055-NLR-NLR-V-16-ELYATAMBY-v.-VALLIAMMAI-et-al.pdf
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IMS.
Present: Lascelles C.J, and Wood Eenton J.
*
ELYATAMBY v. YALLIAMMAI et al
222—D. C. Jaffna, 7,995.
Mortgage of an undivided share—Mortgagee not registering address andnot making puisne incumbrancer a party to mortgage action—Subsequent action for partition—Mortgagee not entitled to a decla-ration that the share mortgaged is subject to the mortgage—CivilProcedure Code, ss. 643 and 644—TTtilis impensa.
Compliance by a mortgagee with the requirements of sections643 and 644 of the Civil Procedure Code is a condition precedentto a puisne incumbrancer being made bound either directly orindirectly by the decree in the mortgage action.
A mortgagee of an undivided share did not register his mortgageor his address, in accordance with section 643, Civil ProcedureCode, and did not make the person to whom the mortgagor hadsubsequently gifted the land by an unregistered deed a party to the
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mortgage action. Under his decree the mortgagee himselfpurchased the land. Thereafter a co-owner brought an action forpartition, said the mortgagee asked for a declaration that the titleof the subsequent donee was subject to his mortgage.
Held, that the title of the subsequent donee was not subjectto the mortgage.
Wood Bhnton J.—The appellant’s (puisne incumbrancer’s)deed was admittedly not registered, but there would be no obli-gation on her part to register it in any competition between it andthe respondent’s mortgage deed, unless the mortgagee had bothregistered that deed and provided the Registrar of Lands with anaddress to which puisne incumbrancers might send notices oftheir incumbrances.
1918.
Elyatambp
VaUiammti
T
Hk facts material to this report are set out in the followingextract from the judgment of the District Judge:—
Now I come to the most important point in dispute, viz*, the titleto the 25 lachams which belonged to Pohnachchi. She downed to herdaughter Valliammai 24 lachams out of this. She had previouslymortgaged the 25 lachams to the second defendant. On the same daythe dowry deed was executed the 24 lachams were sold to the seconddefendant by Valliammai; and second defendant considered that themortgage bond given in his favour by Ponnachchi was discharged bythe sale by Valliammai. There was litigation, and it was held thatthe deed by Valliammai in favour of . second defendant was invalid.Thereupon second defendant sued Ponnachchi on the mortgage bondgranted by her, and obtaining judgment sold up the 25 lachams andpurchased them by Fiscal's conveyance dated March 25 last. In thehypothecary action Valliammai was not made a party. The questionfor decision is whether Valliammai is not entitled to 24 lachams out of25 lachams by the dowry deed in her favour. The dowry deed wasexecuted in contemplation of future marriage, but the marriage hasnot taken place. Therefore, it appears to me that the dowry deed mustbe regarded as a settlement or a donation. It was urged that this so- .called dowry deed is of no effect, because it has not been accepted by acompetent person on behalf of Valliammai. Valliammai herself hassigned this deed, and I have to hold, following the decision imported in.,II N. L. R. 282, that Valliammai by signing the deed duly acceptedthe donation. The question as to whether a minor by signing a donationdeed could accept it effectually has not been specifically dealt within any other case but this. The decision in this case is, therefore,binding on this point. Therefore, I must hold that Valliammai, thefirst defendant, is entitled to 24 lachams, subject to the mortgage infavour of the second defendant, and that the second defendant isentitled to the balance 1 lacham.
The first defendant appealed.
A. 8t. V. Jayewardene, for the first defendant, appellant.—Thesecond defendant did not register his mortgage bond and his address,and did not make the first defendant (to whom the land was givenby way of dowry by the mortgagor) a party to the mortgage action.He cannot now ask for a declaration that the land is Subject to the.
1013.
Elyatamby
*.
FaUiaminai
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mortgage. The second defendant did not follow the procedurelaid down in sections 648 and 644 of the Civil Procedure Code. Hecannot get over the consequences of his failure by getting the Courtin this partition action to declare that the first defendant’s title wassubject to the mortgage. Counsel cited Bamanathan Chetty v.Cassim,1 Pieris v. Weeraeinghe2
Balasingham, for the plaintiff, respondent.—The point argueddoes not affect the plaintiff’s title.
E. W. Jayewardene, for the second defendant, respondent—Penisv. Weerasvnghe 2 does not apply to the facts of this case,as the seconddefendant does not seek for a declaration of title to the landmortgaged.
The appellant himself did not register his mortgage or address,and he cannot take advantage of the first defendant’s failure tocomply with the provisions of sections 643 and 644 of the CriminalProcedure Code.
The mortgage debt must be regarded in the circumstances asutilis imyensa. The property was undoubtedly burdened with themortgage when the first defendant acquired title, and he shouldnot be permitted to gain at the expense of the second defendant.The mortgage is not extinguished. Silva, v. Silva 3 applies to thefacts of this case..
Counsel cited 'Nicholas de Silva v. Shaik ~AliyA Bowel v. Jaya-;wardens,5 Hanniffa v. Silva.6
A. St. V. Jayewardene, in reply.
Cur. adv. vult.
March 20, 1918. Wood Benton J.—
The contest between the appellant and the respondent, in so faras this appeal is concerned, relates to an extent of 24.1achams of theland described in the plaint. Ponnachchi, the original owner ofthe share in question, mortgaged it to the respondent by deedNo. 837 of August 7, 1905, and subsequently gifted it by dowrydeed of September 8, 1906, to her daughter Valliammai, the appel-lant. The respondent put the mortgage bond in suit, obtained•decree, and purchased the share on Fiscal’s transfer D 4 datedMarch 25, 1912. The appellant’s dowry deed was admittedly notregistered, but there would, of course, be no obligation on her toregister it in any competition between it and the respondent'smortgage deed, unless the mortgagee had both registered that deed•and provided the Registrar of Lands with an address to which,puisne incumbrancers might send notices of their incumbrances.
* (189$) 1 N. L. R. 228.
» (191$) 14 N. L. R. 47.
'• (1912) 15 N. L. R. 362, at page 365.
i (1911) 14 N. L. R. 177.■* (190619 N. L. R. 359.* (1909) 13. N. L. R. 33.
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There was nothing on the face of the record, when the case firstoame before us in appeal, to show whether or not the respondenthad complied with the conditions precedent imposed upon him bysection 648 of the Civil Procedure Code. Accordingly we allowedhim an opportunity of satisfying us by affidavit, if he jvas in* aposition to do so, that the conditions precedent just referred to had,in fact, been complied with. It now appears that the respondentis not in a position to furnish! this proof, and we have, therefore, toconsider whether, in that state of the facts, the learned DistrictJudge, in declaring the appellant entitled to the 24 lachams inquestion under the dowry deed, was right in making that declarationof title subject to the mortgage in favour of the respondent. Inmy opinion he was not. The case is governed by the ratio decidendiin Peine v. Weerasinghe,x and by the interpretation placed by thatdecision on sections 643 and 644 of the Civil Procedure Code. Itis true that in Perns v. Weerasinghe 1 the mortgagee claimed adeclaration of title to the land in suit, whereas the respondent'scounsel at the argument before us was content to claim only that. the payment by him of the mortgage debt should be treated by theCourt as a utilis vmpenea. We can, however, in my opinion, giveeffect to Peine v. Weerasinghe,x and to the spirit of sections 643 and644 of the Civil Procedure Code, only if we hold that compliance bythe mortgagee with the requirements of those sections is a conditionprecedent to a puisne incumbrancer being bound either directly orindirectly by the decree in the mortgage action.
I would set aside so much of the judgment of the Court belowas declares the 24 lachams found to be the property of the appellantto be subject to the mortgage in favour of the respondent. Theappellant is entitled to the costs of contention in connection withthat issue in the District Court, and to the costs of this appeal asagainst the present respondent.
1918.
WoodBenton J.
Elyolotnbg
v,
VaUiammci
Lascelles C.J.—
The quesion for decision is whether the District Judge was rightin holding that the first defendant-appellant’s (Valliammai’s) titleto 24 lachams is subject to the mortgage in favour of the seconddefendant. It appears that the second defendant had neitherregistered his mortgage deed nor furnished the Registrar or Landswith an address, in accordance with section 643 of the Civil ProcedureCode. This being so, the first defendant-appellant was deprivedof ‘the opportunity which section 644 allowed her of being joined asa defendant in the. mortgage action, and she is not bound by themortgage decree {Petris v. Weerasinghe 1).
Then it was argued that the principle of utilis impensae came in,and that the first defendant-respondent should not be allowed
* (1906) 9 N. L. R. 369.
1918.
LtASOEU^ES
OX
Blyatamby
v,
Vdlliammai
t 214 )
to profit by the property being discharged from the mortgage atthe -respondent's expense. But to allow the application of thisprinciple would be to nullify the procedure laid down by the Code.
If the respondent had registered his mortgage and furnished hisaddress in accordance with section 643, the appellant would havebeen bound by the mortgage decree. But the respondent hasfailed to make use of the means which the Code has provided forhis protection. I do not think that there is any real analogybetween the present case, where the mortgagee has allowed apuisne incumbrancer to slip in by neglecting to comply with therequirements of the Code and cases such as Silva v. SUva,1 wherethe mortgage was invalidated on other grounds.
I would vary the judgment by declaring that the 24 lachamsfound to be the property of the appellant are not subject to themortgage. The appellant is entitled to the costs of that issue inthe District Court and to the costs of this appeal.
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Appeal allowed.