Mohideen t>.letsy
On the eighth and ninth issues I hold that the plaintiff was liableto pay rent to defendant only np to the date of sale, and not to dateof dispossession, and that the plaintiff is liable to pay the rent for themonth of December, 1919.
There is no need to deal with the fifth and seventh* issues, in viewof the above findings.
In the result the -plaintiff, is entitled to judgment for the sum ofRs. 2,500, less the snms of Rs. 943.02 and Rs. 280- (rent for December,1919), or to a sum of Rs. 1,276.98 with interest, and costs. Let decreebe entered accordingly.
E. O. P. Jayatileke (with him H. V. Perera and P. C. Fonseka)rfor appellant.
E. W. Jayawardene, for respondent.
August 1, 1922'. Bertram C.J.-—
The facts in this case are simple. The owner of the- propertyfirst of all leased it to the plaintiff. The plaintiff failed to registerthe lease. Within a month of the lease, the owner mortgaged it.Within a year of the mortgage, the mortgagee put his bond in suit,obtained execution, and had the property sold by an auctioneer.Various questions then arise between the lessee and the lessor.There ore only four points which we need consider.. The first isthis: —
When an auction sale takes place in pursuance of a mortgage,from what date is the purchaser entitled to the rent ? The answerappears to be, subject to any special condition in the conditionsof sale, from the date of the execution of the transfer. There isnothing in the Code to correspond with section 298, which wouldmake the purchaser's title relate back to the date of the actualsale. The lessee was consequently bound to pay the lessor hisrent up to that date; in the present case up to February 11, 1920.
The second point is this:—•
Can a lessee who in such a case has failed to register his deed,and is displaced owing to the prior registration of the mortgageclaim, to withhold his rent from his lessor from the moment of thenotice of the sale, on the ground that that notice so disturbed theminds of his subtenants, that he could not get them to pay theirrents to himself ? Clearly *he cannot. A tenant is not dischargedfrom his legal obligations to his landlord by a purely lawful acton the part of that landlord, simply because in consequence of thatact his own subtenants misconceived their own legal positions.
The third point is this: —
Does a covenant by the lessor to pay a sum to his lessee in theevent of his selling the property-, pending a lease, apply to a salein execution of a mortgage bond. I cannot read the words asdoing so. The sale in such a case is not a sale by the lessor, it isa sale by the Court at the instance of the mortgagee.
( 248 )
The fourth and final point is this: —
Has the lessee in such a case, when he is displaced by the priorregistration of the mortgage, a right to claim damages againsthis landlord in respect of that displacement independently of thecovenant above referred to ? In my opinion lie has not. In grantiugthe mortgage the landlord has not been guilty of any breach of hisobligation to the tenant. His obligations are to put the teuantjnto possession, and to do nothing during the tenancy which wouldInterfere with his right of possession. In executing the mortgagehe did not thereby necessarily affect the tenant’s position. Themortgage was subject to the lease, and, in the absence of anyspecial action by the person interested, would ‘ not have takenpriority over the lease. The reason why it acquired priority is thatthe mortgagee was more diligent than the lessee. He was moreactive in ~the appreciation of his rights under the laws affecting theland registration. The mortgagee registered his mortgage at once,and it was this superior diligence on the part of the mortgagee thatwas the cause of the lessee’s displacement.
I have every sympathy with the appellant. I think that thelessor in executing this mortgage must have fully realized its pro-bable effect. I do not think he would have succeeded in obtainingthe mortgage, but for the fact that both he and the mortgageeknew that the lease was not registered. It is not possible, however,to prove any fraud or collusion on the part of the mortgagee, andunder the circumstances I fear that the lessee must suffer for hislack of diligence.
Under the circumstances the decree must be varied by the substi-tution of the figures Rs. 902.98 for the figures Rs. 1,276.98. Withregard to the costs, I think that the judgment should be varied, andthat in the Court below the plaintiff should get costs in the classcorresponding to the amount as to which he succeeded, that is tosay, Class 3. With regard to the costs in this Court, the variationof the judgment is so very slight that, in view of all the circumstancesof the case, each party should bear its own. costs.
Schneid-er J.—I agree.^