095-NLR-NLR-V-22-In-re-THE-APPLICATION-OF-MISSO.pdf
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1920.
Present: Shaw J. and De S&mpayo J.In re The Application op Misso.
50—D. C. Colombo, 876.
Entail and Settlement Ordinance—Sale of entailed property—Invest-' ment. of proceeds—Contribution by fiduciary—Subsequentapplication by fiduciary for sale of property—Claim to takeback his contribution.
Property subject to fidei commissum was sold by order of Courtand the proceeds invested in another property. When thatproperty was bought, the fiduciary contributed a sum of moneytowards the purchase price. The fiduciary applied that theproperty so acquired be .sold, and that the proceeds, less the sumcontributed by him, be paid into Court.
Held, that (1) the fiduciary was not entitled in the case of a saleto receive back the sum paid by him.
(2) A sale should be ordered if it be reasonable from the pointof view of the fiduciary, and if there is no prospect of loss to thefidei commissary.
rpHE facts appear from the judgment.
A. St. V. Jayatvardene, for the appellant.
Cur.adv.vuU.
July 27,1920. Shaw J.—
This is an application from an order of the Judge made undersection 4 of the Entail and Settlement Ordinance refusing toaDow the sale of property the subject of a fidei commissum. Theland which was originally subject to the fidei commissum was soldon a previous occasion by leave of the Court -and the moneyinvested in the present property.
At the time of that sale the present appellant, who is the fiduciary,contributed a sum of Rs. 1,500 towards the purchase price of thepresent property.
His affidavit in the present case in effect says that he is dis-appointed with the property and finds it an unsatisfactory invest-ment, and he therefore desires a sale. He suggests that the moneywhich is to be received from the sale should be paid into Courtsubject to the fidei commissum, less the amount which he contri-buted towards the purchase,’ which should be repaid to him. 1 donot think that he is entitled in the case of the sale to receive backany part of the purchase price, because the money which he contri-buted to the purchase of the present property has now becomesubject to the fidei commissum. The Judge has refused to makethe order on the ground that the property may go up in price when the
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fidei commissaries came in for their rights, but that may be said with , 1920.-regard to any trust property for which authority for sale is desired. g^Tj
I think that an order should be made if it is reasonable from the '
point of view of the fiduciary that it should be sold, and if there isno prospect of loss to the fidei commissary. The sale proposed is o/Mieaofor an amount which is more than the original value of the fideicommissum property.
Therefore it does not appear, so far as one can tell from the factsbefore us, that any loss will be likely to occur to the heirs, andnotice should.be given by the Court before any order is made.
I would send the case back to the District Judge for-the purposeof his giving notice to the parties interested, and after hearing themand any other arguments the fiduciary may wish to bring beforehim to make an order considering the question in the light thatI have previously mentioned.
De Sampayo J.—I agree.
Sent back.