1957 Present: Basnayake, C.J., and Pulle, J.


VALLIYAMMAI ACHI, Appellant, and THE SECRETARY
OF THE DISTRICT COURT OF COLOMBO (Administrator de
bonis non of the Estate of Hadjie Ibrahim Bin Ahamed) et al.,
 Respondents

S.C. 572-D. O. Colombo, 419,'Z

    Administration of estates-Mortgage bond executed by executor-Subsequent release of the hypothecated prop3rty from the mortgage-Money d3cree obtained by the mortgagee-Execution thereof-Right of mortgagee to follow up property other than that which had been hypothecated.

When an executor of a last will executes a mortgage bond hypothecating certain property belonging to the estate of the testator and uses the borrowed sum of money for the pulrpose of the administration of the testator's estate, the mortgagee is entitled to release bona fide the mortgaged property and, after obtaining only a money decree in respect of the mortgage debt, to follow up in execution other property which has been transferred from the testator's estate.

Albert Perera v. Marimuttu Oanniah (1944) 45 N. L. R. 337, followed.

Thecaoris Fernando v. Roslin Felnancto (1901) 2 Browne 277, doubted.

APPEAL from a judgment of the District Court, Colombo.

On May 21, 1935, the executor of a last will mortgaged, with the approval of the Court, certain property of the testator's estate and used the money so raised for the purpose of discharging a part of the liabilities of the estate. The mortgagee subsequently put the bond in suit but, pending the action, released from the mortgage the hypothecated property and obtained only a money decree.

The question for decision in the present appeal was whether, for the purpose of satisfying the money decree, the mortgagee was entitled to follow up property of the testator's estate other than the mortgaged property. The property which was sought to be seized and sold had been devised to the executor, who gifted it subsequently to his son. The latter gifted the property to his sister Zabeediya in consideration of her marriage with one Mohamed Salih. In 1952 Zabeediya and her husband sold the property to their children who were the 2nd and 3rd defendants in the present case.

H. V. Perera, Q.C., with S. Ambalavanar and H. C. Kirlhisinghe, for the plaintiff-appellant.

S. Nadesan, Q.C., with C. Ranganathan, V. K. Palasuntheram and P. Naguleswaram, for the 2nd to 4th defendants-respondents.

Cur. adv. vult.

December 4, 1957. PULLE, J.-

The subject matter of the action out of which this appeal arises valuable property situated in Keyzer Street, Colombo. It formed once part of the estate of one Ibrahim Bin Ahamed (referred to herein I as the testator) who died leaving a last will and certain codicils by which he devised this property to his son Ahmed Bin Ibrahim, appointing as the executor. The will was admitted to probate in 1934 and on 13th December. 1938, Ahmed Bin Ibrahim in his capacity as executor conveyed the property to himself and on the same day he gifted it to his son through whom the title devolved eventually on the 2nd and 3rd defense in the present case. In execution of a decree entered in case, 2565 MB in favour of the plaintiff, who is the appellant, the property was seized in execution and was successfully claimed by the 2nd and 3rd defendants. On 22nd May, 1953, the plaintiff filed the present a in which she sought a declaration under section 247 of the Civil Procedure Code to the effect that the property was liable to be sold in exeC1 of the decree in case No. 2565MB. The action .vas dismissed with and the plaintiff appeals. The question which arises for determine is whether having regard, to the events, set out more fully herein: which led up to the seizure of the property, the learned trial Judge wrong in holding that the property was not liable to be seized and Admittedly, the debt in respect of which the decree in favor of appellant was entered in case No.