KEXJNEMANT J.—Chandrawalhie v. JPeeris Appuhamy.
1946Present: Keuneman and Cannon JJ.CHAJSTDRAWATHIE et al., Appellants, and PEERISAPPUHAMY, Respondent.
313—D. C. Tangalla, 5,205.
mortgage—'Hypothecary action—Heath of mortgagor—Appointment of legalrepresentative under Mortgage Ordinance—Evidence of value of mortgageproperty—Condition precedent—Mortgage Ordinance (Cap. 74), s. 7.
Where the only evidence for the appointment of a legal representativeunder section 7 of the Mortgage Ordinance was that the deceasedmortgagor died leaving an estate under Rs. 2,500 in value—
Heidi that in the absence of specific evidence that the mortgagedproperty was under Rs. 2,500 in value the appointment of the legalrepresentative and the Fiscal’s sale, thereafter, of the mortgaged propertywere of no avail.
Ahamado Muheyadin v. Thambiappah (1945) 46■ N. L. R. 370 followed.PPEAL from a judgment of the District Judge of Tangalla.
C. E. S. Perera (with him E. A.G.de Silva), for the plaintiffs, appellants.C. V. Raziawahe, for the defendant, respondent.
Cur. adv. vult.
March 5, 1946. Keuneman J.—
Plaintiffs claimed the premises in question alleging that Babahamywas the original owner and that he transferred to Davith Appu by PIof 1932 who in his turn transferred to the plaintiffs by P2 of 1935. Thedefendant admitted that Babahamy was the original owner but claimedthat by D1 of 1927 Babahamy executed a usufructuary mortgage infavour of Carolis Appu who assigned by D2 of 1942 to the defendant,Defendant put the bond in suit in D. C. Tangalla 4,953 after the death
JPerumal v. Onanapandithan.
of Babahamy against bis legal representative appointed under the pro-visions of the Mortgage Ordinance, obtained decree *and had the pre-mises sold, and purchased the premises himself upon Fiscal’s TransferD4 of 1945.
The point taken in appeal is that the District Judge had no jurisdictionto appoint a legal representative of the deceased Babahamy and to trythe case (D. C. Tangalla, 4,953) because there was no evidence that themortgaged property was under Rs. 2,500 in value. The only evidencewas that Babahamy died leaving an estate under Rs. 2,500 in value.This is correct and a good argument, and we follow the decision inAhamado Muheyadin v. Thambiappah1 which is exactly in point. TheFiscal’s Transfer D4 was accordingly of no avail and no title passedto the defendant thereunder.
The appeal is allowed and the first, second and third plaintiffs aredeclared entitled to the premises described in the plaint, but the titlewill be subject to the mortgage rights, if any, of the defendant under bondNo. 1,565 of July 14, 1927 (Dl) and the assignment D2, No. 18604 ofJanuary 26, 1942.
As regards costs, in view of the fact that the present argument wasnot raised in the original court, the plaintiffs will only be entitled toone-third of the costs of appeal and of the lower court.
Cannon J.—I agree.
CHANDRAWATHIE et al , Appellants and PEERIS APPUHAMY , Respondent