PERERA v. SILVA et al

021-NLR-NLR-V-13-PERERA-v.-SILVA-et-al.pdf


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Present : Mr. Justice Middleton and Mr. Justice Grenier. Feb. 26,1910PERERA v. SILVA et al.
D. C., Kalutara, 4,034.
Sale by defendant before service of summons — liis pendens — Litis
contestatio.
•A conveyance by a defendant of the land in dispute in an actumis valid as against the plaintiff, if it was made before the defendantknew of the existence of the suit.
If it could be shown that the defendant knew of the institutionof the action against hire and evaded service of summons, and inthe meantime sold the land, the doctrine of Its pendens wonld apply,and the sale would be a nullity as against the plaintiff.
A
PPEAL from a judgment of the District Judge of Kalutara.
In this action -(partition) title to a one third share was in
dispute between the plaintiff (respondent) and the added defendants(appellants). Admittedly the land belonged originally to oneChristian Silva, who mortgaged it to the added defendants, who putthe bond, which was unregistered, in suit on May 17, 1906. Summonswas served on Christian Silva on June 26, 1906. Judgment wasentered against Silva, and the mortgaged property was bought bythe added defendants, who registered their Fiscal’s transfer on June22, 1909. Prior to the service of summons, on June 7, 1906, ChristianSilva sold the mortgaged land to plaintiff, and the transfer wasregistered on June 8, 1906.
The learned Acting District Judge (A. C. G. Wijekoon, Esq.) heldthat as summons had not been served on Christian Silva at thedate of his transfer to the plaintiff, the conveyance was not madependente lite, and that it was valid as against the added defendants.
The added defendants appealed.
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Feb. 25,1910
Perera v.SUva
H. A. Jayewardene (with him Oooray), for the appellants.^The transfer to the plaintiff was made after the institution of themortgage action. It is therefore bad as against the added defend-ants. It does not matter whether summons was served or not atthe date of the transfer. Counsel cited Krishnappa v. Skivappu,lFdiyaz Husan Khan v. Munshi Prag Narain,2 Lency v. Penes,3 SamyAppu v. Dissanayake* Bellamy v. Sabine.*
A. St, V. Jayewardene, for the respondent.—Until service ofsummons there will be no Us pendens. The transfer here was madebefore the service of summons. There is nothing to show that Silvawas evading service of summons, or was aware of the institution ofthe mortgage suit. Counsel cited Sande 130; Anders1 Cession ofAction 81; 4 Nathan 216, sections 2173 and 2174; Swans v.Pieris;* Hokum Chand 694; Kotze’s Van Leeuwen, vol. II., 460;Abraham Fernando v. Silvester Perera.7
Cur. adv. vult.
February 25, 1910. Middleton J.—
This was a partition action in which the plaintiff sought topartition a certain land called Meegahawatta, allotting to himselfan undivided one-third share and to the first defendant anundivided two-thirds share.
The second, third, and fourth added defendants intervened, andit was admitted Christian Silva possessed one-third of the said land,but mortgaged it on May 29, 1900, unregistered; that the bond wasput in suit and summons issued on May 21, 1906, but was not served,till June 26, 1906, defendant Christian being twice reported as nottQ be found.
On June 7, 1906, by P. 3, registered June 8, 1906, Christian soldhis share to the plaintiff pending action on the mortgage bond.Judgment was entered on the mortgage bond on June 8, 1906, andthe land, presumably &6 bound and executable, was seized andsold on August 29, 1906, and added defendants obtained a Fiscal'stransfer, which was registered on June 22, 1906.
The question therefore is, in whom is the title to this one-third?The question has been argued before us at considerable length onthe footing that the case was one of lis pendens, and it has beendecided in the Court below, on the authority of Radhosyam Moha-pattra v. Sibu Panda and another 8 that the principle applicable to
1 (1307) 31 Bam. 393.5 (1857)1Q.&J. 566.
3 (1907) 5 Cal. L. J. 563.6 (1908)4 A. C. R. 155.
8 (1887) 8 S. G. C. 94.7 (1880)3 S. C. C. 158.
• (1902) 3 Browne 82.8 (7*3$)I. L. R15 Col. 647.
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cases of Us pendens did not apply if the sale took place before the Fe*>-1919
suit became contentious, and inasmuch as the summons was not mtomstonserved on the defendant when be sold .the land, the title of the J*plaintiff was upheld as against that of the added defendants, who Perera v.now appeal to this Court. Counsel for the appellant cited John SUoade Lency v. Adrian Peries,1 Sarny Appu v. Dissanayake and another,*
Hokum Ghand 688 and 694, Krishnappa v! Shivappu* FaiyaaHusan Khan v. Munshi Prog Narain.*
Counsel for the respondent relied on Sande 130; Anders, onthe Law of. Cession of Actions, '81, 1901 edition; 4 Nathan 216,sections 2173 and 2174; Swaris v. Pieris;* Kcftze’s Van Leeuwen,vol. II., 460; Abraham Fernando v. Silvester Perera;* R. V. Adriana,
Ac. v. Prolishami;7 and .Hokum Chand 694. Both sides referredto Bellamy v. Sabine.*
I have carefully gone through all the authorities quoted, and inmy opinion the Roman-Dutch Law, like the English, founds thedoctrine of Its pendens common to both systems, not on any principleof constructive notice, but on the ground that it will be impossiblefor any suit or action to be brought to a successful termination ifalienations, pendente lite, of the property in litigation were permittedto prevail (Bellamy v. Sabine, vbi supra), and the judgment will bea mockery (Sande, ubi supra). Under the Roman-Dutch Law thephrase res litigiosa is in use, and the alienation of a res litigiosa isinterdicted after litis contestatio has given it ..the character of riselitigiosa. It would seem .that the Roman-Dutch jurists consideredthat litis contestatio occurs in different forms of action at differentperiods, but at the Cape it has been held to occur on the closing ofthe pleadings by Villiers C.J. (Nathan, ubi supra).
In India the Privy Council has held that in terms of section 52of the Transfer of Property Act IV of 1882, which prohibits thetransfer of immovabe property, the subject of a contentious suit orproceeding during .the active prosecution in any Court of such suit,the doctrine of lie pendens applies to a transfer made after thetransfer of immovable property, the subject of a contentious suit orHusan Khan v. Munshi Prag Narain, ubi supra), and this , was heldalso by Jenkins C.J. and Beaman J. in a case decided by themjust nine days before the Privy Council judgment was delivered(Krishnappa v. Shivappu, ubi supra). It was further held that acontentious suit meant every real suit as distinguished from acollusive one, and that a suit might be contentious before a summonswas served on the other party. In both these cases .the question ofevasion of service of summons was alluded to and considered. The
1 (1887) 8 S. C. C. 94.5 I IMS} 4 A. C. R. 155.
(1902) 3 Browne 82.* (1880) 3 S. C. 0.158.
(1907) 31 Bom. 393.’ (1854) 6 S. O. O. 93.
(1907) 5 Cal. L. 3. 563.* (1857) IQ.&j. 566.
Feb. 25,1910
Middleton
J.
Perera v.Silva
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case relied on by .the District Judge appears, therefore, to be.over-ruled..
Under the English Law there is a statutable provision for theregistration of a Ks pendens, with a view no doubt .to the protectionof a bona fide purchase for value without notice from an alienatinglitigant (8 and 3 Viet., chapter II., section 7). But I take it thatthe rule before this was that a purchaser, pendente lite, from adefendant in a real action was bound by .the judgment (Metcalfe v.Pulvertoft1), and generally that purchasers, pendente, lite, were boundby the decree (Yeavely v. Yeavely2), and that an interest acquiredin the subject-matter of the suit, pendente lite, was a nullity as againstthe plaintiff (Oaskell v. Dwrdin3).
By our system of procedure in Ceylon an action iB instituted by thefiling of a plaint (section 39, Civil Procedure Code), which is doue inthe Court itself. The .next step is a summons to the defendant,who until service of ft may well be deemed ignorant that there is ares litigiosa between himself and the plaintiff. In both the Indiancases the Courts considered, the possibility of the successful evasionof service of summons by the defendant until he had divestedhimself by sale of all the property on which the plaintiff’s claimattached, which is just as likely in Ceylon as in India. There is noproof, however, that defendant was evading service here.
In England. Bellamy v. Sabine, ubi supra, would seem to showthat the service of a subpoena or 'writ of summons constitutes a Itspendens between the plaintiff and defendant. This indicates thenecessity that knowledge of the existence of .the suit must be broughthome t.o the defendant under the' English Law, as indeed it appearsto me to be necessary under the Boman-Dutch Law (Sande130). 1 think, therefore, that if it could be shown that Christianknew of- the institution of the action against him and evadedservice, in the meantime selling to the plaintiff, the doctrine of Itspendens would apply, and the sale should be deemed a nullity, evenif it were without notice to a bona fide purchaser or without serviceof summons. As Jenkins C.J. said in Krishnappa v. Shivappu, ubisupra, page 40, “ the hardship to the purchaser cannot affect thedecision of the case,’/ and there is no statute law in Ceylon withreference to the registration of a lis pendens. As, however, thereis no proof that .the summons was served on the mortgagor inthe action on the mortgage and before .the sale .to the plaintiff, orthat he evaded service, I would hold that at the date of the salethere was no lis pendens proved, and the appeal must be dismissedwith costs.
Grenier J.—I am of the same opinion.
Appeal dismissed.
1 {1813) 2 Vesey <St Beamed Reports 205.* {1813) 3 Chancery Reports 84.
3 {1812) 2 Ball <k Beaty, Ireland, 170.