SOERTSZ J.—Gunaratne v. Per era.
Present: Howard C.J. and Soertsz J.
GUNARATNE v. PERERA et al.244—D. C. Kalutara, 21,746.
Lis pendens—Mortgage action registered—Decree unregistered—Sale underpartition decree—Competition between Fiscal’s transfer and certificateof sale—Registration of Documents Ordinance (Cap. 101), s. 8, proviso 1—Partition Ordinance (Cap. 56), s. 12.'
Where the plaint in a mortgage action has been registered the registra-tion of the decree is unnecessary and the purchaser at a subsequentpartition sale, which was held between the sqle in execution of the mort-gage decree and the Fiscal’s transfer, cannot claim priority by virtueof the mortgagee until he has made them effective according to law.
Section 12 of the Partition Ordinance continues to protect the rightsof the mortgagee until he has made them effective according to law.
PPEAL from a judgment of the District Judge of Kalutara.
H. V. Perera, K.C. (with him D. W. Fernando), for the plaintiff,appellant.
N. Nadar a] ah (with him A. C. Z. Wijeyeratne), for the defendants,respondents.
Cur. adv. vult.
July 14, 1942. Soertsz J.—
A brief statement of the facts in this case is necessary in order toclarify the matter in controversy on this appeal. One Daniel Pierismortgaged on mortgage bond P 4 of 1920 493/504 shares of a land calledKongahawatta alias Kosgahawatta and certain planter’s shares andbuildings. The mortgagee was one Adeline Wijeyegoonewardene.Eleven years later, by deed P 5, he conveyed these same interests to oneDona Madalena subject to the mortgage.
Adeline Wijeyegoonewardene put her bond in suit in D. C. Kalutara,19,538, on March 8, 1934, and obtained a hypothecary decree datedJune 11, 1935, against the mortgagor Daniel Pieris and the subsequentpurchaser Dona Madalena. Nearly six months after this decree had beenentered one Don Abraham Appuhamy instituted an action for the parti-tion of this land. Dona Madalena was the first defendant in that case.Decree for sale was entered on August 2, 1937, and Dona Madalena wasallotted 157/192 shares of the soil, and the same proportion of the buildingsand plantations therein. (See P 2). While the partition suit was pendingthere was a sale in execution of the hypothecary decree, at which thepresent plaintiff became _the purchaser and obtained Fiscal’s transferP 6 dated April 26, 1939.
Between the date of the sale on the hypothecary decree and the issue. of the Fiscal’s transfer, the sale in pursuance of the decree in the parti-tion suit took place and one P. P. Don Pieris bought the entire land witheverything thereon and obtained a certificate of sale dated November 19,1937 (D I). He sold all the interests he had acquired on D I to the firstdefendant oh D 2 of 1938. The second defendant is the first defendant’slessee by virtue of D 3 of 1939..
SOERTSZ J.—Gunaratne v. Perera.
The plaintiff brought the present action against both landlord andtenant praying that he be declared entitled as against them to the entiretyof the mortgaged interests that he had purchased on P 6 and askingfor damages and ejectment. The defendants filed answer denying thatany title passed to the plaintiff on P 6 and praying for a dismissal ofthe action.—
The case went to trial on a number of issues which it is not necessaryto recapitulate. The trial Judge dismissed the plaintiff’s action withcosts on the ground that the mortgage decree of June 11, 1935, not havingbeen registered, the title conveyed to the 1st defendant by the registeredcertificate of sale gained priority over the title based on the mortgagedecree.
The plaint in the mortgage action bears on the face of it an endorsementthat it has been registered in a certain folio by the Registrar of Lands, iIf this endorsement is sufficient proof that this Its was registered thenby virtue of section 8, proviso 1 of the Registration of Documents Ordi-nance, the registration of the decree of June 11, 1935, was unnecessaryand the defendant can claim no priority by virtue of the. Registrationof their certificate of sale.
Their title would be subject to the mortgage by' operation of section 12of the Partition Ordinance.which enacts that “nothing in this Ordinancecontained shall affect the right of any mortgagee of the land which is thesubject of the partition sale ”. The meaning and implication of thesection have been considered with reference to all the earlier authoritiesin the case of de Silva v. Rosinahamy1.
Counsel for. the respondent, however, contended—
that there is no legal proof that the plaint in the mortgage action
was registered, and that therefore his title gained priority byregistration.
that assuming that the lis was registered the mortgage was
swallowed up by the decree and that section 12 of the PartitionOrdinance conferred no benefit on the plaintiff inasmuch as thepartition or sale was made subject to the mortgage alone and notto the decree or consequent sale.
In regard to (a) the concluding part of the trial Judge’s judgmentmakes is quite clear that this question of priority by registration wasraised at the eleventh hour by the defendants and even then raised onlyby way of questioning the registration of the decree and not of the lis.It is clear that in raising the issue of registration in that way, therespondent’s Counsel in the Court below was relying upon the dictum ofBertram C.J. that “ the result is that, though the principle of lis pendensoperates up to final execution its registration only protests the mortgageeup to decree. After decree, he must further protect himself by registeringthe decree ”. Saravanamuttu v. Sollamuttu But that dictum wasapplicable to the law of registration as it stood at the date of that decision,1924, when decrees were registrable documents regardless of whether thelis had been registered or not. The position is different now in view ofthe proviso of section 11 of the present Registration of DocumentsOrdinance (Cap. 10.1) which has been in force since January 1, 1928.
» 41 N. L. S. 56.* 26 N. L. II. 385.
WIJEYEWARDENE J.—Ameresinghe v. de Silva.
The defendant’s Counsel in the Court below did not question theregistration of the lis and it is too late now to raise the matter on appeal.Besides regulation 13 of the regulations for the Registration of DocumentsOrdinance (Cap. .101, Vol. 1, Sub. Legis.) provides for the registrationof a lis to be in the form of the endorsement adopted in P 3 and a pre-sumption arises under section 114 (d) that the endorsement is regular.
In regard to point (b) taken by the respondent’s Counsel I am afraidit cannot be sustained at all. “ Subject to the right of any mortgagee ”can only mean subject to his rights till he had made them effectiveaccording to law.
For these reasons I am of opinion that the appeal must be allowed andjudgment entered for the plaintiff for 157/192 of the soil and of theplantations and of the buildings. Those were the interests allotted toDona Madalena, the successor in title of the mortgagor, and the rights ofthe successor in title to the mortgagee must be limited to that extent.
The plaintiff is entitled to the damages agreed upon, that is to say,to Rs. 7.50 a month from September 14, 1929, till he is placed in possessionof the shares to which he has been declared entitled ; he is also entitled toa decree directing that he be placed in possession of those interests, andto an order for costs here and below.
Howard J.—I agree.
GUNARATNE v. PERERA et al