073-NLR-NLR-V-09-PEIRIS-v.-WEERASINGHE-et-al.pdf
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Present: The Hon. Mr. A. 6. Lascelles, Acting Chief Justice, andMr. Justice Middleton.
PEERIS v. WEERASINGHE et al.D, C., Colombo, 22,364.
Mortgagee—Puisne incumbrancers and grantees, <tc., when bound—Civil
Procedure Code, ss. 643 and 644.
Section 644 of the Civil Procedure Code enacts as follows:—
“ Any person so noticed may on the day fixed in the summonsfor the defendant to appear and answer apply under the provisions ofsection 18 to be joined as a defendant in the action. Every personso noticed notso applying to bejoined asdefendant, andevery
such grantee, mortgagee, -lessee, or other incumbrancer whose deedshall not have been registered, or who shall not have 'furnished'suchaddress as aforesaid, shallbe bound by thejudgment in the
action in all respects as fully as though he had been a party thereto.Provided alwaysthat the mortgagein respectof which suchjudg-mentshall be givenshall haveitself been duly registered,andsuch
mortgagee or person shall have furnished an address to the regis-trarof lands andto everygrantee, mortgagee,lessee,orother
incumbrancer from whom he has received such notification as inthelast precedingsection mentioned. Provided,also,thatthe
provisions of chapter XII. of this Ordinance with regard to the cureof default in appearance ~or pleading shall, so far as they can bemade applicablethereto, apply toany caseof interventionunder
this section.”
Held, that compliance with the requirements of the first proviso -tothe above section is a condition precedent to a mortgagee claimingthe. benefit of the other provisions of the said section.
Goonewardene v. De Silva (1) disapproved.
Santiago e. Fernando (2) followed.
T
HE facts sufficiently appear in the following judgment of theAdditional District Judge (F. R. Dias, Esq.):—
" In July, 1905, by the deed No. 998 (marked P 1);.the seconddefendant sold to the plaintiff a land called Delgahayratta, but thefirst defendant is in possession, claiming title to an undivided halfby purchase from one 0-. Don Abraham, under the deed No. 4,533of November, 1904 (marked D 3). The plaintiff therefore brings this -action to have the first defendant ejected, and he also calls upon hisown vendor (second defendant) to warrant and defend his title, or torepay the Rs. 600 he paid for the landl The facts material to the caseare these. The land originally belonged to one Dona Selestina, thewife of M. Don Comelis. By a mortgage bond executed by tljem in
(2) (1901) 2 Browne 126.
1006
October
(l) (1900) 1 Browne 254.
*0* •
1006.
October 23.
( 360 )
i
1892 they hypothecated it to the second defendant as security forsome money lent. The bond was registered in August, 1901, putin suit in October, 1901, and under decree entered in that^ action theFiscal sold the land to the creditor himself (the second defendant), inwhose favour he executed the transfer No. 7,954 in November, 1903(marked P 2), duly registered on the 10th November, 1904.
“ In 1894 (that is to say two years after the mortgage to thesecond defendant) the owner Dona Selestina and her husband bydeed No. 14,597 (marked D 2) transferred the entire land to anadopted niece named Dona Eugenahamy, who some months later wasmarried to the first defendant’s vendor Don Abraham. This youngwoman died intestate in 1897. leaving her husband and a minor son,and it is the husband’s half share that the first defendant purportedto buy under D 3. In these circumstances the question that hasarisen is whether the plaintiff’s title to the whole land derivedthrough the Fiscal’s transfer P 2, or the first defendant’s title derivedthrough the private alienation of the original owners by D 2, is toprevail. This latter deed was not registered till October, 1901,which was after the registration of the mortgage bond in favour ofthe second defendant.
“ It was urged on behalf of the first defendant that, in spite ofthe prior registration of the second defendant’s bond, he (the firstdefendant) and those through whom he claims are not bound by theFiscal’s sale which resulted from the second defendant’s mortgageaction, inasmuch as at the date of that action the. legal .title to theland was not in the mortgagors, but in Dona Eugenahamy and herhusband, and they were the parties to the action.
“ Under the Common Law no doubt they were necessary partiesin a hypothecary action, but these actions are now controlled by theexpress provisions of Chapter 46 of the Civil Procedure Code, whichhave been intended to simplify the process by which a mortgageecan reach the property hypothecated to him. It has been heldby a Divisional bench of the Supreme Court in Gunawardene v. Silva(1) that the only necessary party to an hypothecary action is themortgagor, and if he.is dead, his legal representative; and that it isnot necessary to take any notice of persons who have become entitledto the property subsequent to the date of the mortgage, unlessthose persons have complied with the povisions of section 643- ofthe Code by notifying to the mortgagee the interest which they haveacquired in the property, and. by leaving an address with the regis-trar where notices may be served on them. This decision, thoughsubsequently questioned by Justice Lawrie in Santiago v. Fernando
(1) (1900) 1 Browne 254.
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(1)* has not been over-ruled, and is binding on me. Nor do 1 see howit is calculated to work any mischief on any subsequent purchasers,so long as they carry out the very wholesome and simple procedureprescribed for them in section 643.
“fa the present case, as I find from the evidence that has beenadduced, the parties in possession when .the mortgagee put his bondin suit were his mortgagors. He knew nothing about the transferto Dona Eugenahamy; and how was he to know of it, as she hadlived and died without registering her deed ? Nor is it pretendedthat any notice of that transfer was given to the mortgagee. Evenif we regard the second defendant’s action as a hypothecary actionunder the Roman-Dutch Law, it seems to me that steps taken by themortgagor were sufficient to bind the land itself. His mortgagorswere in actual occupation as owners, and the summons in the casewas served on them there. What more could he have done thanmake them the only defendants in his case ?
“ I enter judgment for plaintiff as against .the first defendan.tin term§ of the 1st, 2nd, 4th, and 5th paragraphs ini the prayerof the plaint, with damages at Rs. 5 a month and costs. Thesecond defendant will also recover his costs from the first defen-dant ”.
The first defendant appealed.
Sampayo, K.C. (with him Peiris), for the appellant.
Weinman, for the plaintiff, respondent.
Senathi Rajah, for the second defendant.
Cut. adv. vull.
23rd October, 1906. Lascelles A.C.J.—
This is an appeal by the first defendant from a judgment of theDistrict Judge of Colombo declaring the plaintiff to be entitled to thewhole of a garden called Delgahawatt’a and ejecting the first defen-dant therefrom.
The land originally belonged to one Dona Celestina, who in 1892mortgaged it to the second defendant, the mortgage being registeredon 26th August, 1901. The bond was put in suit in October, 1901,and sold by the Fiscal to the mortgagee, the second defendant, bytransfer P 2 registered on 10th November, 1904.
The second defendant in July, 1905, by deed P. 1, sold to theplaintiff.
lflbs.
October 28.
(1) (1901) 2 Browne 126.
1806.
October 23.
Lasoelxes
A.C.J.
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The first defendant, who is in possession, claims an undivided fialfshare- His title is as follows.*
In 1894 Dona Celestina and her husband, by deed D 2, transferredthe whole land to their adopted niece Eugenahamy. fiugenahamydied in 1897 leaving a husband, Don Abraham, who by deed D( 3 ofNovember, 1904, sold an undivided half share to the first defendant.
The first defendant contends that he is not bound by the mortgagedecree and consequent Fiscal's sale, inasmuch as Eugenahamy andher husband, in whom the legal title was vested at the date of themortgage action, were not parties to the action.
In Ooonewardena v. de Silva (2) it was decided in a similar casethat it was not necessary for the mortgagee, in seeking to realizehis security, to take any notice of persons who have become entitledto the property subsequent to the date of. the mortgage, unless those-persons have complied with the provisions of section 643 of the CivilProcedure Code by notifying to the mortgagee the interest whichthey have acquired in the hypothecated, property.
On the strength of this decision the District Judge has given judg-ment for the plaintiff.
In the subsequent case of Santiago v. Fernando (1) it was pointedout that the statement of law in Ooonewardena v. de Silva (2) was in-complete, and that it was expressly provided by section 644 that inorder to enable a mortgagee to gain the advantages accorded by that •section he must furnish his address to the Registrar of Lands so astO' enable subsequent grantees to forward the necessary notificationto the mortgagee.
It is impossible to doubt that this latter decision is the more correct ■exposition of sections 643 and 644.
Involved and badly arranged as these sections are, it'is plain thatcompliance with the conditions of the first proviso to section 644 is. intended to be a condition precedent to the mortgagee coming withinthe provisions of section 644. It is common ground that the mort-gagee did not furnish his address to the Registrar of Lands.
It is thus clear that the first defendant is not bound by the mort-gage decree, and that the action against him fails.
In my opinion we are bound, in a. matter of this nature, to followstrictly the procedure laid dbwn by the Code. N.othing but con-fusion and. uncertainty will arise if we allow ourselves torbe divertedfrom the course prescribed by the Code by- what appear to be equi-table considerations.
The judgment of the Court below must be set aside and the actiondismissed with costs.
m (1901) 2 Browne 126.(2) (1900) 1 Browne 254.
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*Middleton J.
• …
I agree that Santiago v. Fernando expresses the more correct view
oi the law. under sections 643 and 644, and that it is the duty, as
Lawrie, J. says, of the mortgagee to furnish his address to the Begis*
trar, of Lands in order to give subsequent mortgagees, grantees, Ac.,
the opportunity of giving him notice that they have registered their
deeds in order that he may. avail himself of the advantage which the
sections give him.
I think that the appeal should be allowed and the judgment of theDistrict Court set aside and the action dismissed with costs.
1900.
October 28.