117-NLR-NLR-V-18-ANDRISHAMY-v.-SILVA-et-al.pdf
( 454 )
Prea&it : Ennis J. and De Sampayo J.
ANDRISHAMY v. SILVA et at.
384—D. 0. Matam, 6,739.
dole by auction by executor, by order of Court—No conveyance granted—
Subsequent sale to a third party by executor without order of Court.
Onthe applicationofanexecutor theCotnft ordered the sale
of certain immovable property, and issued a commission to theSecretary to conduct the sale, and the property eras purchased by B.Thereafter, and before the confirmation of the said sale, the executorconveyed the property to C. The executor died, and his successorexecuted a deed of transfer in favour of B. In an action' by Bfor a declaration of title against C, held, that £ was entitled tosucceed, in spite of the fact that Us deed was later in' date.
Ds Sampayo J.—When the Court exercised its jurisdiction and tookuponitself the saleoftheproperty, theexecutor had no longer-
any authority to dispose of the property, except upon furtherorders of Court,and cannot be allowedto defeat the acta
of the Court in regard to the sale; for that would be not oidydirectly to defy the Court, whose jurisdiction had been exercisedat his' own instance, but to set himself above the Court.
foots are set out in the judgment.
Drieberg (with him J. 8. Jayewardene), tax plaintiff, appellant.
Bawat K.C. (with him Weeraratne), for defendants, respondents*
Our. adv. trait.
1915.
October SO, 1915. .Ds Sampayo J.—
This appeal raises an important question as to .the effect of a saleof immovable property by order of Court. Don Adrian de Silvadied,- leaving a will, of which Charles de Silva was executor. Thewill was proved and probate obtained by the executor in testa-mentary suit No. 8,931 of the District Court of Galle. On June18, 1918, the executor submitted to Court a list showing sharesof five lands as belonging to the estate, and applied for an orderto sell the said properly, and moved that for that purpose a com-mission be issued to the Secretary of. the Court. The Court desiredto be satisfied as to the propriety of the sale, and asked' for certainfurther information, and the required information being subse-quently furnished, the Court, on August 7, 1918, made an® orderfor the sale of the property, and issued a commission to the Secretaryto carry out the sale. The Secretary having appointed an auctioneer,the conditions of sale and notice of sale were submitted to Court
( 465 l
and approved on August 14. The auction .took "jplaee on August – IMS*38, 1018, and the plaintiff in®this aotion beoame the purdhaaar n.of three ‘of the lands, and paid down the purchase money And ^ J.tbe auctioneer’s charges according to the conditions of sale. Thesale was duty reported to Court, and on September 80, 1918, a“ ».SOmformal order confirming the sale was entered of record. It appearsthat at this stage the executor fell ill and died, and die executionof a conveyance in favour of the plaintiff was consequently delayed.Ultimately the Court appointed an administrator ie boms non, who,under the authority of Court, by deed dated December 21, 1014,conveyed the property to the plaintiff. The title thus acquiredby the plaintiff is so far unexceptionable. But when he went totake possession of ,the lands he was confronted by a claim madeby the defendants under the deeeased exeoutor Charles de Silva.
It appears that, notwithstanding tire order of Court made at hisown instance, and the sale effected thereunder by the Secretaryacting under the -commission issued to him, the exeoutor, by aprivate conveyance dated September 29, 1918, purported to sell theproperty purchased by the plaintiff, together with shares of twootiier lands, to the defendants. The plaintiff has brought thisaction, alleging that the deed in favour of the defendants wasfraudulently and oollusively exeouted, and praying that that deedbe declared void as regards the lands purchased by himself and thatbe be declared entitled to the same as against the defendants, and‘also praying for ejectment and for damages.
The District Judge held on the evidence that the defendants werefully aware of the order of Court and the other circumstances abovereojted, and actively endeavoured to prevent the sale by the Secretaryin the hope of securing the property themselves, and that havingdiscovered that the conditions of sale had not been notariallyexeouted, they stole a march on the plaintiff by inducing the es-eeutor to sell the property to them. There is no question as to thereprehensible and collusive action of the defendants and the executor.
But the district Judge considered that here was no binding agree-ment for purchase and sale between the plaintiff and the executorin the absence of notarial conditions of sale, and that therefore therewas no objection to the defendants purchasing from the executorbefore the conveyance in favour of the plaintiff was exeouted, andhe accordingly held that the plaintiff had no title as against thedefendants, and dismissed the action.
If it were a mere question of competing deeds the correctness ofthe District Judge’s view might be conceded. But in my opinionjstion in this case is not so clear as that.. The title does not
on the priority in date of the defendants' deed alone. I thinkthat the effect of the order of Court on the transaction must be tokeninto account. An executor, of course, does not ordinarily requirethe authority of Court to sell immovable property in due course
I «6 )1W>. of administration, though his conduct may be impeached .by theDa Saaipayo Pprti6* interestedand any improper saleset aside. But that does
JT-not mean that the© Court has no powerto interpose its authority
Anjir&um& betfreen the executor anfl those interested, or that because It isv.SUva ° voluntarily invoked it is any the less paramount. There is nodoubt as to .the jurisdiction of the Court to control the proceedingsof executors* and in proper oases to prohibit sales, or to order satesand cany them out through its offices or through commissionersspecially appointed. It is true that in such a case, when a sale iscompleted, the conveyance’ to the purchaser is granted by theexecutor, but that, too, is done by the authority and ufcder thedirection of theCourt. The reason forthe' exeoutor's application
to Court in thiscase is not very clear:It is probably due to the
fact that the testator had purported to make a gift of the lands tosome illegitimate children, including the executor, and that the deedwas subsequently set aside at the instance of the legitimate, children,and it was thought, as the District Judge believes, that, a sale byCourt would remove all doubts as to the title, and induce confidenceon the part of the purchasers. Whatever the reason was, tim…Court exercised its power and ordered the sale. It will be noticedin this connection that the order was not a mere formality. TheCourt cftlled for particulars and applied its judgment before makingthe order,' and in this respect it. followed the directions laid downin D. C. Gslle, 1,954, 1 and in many subsequent cases. Nor was theorder a mere authority to the executor to sell. The Court appointed*its own commissioner to carry out the sale, and regulated its courseat every stage up to the confirmation and the granting of the con-veyance to the plaintiff. I do not think that all this can be ignoredin considering whether the sale to the defendants prevails overthe sale to the plaintiff. In my opinion, when the Court exercisedits jurisdiction mid .took upon itself .the sale of the property, theexecutor had no longer any authority to dispose of the property,except upon further orders of Court, and cannot be allowed todefeat .the acts of the Court in regard to the sale. For that wouldbe not only directly to defy the Court, whose jurisdiction had beenexercised at his own instance, but to set himself above the Court.Apart from that, I think that the principles applied by the EnglishCourts of Equity in regard to sales. by the Court should guide Usiu this matter. Under that law* when the sale is reported to Courtand the result is certified, the purchaser is at once protected. Theauctioneer and the persons having the conduct of the sale in thefirst instance certify the result, which is confirmed by the certificateof a master. When .the certificates thus becomes absolute, the'purchaser becomes owner of the property, and the gain qy lossthereafter accrues to him. See-Dart’s Vendor and Purchaser, voU It.(TtH ed.)t pp. 1166-1169. The execution of the conveyance by
1 (187*7) Vanderst. Rtp. 4$.
( -487 )
fhe propet party, which ig also 8 matter for the Coflrt td direct,t>18.
-will vest the legal title to the property in the purchaser. Therea*«nv.
is no room for saying that in thp meantime those in whom the legpltitle is can go behind the‘Court and validly pass title to a partyother than the purchaser at the sale by the Court. In this basev.SUva
the essential features of the procedure in *the evedt of a sale, by the*
English Court exist. The sale was duly carried out by the com*miaainnar appointed by the Court, and was reported by. him, andupon that report or certificate the Court itself confirmed the salea formal order. It is true that the sale to the defendants by theexecutor was- just a day before the order of confirmation, but thatdoes not aifeot the principle which governs the' matter. Nor isit correct to say .that there was no binding contract of purchaseand sale whioh the plaintiff can rely on, by reason of the absence ofnotarial execution of the conditions of sale. A sale by Court is notwithin the Statute of Frauds—Attorney-General v. Day.1 Similarlyour Ordinance No. 7 .of 1840 would not be in the way of the plaintiffin enforcing the purchase, and I think that if a conveyance had notbeen granted to him by the administrator de bonis non, and if, asappears upon the facts found by the Distriot Judge, the defendantswere not bona fide purchasers, he would have been able to compelspecific performance, and obtain a re-transfer from the defendants.
When the property is sold in accordance with the order, the Courtwill protect the purchaser against fhe parties to the order {Dart,col II., p. 1185), and necessarily against those who claim under thembut are affected with notice. In my opinion the Court shouldextend such protection to the plaintiff in this case, and hold thatthe executor’s sale to the defendants* is inoperative as against him.
I would allow the appeal,, and order that judgment be enteredfm/the plaintiff as claimed, with costs in both Courts.
Ennis J.—I agree.
Appeal allowed.
1 (1784) 1 Fes. Sen. SSL