059-NLR-NLR-V-21-ARANA-v.-IBRAHIM-LEBBE.pdf
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Present: Ennis J. and Shaw J.
ARANA v. IBRAHIM LEBBE.
286—D. G. Kalutara, 7,289.
Usufructuary mortgage—Right of Mortgagee to proceeds of a mine.
Where thebond creating ausufructuary mortgage did not refer
tomining rights, and where amine was openedafter the execution
of the bond, the mortgagee was held not to be entitled to a share.of the proceeds of the mine.
T
HE facts are set out. in the judgment of the District Judge(Allan Beven, Esq.): —
This is anactionbyplaintiffto' recoverfrom defendantthe sumof
Bs. 1,500, being the balance money due to him for plumbago sold byplaintiff to defendant.
Thedefendantadmits that a sumof Bs. 1,500 wasdue to plaintiff for
plumbago, butstatesheheld ausufructuary mortgage for half the land
from which plumbago was dug, and with the consent of the plaintiffretained that sum as ground share due to him as usufructuary mortgagee.Now,there arefour valuable landsmortgaged for thesum cf Bs. 1,500,
and, according to plaintiff and his witness, this particular land, though aplumbago land, had also coconut, jak, arecanut, breadfruit, &c., sufficientto bring in a yearly income of Bs. 120. It was argued by defendant'scounsel thatthelandbeingprimarilyintended fordiggingfor
plumbago, the usufructuary mortgagee had a right to the ground, share.If this was so, I have no doubt it would have. been so mentioned in themortgage. The- income derived from the produce of the four lands wasmore than sufficient for the interest on Bs. 1,500.
The plaintiffhas proved, by the productionof receipts (P1 to P6),
that he has paid ground share for the plumbago to other co-cwners.If defendant's story is " at all likely, he would have demanded his groundshare every time the plumbago was sold. He admits it was sola fivetimes, but he waited till the final sale to demand his ground share.
I do not think the law allows a. lessee or usufructuary mortgagee theright to dig for minerals or share in the proceeds, unless it is expresslyso stipulated, in the lease or mortgage bond.
Enter judgment for plaintiff as prayed for, with costs.
The mortgage bond was as follows: —
1.—No. 512.
Know all' men by these presents that I, Kurupitage Sodiris Fernanda,of Mahagama, in Gangaboda pattu of Pasdun Korale East, in theDistrict of Kalutara, Western Province,am heldandfirmly boundunto
Ismail Lehbe Marikar Ibrahim LebbeMarikar,of Tunduwa, inGalle
District, in the sum -of Bs. 1,500 lawful money of Ceylon, being for somuch money borrowed and received byme from him at orbeforethe
execution these presents (the receiptwhereof I doherebyadmit' and
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acknowledge), and which said sum of Bs. 1,600 1 do hereby, renouncing1919*
thelegalexception nonnumerates pecunice, engage and bindmyself,Arana v.
myheirs,Ac., to repayunto the said Ismail Lebbe MarikarIbrahimIbrahim
Lebbe Marikar, his heirs, Ac., on demand.Lethe
And as security for the due repayment of the said principal, I do herebymortgage and hypothecate to and . with the said Ismail Lebbe MarikarIbrahim Lebbe Merikar and his afore written, as a primary) mortgagefree from incumbrances the following property, to be possessed by him,the said Ismail Lebbe Marikar Ibrahim Lebbe Marikar, in lieu of interestthereon, to wit :—
And I further engage and bind myself, my heirs,' Ac., for the paymentof any balance sum that may be due and payable under and by virtueof these presents, if the proceeds realized by sale of the premises herebymortgaged be found to be insufficient to cover the above-mentioneddebt.
In witness whereof, Ac.
Signed, witnessed, and attested on April 24, 1914.
Bawa, K. C., for appellant.
Cooray, for respondent.
February 27, 1919. Ennis J.—
The only question in this appeal is. whether the appellant, whois the usufructuary mortgagee, is entitled as such to the revenuesfrom a plumbago mine on the property. The learned Judge heldthat the facts of the case were such that he read the instrument ofmortgage to be one relating to the taking of the agricultural producefrom the soil. He pointed out that the produce of the trees wasmore than sufficient for the interest on the amount of the mortgage,and he concluded by saying that he was not aware that the lawallowed a usufructuary mortgagee the right to dig for mineralsor share in the proceeds, unless it is expressly so stipulated in thebond. No authority has been cited to show that the Judge’s viewis wrong. An English case, County of Gloucester Bank v. RudryMerthyr Steam and House Coal Colliery Company,1 was cited, butthe circumstances were not quite the same, where it was held thatin deciding a question of this sort one had to look to the instrumentand see what was intended. So here the instrument is merelyan ordinary form of a usufructuary mortgage. It is possible thathad there been plumbago mines on the land at the time the instru-ment was given, the mortgagee would have had the right to workthose mines. In the present case, however, there is no evidencethat there was any mine on the property at that time; . All theevidence relates to the plumbago taken from the land after makingof the mortgage. In the circumstances, I see ho reason to interfere,and would dismiss the appeal, with costs.
1 {1895) O. A. 634.
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1919.
Arana v.IbrtihimLebbe
Shaw J.—
I agree. The mortgage deed of' April 27, 1914, does not properlybear the construction that it was a mortgage of mines. Neitherhave the parties to this case ever suggested that such a constructioncould be given to it, or that the defendant was entitled to participatein the proceeds of the mining carried on on behalf of the co-ownersduring the continuance of the mortgage. It is only after themortgage has come to an end, and after the debt due to the defendanton the mortgage has been paid in full, that the defendant has raisedthe present claim. These also appear to me to be another fatalobjection to the defendant’s claim. Had he worked the mine, inmy opinion, he would have had to account for the proceeds of themine and to reduce the mortgage debt due to himself by the profits'he made. As there is no debt due for him to reduce, it appearsto me that he has no claim whatever on the profits derived fromthe mine.
I agree with the order proposed in my brother’s judgment.
Appeal Aismieeed.