MUSTAPHA LEBBE v. MARTINUS

089-NLR-NLR-V-06-MUSTAPHA-LEBBE-v.-MARTINUS.pdf


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1003.
February 19and 24.
MTJSTAPHA LEBBE v. MARTINUS.D. 0., Colombo, No. 14,218.
Guardian and ward—Bight of guardian to sell property settled on the ward—Necessity of order of Court—Power conferred by parents of ward onguardidn to sell at.his discretion.
A guardian can sell the immovable property of his ward only (1) whena sale is necessary for the payment of debts, (2) for the maintenanceof the ward, and (8) when , a sale is clearly for the benefit of the ward;but suoh sale is not valid if not sanctioned by the Court.
A, by deed of gift, transferred certain immovable property to thechildren of Mr. and Mrs. B, and empowered Mrs. B to sell it, if necessaryfor the benefit of the donees, and invest the proceeds in the purchase ofanother property, or deposit the same in a bank in favour of the donees.Mrs. B sold the property to C and spent the money.
Held, that as the sale took place without the previous sanction of theCourt, whose duty was to see that the price- was fair, and the salemanifestly for the advantage of the ward, the sale to C was void, notwith-standing the power given by the donor to Mrs. B to sell the propertyat her discretion.
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HE plaintiff prayed that an undivided half of a .certain landbe declared the property of one Sella Natchia, and as such
liable to be sold in execution of the decree in plaintiff’s favourobtained in suit No. 13,861 of the District Court of Colombo.
It appeared that the property in olaim belonged to one PauluPerera by purchase at a Fiscal’s sale in 1886, and that he conveyedit to one Bernard, who gifted it to the children of one Martinusand his wife Josephine. The defendants were their children,two of them being minors at the time, and the other unborn.
This deed of gift contained the following provision:—“ I, thesaid J. Don Alexander Bernard, do, by .these presents, authorizeand empower the said Josephine Sara Louisa Martinus with fullpower to sell and dispose of the said property hereby given andgranted, if she shall seeitnecessary andexpedientfor the
advantage and benefit ofthesaid donees:Provided,however
and it is hereby expressly declared that she shall, with theproceeds of such sale, purchase afaother property in itsstead as
soon as .possible in favour of the said donees, or deposit the samein any of the banks in favour of the donees.”
Acting under this power Josephine Martinus, by her deed dated8th February, 1897, soldandtransferred thepropertyto Sella
Natchia, the execution-debtor. With the proceeds Josephine didnot buy another property for the donees, as required by the deed
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but professed to carry out the other alternative, by depositing each 1908.child’s share in the Ceylon Savings Bank under his or her name.
The depositor was registered as Mrs. Josephine Jj. M. Martinus.
It appeared from the depositor’s books that, within sevenmonths of the deposits, they were withdrawn from time to time,presumably- by the depositor, the mother, and only Be. 1, Be. 5,and Be. 1 remained to the credit of each of the books. In 1898Josephine died.
The question before the Court was whether, under the circum-stances, Sella Natchia got a valid title to the- three-sixth sharesbelonging to the defendants under the conveyance No. 2,738 inher favour.
The Additional District Judge (Mr. Felix Dias) held as fol-lows:—
“ It is quite manifest that the object of the donor was to benefitthe children alone, and not to put any power in the hands of theirmother to benefit herself by appropriating any part of the proceedsof the sale. It was the duty of the purchaser of property burdenedwith such a trust as this one was, to see the donor’s directions fullycarried out, leaving no chance for their being defeated. I notethat in this matter the purchaser’s lawyer was fully alive to theresponsibility of the purchaser to see the purchase money properlydisposed of, but I fear that he has set to work in the wrongdirection by depositing (or allowing the mother to deposit) theshares of these defendants in the Savings Bank in a manner whichentitled the mother to withdraw the money at her pleasure. Thiswas quite contrary to the spirit of the intention of the donor asdisclosed in paragraph 6. The money should have been depositedin a bank ‘ in favour of the donees;’ that is to say, in their ownname„ so that no one but themselves, or their curator appointed bya competent Court, would have been able to touch it. The presentdeposits by the mother ‘ on behalf of ’ the donees cannot be saidto have been deposits ‘ in favour of the donees ’ as directed by thedonor.
“ Under the circumstances I hold that under deed No. 2,733 notitle passed to Sella Natchia in respect of the half share claimedby the defendants, and dismiss the plaintiff’s action with costs.
The plaintiff appealed.
The case was argued on the 13th February, 1903, before Layard,
C.J., and Moncreiff, J.
Bawa, for appellant. The deed of gift required . the motherJosephine Martinus, if she thought fit, either to buy another pro-perty or to deposit the price in favour of the minors. She
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complied with this requisition by depositing the money in thename of each child in the Ceylon Savings Bank. There is noevidence that she drew out the money. If that were really so, theremedy of the minors would be against the Bank. The vendeeof Josephine Martinus should not suffer. She sold the propertyin pursuance of an express power given in the deed of gift. Asthe discretion to sell was given to her it was not necessary toobtain the. sanction of the Court for such a purpose. The sale toSella Natohia is therefore valid.
H. Jayawardene, for respondent. The Court takes upon itselfthe protection of all minors, and does not allow alienation oftheir property without its sanction. Ex parte Corbet {3 8. C. G. .46).It is true there was an express power given to sell, but theguardian cannot ignore the Court, which is the upper guardian ofthe minors. Alienation by the guardian must be under thesupervision of the Court. Grotius’ Opinions, p. 466; 2 Thomson’sInstitute, . 55; Perera v. Perera, 3 Browne, 150; Yoet, Buchanan’sTranslation p. 42.
Bawa, in reply, cited Theobald, p. 365.
24th February, 1903. Layard, C.J.—
The admitted facts of this case material to the decision of thisappeal are as follows:—One Bernard gifted the premises, thesubject of this suit, to the first and second defendants andthree others, all children of one Martinus and his wife Louisa,and to any other children that might be born to Martinus and hiswife thereafter. The'third defendant, is a child of theirs, bomsubsequent to the execution of the deed of gift. The donor ofthe premises appointed the .mother Louisa guardian of herchildren, and entrusted to her the management of the propertygifted until the children should attain the age of majority, andempowered her ‘ ‘ tc sell and dispose of the said property herebygiven and granted, if she shall see it necessary and expedient forthe advantage and benefit of the said donees:Provided how-
ever, and it is hereby expressly declared, that she shall with theproceeds of such sale purchase another property in its stead assoon as possible in favour of the said donees, or deposit thesame in any of the banks in favour of the donees.”
The mother Louisa, purporting to act under the power aboverecited, sold the property to one Sella Natchia. With respect tothe shares of the purchase money due to the three defendants,Louisa opened three separate accounts in her own name on behalfof each of the three defendants in the Ceylon Savings Bank, and
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deposited their respective shares to the credit of the accounts soopened. Within seven months of such deposit the sums sodeposited were withdrawn, presumably by the mother, as thedefendants are still minors, and there remains to the credit of oneof tiie accounts so opened Be. 1 only, and to the remaining accountBs. 5 only.
The plaintiff sued Sella Natchia and obtained a money decreein his favour, and caused the Fiscal to seize the premises referredto above under the writ issued in pursuance of that decree.
The three defendants thereupon claimed an undivided half ofthe premises, and their claim was upheld.
The plaintiff brought the present action to have it declared thatthe whole of the premises seized were liable to be sold as theproperty of Sella Natchia under plaintiff’s writ.
The District Judge .has held that the moneys should have beendeposited in the Savings Bank in favour of the defendants: “ thatis to say, in their own names, so that no one but themselves ortheir curator appointed by a competent Court would have beenable to touch ” the moneys.. The deposits by the mother in herown name “ on behalf of ” each of the defendants cannot, hefinds, be treated as deposits “ in favour of the donees ”, and hedismisses the plaintiff's action with costs.
Counsel for respondent supports the judgment of the DistrictJudge for another reason than that given by the Judge, on theground that the guardian of a minor cannot alienate the immov-able property of the ward without the express sanction of theCourt, and cites in suppdrt of his contention the judgment ofCayley, C.J., in re Hider, ex parte Corbet (3 S. C. C. 46) and ofMiddleton, J., in Perera v. Perera (3 Browne’s Report, 150).It is a clear principal of the Boman-Dutch Law that a minor’simmovable properly cannot be alienated without the decree of aCourt of competent jurisdiction. (Grotius’ Introduction, lib. 1,chap. 8, section 6; V. D. Reessel, Nos. 130 and 131; Vanderlinden’sInstitute, 106; Henry’s Translation; Groenewegen De Legg Ab.Code 1, tit. 71, p. 631; Van Leeuwen’s Commentaries, EnglishTranslation, p. 96; Voet., lib. 27, tit. 9, section 6.)
Cayley, C.J., in 3 S. G: C. 46, held that the jurisdiction of theold Weeskamer referred to in Grotius is for many purposes vestedin the District Court, and that that Court holds in matters relatingto the sale of* a ward’s immovable property the same position asthe ‘‘ Ordinary Judge ” mentioned by Van Leeuwen and Grotius.
'The appellant’s counsel contends that the mere power given bythe deed to the guardian to sell, if she sees it necessary andexpedient for the advantage mid benefit of the minors, dispenses
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with the sanction of the District Court. Notwithstanding the inser-tion of that power in the gift to the minor it appears to me just asnecessary for the Court to see that the price is a fair one., and that thesale is manifestly for- the advantage of the wards. I have not beenreferred by appellant’s counsel to any authority to support his pro-position that the sanction of the Court is dispensed with in a casesuch as the present, and I cannot find any such authority.
The sale to Sella Natchia in respect of the half share claimedby the defendants having taken place without the sanction of theCourt is void, and I would "affirm the judgment of the DistrictJudge dismissing plaintiff's action with costs.
As I hold that the sale of the defendant’s property to Sella Natchiawas void for want of the express sanction of the Court, it is un-necessary for me to express any opinion as to whether the reasonsgiven by the District Judge for arriving at the same conclusionare correct or not. Appellant must pay the costs of this appeal.
Moncrbiff, J.—
Don Alexander Bernard, by deed of gift, transferred certainimmovable property to the children of one Martinus and his wifeLouisa. He appointed the wife guardian and entrusted her withthe administration of the estate for the benefit of the donees untilthey attained majority. He also gave her power to sell the pro-perty subject to certain conditions, " if she saw it necessary andexpedient for the advantage and benefit of the donees ’’.
Now, under our law a guardian can only sell or encumber theimmovable property of the wards—
When sale is necessary for the payment of debts;
For the maintenance of the wards;
When sale is clearly for the benefit of the wards;
and then only on an order from the Court.
Here the guardian had no estate. She was merely a managerwith a power to sell. The question is whether the power was oneto do something which the law has absolutely forbidden to be donewithout the sanction of the Court. I think it was. The restrictionof leave to sell to the cases above-mentioned implies that what theCourt will refuse to permit cannot be sanctioned by any otherauthority. No system of trusts is allowed to further' a coursewhich is in contradiction to the policy of the law. The plainpolicy of the law is that guardians shall not sell the property oftheir wardB without the leave of. the Court, and that policy iscontravened by the power conferred by the deed of gift upon theguardian in this case. I agree that the sale to Baja Sella Natchiapassed no title, and that the appeal should be dismissed with costs.