Present ; Dias S.P.J. and Gnn&sekara J.
PERERA, Appellant, and DIAS, RespondentS. C. 190—D. C. Colombo, 1&t387/M
Mortgage—Co-mortgagors—Payment of interest by one of them—Effect on jnescriptionThe obligation under a mortgage is indivisible. A payment, therefore, ofinterest by one of the mortgagors would be a payment on behalf of all, forpurposes of prescription.
./^.PPEAL from a judgment of the District Court, Colombo.
S. J. V. Ckelvanayagam, K.C.} with E. 8. Amerasinghe and V. S. A.Pullenayagam, for the defendant appellant.
H. W. Jayewardene, with D. R. P. Ooonetilehe, for the plaintiffrespondent.
Cur. adv. vult.
1 Salonchi v. Jayatu, (1926) 27 N. L. R. 366 at 371. '
Meiya Nona v. Davith Vedarala, (1928) 31 N. L. R. 104 at 106.
Vensuta Foreneis, Booh III, Chapter V, Section 3.
tit A H 8.1*-J.—Perera o. Diat
November 29, 1950. Dias S.P.J.—
Paulu Fonseka and his two sons Aloysius and Edward were the owners■of an undivided 13/16 of 31, Bloemendhal Boad. They by mortgagehoud 490 of October 3, 1929, mortgaged their shares to one JamesEernando, who in D. C., Colombo, 10,869/M put the bond in suit. Thataction was instituted on September 29, 1939, just before the oauBe ofnotion on the bond became barred by prescription. James Fernandobailed to register the It's pendens. Under the mortgage decree PI datedOctober 11, 1940, the shares which had been hypothecated were ordered-to be sold. The sale took place on July 15, 1942, when the plaintiff(an outsider) purchased the shares and obtained deed P2 dated April 5,1943. The plaintiff therefore by paying the purchase money redeemed-the 13/16 share of these premises from the mortgage.
Tbe plaintiff then discovered that the owners of the whole land includingPaulu Fonseka and his two sons (the mortgagors) had by deed D1 datedJune 20, 1940, sold the whole land to a person called James (not theplaintiff to the mortgage action). This purchaser had been procuredby the defendant-appellant who was the son-in-law of Paulu Fonseka.James by deed D2 dated September 20, 1943, conveyed the land to theJ ef end ant-appellant.
The parties are agreed that the mortgage action did not bind thetransferees on the deeds D1 and D2 by reason of the non-registration ofthe Its pendens in the mortgage action. Therefore, the defendant obtainedthe land freed from the effect of the mortgage action as regards 13/16.The parties are also agreed that under such circumstances, the plaintiffwould have the right under section 11 of the Mortgage Ordinance(Chapter 74) to sue the defendant for a declaration that he (the plaintiff)has a hypothecary ^ charge' on the land in the manner provided by■section 11.
In the present action the plaintiff sued the defendant under section 11on August 14, 1945, claiming a sum of Rs. 1,071.50 which is the pricehe paid at the mortgage sale. The District Judge having held in favourof the plaintiff, the defendant appealed to the Supreme Court.
Tbe case was first argued before the present Chief Justice and myself.It having been conceded that the plaintiff had the right to seek reliefunder section 11 of the Mortgage Ordinance, the substantial questionurged by the appellant was whether plaintiff’s claim' under section 11lias been barred by section 5 of -the Prescription Ordinance (Chapter 55).The appellant’s submission was that what was kept alive by section 11 ofthe Mortgage Ordinance was the original mortgage, which on August 14,1945 (the date on which pliantiff filed the present action), would have beenprescribed, and that plaintiff therefore would be out of Court, unless it-could be shown in terms of section 5 of the Prescription Ordinance thatthe action was instituted “ within ten years of the last payment of interestthereon
The Judge said: " This case must go back for evidence on the issue ofprescription. The plaintiff in the ‘mortgage action (James Fernando)alleged in his plaint that interest had not been paid to him for a period offive years. This presupposes that interest for the five years, had been
DIAS 8.P.J.—Per era e. Dias
paid. There is no evidence before the Court as to the aotual plates onwhioh the interest was paid. The learned Judge has decided the issue ofprescription on the assumption that the interest had been paid within teifcyears of the date of the institution of this action- (i.e., the action undersection 11 of the Mortgage Ordinance). We think that is wrong ”.
The case having gone back, the District Judge on the evidence led haedecided the issue of prescription in favour of the plaintiff. At the dateof this second trial James Fernando was dead. His widow ReginaFernando gave evidence. The • appellant has made a point of the fact,that the witnesses alleged that there was a book in which the payment ofinterest had been entered, and urged that the District Judge had erred iirhis findings because that book had not been' produced.. The learnedJudge has, iq my opinion, considered all the facts. It is noteworthythat the defendant-appellant, who is the son-in-law of Paulu Fonseka,lived with his wife in the house of Paulu Fonseka, and there is evidencethat the book was kept in the custody of the appellant's wife. It is also-in evidence that at the sale under the mortgage decree the appellant bidfor the land, thereby raising the price until it was finally knocked downto the plaintiff. The appellant admits that he knew the purchaser ondeed Dl, and actually told him to buy the land. It was from that manJames that the appellant purchased the land on the deed D2. Therefore-it dees not seem strange that on the question of fact, the District Judgeshould have preferred the evidence led for the plaintiff, and regarded theevidence of the appellant with some suspicion. Be that as it may, itis quite impossible for a Court of Appeal to interfere with a finding offact of the trial Judge.
It was next argued that even if Edward Fonseka, one of the mortgagors-had paid interest or any other sums, such payments would only take thecase out of prescription in regard to Edward’s share and not as regards the-other mortgagors. The respondent on the other hand submits that theappellant should not be allowed to raise a new point in appeal which wasnot raised in the lower Court. . It is submitted that had the point beentaken in the lower Court the plaintiff could have met it by evidence to-show that the payment of interest was in regard to the whole mortgage,and not only in regard to the share of Edward. It is unnecessary todecide- this point.
The case of Appuhamy v. Gunasekera 1 shows that the obligation ona mortgage bond is indivisible—see also Unguhamy v. Hendrick a. Wessels -in his Law of Contract (page 488, section 1489)i says: " By our law,following in that respect the Roman Law and differing from the Englishlaw, in a case of doubt the contract if divisible, is presumed to be rathera simple joint obligation (an obligation prorata) than one in solidum ”.Again at page 494 (section 1508) he says: “ An obligation in solidumand an indivisible contract have this in common—that the performance ofboth obligations can be demanded in full by any of the creditors or fromany of the debtors ”. If as the cases decide the obligation under amortgage is indivisible, then it follows that a payment of interest by oneof the mortgagors would.be a payment on behalf of all. The appellant
M1916) 19 N. L. R. 266, at p. 267.
* (1930) 11 O. L. Rec. 54.
186National Bank of India, Ltd. v. KaUappapilldi
not having raised the point at the trial, it would be manifestly unjust toallow him to urge that question now in appeal for the first time. The caseof Per era. v. Per era 1 cited by the appellant has no application to the factsof this case.
Finally, it was submitted that in any event the decree in this caseshould not contain a direction that the defendant-appellant should payany money, and that the decree should only be a hypothecary decreeagainst the land.
Under section 11 of the Mortgage Ordinance, the plaintiff is entitledto “a hypothecary charge ” on the pin-chased land for a certain sum.In his prayer to the plaint the respondent asked for a declaration thathe is entitled to a hypothecary charge on the premises for the sum ofUs. 1,071.50, and -in default he asked that the land be held bound and•executable, &c. What the law provides, and what the plaintiff prayedfor is that if the appellant did not pay the sum claimed, the land was tobe held liable to be sold in order to recover that sum. That is preciselywhat the decree in this case says. If the appellant does not choose topay the money due, then the land is liable to be sold.
In my opinion, the judgment and decree appealed against are right, andI would dismiss the appeal with costs.
Gunasekara J.—I agree.
PERERA, Appellant, and DIAS, Respondent