058-NLR-NLR-V-24-DON-DAVITH-v.-DON-DAVITH.pdf
( )Present ; Ennis and Porter JJ.
DON DAVITH v. DON DAVITH.
317—D. C. Matara, 9,524-H. F.
Mortgage by widow and son for paging of husband's debts—Action hymortgagee—Noregistrationoflis peudens—Purchaseunder
mortgage decree by defendant—Half land sold on a writ againstwidow and purchased by plaintiff. .
It, (be widow (administratrix) of W, and her son mortgaged inAugust, 1910, the whole of the land in question to P, fat the purposeof paying the debts of W (husband). P put (he bond in suit inOctober, 1919, and without registering the He pendens obtainedjudgment, andunder thesale under the mortgagedecree
defendant purchased the land and obtained a Fiscal’s transferin September, 1990. Under writ issued against L in C. B. Tangalla,9J.67, half of the land was seized, and plaintiff purchased atFiscal’ssale inMarch,1920, and obtained FiscaVs transferin
July, 1920.
Heidi that plaintiff purchased the land subject to the mortgage.
" At the timeoftheinstitution of the mortgage action,the
plaintiffhad notitle andconld not be made a party; butthe
mortgagee failed to register the lis pendens, and by section 27 (a) (1)of the Land Registration Ordinance, 1891, as amended by OrdinanceNo. 29 of 1917, the failure of the mortgagee to register bis actionleft theplaintifffree topurchase without being affected bythe
action. The plaintiff completed his purchase in July, 1920, andthe defendant did not acquire any title to the land until September,
A new position, therefore,. appears to be created, which is not. covered by the case of Suppramaniam Chetly v. Weerasekera 1 whichdecided that a mortgagee could have but one action on the bond.The Ordinance which says that the purchaser -is not bound by anyunregistered Us pendens enables a person to acquire title who couldnot possibly be made a party to the conclusive mortgage decreereferred to in the case of Suppramaniam Chetty c. Weerasekera{supra).
HE facts are set out in the following judgment of the DistrictJudge (C. W. Biekmore, Esq.): —
About June, 1919, plaintiff sued one Lokuhamy in her representativecapacity in C. B. 9,187, Tangalla, and got a decree by default on August22, 1919. Writ was taken out in November, 1919, and property seizedon December 2, 1919. On February 5,. 1920, the Fiscal returned thewrit for extension, and on the extended writ the property was sold onMarch 5, 1920. Fiscal’s transfer (PS) was issued on July 10, 1920, andregistered on July 12, 1920. Meanwhile, another chain of title had been.accruing. On May 7, 1916, Lokuhamy and Bainis (her son) made anote in favour of Davit Appu for Bs. 100, reciting the necessity for
1922.
1 {1919) 20 N. L. H. 170.
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1922.
Do» DavithV.
Don Davith
money in connection with the testamentary ease No. 2,283 and pro-mising to executea bond. On May0,1916, Bainia paid a sum of
Ns. 281 into Court ihcase No. 1,766—not2,233, beitremarked—
Thereafter Ijokuhamy made several attemptsto inducethe Court to
grant her permission to soil or mortgage properties, but without success.and meanwhile onAugust .17, 1916,shegave onePodihamy the bond
Dl. She did thiswithout the authorityof Court,she does not recite
in it that she makes it in her representative capacity, but she says theproperty belongs to her by virtue of testamentary case No. 2,283.
On f October 14, 1919,as suit was broughton the bondNo. 10,843,
and on writ dated January 6, 1920, the property was Bold to defendant.He obtained a Fiscal's transfer dated September 9, 1920, and registeredit on September 22, 1920.
I might note that defendant's land was registered on August 24, 1916,and also that heattended the saleonplaintiff’swrit and bid for the'
property (P4). Plaintiffsays that the bondwas onlytobind Loku-
hamy's share of the estate, and he adds that in 10,843, she was not suedin her representative capacity. He points out that the amount of thebond is very small for such a valuable property.
Defendant, on the other hand, says that the surviving spouse, whenthe parties are married in community, has the right to sell or encumberthe property of the community to pay the debts.
On this point it seems to me doubtful whether Lokuhamy, who hadapplied for leave of Court, was justified in dispensing with that leave.Furthermore, the bond was given to repay a loan on the note D 3.
Now, although that document says the object of raising the moneywas to defray expenses connected with D. C. 2,283, the money wasactually expended for a very different purpose, namely, to pay for landspurchased in D. C. 1,766.
therefore answer issues 6 and 7 against defendant.
1 will answer now the various incidental questions which have ariseu,and thereafter turn to the main points of importance.
Issue 4 raises the question whether plaintiff is estopped by his failureto bring a section 247 action on his claim in 10,843 having been rejected.'There was no decision on the claim—it was rejected as coming too late—and I think there is ample authority for holding that a claim rejectedin this way is tantamount to no claim having. becu made.
– Again on issue 1 (i>) I think it is quite clear that a frerii seizure onplaintiff's re-issued -writ was not necessary. I notice that the Fiscal inhis transfer recites that he sold by virtue of a writ dated November <-11,1919. He returned the writ for an extension to sell property seized,and I think it would have been oppressive and unnecessary to expecthim to go through the formal process of a second seizure.
We come now to the crux of the -case, unfortunately we are onlytoo familiar by now with the position created by the person who firstmortgages to one person and then mortgages or sells to another.
In order to protect the mortgagee there is provision in sections 643and 644 for the registration of addresses, and I think it is now pretty. well settled that a mortgagee, who does not avail himself of this pro-tection, loses his rights against a puisne incumbrancer not joined in hismortgage action.
On the other hand, however, sections 648 and 644 dearly do not coverthe whole ground. A pniane Incumbrance may be created after theinstitution of the mortgage case, and this iB what has happened in the
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present- instance. Obviously such an incumbrancer could not bejoined in the mortgage case as he did not exist at the time it erasinstituted.
However,- still in order to protect the mortgagee, there, was thedoctrine of lie pendens by which a purchaser, Ute pendents, was pushedout.
Unfortunately for defendant in this case, this doctrine of lie pendenswas productive of so much fruitless legal .discussion and hardship toinnocent purchasers that by Ordinance No. 29 of 1917 it was enacted thatno Us pendens should affect a purchaser unless it was registered.
Defendant in this case did not register his lie pendens, and the sale'to plaintiff, pendente Ute, was therefore valid.
The only remaining point is the question how the death of the debtorLofeubamy affects the validity of the respective transfers.
The decision of the Appeal Court in Jttan e. Fernando1 is fatal todefendant *8 case on this point.
He says Iudcuhamy died in January—hiB writ is only dated Januaryd. He has not proved that she was alive when seizure took place—andhis transfer is therefore a nullity.
On the other hand, I think it is to be gathered from the decision abovequoted that a seizure before the death of the debtor brings the property“ in custodia curue," and that plaintiff’s seizure in December, beforethe debtor's death, is therefore good.
I think I have now answered all the complicated- questions raised bythis case, and all of them substantially in plaintiff's favour.
Judgment for plaintiff with damages as agreed, and costs.
A, St. V. Jayawardene, K.C. (with him Soertsz and Weerasooriya),for defendant, appellant.
Hayley (with him Siritoardene), for plaintiff, respondent.
March 14, 1922. Ennis J.—
This was an action for a declaration of title to .a half share of acertain land. The defendant claimed the whole land, and theplaintiff obtained judgment. The defendant appeals against thatjudgment. The whole of the land originally belonged to one D.D.Wickremasingha who was married in community of property toLokuhamy. Wickremasinha died, and Lokuhamy, as widow, tookout administration to his estate in case No. 2,283 in the DistrictCourt of Matara. In the Court of Bequests case No. 9,18? half ofthe land was seized in the hand of Lokuhamy, and on a writ inexecution it was purchased by the plaintiff on March 5, 1920. Theseizure in that action yeas on December 2, 1919, and was duly regis-tered. It appears, however, that prior to that action Lokuhamy hadon August 17, 1916, mortgaged the whole of the land to one Podi-hamy for the purpose of paying her husband's debts. Her son alsojoined in this mortgage. Podiharoy put the bond in suit and theland was sold by the Fiscal and purchased by the defendant who
1 (1916} 18 N. L. B. Ids.
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Don Davithv.
Don Davith
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1W.
Gmnis J.
Don Davithv.
Don Davith
obtained a Fiscal’s transfer on September 9, 1920, which wasregistered on September 22, 1920.1 omitted to say that the plain-
tiff's Fiscal’s transfer was dated July 10, 1920. The mortgage actionwas instituted on October 14, 1019. It is clear, therefore, that at thetime of the institution of the mortgage action the plaintiff had notitle, and could not be made a party, but the mortgagee failed toregister the Its pendens, and by section 27 (a) (1) of the Land Regis-tration Ordinance, 1891, as amended by Ordinance No. 29 of 1917,the failure of the mortgagee to register his action left the plaintifffree to purchase without being affected by the action. The plain-tiff completed his purchase on July 10, 1920, and the defendantdid not acquire any title to the land until September 9, 1920,namely, after the plaintiff had acquired -title. A new position there-fore appears to be created which is not covered by the case ofBuppramdniam Chetty v. Weerasekera (supra), which decided thata mortgagee could have but one action on his bond, an actionagainst all those entitled to notice at the time of the institutionof the suit. The Ordinance which says that the purchaser isnot bound by any unregistered Its pendens enables a person toacquire title who could not possibly be made a party to theconclusive mortgage action referred to in the case of Suppra-maniarn Chetty v. Weerasekera (supra). The plaintiff in this case,therefore, it would seem, has purchased a land subject to amortgage.. The facts in the ease are very meagre, and thedefendant has not made any claim on the basis of this position. Itmay be that he cannot make any such claim, but the question hasnot been gone in to or considered. . 1 would accordingly dismissthe appeal, but reserve to the defendant any rights which mayremain to him under the mortgage of August 17, "1916. There isone other point in the case which 1 may as well refer to. It wasasserted by the respondent that the administratrix had no right tomortgage the property, as she could not do so without the leaveof the Court, and she had twice applied for leave and had beenrefused. It would seem, however, so far as the record tells us,that the mortgage of August 17, 1916, preceded an application to theCourt for l^ave to sell, and the application to the Court for leave tosell, related to other lands. Moreover, the record makes it clear thatthe money raised by the mortgage was used for the payment of a debtdue to Wikremasinha's estate, for the inventory of that estate liasbeen filed, and it discloses the debt due in respect of action No. 1,760,the action referred to by the learned Judge as that for which themoney raised on mortgage was spent. It would seem then that theadministratrix had a right to mortgage the property so far as thefacts in the present case. go. The respondent is entitled to the costaof the appeal and in the Court below.
Porter J.—I agree.
Appeal dismissed.