De Silva Et Al. V. De Silva

1940 Present: Soertsz and Hearne

JJ. DE SILVA et al. v. DE SILVA.

33-D. C. Galle, 36,337. 

Prescription-Action to recover legacy-Cause of action arises on death of testator.

A cause of action to recover a legacy accrues on the death of the testator.

THIS was an action to recover the value of a legacy. The sole question argued in appeal was whether the action was prescribed.

L. A. Rajapakse (with him M. M. I. Kariapper and H. A. Wijemanne), for the plaintiffs, appellants.-The action is not prescribed. The question is whether the cause of action arose on the death of the testator or on the issue of probate or on the sale of the property. It cannot possibly be said that it accrued on the death of the testator. If, then, it arose either on the issue of probate or on the sale of the property, the minority of some of the plaintiffs would interrupt prescription in their favour.

The period of prescription in this case is ten years. Section 5 of the Prescription Ordinance (Cap. 55) is applicable. The executor is in the position of a trustee-Eheliyagoda v. Samaradiwakara [1 (1919) 22 N. L. R. 179. ], Assauw et al. v. J. W. Fernanda [2 (1905) 1 Bal. Rep. 174]. Further, when section 111 (1) (a) of the Trusts Ordinance is read with section 90, it can be argued that the defendant cannot plead prescription, because he is in the position of a trustee who has committed a fraud. See also Soar v. Ashwell [3 (1893) 2 Q. B. D. 390. ].

The District Judge's interpretation of Fernanda v. Soysa [4 (1896) 2 N. L. R. 40.] cannot be justified. Section 554 of the Civil Procedure Code regarding the personal liability of the executor one year after the issue of probate, and section 720 (b) are intended for the benefit of the devisee and cannot be used adversely to him. For English law on the point, see 14 Laws of England (Hailsham) p. 339, para. 632.

Finally, the view is possible that prescription commences only at the date of the judicial settlement of the estate. The executor is the represent­ative of the deceased. Prescription would begin to run from the date when notice is given to everybody that the estate is closed. Judicial settlement has not yet been reached in the testamentary case.

H. V. Perera, K.C. (with him G. P. J. Kurukulasooriya), for the defendant, respondent.-This case falls under section 9 of the Prescription Ordinance and the period of limitation is two years. Under section 9 prescription would run notwithstanding minority. At best, the case comes within section 10 and is barred in three years.

In the case of a legacy time begins to run from the date of the death of the testator-14 Laws of England (Hailsham) p. 341, para. 638. The devisee obtains title and can institute action soon after the testator's death, Cassim v. Marikkar [5 (1892) 1 S. C. R. 180.], Silva v. Silva et al [6 (1907) 10 N. L. R. 234.]. It is not necessary for him to wait until the executor obtains probate ; it is for the executor to claim certain powers over the property when he is sued, Fernando v. Soysa

(supra). The words " no action shall be maintainable " in sectio

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