Meis Singho V. Josie Perera

1929.   Present : Fisher C.J. and Drieberg J.

MEIS SINGHO v. JOSIE PERERA et al

116-D. C. (Inty.) Kurunegala, 3,247.

Compromise-Agreement filed in Court but not notified in presence of parties-Binding character-Civil Procedure Code, s. 408.

Where an agreement, entered into between parties to testamentary proceedings, was filed of record but was not notified to Court in the presence of the parties as required by section 408 of the Civil Procedure Code,-

Held, that the Court was not bound to enter decree in accordance with the terms of the agreement.

Such an agreement would not be bad because it wag not notarially executed.
APPEAL from an order of the District Judge of Kurunegala.

H. V. Perera, for petitioner, appellant.

N. E. Weerasooria, for respondents.

September 16, 1929. DRIEBERG J.-

Simon Appuhamy died intestate on August 6, 1926, leaving as his heirs his widow, Egi Nona, his brother, the appellant, and three sisters. The appellant applied for letters of administration on May 26, 1927, and on June 29 the widow and sisters agreed to the appointment of the appellant as administrator. In his inventory filed with his application for administration the appellant showed that the debts of the-estate exceeded the assets by Rs. 44.94.

In the record there is a document " A " dated August 24, 1927; it is an agreement by the widow and sisters of the intestate that the appellant should pay all the debts due by the intestate and become entitled to all the property, movable and immovable, of the estate, and that when all those debts were discharged they should transfer their shares of all the property to the appellant; the estate consisted mainly of lands and interests in leased lands.

At this time the official assessment of the estate .was being made, and the valuation dated August 31, 1927, was submitted, which showed that the assets exceeded the debts by Rs. 975, and on December 2, 1927, the appellant filed an amended inventory on this valuation.

Egi Nona died in November, 1927, and the respondents to this appeal, who are her sisters, were substituted in her place. In November, 1928, they applied for a judicial settlement of the estate; they took objection to matters in the accounts filed and they attacked the agreement "A" on the following grounds:

that it was not binding on the widow or her heirs, that it was not valid in law, that it was obtained by fraud, that the appellant D  had taken advantage of his position as administrator, that Egi Nona did not have independent advice, and that the administrator by it undertook to do no more than he was bound to do. No Perera counter affidavit was filed by the appellant.

When the matter came up for inquiry no evidence was led by either side. For the appellant objection was taken that the respondents had no status to apply for a judicial settlement, that the appellant had made payments in pursuance of the agreement, and that it was not possible for the parties to the agreement to withdraw from it. In support of the last point the appellant relied on the case of Silva v. Hadjiar [1 (1914) 3 Bal. Notes 7.] to which I shall refer later. The respondents contended in addition to what was stated in their affidavit that the agreement was void as it was not executed in the manner required by Ordinance No. 7 of 1840.

The learned District Judge held that, the respondents were entitled to apply for a judicial settlement and that the agreement was not binding as it was not notarially executed and no decree had been entered on it. He also referred to the fact that Egi Nona entered into the agreement under the mistaken belief that the estate was insolvent. The appellant appeals from this judgment. The case for the appellant was that the agreement was one which was governed by the provisions of section 408 of the Civil Procedure Code. Section 408 provides that.-

" If an action be adjusted wholly or in part by a

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