Somasunderam V. Wijeratne

1964 Present: Basnayake, C.J., and Herat, J.

P. A. N. SOMASUNDERAM, Appellant, and
W. D. WIJERATNE, Respondent

S. C. 46/1959-D. C. Kalutara, 31518

Administration of estates-Power of an executor to sell immovable property belonging to the estate-Scope-Applicability of English law-Civil Procedure Code, ss. 518, 538, 540, 551-554, 712-739.

         Where a testator dies owing no debts and leaving sufficient money for the payment of estate duty, the executor has no power to sell any of the immovable property that is left subject to the condition that the executor shall have the right only to take and enjoy all the rents and profits and shall not have the power to sell or mortgage or alienate the same and that, after his death, the property shall devolve on and vest in certain specified legatees.

         Where, after his power of administration has come to an end, an executor sells immovable property which the Will does not authorise him to sell, the sale conveys no title to the purchaser as against a person who subsequently buys the same property from the heirs of the deceased and institutes a vindicatory action against the former purchaser. Even if his power of administration has not come to an end, the executor has power to sell only for the purposes of due administration.

APPEAL from a judgment of the District Court, Kalutara.

                   A testator devised all his immovable property to his heirs subject to a life interest in favour of his wife, who was appointed executrix under probate granted on 8th March 1928. The deceased left no debts and had sufficient money to meet the liabilities in respect of estate duty. The Will gave the widow no power to sell any of the property.

              In the course of the administration, the executrix obtained a hypothecary decree against a debtor of the testator and bought the hypothecated lands on 1st March 1937. After she had filed final account on 7th September 1934 stating that she had carried out all the directions in the Will, and twenty-one years after the grant of probate, she mortgaged on 22nd April 1949 for a sum of Rs. 6,000 the lands which she had purchased on 1st March 1937. On 27th September 1949 she sold those lands, in her capacity as executrix, to the defendant-appellant for Rs. 9,000, out of which sum Rs. 6,000 was paid to the mortgagee. The sale took place pending proceedings for judicial settlement initiated by the heirs.

              The executrix died on 13th October 1954. On 9th February 1956 the heirs of the testator Bold to the plaintiff the above-mentioned lands which the executrix had sold to the defendant. The defendant, who was in possession of the lands, disputed the plaintiff's ownership. In

the present action instituted by the plaintiff for a declaration of title and ejectment, the trial Judge gave judgment in favour of the plaintiff. The defendant thereupon filed the present appeal.

             H, V. Perera, Q.C., with E. R. S.  R. Coomaraswamy, E. Mohideen and N. S. A. Goonetilleke, for Defendant-Appellant.

             N. E. Weerasooria, Q.C., with H. W. Jayewardene, Q.C., and N. R. M. Daluwatta, for Plaintiff-Respondent.

Cur. adv. vult.

February 10, 1964. BASNAYAKE, C.J.-

        The question that arises for decision on this appeal concerns the power of an executrix to sell property devised to the testator's heirs subject to a life interest in her.

         Briefly the facts are as follows :-Mariano Leity Ramanaden by his Last Will (P2), after making certain religious bequests, left the rest of his property to his heirs subject to a life interest in favour of his wife in the following terms :-

       " I do hereby give devise and bequeath all the rest of my property both movable and immovable of whatsoever kind or nature the same may be and wheresoever situate and lying including the several sums of money invested on bond or lying in deposit in the banks

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