WALPITA, J.—Kanapathipillai v. Kanapathipillai
Present: Walgampaya, J., Vythialingam, J., and Walpita, J-
V. KANAPATHIPILLAI, Appellant, and P. KANAPATHI-PILLAI, Respondent
S. C. 558/68 (F) —D. C. Point Pedro, 9716
Mortgage Act—Section 26—Co-mortgagors—Death of one of them -priorto date of institution of hypothecary action—Appointmentof representative of the deceased mortgagor—Question whetherthe action is prescribed—It cannot be decided at a stage whereonly a question of substitution of heirs arises.
Hypothecary action was filed against two mortgagors, one of whomhad already died long before the action was filed. The action wasfiled a few days before the action was prescribed. An applicationfiled about six months later for the appointment of a legal repre-sentative to represent the estate of the deceased mortgagor wasrefused by the Court on the ground that, as the mortgage bond wasnot a joint and several bond and the hypothecated property belongedto the deceased mortgagor, the heirs of the deceased mortgagorshould have been substituted in her place before the Bond gotprescribed.
Held, that, under section 26 of the Mortgage Act, the deceasedmortgagor’s heirs should have been substituted. The question ofjoint and several liability or joint liability and other questions thatarose on the pleadings could only be considered at the trial and notat the stage when only a question of substitution of heirs arose.
A.PPEAL from a judgment of the District Court, Point Pedro.
A. Mahendrarajah, with S. Mahenthiran, for the plaintiff-appellant.
M. Tiruchelvam, with N. Tirudhelvam and S. Ratnasingham, forthe 1st defendant-respondent.
Cur. adv. vult.
March 15, 1974. Walpita, J.—
This was a hypothecary action filed by the plaintiff-appellantagainst the 1st defendant-respondent and his wife one Sivakami-pillai who was named as the 2nd defendant on a mortgage BondNo. 14574 dated 22.8.57. This action was filed on 7.8.67 a few daysbefore such action would have become prescribed.
Summons was served on the 1st defendant-respondent on
but could not be served on the 2nd defendant-respondentas she had died long before the action was filed. The proctor forthe plaintiff-appellant then moved Court on 2.2.68 for the appoint-ment of a legal representative to represent the estate of the2nd defendant and for the issue of notice on the heirs of the2nd defendant deceased. This was objected to. An inquiry washeld on 9.9.68 on this objection and the learned District Judge
WALPITA, J.—Kanapathipillai v. Kanapathipillai
by his order of 30.9.68 refused the application of the plaintiff-appellant for notice on the heirs of the 2nd defendant as thisBond was already prescribed after 22.8.67.
This appeal is from that order of the learned District Judge.The learned District Judge has upheld the submissions of thedefendant-respondent that according to the terms of the bondboth mortgagors have not bound themselves to pay back thismoney jointly and severally, that as such after the death of the2nd defendant, her heirs should have been substituted in herplace before the Bond got prescribed and that no hypothecarydecree can be entered against the 1st defendant-respondent asit was the second defendant who hypothecated her land.
It has been submitted before us that at an inquiry into theapplication for substitution of heirs of the 2nd defendant it waspremature to decide any issues arising out of the plaint andanswer and that to decide whether the first defendant-respondentand his wife the 2nd defendant were jointly liable or jointly andseverally liable and whether the property mortgaged belongedonly to the 2nd defendant or was Thediathetum property, 3/4thof which on her death devolved on the 1st defendant-respondentcan only be done at the trial. There is much substance in thiscontention of the appellant’s Counsel.
The inquiry of 9.9.68 concerned only the question of substitutionof heirs of the 2nd defendant. Though she had died beforethe action was filed, under Section 26 of the Mortgage Act No. 6of 1949 which reads as follows : —
“ (1) Where any mortgagor dies before the institution of ahypothecary action in respect of the mortgaged land, or anymortgagor or any person who is or becomes a party to ahypothecary action dies after the institution of the action,and grant of probate of the will or issue of letters of adminis-tration to the estate of the deceased has not been made, theCourt in which the action is to be or has been instituted mayin its discretion, after the service of notice on such persons,if any, and after such inquiry as the Court may considernecessary, make order appointing a person to represent theestate of the deceased for the purpose of the hypothecaryaction, and such person may be made or added as a partyto the action :
Provided, however, that such order may be made only if—
the value of the mortgaged property does not
exceed two thousand five hundred rupees ; or
a period of six months has elapsed after the date
of the death of the deceased ; or
WALPITA, J.—-Kanapathipillai v. Kanapathipillai
the Court is satisfied that delay in the institutionof the action would render the action notmaintainable by reason of the provisions ofthe Prescription Ordinance.
(2) In making any appointment under sub-section (1) theCourt shall appoint as representative a person who aftersummary inquiry appears to the Court to be the person towhom probate of the will or letters of administration to theestate of the deceased would ordinarily be issued ;
Provided, however, that in the event of a dispute betweenpersons claiming to be entitled to be so appointed, the Courtshall make such an appointment (whether of one of thosepersons or of any other person) as would in the opinion ofthe Court be in the interests of the estate of the deceased.”her heirs could be substituted. In 66 N. L. R. 251, Muthu Ramaie v.Athimulam the Court held that under this Section, substitutionof heirs can be made in respect of a deceased co-mortgagor evenwhere such co-mortgagor had died before the action was filedprovided the action was not a nullity. Sansoni J. said in thatcase, that a distinction has to be drawn between the case of adecree against a sole defendant who was dead when the decreewas entered in which case it is a nullity and a decree againstmore than one defendant where only some of the defendants haddied before decree. The question whether the whole decree in thelatter case is a nullity can only be answered after considering thenature of the action.
In the present case, therefore, where there was more than onedefendant, the question of joint and several liability or jointdaDiiity and other questions that arise on the pleadings can onlyiae considered at the trial and not at the stage where only aquestion of substitution of heirs arises. We are of view thereforethat the order of the learned District Judge refusing the applica-tion of the plaintiff to issue notice on the heirs of the 2nd defen-dant was wrong and must be set aside. That order is accordinglyset aside. Notice will now issue on the heirs of the 2nd defendantand a legal representative appointed to represent the estate of the2nd defendant at the trial of this action. The 1st defendant-respondent and the heirs of the 2nd defendant will be entitledto take up thereafter any question of prescription or liabilityon the bond or any other matter which may arise on theirpleadings.
The appellant is entitled to costs of this appeal.
Walgampaya, J.—I agree.
Vythialingam, J.—I agree.
Order set aside.
V. KANAPATHIPILLAI, Appellant, and P. KANAPATHIPILLAI, Respondent