( 134 )
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Grenier.
MUDIANSE v. WILSON et al.
D. C., Kandy, 18,374.
Civil Procedure Code, s. 547 — Mortgage without administration —Validity.
A mortgage is not a transfer, and does not fall within the.purviewof section 547 of the Civil Procedure Code.-
CTION ret vindicatio. Appeal by the plaintiff from a judgment. of the District Judge. The facts sufficiently appear in the
judgment of the Chief Justice.
E. W. Jayewardene (with him R. L. Pereira), for the plaintiff,appellant.
Wadsworth, for the defendants, respondents.
Cur. adv. vult.
May 3, 1909. Hutchinson C.J.—
The appellant brought this action to recover two pieces of landcalled Galahitiyawakumbura and Galahitiyawahena. The landsbelonged to Punchi Naide, who died intestate in December, 1902, •leaving an estate worth (as alleged in the plan' and admittedin the answer) more than Rs. 1,000, and leaving as his sole heirPallegedera Appu, who took out administration in October, 1905,and then conveyed the lands to himself as heir, and thereafter soldthem.to the plaintiff. But before he had obtained administration,Pallegedera Appu had mortgaged the lands; and in two actionsagainst him they were soid in execution and transferred by theFiscal to the Ceylon Land and Produce Company, which is not aparty to this action; the original defendant is the Company’smanager of the lands, and the added defendant is the Company’sattoj- . The first question is whether the mortgages grantedbefore administration was taken out were void by reason of section547 of the Civil Procedure Code ; and if they were not void, afurther question arises as to the priority of registration. Thematerial facts are as follows:—
January 17, 1903.—Mortgage of the field by Pallegedera Appu(not as stated in the answer to the plaintiff, but to M. PunchiBanda); registered on January 6, 1903.
January 15, 1904.—Mortgage of the hena by Pallegedera Apputo the same person ; registered in February , 1904.
( 136 )
March 15, 1905.—Action against Pallegedera Appu on • t&e 1909.mortgage of the field.May 3.
April 16, 1905.—Sale of the hena to the Company by the Fiscal Uu ~~_in execution of a money decree in action against Pallegedera Appu. C.J.
October 16, 1905.—Administration to Punchi Naide’s estategranted.to Pallegedera Appu.
October 25, 1905.—Fiscal’s transfer of the hena to the Companyon sale in execution of the money decree against Pallegedera Appu ;registered May 9, 1906.
November 29, 1905.—Transfer of the lands by Pallegedera Appuas administrator to liimself as heir, reciting that it was necessaryto close the estate by conveying the immovable'property of thedeceased to the heir.
November 29, 1905.—Transfer of the lands by Pallegedera Apputo the plaintiff ; registered December 6, 1905.
February 14, 1907.—Fiscal's transfer of the field to the Companyon sale in execution of a decree in an action against Pallegedera Appuon the mortgage of January, 1903 ; registered February 22, 1907.
There is no evidence as to the dates of the decrees under whichthe sales to the Company took place; but it appears from the Fiscal’stransfers that the writ of execution under which the hena was soldwas dated February 28, 190.5, and .that the writ under which thefield was sold was dated December 14, 1905. The Civil ProcedureCode imposes a penalty on any one who transfers any property ofan intestate before administration is taken out. The appellantcontends that a mortgage is a transfer, and that not only is themortgagor in a case like this liable to the penalty, but that themortgage itself is void by reason of the rule of construction thatanything in respect of which a penalty is imposed by the Legislatureis absolutely void. But a penal Enactment should be construedstrictly ; and a mortgage is not a transfer. In my opinion themortgages made by Pallegedera Appu were not void. They wereliable to be defeated by the administrator dealing with the propertyin a due course of administration; but the administrator did notdeal with it in that way ; his transfer to himself, which w..s obviouslymade for the purpose of defrauding his mortgagee, shows that theadministration was closed.
As to the priority of registration, the Company’s title to the henais not derived from the mortgage of it, but from the Fiscal’s transferin execution of a money decree. This transfer was not- registereduntil after that to the plaintiff. The plaintiff therefore has priority.
The Company’s title to tlffe field dates back to the mortgage ofJanuary 17, 1903, which was registered in February, 1903. Theappellant contends that the mortgage decree, in execution of whichthe Fiscal’s transfer of February, 1907, to the Company was made,ought to have been registered. But, as I have said, there is noevidence that the decree was made before the plaintiff’s transfer; all •
( 130 )
1909. that appears is that the writ of execution was dated December 14,May 3.1905, a few weeks after the plaintiff’s transfer. In my opinion the
Hutchinson Company’s title to the field is better than the plaintiff’s.
C.J. One of the issues was whether the sale to the plaintiff was madefraudulently and without consideration. The District Judge record-ed no finding on this issue ; he says “ for the purposes of this caseit is not necessary for us to consider whether the plaintiff deliberatelytook part in the fraud, but I will assume that he acted bona fideand paid valuable consideration.” f here were also issues as to thedamages sustained to the plaintiff, and as to what compensation,if any, the added party was entitled to for the improvements whichhe alleged in his answer that he had made on the hena ; but it wasagreed at the trial that those issues should stand over pending thedecision of the other issues. The plaintiff swore that he paidRs. 1,000 for the transfer to him (which included some other piecesof land also); that he did not search the register for encumbrances,and that the plaintiff told him nothing about the mortgages or theFiscal’s, sale. He does not say that he did not know about them.But in the absence of any other evidence I must conclude that hewas not a party to the fraud, and that he paid consideration.
The, decree dismissing the action should be set aside and judgmentgiven for the plaintiff for the hena, i.e., for the second piece of landdescribed in the plaint; and the case must go back to the DistrictCourt for evidence and judgment on the 4th and 5th issues.. Theoriginal defendant in his answer denied that he was in possession ofthe hena; but the uncontradicted evidence is that he cut down thetrees on it and is still in possession of it. The added defendant in hisanswer says that he planted the hena and improved it. The partieshave throughout treated the action as if the added defendant was theCompany ; and whatever compefisation is awarded for the improve-ments should be awarded to the added defendant. The defendantshould pay the plaintiff’s general costs of the action; the costs ofthe further proceedings in the District Court will be in the discretionof the District Court. Each party should bear his own costs ofthis appeal.
MUDIANSE v. WILSON et al