115-NLR-NLR-V-43-AIYATHURAI-v.-THURAISINGHAM-et-al.pdf
477
HOWARD C.J.—Aiyathurai v. Thuraisingham.
1942Present: Howard C.J. and Soertsz J.
AIYATHURAI v. THURAISINGHAM et al.
24—D. C. Jaffna, 22,284.
Conveyance in' mortgage action—-Sale of undivided shares in mortgagedproperty—Partition action pending sale—Allotment of divided portionsto mortgagors—Application by purchaser for writ of possession—Recti-fication of deed.
In execution of a mortgage decree, the appellant purchased the propertymortgaged, an undivided 2/5 share of a land, and a conveyance wasexecuted by the Commissioner in favour of the appellant on November 5.1940.
While the mortgage action was pending an action was instituted topartition the land mortgaged, to which the mortgagors were parties. Inthe final decree entered on August 29, 1940, a year after the sale of theland to the plaintiff, certain divided lots were allotted to the mortgagorsin lieu of their undivided shares, subject to the decree entered in themortgage action.
On February 6, 1941, the appellant moved the District Court to issuewrit to the Fiscal to deliver the divided lots to the appellant. Therespondents, the mortgagors, opposed the application.
Held, that the*appellant was entitled to have his conveyance rectifiedby the substitution of the divided lot's in place of the undivided sharesand to an order for the delivery of the said divided lots to. him.
Markar v. Siman (1 Matara Cases-9) followed.
Mudalihamy v. Appuhamy (36 N. L. R. 33) distinguished.
^PPEAL from an order of the District Judge of Jaffna.
H. V. Perera, K.C. (with him S. Saravanamuttu), for the purchaser,appellant.
No appearance for the respondent.
Cur. adv. vult.
June 29, 1942. Howard C.J.—
This is an appeal from an order of the Additional District Judge ofJaffna, dismissing an application by the appellant, the purchaser, under a.mortgage decree entered in the case to have his conveyance rectifiedby the substitution of divided lots in lieu of undivided lots of the landsold. A certain P. Sinnatamby Aiyathurai, the assignee and substitutedplaintiff in the case, was entitled to all rights and title and interest in a43/34
478HOWARD C.J.—Aiyathurai i>. Thuraisingham.
•r.ortgage decree obtained by the original plaintiff in respect of anundivided two-fifth share of certain land belonging to the respondents.On October 14, 1939, on a commission issued by the District Court ofJaffna in execution of the said decree, the said two-fifth share belongingto the respondents was sold by the Commissioner to the appellants. Onapplication made to the District Court to have the sale confirmed, anobjection taken to such confirmation was raised by the respondents andthe sale was set aside. On appeal to the Supreme Court the order of thelower Court was set aside and the sale confirmed on October 30, 1940.A commissioner’s conveyance, dated November 5, 1940, was executedin favour of the appellant. Whilst the mortgage action was pending,esse No. 11,072 of the District Court of Jaffna was filed to partition the'..said land amongst the various co-owners. In that action, the first andsecond defendants, were the respondents in this appeal. The finalpartition decree was entered on August 29, 1940, about a year after thesale of the two-fifth share in the land to the appellant. By the saidpartition decree, lots 4 and 5 were allotted to the respondents, subjectto the mortgage decree in favour of the said P. Sinnetamby Aiyathurai,the mortgage decree holder, in lieu of their undivided two-fifth share.On February 6, 1941, the appellant moved the District Court to issuewrit to the Fiscal to deliver possession of lots 4 and 5 to the appellant.The respondents objected to the delivery of possession of the entirety oflots 4 and 5 and contended that possession could be given of only two-fifth share of the said lots. On September 4, 1941, the appellant movedthe District Court that an endorsement might be made on the saidconveyance, substituting the words, “ lots 4 and 5 according to FinalPartition Plan in case No. 11,072 of the District Court of Jaffna ”, in placeof “ an undivided two-fifth share of the land ”. The appellant furthermoved that after the said endorsement the writ should be re-issued to thefiscal to deliver possession of the said lots 4 and 5 to the appellant.
In refusing the application of the appellant, the learned Judge seemsto have arrived at the conclusion he did on the ground (a) that inasmuchas the Supreme Court had not confirmed the sale of divided lots, it wasnot competent for the District Court to make the amendments desired■ and (b) that the matter in issue was set at rest by the case of Mudalihamyv. Appuhamy In that ca'se .the plaintiff took on mortgage an undividedtwo-third share of two contiguous fields in October, 1927. In January,1930, the defendant brought a partition action, treating the two fieldsas one corpus. Final decree was entered in the action, declaring theplaintiff’s mortgagor entitled to a half share only of the fields and lot A wasallotted to her. In January, 1931, the plaintiff put his bond in suit andpurchased the undivided shares mortgaged to him at the sale in executionof his decree, obtaining a Fiscal’s transfer, dated January 25, 1932.Prior to that date the defendant took out writ against the plaintiff’s' mortgagor for pro rata costs due to him and became the purchaser of lot A,obtaining Fiscal’s transfer, dated April 17, 1931, in his favour. It washeld by Dalton J. and Maartensz A.J. -that (in an action brought by theplaintiff for declaration of title to lot A) he was entitled to two-third share•of the lot.. The plaintiff in this case,' before he obtained the decree in the
1 36 X. T.. R. 33..
HOWARD C.J.—Aiyathurai V. Thuraisingham.47 >
mortgage action, was fully aware that the land had been partitioned andthat his mortgagor’s interest at the time when he put the bond in suit wasnot an undivided two-third share but only an undivided half share in thelands. This fact, to my mind, is in itself sufficient to distinguish the caseof Mudalikamy v. Appuhamy (supra) from the present case, where theappellant purchased the undivided share of the respondent on October 14,1939, at a time when their interests were undivided shares and about ayear before decree was entered in the partition action. Moreover, anotherdistinction in the facts of the two cases arises from the fact that in thepresent case it is the mortgagors in the mortgage action who are disputingthe right of the appellant, the purchaser at the sale, to take the interestsallocated to them by the partition action, whereas in Mudalihamy v-.Appuhamy (supra) it was a third party, namely, the plaintiff in thepartition action, who was claiming the property in order to recover fromthe mortgagor her pro rata share of the costs in that action. For thereasons I have given, I have come to the conclusion that Mudalihamy v.Appuhamy (supra) has no application and was wrongly applied by thelearned Judge to the facts of the present case.fi_.
The appellant, both in this Court and in the District CQurt, has reliedon the case of Markar v. SimanThe facts in this case were as follows.A certain Don Siman was a party to a partition, suit in respect of land, onthree-fourth of which a mortgage had been created in favour of theplaintiff. On June 8, 1888, it was adjudged that Don Siman was entitledto an undivided half of the said land and no more. In July, 1888, theplaintiff obtained a decree against Don Siman and under the writ inexecution of the said decree purchased, in September, 1888, an undividedhalf share of the land in question. Subsequent to this judicial sale theland was partitioned and on May 17, 1889, the Court by its decreeconfirmed the apportionment of the western half of the said land as. thesaid Don Siman’s share. On July 11, 1892, the plaintiff obtained aFiscal’s transfer, which purported to convey to him air undivided haifshare of the land in question, such being the nature of the share to whichthe judgment-debtor was at the time of the said auction entitled to.In the course of the partition proceedings, the defendant -had recoveredcosts against the said Don Siman and in execution of the order for costshe took out writ and seized the half of the land which had been apportionedto his debtor, Don Siman. The plaintiff brought an action under section247 of the Civil Procedure Code to establish his right to the western halfof the land which the defendant had seized under his writ. The Court,constituted by Lawrie A.C.J. and Withers J., held that; by virtue ofsection 12 of the Partition Ordinance, the right of a mortgagee is con-served to him with the necessary qualifications attended on theconversion of an undivided into a separate share. It is deemed to beincorporated with the bond and the owner of the allotted share is towarrant and make good to the mortgagee the said several parts after suchpartition as he was bound to do before..- The plaintiff was, therefore,declared to to be entitled, by virtue of the sale under his mortgage decreeand the provisions of section 12 of the Partition Ordinance and nothinghaving occurred to affect the rights of third parties, to the western
» 1 Mataea Cases 9.
480HOWARD C.J.—Aiyathurai v. Thuraising)iam.
half of the land in question. By way of further relief the Court directedthat the decree should be endorsed on the Fiscal’s transfer. The learnedDistrict Judge distinguished the facts of this case from those in the Mataracase on the following grounds : —
The Matara case, deals with a Fiscal’s sale and Fiscal’s transfer.
The question did not arise in that case as to whether a fraction or
the entirety of the lands should be proceeded against.
That case did not decide the particular point raised in this case.
Whilst mortgagees are protected by section 12 of the Partition
Ordinance, such protection does not extend to purchasers atsales.
In the present case, the District Judge on November 9. 1938, issued acommission to one N. Kandiah to sell the two-fifth share of the land inquestion. A commissioner’s conveyance of the two-fifth share wasexecuted in favour of the appellant on November 2-5. 1940. By virtue ofsection 289 of the Civil Procedure Code, a Fiscal's sale subsequentlyconfirmed vests the property in the purchaser from the time of sale andin this respect such a sale differs from a sale by commission. Thisdifference, however, does not in my opinion affect the question at issuein the present, case. The other reasons given by the learned Judge forholding that Markar v. Siman (supra) had no bearing on the presentcase depend on the meaning to be given to section 12 of the PartitionOrdinance. The position of a person who purchases in execution theundivided interests of a party pending partition proceedings, but obtainshis Fiscal’s conveyance after final decree is considered in Ja.yaward.ene onthe Law of Partition in Ceylon on pp. 229-300. The learned author is ofopinion that the purchaser is entitled to the share allotted to the judgment-debtor, but expresses doubt as to how the. Fiscal’s purchaser is to claimthe divided lot on his conveyance for an undivided share. He alsoconsiders that, unless the Fiscal’s conveyance can be altered to a convey-ance for the divided block, the purchaser is in danger of losing his rightsto an alienee from the execution-debtor. In the present case, there is noquestion of an intervention by a third party claiming rights as an alieneeof the execution-debtor.. It is the execution-debtor who is setting uphis own rights against those of the purchaser. Can the purchaser at asale in execution occupy a worse position than a mortgagee ? In thisconnection it must be borne in mind that the mortgagee in Markar v.Siman (supra) was claiming rights as purchaser at the Fiscal’s sale.In my opinion, the facts in this case cannot be distinguished from thosein Markar v. Siman (supra). I am, therefore, of opinion that the appellantis entitled to the relief which he claims. The order of the AdditionalDistrict Judge, dated December 10, 1941, is set aside. It is furtherordered that an -endorsement be made on the commissioner’s conveyance,dated November 25, 1940, substituting “ Lots 4 and 5 ” in place of thewords “ an undivided two-fifth share of the land ’’. The District Courtis. directed to deliver possession of the said lots to the appellant, who isawarded costs in this Court and the District Court.
Soertsz J.—I agree.
Appeal allowed.