HASSAN v. SILVA

069-NLR-NLR-V-25-HASSAN-v.-SILVA.pdf


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1928.
Present * Epnis A.C.J., Porter J., and Jayewardene A.J,HASSAN v. SILVA.
383—D. C. Matara, 177.
Executor de son tort^-Application for probate by executor named in the•mil—Order nisi made absolute—'Action against executor—Noprobate issued—Administration cum testamento anaexo issued toanother—Is decree obtained by executor binding on estate ?
Tn March, 1917, I applied for probate of the last will of N, andorder nisi was made absolute in June, 1918. The defendant,in August, 1917, sued I as executor, on a mortgage bond grantedby N. I admitted the debt, and decree was entered in December,1917. The mortgaged property was sold in July, 1918, andbought by defendant in August, .1918. I, purporting to act asexecutor, moved to set aside the sale, and subsequently withdrewhis application, and Fiscal’s transfer was issued to defendant inNovember, 1918. I took no steps to have probate issued to him,and plaintiff obtained letters of administration cum testamentoannexe, and brought this action to oust the defendant from thepossession of the property on the ground that the decree against Iwas ineffectual to bind the estate.
Held, on the facts that 1 had intermeddled with the estate andthat the degree was therefore valid.
This case was referred to a Bench of more than two Judges bySchneider J. by the following order:—
Schneider J.—
One Neina Marikar died leaving a last will, application for probate ofwhich was made by one Idroos Marikar as executor ; the order nisigranting him probate was made absolute on June 25, 1918.
The defendant, appellant, to whom Neina Marikar was indebted on amortgage bond dated December 6, 1909, sued Idroos Marikar, theexecutor named in the will, in realization of his mortgage, and obtaineddecree in his favour on December 5, 1917. The property mortgagedwas sold on July 27, 1918, and the Fiscal executed a transfer of theproperty in favour of the defendant, appellant, who was the purchaser,in November, 1918.
Idroos Marikar took no steps to have probate issued to him. Theplaintiff in the present action obtained letters of administration cumtestamento annexo, and sought, in this action, to oust the defendantfrom the possession of the property.'; The defendant set up his titleunder the Fiscal’s transfer, the validity of which was questioned by theplaintiff, on the ground that the decree against Idroos Marikar wasineffectual, inasmuch as probate had not been issued to him at anytime.
The learned District Judge hfeld in favour of the plaintiffs contention.*The defendant appealed, and Mr. Samarawickreme, on his behalf, citedthe decision in 133—D. C. (F*.) Matara, 9,845 (supra), as supporting his
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contention that' the order of June 25, declaring Idroos Marikar executor,and that probate should be issued to him, was effectual to render thedecree binding upon the estate of Neina Marikar. He also pointedto the provision in section 8 of Ordinance No. 7 of 1840 and of section41 of the Evidence Ordinance, 1895, as supporting his contentionthat the case of Mohideen Hadjiar v. Pitckey (swpra) decided by the PrivyCouncil was not applicable to the present case, inasmuch as that was adecision upon facts which had existed before the enactment of theCivil Procedure Code and of the Evidence Ordinance.
In view of Mr. Samarawickreroe’s contention- and the conflict ofthe decisions, and the practical importance of the point raised byMr. Samarawickreme, it seems to us that the appeal should be listedbefore a Bench of more than two Judges.
1923.
Hassan
Silva
Porter J.—I agree.
E. J. Samarawickreme (with him Navaratnam), for defendant,appellant.—The appellant’s title to the land in question is foundedon a Fiscal’s transfer, the validity of which is questioned, on theground that the decree, in execution whereof the Fiscal’s sale tookplace, was obtained before probate had been granted to the executor.This contention, no doubt, would prevail, if the principle enunciatedand followed by the Privy Council in Mohideen Hadjiar v. Pitchey,1can be said to be sound, and not capable of modification. Beforethe sale and the execution of the Fiscal’s conveyance the will hadbeen proved, and the decree granting probate had been madeabsolute. Thus, in conformity with the requirements of section 8of Ordinance No. 7 of 1840, the status of the executor had beenconfirmed. The mere omission to take out probate cannot renderthe-status, to which the executor had been declared entitled, non-existent. Further, the Privy Council decision was in 1894, and isinapplicable to the present case in view of the statutory provisioncontained in section 41 of Ordinance No. 14 of 1895, declaring ajudgment, or order, or decree conclusive proof of the executor’slegal character. Apart from this, the conduct of the executornamed in the will supports the inference that he had constitutedhimself de facto executor; therefore the mortgage decree is bindingon the estate.
. Counsel cited No. 133, S. C. Minutes, November 13,1922—D. C.Matara, No. 9,845.
E. W. Jayewardene, K.C. (with him M. B. A. Coder), for therespondent, was called upon to argue on the facts as to whetherIdroos had intermeddled with the estate.
October 24, 1923. Enots A.C.J.—
This was an action for a declaration of title to certain shares andplanting interests in a land. The property in dispute originallybelonged to one Neina Marikar, who mortgaged it by the document
i 3 S. C. R. 105 and A. C. H. L. {1894) 437.
25/25
1928.
Ennis
A.C.J.
Hassan v.Silva
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No. 9,273 of December 6, 1909, to the defendant. It also appearsthat the defendant held a lease of the land. Neina Marikar diedleaving a will, under whiph he appointed one Idroos Marikar executor,and he devised this property to his wife. On August 13, 1917,the defendant filed action No. 7,917 against Idroos Marikar on thebond. The caption of that action did not specify that IdroosMarikar was sued as executor, but the facts was stated in the bodyof the plaint. The plaintiff in that action failed at first to servesummons on Idroos Marikar, and there is a note in the journalto that action which is filed as D 2 in the case, that the defendanthad evaded service by concealing himself. However, summonswas subsequently served and the defendant appeared. He admittedthe debt and said that he had not received letters of administration,whereupon the case was postponed for a later date. At theadjourned date there is a note : “ Defendant present—absent whencase was called.” The learned Judge then gave judgment for theplaintiff on the ground that the defendant was unduly delayingmatters. The plaintiff in that case then proceeded to the executionof his decree, and the property in question was sold on July 27,1918, and bought by the plaintiff in that action, who is the defendantin this. On August 28, 1918, Idroos Lebbe petitioned the Courtstating that he was the executor of the estate of Neina Marikar, andprayed for a notice on the respondent to show cause why the saleunder the writ should not be set aside. On September 23 IdroosMarikar moved* to withdraw his application to set aside the sale.On November 8, 1918, the Fiscal’s transfer conveyed the propertyto the present defendant. It appears that Idroos Marikar appliedfor probate of the will of Neina Marikar in March, 1917, andobtained an order nisi. That order was made absolute on June25, 1918. Idroos Marikar appears to have taken no further stepsto take out probate, except to pay Rs. 90 as part payment of theduty payable. Thereafter the widow of Neina Marikar intervened,and administration of Neina Marikar’s estate was ultimatelygranted to her son, the present plaintiff, who took out letters of. administration with the will annexed. The learned Judge heldthat Idroos Marikar had not intermeddled with the estate of NeinaMarikar, and, following the decision of Mohideen Hadjiar v.Pitchey (supra),- further held that the estate of Neina Marikar wasnot bound by the decree in the mortgage action* because IdroosMarikar'had not actually taken out probate. The learned Judgethen gave judgment in favour of the plaintiff, and the defendantappeals.
The appeal came before my brothers Porter and Schneider, whoreferred it to a Full Court for the reasons given in the order ofreference. On the hearing before us, it became more and moreapparent when we listened to Mr. Samarawickreme, for the appellant,that the question in this case was one of. fact. It is clear that an
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executor obtains his authority to act from the will, but he must dosomething to show that he has accepted office, and in the absenceof any nitermeddling with the estate, the taking out of probateis deemed to be the act which shows that he has accepted theoffice. This was the basis of the decision in Mohideen Hadjiar v.PUchey (swpra). There are, however, other ways by which anexecutor can evince an intention to accept an office, for instance,any act of intermeddling or any specific act of his whichallowed another to assume that he had undertaken the officeof executor. In the present case, it seems that although IdroosMarikar was unwilling to be served with summons in the mortgageaction, he nevertheless appeared and admitted the debt, and afterthe expiry of the time given him to take out probate he failedto appear before the Court, so that judgment was given againsthim because the Court held that he was merely delaying the actionof the mortgagee. We have to consider whether this action ofIdroos Marikar in admitting the debt was an act which showedthat he had accepted the office of executor. In my opinion, hissubsequent conduct after the decree in applying to the Courtto set aside the sale on the ground that the lands did not fetchwhat they were reasonably worth showed that he had accepted theoffice as executor. Moreover, Tiis petition to the Court on thatoccasion disclosed the fact that he acted as the executor of NeinaMarikar. In these circumstances, I am of opinion that IdroosMarikar must be taken to have accepted the office of executor,and that the estate was bound by the result of his acts. The merefact that he was not subsequently made executor, but was allowedto renounce, cannot affect the defendant’s rights in this matter.It is possible that the Court ought not to have accepted his refusalto act as executor and not to have allowed him to renounce, ',utshould have directed him to administer the estate. Such aconsideration, however, has no bearing on the present case. Inview of this finding of fact, there is no occasion to consider anyof the legal- arguments which were urged as they would be purelyacademic in the circumstances.
I would accordingly allow the appeal with costs, and dismiss theplaintiff’s action with costs..
Poster J;—I agree.
Jayewardene A.J.—I agree.
1923.
Ennis
A.C.J.
Eas3an v.Silva
Appeal allowed.