059-NLR-NLR-V-66-MUTHU-RAMAIE-et-al.-Appellants-and-ATHIMULAM-et-al.-Respondents.pdf
SANSONI, J.—Muthu Ramaie v. Athimulam
251
•Present: Sansonl, J., and Tambiah, J.MUTHU RAMAIE et al., Appellants, and ATHIMULAM et al.T
Respondents
S. C. 32/1960 (Iniy.)-D. C. Kandy, 4851jP
Mortgage—Hypothecary action against two mortgagors—Death of one mortgagor before •- the action was filed—Validity of subsequent proceedings in the action—MortgagAct, No. 6 of 1949, s. 26.
A mortgagee instituted a hypothecary action in respect of a land mortgagedto him by two co-mortgagors A and B. B had died prior to the date of action,but a representative of his estate was appointed in the mortgage action andadded as a defendant.
Held, that the death of co-mortgagor B prior to the institution of themortgage action could not render the action a nullity. Accordingly, thesubsequent mortgage decree and execution sale were valid.
Appeal from an order of the District Court, Kandy.
G. Banganathan, with V. K. Palasuntheram, for the 3rd to 12thDefendants-Appellants.
Vernon Jonklaas, for the 13th Defendant-Respondent.
. G. Weeramantry, with N. B. M. Ddluwatte, for the Plaintiff-Respondent.
G. F. Sethukavalar, for the let Defendant-Respondent.
Cur. adv. vult
/
May 10, 1961. Sansoni, J.—
The main question for decison on this appeal is whether a mortgageaction filed against two mortgagors, one of whom had died beforethe action was filed against him, is a nullity, and whether all subsequentproceedings in the action are also null and void. The relevant facts,some of which I have ascertained from an examination of the records ofthe cases, must be briefly stated.
By mortgage bond No. 4022 dated 21st July, 1955, Muttusamy, HeadKangany, and Ragunathan Servai’s daughter, Ramaie, mortgaged a landMutholiyehena of 26 acres, 1 rood, 14 perches, to Sangili Athimulam’sson Athimulam as security for a debt of Rs. 12,000. The mortgageesued both mortgagors and a puisne encumbrancer on that bond in caseNo. MB. 2366 of 4th September 1956. On 20thDecember, 1956, petitionand affidavit were filed by the plaintiff in which he stated that since theinstitution of the action he learnt that Muttusamy had died more than sixmonths prior to its institution. He further stated that Muttusamy’s
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SANSONI, J.—Muthu Hamate v. Athimulam
heirs were his widow Ramaie, his eldest son Periasunderam (they were 1stand 2nd respondents to the petition) and certain other minor children ofwhose names he was not aware ; that to the best of his knowledge andbelief no grant of probate or letters of administration had so far beenmade ; and that the widow (1st respondent) was a fit and proper personto be appointed representative of the estate of the deceased. He movedthat she be appointed to represent the estate for the purpose of the action,and added as a party in that capacity.
Notice of this application was reported served on both respondents,and as no objections were filed the application was allowed. Ramaie wasadded as 4th defendant. Summons was issued on all the defendantsand reported served. The mortgagor Ramaie consented to judgment,and as the other defendants did not appear the case was heard ex parteagainst them and hypothecary decree was entered against all the defend-ants on 21st January, 1958. Order to sell the mortgaged property wasissued and it was bought at the sale by the mortgagee.
On 16th July 1959, before the sale was confirmed, Periasunderam,already referred to, and one Pakkianathan (who claimed to have lease-hold rights in the land) petitioned to have the sale set aside on severalgrounds, some of them being that the proceedings were bad as the heirsof the deceased mortgagor had not been made parties ; that no notice ofthe action had been given to Periasundaram or his co-heirs ; and that themortgage decree was bad. At the inquiry which followed, counsel for thepetitioners abandoned these objections to the sale, because the widow hadbeen made a representative. The application was accordingly dismissedon 6th August, 1959.
On 19th September, 1959, another petition was filed by the'widow inwhich she claimed that, as partition action No. P. 4851 was pending, thewrit of possession should be stayed till that action was finally determined.This application was dismissed on 22nd September, 1959, on the groundthat she was bound by the mortgage decree, and writ of possession had. already been issued. It should be noticed that no attack was made byher on the validity of the mortgage decree, and no complaint was maderegarding the non-service of summons.
It is now necessary to turn to partition action No. P. 4851. Thisaction had been filed in October, 1955, in respect of the southern specificone-third share in extent 8 acres, 2 roods, out of the land Mutholiya of 24acres, 3 roods, 37 perches, which is itself part of the mortgaged land.The widow and nine children of the mortgagor Muttusamy were the 3rd to12th defendants in that action, while his co-mortgagor Ramaie was the• 1st defendant, and the mortgagee Athimulam was the 13th defendant.After trial, an interlocutory decree was entered on 21st October, 1958,declaring the 1st defendant entitled to 11/24 of the land, and 3rd to 12thdefendants jointly entitled to 6/24, all these shares being subject to themortgage bond No. 4022. A commission to partition the land was issuedand executed.
SANSONI, J.—Muthu Ramaie v. Athimulam
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On 7th July 1959, before the scheme of partition was considered themortgagee, 13th defendant (who had by then purchased the mortgagedland at the sale in the mortgage action) applied to be substituted in placeof the 1st and 3rd to 12th defendants, on the ground that he had becomeentitled to their interests in the land and they should be allotted to himin the final scheme of partition. Objections by way of affidavit dated19th December, 1959 were filed by Muttusamy’s widow for herself andher children stating :
that the mortgage action was instituted without the appointment
. of a representative of the estate of her deceased husband havingfirst been made, and
that the notice to appoint her the representative of his estate and.
the summons in the mortgage action had not been served on her.
She denied that she at any time appeared in Court or retained any proctor.She also stated in her affidavit that the first intimation she had of thatmortgage action was when the sale was held.
To deal with the second objection first, I have already referred to herapplication to stay the writ of possession in the mortgage action. Shethere acquiesced in the mortgage decree and submitted to the jurisdictionof the Court. It is impossible to reconcile the plea in her affidavit, thatshe never appeared in Court or retained any proctor, with her attitude inthe mortgage action. If there had been any substance in her allegationsregarding the non-service of the notice and the summons, she should haveapplied to have the mortgage decree vacated instead of merely applyingto stay the writ of possession on the ground that a partition action waspending : and any such allegation should be made in the mortgage actionand not in the partition action. The only possible explanation of her incon-*sistent pleas is that her lawyers in the partition action were not thelawyers who appeared for her in the mortgage action. The learned Judgewho held the inquiry refused to allow evidence of non-service of summonsto be led. I think his order was correct though I do not agree with thereasons he gave.
The other objection, that the mortgage action was a nullity becauseMuttusamy had died before it was filed, must now be considered. Thefirst question that arises is whether an action filed against two or moredefendants is bad because one of them was dead at the time of institution.It is clear on the authorities that an action filed against a sole defendantwho was dead at the time is a nullity, and any substitution of his legalrepresentative thereafter is also a nullity. The reason is that the actionis not merely against a wrong person but against no person at all; andwhen substitution of his legal representative is made it is not really a caseof substitution but rather the filing bf a new action against a newdefendant: see Rampratab v. Gaurislianlcar
A . I. R. (1924) Bom. 109.
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SANS ONI, J.—Muthu Eamaie v. Athimulam
I do not think that the same considerations apply to an action filedagainst more than one defendant, -where some of them were alive and somohad died prior to action. We have not been referred to any authoritywhich decides that such an action is a nullity. I can see no reason why itshould he a nullity, for it is surely good as against the living defendants.The Court would have to consider whether steps should be taken to bringin the legal representatives of those who were dead, since no action canbe defeated by reason of non-joinder of parties. It has in fact been heldin the Indian Courts that an action should not be dismissed on the groundthat one or more of the defendants had died prior to its institution, andthat the Court may allow the action to proceed against the survivingdefendant or defendants alone, or bring the legal representative of thedeceased defendants on the record before proceeding with the action.Which of these courses should be followed will depend on the nature of theaction and the right to sue on the particular cause of action: see RoopChand v.. Sardar Khanx. Again in Ghulam Quadir Khan v. GhulamHussain 2 it was lield that where two of several co-defendants were deadat the time of the institution of the action, the action is not bad. Theirlegal representatives may be substituted, although a question oflimitation may arise. In the present case, since both mortgagors or theirrepresentatives were necessary parties before a hypothecary decree couldbe entered, I think it was only proper that a representative of the estateof the deceased Muttusamy should have been appointed and added as adefendant.
In passing, I might point out that a smilar distinction has been drawnbetween the case of a decree against a sole defendant who was dead whenthe decree was entered, in which case it is a nullity, and a decree against-more than one defendant where only some of the defendants had.died before decree. The question whether the whole decree in the lattercase is a nullity can only be answered after considering the nature of theaction : see Kesho Prasad Singh v. Shamnandan Rai 3.
In the case now before us, to which the Mortgage Act, No. 6 of 1949,applies, section 26 of the Act is relevant. It provides :
26.(1) Where any mortgagor dies before the institution of a hypo-
thecary action in respect of the mortgaged land, or any mortgagor or anyperson who is or becomes a party to a hypothecary action dies after theinstitution of the action, and grant of probate of the will or issue of letters-of administration to the estate of the deceased has not been made, theCourt in which the action is to be or has been instituted may in its dis-cretion, after the service of notice on such persons, if any, and after suckinquiry as the Court may consider necessary, make order appointing a> 1
1 A. I. B. (1928) Lahore 359.* A. I. R. (1937) Lahore 794.
8 A. I. B. (1926) Pat. 504
SANSONI, J.—Muthu Hamate v. Athimulam
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person to represent the estate of the deceased for the purpose of thehypothecary action, and such person may be made or added as a partyto the action:
Provided, however, that such order may be made only if:
(а)the value of the mortgaged property does not exceed two
thousand five hundred rupees ; or
(б)a period of six months has elapsed after the date of the death of
the deceased; or
(c) the Court is satisfied that delay in the institution of the actionwould render the action not maintainable by reason of theprovisions of the Prescription Ordinance.
(2) In making any appointment under sub-section (1) the Courtshall appoint as representative a person who- after summary inquiryappears to the Court to be the person to whom probate of the will orletters of administration to the estate of the deceased would ordinarilybe issued :
Provided, however, that in the event of a dispute between personsclaiming to be entitled to be so appointed, the Court shall make such anappointment (whether of one of those persons or of any other person)as would in the opinion of the Court be in the interests of the estate ofthe deceased.
Is the action bad because steps to have a representative of the estate ofMuttusamy appointed were not taken before the action was instituted ?I do not think so, for the section does not say that in the case of a mortgageewho had died before the institution of the action the appointment of arepresentative can be made only prior to the institution of such action.So long as the action was not a nullity, the principles I have alreadyreferred to would apply and the procedure prescribed in section 26 may befollowed, as it was followed in this case. The affidavit filed by the mort-gagee satisfied the Judge that he had the necessary material to assumejurisdiction to make the appointment. The section, I might add, doesnot require that notice should be given to all the heirs of the deceasedmortgagor.
I would therefore hold that the mortgage decree was valid, the sale tothe 13th defendant was valid, and his application for substitution in placeof 1st and 3rd to 12th defendants was correctly allowed. The appeal isdismissed with costs.
Tambiah. J.—I agree.
Appeal dismissed.