081-NLR-NLR-V-26-ABDUL-HAMID-v.-PERERA.pdf
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Present: Ennis A.C.T. and Jayewardene A.J.
1926.
ABDUL HAMTDU v. PERERA.316—1). C. Ratnapura, 4,065.
Partition—Mortgage of undivided shore—Sale of mortgagor's interestin execution to third party—Partition action—Share allottedto purchaser.—Does the mortgage attach to Die share—Ordinance tNo, 10 of m3, V. 12.
A co-owner mortgaged his undivided share of a 'land, which wassubsequently sold in execution against him and bought by a (birdparty, who intervened and was allotted the share in a partitionaction, to which neither the mortgagor nor mortgagee was party.
Held, that it was not necessary for the mortgagee to haveintervened in the partition action to preserve his rights) and thatunder section 12 of the Partition Ordinance the mortgage attachedto the divided portion allotted to the purchaser in execution.
A
PPEAL from a judgment of the Distirct Judge of Ratna- .
pura. Action by the plaintiff on a mortgage bond dated
January 7, 1936, by which the first defendant mortgaged theundivided share oi a certain land to him. The mortgage wasregistered on August 12, 1916. In execution in case No. 32,025,
C. Colombo, the mortgagor’s interests were sold on June30, 1916, and purchased by J. B. M. Pereira, who obtained aFiscal's transfer on June 22, 1§18. He sold his interest to thesecond defendant. In the meanwhile a partition action had beeninstituted in respect of the; land, and the share which belonged tothe first defendant had been allotted to J. B. M. Pereira, neitherthe plaintiff nor the first defendant being parties to the action.The learned District Judge held that the non-intervention of theplaintiff in the partition -action extinguished his mortgage.
E. G. P. Jayaiillel'a (with him Weerasuriya), for plaintiff,appellant.—If the judgment is correct, then the mortgagor bytransferring his rights immediately after the mortgage' can getrid of the burden on the undivided share.
This would be adding one more hardship on the mortgagee.
A correct construction of section 12 would give relief to allmortgagees, whether of the whole land or any share or interest rtherein; these encumbrances should attach to the portion allottedin severalty. Mortgagor includes any person claimipg under him.
In the construction of section 12 I would draw the attention of •the Court to a dictum of Berti'am C.J. in Colombo Stores, Ltd., v.Silva1 on the effect of a proviso.
1 (1924) 26 N. L. R. 185.
1925.
AbdulHamid-u v.Pertrrt
( 4M )
Counsel cited Sidambarain Chetiij v. Perera1 and Silva v.Wijesinghe.2
H. T Perera (with him Fraud« de Zoysa), for respondent.—The case Sidambaram Chetty v. Perera (supra) is exactly in point,and the trend of the decisions is to create a distinction betweenmortgages of the whole land and a share -of the land (Silva v.,Wrjesinghe (supra) ).
Mortgagees always take certain risks, and this is one of them.Either the mortgagor or the mortgagee should have intervened inthe partition action to conserve their rights. If that is not done,the land is rid of the encumbrance.
The proviso to section 12 throws much light on the constructionof the words in the substantive section. There is a distinctioncreated between a mortgage of the land ” and “ mortgage of anundivided share of the land. "
Muv 8, 1925. ExxisA.C.J.—
This is an action by a mortgagee. It appears that on a mortgagebond No. 4,190 of January 7, 1916, the first defendant mortgagedan undivided sjhare of a certain land to the plaintiff. That mortgagewas registered on August 12, 1916. On May 29, 1916, the landwas seized in execution* in case No. 32,825, D. C., Colombo. Theseizure was registered on June 2, 1916, and the sale was on June30, 1916. The mortgagor’s interests were purchased by J. B. M.Pereira, who obtained a Fiscal’s transfer on June 22, 1918. Hesold his interests on November 1, 1922, to the second defendant.But before doing so a partition action in respect of the land hadbeen brought to a conclusion on March 20, 1919. The first defend-ant in the present case was not a party to that partition action,and the share which originally belonged to him in the land wasallotted to J.. B. M. Pereira. A number of issues were framed, andthe learned Judge held that the non-intervention of the plaintiffin the partition action was fatal to his claim in this case, becausehis mortgagor, the first defendant, was no party to the partitionaction.
On appeal, practically; the only matter for consideration is theeffect of section 12 of the Partition Ordinance, No. 10 of 1863. Thesubstantive part of that enactment is quite clear. It is: “ Nothingin this Ordinance contained shall affect the right of any mortgagee.The only qualification of mortgagees contained in the section isin the concluding words, ** of the land which is the subject ofthe partition or sale. ” It has been suggested in some cases thatthis rule applies only to mortgagees of the whole land, and thatit could not apply to preserve the rights of a mortgagee of a divided1 {1922) 24 y. L. R. 214.2 {1917) 20 N. L. JR. 147.
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interest in the land. I ;un quite unable to entertain this argument,because the section goes on with a proviso dealing with the rightsof mortgagees of undivided shares. The ordinary rule with regardto provisos in any section is that the proviso deals with a matter,which but for the proviso would be covered by the substantiveenactment. A proviso does not introduce new matter. It qualifiesthe substantive words of the enactment, and does not introducesubstantive legislation for matters not covered by the precedingwords. That being so, the very fact that the proviso in this sectiondeals with the position of mortgagees of undivided shares showsconclusively that the rule itself covers any mortgagee of the land.That being so, the partition action would not affect the rights ofthe mortgagee.
The cases of Silva r. Wijcs'nujhc (supra) and Si dam bar am- Chcttij r.Petera (svpra) have been cited. In the first of those cases we find thefirst suggestion that the rule enunciated by section 12 applies to amortgage of the whole land only. That suggestion was not acceptedby Wood Benton’ C.J. in his judgment, although he said that In*was disposed to agree with it. Wood Benton (.J. went further,and said that the interest of the mortgagee attaches to the shareallotted in severalty to his mortgagor or “ to some one claimingunder him, ** and lie drew attention to the subsequent use in theproviso of the word “ owner *’ as tending to show that the ownerneed not necessarily be the mortgagor. In the second of those casesthe facts were somewhat peculiar. In that ease the mortgagorhad mortgaged a divided share in a certain land. The mortgagor,in fact, owned an undivided share in the whole land, and on partitionsome difficulty was experienced in defining the rights of a mortgageein such circumstances in the land in severalty, which was allottedto a person who was not the original mortgagor. In both thosecases the effect of the word “ provided ” found in the section underreference does not appear to have been brought to the notice ofthe Court. I am, therefore, of opinion that the interests of themortgagee in the present case were preserved by section 12 of thePartition Ordinance, and that the plaintiff is, therefore, entitledto succeed.
We have been asked to allow a new issue to be framed raisingthe question as to whether the mortgage in question was a genuineone. But I see no reason at this stage of the Tease to raise anissue which would require entirely fresh evidence and be in fact-n totally different case. In the circumstances I would allow theappeal, with costs.
Jayewardexe A.J.—
. In this case questions are raised with regard to the constructionof section 12 of the Partition Ordinance. In the first place, itis contended that the main provision applies only to mortgages of
1925.
Exxis A.C.J'
AbdulBatnMu v.
( 436 )
ms.
Jayewar-DENE A,J.
AbdulHanvidu v.Perera
an entire land and not to mortgages of undivided shares of aland.- In the second place, it is contended that the proviso onlyapplies where in the decree a divided share is allotted to the mort-gagor himself, and if the mortgagor has before action divestedhimself of his rights in the land in favour of a third party, and ifthat third party has been allotted a share which the mortgagorhad mortgaged, the mortgagee’s rights are entirely wiped out.
In support of the first contention counsel for the respondenthas relied upon certain Observations made in the case of Silva v.Wijeeinghe (supra) by De Sampayo J., with which Wood Benton C.J.was inclined to agree. The learned Judge by reading, the mainprovision in the light of the proviso has come to the conclusionthat it is impossible to read that provision as having any appli-cation to a mortgage of an undivided share. I am unable to*agree with this construction, for it seems to me that the use ofthe word “ any M indicates the inclusion of every kind ofmortgage, that is, whether the mortgage be of the entire land grof an. undivided share of the land, and whether the mortgage bea primary or secondary mortgage, or of a right of superficies or ofa life interest in the land. “ Any ” when used in statutes excludeslimitation or qualification of any kind whatsoever, and to limit themain provision to mortgages of the entire land would be, in myopinion, to violate one of the well-known canons of construction, thata proviso cannot be used for the purpose of restricting the use of thelanguage in the main provision. In this connection I would referto the judgment cited by Bertram C.J. in the case of Colombo Stores,Ltd., v. Silva (supra), where he quoted a passage from the judgment ofLord Herschell in The West Derby Union v. The Metropolitan LifeAssurance Society1 to the following effect: “I decline to read into anyenactment words which are not to be found there, and which alterits operative effect because of provisions to be found in any proviso. ”In my opinion, therefore, the main provision cannot be controlledby the provision in the proviso, and, as I said, by the use of theword. “ any ” every kind of mortgage is intended to be included inthe main provision. I may mention that the observations ofDe Sampayo J. were not really necessary for the decision of thecase of Silva v. Wijesinghe (supra).
As regards the second contention, learned counsel for therespondent relies upon certain dicta to be found in the case of Sidam-haram Chetty v. Perera (supra). These observations there were alsonot necessary for the decision of that case, and I do not find from theargument that counsel argued the question before the Court. Itseems to me that the word “ mortgagor ” in the proviso must betaken as including a mortgagor and'.his successors in title; other'wise the consequences would be most disastrous, because a personhas only to mortgage his rights and then transfer them, and if the
1 {1897) A. C. $47.
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transferee becomes a party to a partition action and is allottedthat share, he would get that share free from the mortgage, unlessthe mortgagee has intervened in the action. I think, if thecontention of learned counsel is to be given effect to, a provisowhich was intended to protect the interests of mortgagees, wouldresult in the destruction of those rights. The view which Ihate expressed was, I think, indicated by Wood Benton C.J. inthe case of Sidambaram Chetty v. Pereta (supra), that the term“ mortgagor ” included a mortgagor and those deriving title fromhim. With all respect to the learned Judges who decided in acontrary sense, I may say that my own opinion is that section12 and its proviso were intended to safeguard the interests ofmortgagees, whether they were mortgagees of the entire land orwhether they were mortgagees of an undivided share, and whetherthat undivided share remained in the hands of the mortgagor orhad passed into the hands of third parties who took it subject tothe mortgage.
There was another point raised in the case on behalf of theappellant, viz., that the learned Judge was wrong in holding thata mortgage which was executed prior to the seizure and its regis-tration was void, in view of the fact that the mortgage had notbeen registered until after the ' registration $f the seizure. Thecase of Mohotte v. Dissanayaka1 shows that section 287 of the CivilProcedure Code does not affect with nullity any mortgage or alien-ation executed prior to the. seizure and registered subsequent ‘tothe registration of the seizure. In view of this decision learnedcounsel for the respondent has not supported the judgment of thelearned District Judge on this ground. The judgment in .Moh&ttev. Dissanayaka (supra) is a judgment of two Judges, and I do notthink that its correctness can be questioned. I agree, therefore., •with my Lord the Acting Chief Justice in allowing the appeal, withcoste, in both courts.’
Appeal allowed.
Idas.
Jayewar*DENE AX
AbdulHamidn v.Perera