1962  Present : Basnayake, C. J., and H. N. G. Fernando, J.


MALLIYA and others, Appellants, and ARIYARATNE, Respondent

S. C.486/59-D. C. Gampaha, 5611/P

Executors and administrators-Powers of an executor-Scope of applicability of English law-Payment of testator's debts-Sale, by executor, of fideicommissary property in which minors are interested or of property specially devised to minors- Requirement of sanction of Court-Entail and Settlement Ordinance.

An executor is not entitled to sell, for the payment of the testator's debts, any fideicommissary property in which minors are interested, unless sanction of the Court has been obtained. Nor can he sell, without the authority of the Court, property specially devised to minors. In such cases, a sale by the executor without the authority of the Court is invalid as against the minor, who can, therefore, while he is still a minor, institute a partition action if the property sold was his undivided share of a land owned in common.

Scope of the applicability in Ceylon of the English law of executors and administrators considered.

APPEAL from a judgment of the District Court, Gampaha.

H. A. Koattegoda, with N. R. M. Daluwatte, for 3rd and 4th Defendants-Appellants.

W. D. Gunasekera, for 7th Defendant-Appellant.

Ananda Karunatileke, for Plaintiff-Respondent.

Cur. adv. vult.

March 16, 1962. BASNAYAKE, C. J.-

The question that arises for decision on this appeal is whether the sale of the land called Godakumbara of about 10 kurunies paddy sowing extent described in the Schedule to the plaint by the executrix of the last will of one Charlis Silva without the authority of the District Court is valid. As it will be helpful to the discussion of the question to set out the material portions of that will and the probate issued to the executrix I set them out below.

The relevant parts of the will read-

" I, the said Kurugamage Charlis Silva do hereby will and desire that all property movable and immovable now belonging to me or that may hereafter belong to me wherever in this Island of Ceylon situated devolve on my wife and two children, Wanigasuriya Aratchige Somel Nona, Kurugamage Piyasena and Kurugamage Ariaratne all of Pattalagedera aforesaid in equal shares subject to the conditions and orders hereinafter contained.

" The conditions and orders above referred to-

1. The said Wanigasuriya Aratchige Somel Nona out of the afore­said three persons Wanigasuriya Aratchige Somel Nona, Kurugamage Piyasena and Kurugamage Ariaratne shall not during her life time sell, . mortgage, execute, donate or otherwise alienate but possess the just one-third share that may devolve on her out of the immovable property, and after her death the said share of immovable property devolve on her said two children Kurugamage Piyasena and Kurugamage Ariaratne in equal shares who shall have the right to possess and do any act deed pleased by them to do with the same.

2. The said Wanigasuriya Aratchige Somel Nona shall receive from the Colombo Electric Tramways Company the pension and gratuity due to me therefrom and out of same pay the principal and interest due from me the said Kurugamage Charlis Silva upon Mortgage bond No. 25541 dated 10th November 1939 attested by John S. Gunawardena of Talgasmote, Notary Public, and the two notes to Seena Sinnaiyapillai of Hiripitiya in Veyangoda and obtain a discharge of the property mortgaged thereby and if there is any balance left that may be expended towards the purposes of educating the said two children Kurugamage Piyasena and Kurugamage Ariaratne.

3. The said Wanigasuriya Aratchige Somel Nona, the mother of the said Kurugamage Piyasena and Kurugamage Ariaratne shall be in charge of the income and produce of the two-third shares of the said immovable property till they attain their lawful age and expend the same towards their meals, drink, clothes et cetra and if there is any balance left