children on the death of the intestate, subject, however, to the right of the personal representatives to deal with the property for the purposes of administration. (Silva v. Silva, 5 & Gopalasamy v. Ramasamy Pulle (supra), and Home v. Marikar. 6)

  1(1911) 14 N. L. R. 238.     4 (1913) 16 N. L. R. 438.
  2 (1913) 11 N. L. R. 126.   5 (1907) 10 N. L. R. 234.
  3 (1920) 22 N. L. R. 137.   6 (1925) 27 N. L. R. 185.

The estate of Mariano Fernando was administered by the first defendant who had been appointed administratrix. In case No. 30,041, Court of requests, Negombo, the present plaintiff had sued the first defendant both personally and as administratrix of her husband's