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Present; Wood Benton C.J. and De Sampayo J.
SILVA v. WIJESINGHE.101—D. 0. (Inty.) Qalle, 11,057.
Partition Ordinance, s. 12—Mortgage of a share—Sale of the land byorder of Court—Does the mortgage attach to any share of the landafter salef—Bights of mortgagee.
A co-owner who had mortgaged his share of a land was notallotted any share of the land in a partition action, but was onlygiven a planter's interest and a house. Under the partition decreethe land was ordered to be sold! ■
Held, that the mortgagee, who was not a party to the partitionaction, was entitled to draw only the share, of the money due. to themortgagor under the decree out of the amount realized by 6ale ofthe land. A purchaser of the share under a mortgage decree will bein the position of the mortgagee.
“ A mortgage security is no higher or more extensive than themortgagor’s title to the property, and if the title is by any legallyeffective means extinguished, and not merely transmitted to anotherby contract or descent, the mortgagee is affected equally with themortgagor. The effect of the partition decree is to wipe out thefifth defendant's (mortgagor’s) title as if he never had any, and Ithink the mortgage must be taken to have gone with it. It isdifferent if the mortgagor suffers defeat in an ordinary action fortitle to which the mortgagee is no party. "
The main provision of section 12 of the Partition Ordinance dealswith a mortgage of the whole land which is the subject of action.The proviso to the section does not touch the case of a mortgage ofan undivided share in the event of a sale in the partition action,and in such a case the right of a mortgagee is confined to theproceeds of the sale.
HE facts are set out in the judgment of De Sampayo -J.
Bawa, K.G. (with him M. W. H. de Silva), for sixty-first defendant,appellant.—The shares allotted to fifty-first to fifty-fifth defendantsbelonged to the fifth defendant, and were subject to mortgage atthe time of the institution of partition action. The decree in thepartition action had the effect of transferring the shares to thesedefendants, but could not extinguish the rights of the mortgagee.Section 12 of the Partition Ordinance specifically conserves thoserights. The sale under the partition decree gave an absolute titleto the purchaser, but the proceeds of sale remained subject to themortgage, and the appellant, who purchased these shares under themortgage decree, is entitled to the proceeds. In any case, the
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appellant's claim to the proceeds of the house and plantation towhich the mortgagor, the fifth defendant, has been declared entitledto must sucoeed.
Counsel cited 2 Out. L. R. 222, 18 N. L. Rt 408, D. C. Colombo88,679,1 2 Tamb. III.
<7. 8. Jayawardene, for fifty-first to fifty-fith respondents.—Thedecree gave the shares in question to the respondents. That wipedout the rights of the fifth defendant entirely, along with the mort-gage given by him. Section 12 has no application, as no share hasbeen allotted to the mortgagor in the decree. The appellants haveno right to intervene after final decree.
The authorities cited do not apply to the facts of this case.
Cur, adn. vult.
October 80, 1917. Wood Renton C.J.—
This is a partition action in which the appellant, who was thesixty-first defendant, intervened. The material facts are these.The fifth defendant, Helenis, had, on deed No. 720 of July 25, 1905,acquired certain interests from the fortieth defendant, Isabella,which she in turn had obtained on deed No. 2,735 of December 5,1901, from one Hingohamy and four of her children or represent-atives, including several of the present respondents. The fifthdefendant, Helenis, had disclosed in his answer the fact that Hingo-hamy and the children above mentioned had dealt with their rights,but had done so vaguely and without specifying any documents.The fortieth defendant, Isabella, was silent on. the subject, and noreference whatever was made in the pleadings to the fact that thefifth defendant, Helenis, had by deed of April 80, 1916, mortgagedhis interests in the property to Comelis Zoysa. The learned DistrictJudge finds that in the partition proceedings " the fifth defendantwilfully suffered an eolipse of all his rights, " and his share, with theexception of a house and planter's interest in a certain plantation,was by the final decree allotted to Hingohamy's representativesand the other respondents to this appeal. The deoree was in thealternative for partition or sale. The property was ultimately sold,the usual certificates were issued, and we are concerned now merelywith a claim to certain portions of the proceeds of the sale. In themeantime Comelis Zoysa had obtained a mortgage decree on hisbond from the fifth defendant, and the present appellant is thepurchaser in execution at that sale. By virtue of section 12 of thePartition Ordinance, 1868,3 he claims the proceeds of the sale bothof the share assigned to the fifth defendant by the final decree, andalso of the interest of the fifth defendant allotted by the same deoreeto the respondents. As regards the former of these shares, theappellant is clearly entitled to succeed. But as regards the latter,I think that his olaim fails. None of the oases cited by Mr. Bawa in1S, C. Min., November 27,1915.* No. 10 of 1865.
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support of the appeal has, in my opinion, any application to thecircumstances before us. The District Judge has not found affirm-atively the existence of collusion between the fifth defendant andHingoh&my or her representatives in the partition proceedings, andthey derive their title to the shares in question, not in any way underor through the fifth defendant, but by virtue of the decree of theCourt. I am disposed to agree with what my brother De Sampayosuggested in the argument, that the first clause in section 12 of thePartition Ordinance, 1868,1 contemplates a case in which the wholeof the land sought to be partitioned has been mortgaged. But, bethat as it may, the language of the proviso to that section makes itquite clear that the interest of the mortgagee attaches only to theshare allotted in severally to his mortgagor or to someone claimingunder him. The fact that the proviso speaks of the “ owner " ofthe share in severally is capable of easy explanation. When oncethe land had been partitioned, it would no longer be possible tospeak in this connection of the mortgagor, who, on the partition,at once becomes the owner of the share allotted to him. in severalty.
I agree to the order proposed by my brother De Sampayo. ^
De Sampayo J.-^
This appeal raises a question as to the rights of a mortgagee underthe Partition Ordinance. The subject of the action is a land calledArakkumullewatta, of which one Kariyawasan Andris was entitledto 3/32 share. Andris died, leaving his wife, Hingohamy, and fivechildren. In the plaint the plaintiff allotted the fifth defendant acertain planter's interest and a house, about which there was nodispute. The fifth defendant, however, filed an answer stating thatHingohamy and four of Andris's children had sold to him theirshares, viz., 3/64 and 12/320, and claimed the same, in addition tothe planter’s interest and the house. But he did not plead anydeed or produce one at the trial, though he was represented by hisproct&r, nor was any attempt made to establish his right to the saidshares, with the result that the District Judge allotted the sameto the fifty-first to fifty-fifth defendants, who are the children ofAndris or. their representatives. A preliminary decree was on thatfooting entered on July 31, 1916, and a decree for sale on October10, 1916. The sale took place on January 10, 1917, and the proceeds-appear to be still in Court. At this stage the appellant, who isdesignated the sixty-first defendant, came into Court and claimed ashare of the proceeds. His claim was based on the following stateof facts. It appears that, as & matter of fact, Hingohamy, and twoof the children of Andris and two of his grandchildren sold theirshares, equal to 48/640, on December 5, 1901, to one K. G. Isabella,who on July 25 sold the same to the fifth defendant. By bonddated April 30, 1906, the fifth defendant mortgaged, the said
1No. 10 of 1863.
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Db Samfavo J
shares, together with his planter’s interest., and house, to one Comelis. Zoysa. Pending this partition action, to which Comelis Zoysawas no party, a mortgage action was instituted against the mort-gagor, the fifth defendant, and a decree was obtained on October 28,1915. In execution of that decree the mortgagor’s property wassold on December 23, 1916, and was purchased by the appellant,who obtained the Fiscal's transfer dated February 23, 1917.
It is conceded that the sale under the partition decree was valid,so far as. the purchaser is concerned. Indeed, this concession mustbe made for the appellant’s purpose, for otherwise he may go againstthe purchaser at the partition sale for a share of the land, but cannotcome into the partition case and claim a share of the money. Butthe appellant’s case is that the proceeds representing the sharesmortgaged by the fifth defendant are. subject to the mortgage, andmay now be drawn by the appellant as purchaser under the mortgagedecree. I entertain some doubt as to whether a stranger to theaction can intervene for such a purpose at this stage of the partitionaction. ' But the appeal may be considered, I think, on its merits.Section 2 of the Partition Ordinance contemplates the joinder ofmortgagees as parties to the action. In the event of a decree forsale, section 8 directs that the Commissioner shall sell the land“ subject to any mortgage or other charges or incumbrances whichmay be on the same.” Considering that the effect of section 9 ofthe Ordinance is to vest absolute title in the purchaser under thedecree for sale, and that the whole object of the Ordinance is to putan end once and for all to undivided ownership, I for my part thinkthat the words quoted above from section 8 mean that, when anundivided share has been subject to a mortgage, the right conservedis to the share of proceeds due to the mortgagor. Then comessection 12, which is in these terms: —
” Nothing in this Ordinance contained shall affect the right ofany mortgagee of the land which is the subject of thepartition or sale: Provided that if at the time any partitionor sale shall be made an undivided share only of the lar'd, andnot the whole thereof, shall be subject to mortgage, theright of the mortgagee shall be limited to the share inseveralty allotted to his mortgagor by and under the sameconditions, covenants, and reservations as shall be stipu-lated in the mortgage bond, so far as the same shall applyto a share in severalty; and the owner of the share inseveralty so subject to 'mortgage shall, without a new deedof mortgage, warrant and make good' to the mortgagee thesaid several part after such partition as he was bound todo before such partition.”
In my opinion the main provision of this section deals with amortgage of the whole land, which is the subject of the action, andconserves the right of the mortgagee in such case, and this meaning
is made cleaver by the proviso, which is concerned with the excep-tional case of a mortgage of an “ undivided share only of the landand not the whole thereof. " The reason why it is enacted thatnothing in the Ordinance shall affect the right of a mortgagee of awhole land is easy to understand. 'For, in such a case, the incon-venience of undivided ownership which the Ordinance aims at willnot arise; the mortgagee will sell the whole land under his mortgagedecree, and the purchaser will be entitled to and possess the wholeland, notwithstanding the partition or sale under the Ordinance.It is noticeable that the proviso does not touch the.case of the mort-gage of an undivided share in the event of a sale in the partitionaction, and this confirms me in the opinion above indicated, that inthat case the right of the mortgagee will be confined to the proceedsof the sale. When these considerations are applied to the presentcase, it will be seen that the mortgage by the fifth defendant, beinga mortgage of a share only of the land and not the whole thereof,is not conserved by the main provisions of section 12. The mort-gagee^ right, if any, must I think be taken to be to the proceeds ofsale. One difficulty in the way of the appellant, however, is thathe is not the mortgagee, but only a purchaser of the mortgaged shareof the land. But I shall assume for the purpose of this appeal thathe is in the same position as the mortgagee. He is then confrontedwith the still more serious difficulty, that in the partition decree theshare mortgaged was not allotted to the mortgagor, the fifth defend-ant, but to the fifty-first to the fifty-fifth defendants, the respondentsto this appeal, and that the share of the proceeds of sale in questiontherefore belongs not to the former but to the latter. Can, then,the appellant, claim the money as against the respondents? Noauthority has been cited on behalf of the appellant on this point,and the claim appears to me to be untenable. Rightly or wrongly,the fifth defendant’s share in the land has been allotted in thepartition to the respondents, and the partition decree is conclusiveand binds the fifth defendant as well as the appelant. ButMr. Bawa advanced the ingenious argument, that by reason of thefifth defendant’s share being allotted to the respondents, some ofwhom were vendors to the fifth- defendant, there was, in effect, atransfer by the fifth defendant of his share to the respondents, andthat the respondents are, therefore, subject to the appellant’s rightsjust as much as the fifth defendant himself. There was, however, noconsent on the part of the fifth defendant to his share being allottedto the respondents. He was only negligent or inactive in thepartition proceedings, and it was the Court that, in the absence ofany proof of his title to the share in question, allotted the same tothe respondents. It was then suggested that it did not matter to- whom the mortgaged share was allotted, provided that the mortgagorwas entitled to it at the time of the mortgage. Here, again, theargument is not supported by any authority, and if it be tested by
principle, I think it cannot be maintained. A mortgage security isDa Samfayo no higher or more extensive than the mortgagor’s title to the pro-1 •perty, and il that title is by any legally effective means extinguished,
Silva v.and not merely transmitted to another by contract or descent, the
WijesingJiemortgagee is affected .equally with the mortgagor. The effect of
the partition decree, is to wipe put the fifth defendant’s title a6 if henever had any, and I think the mortgage must be taken to havegone with it so far as the respondents are concerned. It is, of course,different if the mortgagor suffers defeat in an ordinary action fortitle to which the mortgagee is no party, and the present case is,therefore, distinguishable from Gooneratne v. Ibrahim,1 which wascited on behalf- of the appellant. It may be that the result is todefeat the just claim of the appellant, who purchased on the strengthof the mortgage decree; but the appellant is bound to yield to theeffect of an imperative statutory provision.
In my opinion the appellant's claim cannot be sustained, so faras the fifty-first to fifty-fifth defendants are concerned. But theappellant is, I think, entitled to draw the amount due to the fifthdefendant in respect of the planter’s interest and house, which alsowere mortgaged by the fith defendant and purchased by the appel-lant at the Fiscal’s sale. The appeal should be dismissed, with costs,as regards the fifty-first to fifty-fifth defendants. But as regardsthe fifth defendant, the order appealed from should be modified byallowing the appellant to draw the money due to the fifth defendantout of the fund in Court.
SIVA v. WIJESINGHE