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Present : De Sampayo and Porter 3J.SIDAMBABAM CHETTY v. PEREBA et al.
$03—D. C. Chilaw, 6,678.
Mortgage of a divided share by a person who was entitled to an undividedshare—Partition action—Does the mortgage attach to the dividedportion allotted to the mortgagor, or to the person who represents themortgagor t Q
The first defendant who was entitled to an undivided share ofa land mortgaged a divided portion of the -land to the plaintiff.Subsequently, the second defendant, who purchased first defendant’sinterests at a Fiscal’s sale pending a partition action, was decreedentitled to a divided portion (representing the undivided shareof the first defendant). Plaintiff brought an action on the mortgagebond.
Held, that the mortgage did not attach to the divided portionallotted to the second defendant-.'
T HE facts appear from the judgment.
Jayaivardene, K.C. (with him Croos-Dabrera), for the appellants—The mortgage was of a divided portion. In the partion case itwas held that tbe mortgagor was only entitled to an undivided sharewhich'has been since sold in execution. ’The purchaser in executionhas been allotted a divided portion by the final decree. Tbeplaintiff cannot obtain a hypothecary decree for this lot. The bondis in respect of a portion of land, whioh the mortgagor was not entitledto. Section 12, of the Partition Ordinance does not help the plaintiff.It only conserves the rights of a person holding a mortgage of anundivided share. The plaintiff is only entitled to a money decree-
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Arulanandan, for respondent.—The case is governed by section 12of the Partition Ordinance. The intention off the mortgagor was to Sidambammmortgage all his interest in the property partitioned. The fact thathe described his share as a divided lot ought not to prejudice themortgagee. The portion mortgaged represents the undivided sharethe mortgagor was entitled to, and the mortgagee’s rights are savedby section 12 of the Ordinance. The construction put upon thissection by the appellants is contrary to the spirit of the PartitionOrdinance, and is calculated to work injustice.
June 1, 1922. De Sampayo J.—
The plaintiff in this action has taken up a very strange position,which, I think, is wholly untenable. The first defendant by a bondof January 3, 1914, mortgaged to the plaintiff as security for a certainamount of money a divided portion of a certain land, and also anundivided share of another divided portion of the same land. Sub-sequently, a partition action would appear to have been, brought bya number of persons who claimed undivided shares in the land. Thefirst defendant in this action was the nineteenth defendant in thepartition action, and by the judgment entered on November 26, 1917,it- was found by the Court that the first defendant was entitled not todivided portions of the land, but to an undivided share in the wholeland, which he was declared entitled to accordingly in that decree.
But it seems that about a month after that, decree was entered,the shares which the first defendant in the partition action wasdeclared entitled to was seized in execution against him, and subse-quently sold, -and purchased by the second defendant, who obtained aFiscal’s transfer for the same on April 25, 1919. At this date thepartition had not proceeded further, and so the second defendantintervened in the action and claimed the shares he purchased againsttile first defendant. This claim was allowed, and in the final decreea certain divided portion was allotted to the second defendant, and tothe other parties to the action similar divided lots in respect of theft:interests. Now, the plaintiff has brought this action up op themortgage bond against both the defendants, and he seeks to obtaina mortgage decree against .the second defendant in respect of thedivided portion allotted to him in the final partition decree. Iought here to say that the divided portions mortgaged to the plaintiffby the first defendant are not identical with the divided portionallotted to the second defendant in the partition decree. But thedifficulty in the way of the plaintiff goes, much deeper. The questionis whether, having had the mortgage over divided portions of theland effected by a person who was not enittled.to portions, butonly to undivided shares in the whole land, he could afterwardsproceed as if undivided shares were subject to the mortgage. Section12 of the Ordinance has been referred to in the course of the pro-ceedings in the District Court, and the judge says he applies, what
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19B& he calls, the spirit of it to the present case in support of the plaintiffsDe Sakpayo claim. The provision in that section is that where an undivided3* share is mortgaged, the mortgage shall attach to a divided portionSidam&aram that may be allotted to the mortgagor in a partition action. WhatOheuyv. has been attempted in the present case is to enforce the converseof it, whioh is not sanctioned m any respect by the Partition Ordi-nance. Moreover, the provision is that the mortgage shall attachto the Bhare in severalty allotted to the mortgagor. But in thiscase a divided portion in severalty was not allotted to the firstdefendant, but to the second defendant, who had nothing to do withthe mortgage ; and I think this is material in view of the provisionin the same section of the Partition Ordinance. For it says that theowner of the share in severalty so subject to mortgage shall, withouta new deed of mortgage, warrant and make good to the mortgagee thesaid several part after such partition as. he was bound to do before suchpartition. By no stretch of construction could the second defendantbe compelled under that provision to warrant and make good to theplaintiff the property mortgaged by the first defendant. Apart fromthat practical difficulty, there is no possibility of giving to the plaintiffthe rights of a mortgage over a portion of land which was nevermortgaged to him. I think, therefore, that the District Judge'sjudgment, which is very creditable to his ingenuity and sense ofjustice, cannot be supported either by reference to the Ordinance orupon any legal principle. The only right the plaintiff has is torecover the debt from the first defendant, and, if possible, realize thatdebt upon any other property he may be entitled to in the ordinarycourse of execution. In these circumstances, I think the judgmentand decree entered by the District Judge must be modified bystriking out the order for specific sale of the portion allotted to thesecond defendant in the partition decree as though he was bound tothe plaintiff on the bond in his favour, and by restricting the judgmentto a money decree against* the first defendant. I think the seconddefendant, who was the real contestant in the District Court, isentitled to the costs of the action and also of this appeal.
PpRTfiB J.—I agree.
SIDAMBARAM CHETTY v. PERERA et al