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Present: De Sampayo J.1^21.
199—G. B. Tangatta, 9,852.
Usufructuary mortgage in favour of A—Subsequent usufructuary primarymortgage in favour of B for a larger sum—Stipulation thatsubsequent mortgagee should pay first mortgagee—Bight of secondmortgagee to compel first mortgagee to accept sum and dischargebond.
N granted a usufructuary mortgage to defendant to secure aloan of Rs. 45. Subsequently be ** ?.^g another primary usufruc-tuary mortgage bond to plaint Xor Re. 160. Plaintiff paidRs. 105 and retained Rs. 45 on the stipulation that it should go forthe payment of the bond in favour of defendant.
Held, that plaintiff was entitled to compel the defendant toreceive the sum and discharge the bond.
rjpTTE facts appear from the judgment.
Keuneman, for defendant appellant.
Soertsz, for plaintiff, respondent.
September 26,1921. De Sampayo J.— .
This appeal involves a very small point. One Nandris de SilvaKarunanayake became indebted to the defendant on a bond forRs. 46, the payment of which was secured by a mortgage of a paddyfield with the right of possession in lieu of interest. This was inFebruary, 1920. In December, 1920, Nandris de Silva Karuna-nayake gave another bond to the plaintiff for the sum of Rs. 150and mortgaged the same field as a first or primary mortgage withthe right of possession in lieu of interest. He actually receivedon this bond a sum of Rs. 105, and it was stipulated that the balanceRs. 45 which the plaintiff retained should go for the payment ofthe mortgage in favour of the defendant. The plaintiff appearsto have tendered the Rs. 45 to the defendant, and on his refusalto accept the money, he brought the money into Court and prayedthat the defendant be compelled to accept the money and dischargethe first bond.
It was contended in the Court below, "and it is contended here,that the plaintiff as a subsequent mortgagee had no right to tenderthe money to the defendant and to maintain this action. Nojudicial authority was cited in support of this contention, bnt itwas gg&irally ao|sM that there was no privity of contract betweenthedefendant, and the plaintiff could not, therefore,
( 96 )
Da Samfayo•* J.
seek to compel the defendant to accept the mon- v – am unableto agree that the plaintiff 'was ir^capable of doing what he did. Thelearned Commissioner in his judgment relied on a passage in WalterPereira’s Institutes at page 765, where the question as to how fara payment made by a person other thanthe debtor himself is vaKuis disoussed, and 1 think the circumstances of this case quite fit therequirements there stated as given by Pothier. Apart from thefact which is elicited from the plaintiff that the debtor Nandiis deSilva Karunanayake had armed the plaintiff with a letter to begiven to the defendant in connection with the payment of themoney, it is quite clear from the .be&g given to the plaintiff itselfthat the plaintiff had Karunej&yake’s authority, and was, in fact,required by Karunanayake to pay the mortgage debt due to thedefendant. Consequently it is a ca&e in which the plaintiff actednot c** & mere stranger, but as a party interested in the payment,and acting for the debtor.. These are the conditions mentioned inthe passage in question as necessary to make effective a paymentmade by a person other than the debtor.
I cannot understand why the defendant should object to receivethe money. All that he could claim on the bond was the principal,and that was tenderedbytheplaintiff. It appears, however,that thedefendant, with a viewto keeping a hold on thefield and justifyinghiscontinued retention of thefield, began a few days after the tenderof the money to sow the field as fast as possible, with the objectapparently of raising the defence, which he did, that his mortgagecould not be redeemed before he had reaped the crop which was thenstanding.
I think the decision of the Commissioner is right, and the appeal!*is dismissed* with costs.
HEEEMA v. PUNCHIBABA