BASNAYAKE, C. J.—Saido Hadjiar v. Amina Beebee
1959Present: Basnayake, C.J., and Sansoni, J.
U.L. M. M. SAIDO HADJIAR, Appellant, and AMINABEEBEE and others, Respondents.
8. C. 661—D. C. Galle, 6181MB
Mortgage—Hypothecary action—Death of a person entitled to notice of the action—Appointment of representative—Procedure—Defect in mode of appointment ofrepresentative—Validity of hypothecary decree and execution sale—MortgageAct, No. 6 of 1949, ss. 5, 26, 31 (2) (3).
When a secondary mortgagee is dead, the non-issue of notice on his heirsin proceedings under the Mortgage Act does not render the mortgage decreeinvalid so as to vitiate the sale in execution.
In proceedings for the appointment of a representative of a deceased underthe proviso to section 31 (2) of the Mortgage Act it is not necessary to hearthe heirs of the deceased prior to making the appointment, even if they havebeen named as respondents to the application. In any event, if a personentitled to notice in a hypothecary action is dead, any defect in the proceedingsfor the appointment of a representative of the deceased person cannot affectthe decree in the mortgage action or the execution sale of the mortgagedproperty, because it is not essential that the representative of the deceasedshould be a party to the mortgage proceedings.
Appeal from a judgment of the District Court, Galle.
V. Perera, Q.C., with M. T. M. Sivardeen, for Purchaser-Appellant.
S. Jayawickreme, Q.C., with M. Bafeek, for Petitioner-Respondent.
Cur. adv. vult.
November 5, 1959. Basnayake, C. J.—
The question that arises for decision on this appeal is whether thenon-issue of notice on the heirs of a deceased secondary mortgageewho is entitled to notice in proceedings under the Mortgage Act,No. 6 of 1949, renders the mortgage decree invalid and vitiates thesale in execution.
Briefly the facts are as follows :—By mortgage bond No. 2445 of 7thDecember 1947 attested by Notary Mohamed Thahir of Galle, MohamedAlly Mohamed Kiyadu of Galle mortgaged the land described thereinas security for a sum of Rs. 3,500 borrowed by him from NaotunneGamacharige Somawathie Rajapakse the mortgagee. On 20th December1951 the mortgage bond was put in suit. Notice was issued on 21stEebruary 1952 by the Court on Mohamed Ally Selha Beebee of No. 219Colombo Road, Mahamodera, Galle, a secondary mortgagee whoseaddress was registered. By his affidavit dated 5th May 1952 the Fiscalreported that she was not to be found at the address given and referred
BASNAYAKE, C.J.—Saido Hadjiar v. Amina Beebee
to the Village Headman’s report endorsed on 3rd May 1952 on thereverse of the notice. It stated that the person named therein wasdead. The evidence does not show when she died. On 28th August
the mortgagee’s Proctors moved to have a representative appointed.The mortgagee named as respondents to her petition H. M. MohamedAlavudeen the husband of Selha Beebee, her minor daughter, her threebrothers and her sister. On 11th September 1952 the Court madeorder appointing her husband Alavudeen as “ legal representative ”(sic) of the estate of the deceased and ordered notice on him. It wasnot till 9th October 1952 that summons was reported served on thedefendant. On 23rd April 1953 it was reported that notice could not beserved on Alavudeen as he was “ not found and. has gone abroad ”and the mortgagee’s Proctors moved on 14th May 1953 that Alavudeen’sappointment be cancelled and that Selha Beebee’s brother MohamedAlly Mohamed Thahir be appointed as representative. On 6th August
the Court cancelled Alavudeen’s appointment and appointedThahir as representative. Thereafter on 11th .February 1954 decreewas .entered after service of notice of the action on Thahir. On 26thJune 1956 the mortgaged property was sold by public auction and theappellant purchased it for Us. 4,580. The sale was confirmed on 30thJuly 1956 and the conveyance No. 3378 was executed by the auctioneeron 23rd August 1956. On 22nd September 1956 Mohamed AllyMohamed Javath, a brother of the deceased Selha Beebee, who wasnamed as the third respondent to the application to appoint a represen-tative of the deceased, filed an application by way of summary procedurepraying that the order of the Court dated 30th July 1953 appointinga representative to the estate, of Selha Beebee as well as the mortgagedecree be vacated and that the sale be set aside. On 12th February1957 order nisi was entered and notice was issued returnable on3rd April 1957. On that day the respondents to the application wereabsent and a date was fixed for objections. On 22nd May 1957objections were filed. After hearing counsel the learned DistrictJudge made the following order :—
“ On the submissions made, I am convinced that the order-nisimade on the 4th October 1956 cannot stand. I dismiss the order-nisiwith costs.”
Thereafter the learned District Judge proceeded to hear another petitionwhich had been filed on 11th February 1957 by the sister of SelhaBeebee, Mohamed Ally Amina Beebee, the respondent to this appeal.She had named as respondents to it the mortgagor, the mortgagee, thepurchaser, and Thahir as representative of Selha Beebee. In thispetition the petitioner prayed that—
(а)the proceedings of 30th July 1953 and the order of Court dated
6th August 1953 purporting to appoint Thahir as “ legalrepresentative ” of Selha Beebee be vacated ;
(б)the mortgage decree entered in the case be vacated ;
the Sale of 26th June 1956 be set aside.
BASNAYAKJS, C.J.-—Saido Hadjiar v. Amina Beebee
The sole ground on which the petitioner challenged the decree andsale was that in the proceedings for the appointment of Thahir as represen-tative of the deceased the respondents named in the petition were notnoticed and that Selha Beebee’s heirs were not heard before Thahir wasappointed.
Having stated the relevant facts I shall now proceed to examine theMortgage Act, No. 6 of 1949. The mortgage in question being onecreated before 16th January 1950, the appointed date, the relevantsections are 26 and 3.1 subsections (2) and (3). They read—
“ 26 (1) Where any mortgagor dies before the institution of a hypo-thecary action in respect of the mortgaged land, or any mortgagor orany person who is or becomes a party to a hypothecary actiondies after the institution of the action, and grant of probateof the will or issue of letters of administration to the estate of thedeceased has not been made, the Court in which the action is to be orhas been instituted may in its discretion, after the service of noticeon such persons, if any, and after such inquiry as the Court mayconsider necessary, make order appointing a person to represent theestate of the deceased for the purpose of the hypothecary action, andsuch person may be made or added as a party to the action :
“ Provided, however, that such order may be made only if—
(а)the value of the mortgaged property does not exceed two thousand
five hundred rupees ; or
(б)a period of six months has elapsed after the date of the death
of the deceased ; or
(c) the Court is satisfied that delay in the institution of the actionwould render the action not maintainable by reason of theprovisions of the Prescription Ordinance.
“ (2) In making any appointment under sjb-section (1) the Courtshall appoint as representative a person who after summary inquiryappears to the Court to be the person to whom probate of the will orletters of administration to the estate of the deceased would ordinarilybe issued :
“ Provided, however, that in the event of a dispute between personsclaiming to be entitled to be so appointed, the Court shall make suchan appointment (whether of one of those persons or of any other person)as would in the opinion of the Court be in the interests of the estateof the deceased.”
“ 31 (2) Where a hypothecary action is instituted for the enforcementof a mortgage created before the appointed date, and the Court issatisfied that any person entitled to notice of the action is or wasdead or an insolvent, minor or lunatic before or at the time ofthe issue to him of notice of the action, the person to whom probate
BASTvAYAKE, C.J.—Saido Hadjiar v. Amina Beebee
of the will or letters of administration to the estate of the deceasedis granted, or, as the case may be, the duly appointed assignee orcurator or manager shall be added as a party to the action uponapplication made to the Court in that behalf whether by such personor by any party to the action :
" Provided, however, that it shall be lawful for the Court in thecircumstances and subject to the conditions set out in section 26 toappoint a representative of the deceased for the purpose of the hypothe-cary action, and in any such case the representative so appointed maybe added as a party to the action in lieu of the executor or administrator.
“ (3) Where the executor or administrator or the duly appointedrepresentative of a deceased person, or, as the case may be, the assignee,curator, or manager of the estate of the insolvent, minor, or lunatic isnot added as a party under sub-section (2), the executor or adminis-trator or, as the case may be, the assignee, curator or manager shall—
be entitled upon making a claim in that behalf under section 57
to participate in the proceeds of sale remaining after satisfactionof the amount decreed to be due upon the mortgage in suitin the action ; or
if he does not so participate, be deemed to be a party omitted for
the purpose of enabling an action to be brought by or againsthim under section 19 and if such an action is brought theprovisions of sections 20 to 23 shall apply accordingly.”
The effect of the above sections is that when a person entitled to noticeof the mortgage action dies, whether the death be before or after the issueof notice on such deceased, the person to whom probate of the will orletters of administration to the estate of the deceased is granted or anyparty to the action has the right to apply to the Court that the executoror administrator as the case may be be added as a party to the action.Upon the applicant satisfying the Court that the person entitled to noticeis dead the Court is bound to add such person as a party. Where thereis no person to whom probate or letters of administration has beengranted the Court is empowered by the proviso to section 31 (2) to appointa representative of the deceased for the purpose of the mortgage action.The Court has power to add such person as a party to the action if appli-cation is made in that behalf.
Subsection (3) makes it clear that a mortgage action may proceedwithout the executor or administrator or representative of a deceasedperson entitled to notice being added as a party. In such a case therights of the executor, administrator or representative as the case maybe are as stated in paragraphs (a) and (b) of the subsection.
In the instant case Selha Beebee was made a party as a “person entitledto notice ” within the ambit of that expression as defined in section 5.Alavudeen’s appointment was a good appointment and satisfied therequirements of the Ordinance. For the purpose of this appeal it is not
14 The Superintendent, High Forest Estate, Kandapola v. Malapane Sri Lanka
Walu Kamkaru Sangamaya, Uda Pussellawa
necessary to decide whether the Court had power to cancel his appointment,because the cancellation was never seriously challenged. It is Thahir’sappointment that was attacked. As Alavudeen was reported to beabroad the Court proceeded to appoint Thahir as representative of thedeceased. Notice was issued on him and served and the trial proceeded.The proceedings thereafter are not open to objection. In proceedingsfor the appointment of a representative of a deceased under the provisoto section 31 (2) it is not necessary to hear all the heirs of the deceasedprior to making the appointment even if they are named as respondentsto the application as was done in the instant case. The learned Judgeis wrong in holding that it is imperative that notice should be served onthe heirs of the deceased in order that they may be heard. In any eventany defect in the proceedings for the appointment of a representativeof a deceased person entitled to notice cannot affect the decree in amortgage action or the sale of the mortgaged property because it is notessential that the representative of a person entitled to notice shouldbe a party to the mortgage proceedings. I
I therefore set aside the order of the learned. District Judge andmake order dismissing the application of the petitioner with costs.The appellant is entitled to the costs of appeal.
Sansoni, J.—I agree.
U. L. M. M. SAIDO HADJIAR, Appellant, and AMINA BEEBEE and others, Respondents