028-NLR-NLR-V-39-SAVARIMUTTU-v.-ANNAMAH.pdf
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Savarimuttu v. Annamah.
1937Present: Soertsz J. and Fernando A.J.
SAVARIMUTTU v. ANNAMAH.128—D. C. Colombo, 4,138.
Prescription—Mortgage action—Thediathetam property mortgaged by husband—JJecree against husband’s administrator—Subsequent action againstwidow—Ordinance No. 22 of 1871, s. 6—Mortgage Ordinance, No. 21of 1927, s. 16 ill.
B. a Jaffna Tamil, subject to the Thesawalamai mortgaged thediathetamproperty. After his death the mortgage bond was put in suit againsthis administrator and decree entered in favour of the mortgagee.
The present action was instituted against the widow of B to make herhalf share of the property bound and executable under the decree.
Held, that although section 16' (1) of the Mortgage Ordinance permitteda second action to be brought, the action must be brought within theperiod of limitation created by section 6 of the Prescription Ordinance.
Kadappa Chettiar v. Ramanayake (38 N. L. R. 33) and Ambalavanar v.Kurunathan (37 N. L. R. 286) followed.
DY mortgage bond No. 38 dated October 3, 1925, A. Bastianpillaihypothecated a house and premises in Colpetty. Bastianpillaiwas a Jaffna Tamil subject to the Thesawalamai and the propertymortgaged was thediatetam property. • Bastianpillai died in 1933 andtwo years later the mortgage bond was put in suit against his adminis-trator% and a decree entered, which declared the property bound andexecutable. This action was brought against the defendant, Bastian-pillai’s widow, asking for a declaration that her half share of the propertybe held bound and executable for the payment of the mortgage debt.
The learned District Judge entered judgment for the plaintiff.
C. Nagalingam, for defendant, appellant.—This is a second action bythe plaintiff upon a mortgage bond, which has already been sued uponby him in action No. D. C. Colombo, 3,377. The first action was againstthe administrator of the estate of the mortgagor, who was the Secretary1 4 S. C.C. 38.'- 1 Brovme's Rep. 374.
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of the Court and decree has been entered therein directing the paymentof the full amount and declaring the entire property mortgaged liableto be sold in execution. This action is against the widow.
[Soertsz J.—Why was this action brought ?]
In view of the decision in Ambalavanar v. Kurunathan
A second action does not lie as the bond is merged in the decree alreadyentered and section 16 of the Mortgage Ordinance, No. 21 of 1927, doesnot enable the plaintiff to institute this action. But there is a rulingagainst me on this point in the case of Kadappa Chettiar v. RamanayakeI do not canvass that ruling in this appeal as I am entitled to succeed onanother point, namely, the question of prescription.
The bond sued upon was executed on October 3, 1925, and this actionwas not instituted till October 18, 1935, so that if'this was the first action,it would have been clearly prescribed. The trial Judge has held againstthe appellant on the plea of prescription on the ground that the presentaction is not one for the recovery of a money decree but only for adeclaration that a moiety of the mortgaged property is liable to be sold.One need only look at the prayer to the plaint to see if the action is for therecovery of money or not as contemplated by section 6 of the PrescriptionOrdinance. Even the prayer for sale of the property has as its object therecovery of money. It is difficult to resist the conclusion that howeveringeniously the plaint may be worded, it is nevertheless an action for therecovery of money and as such it is prescribed.
N. Nadarajah (with him H. V. Perera; K.C.) , for plaintiff, respondent.—The Divisional Bench ruling in Sangarappillai v. Devaraja Mudaliyar3, isan authority for the proposition that a mortgage decree against thehusband alone in respect of thediathetam property would be sufficient to.bind the property even as against the wife, if she were alive. But adifficulty arises where at the date of action the wife is dead, this Courthas held that in those circumstances the heirs of the deceased spousemust be made parties to the action to effectually bind the share of theproperty that devolves on them. See Ambalavanar v. Kurunathan(supra).
A second action lies to obtain an effectual decree and this is notcontested.
On the question of prescription, there is an unreported judgment whichwould apply. S. C. 109, D. C. Chilaw 2,965—S. C. Minutes February 17,1905. The respondent has already obtained a money decree for theentire sum due and does not ask for a money decree against the appellant,who is not personally liable for any sum. We only seek a declarationthat the moiety belonging to the widow be sold in execution of the decreeentered in D. C. Colombo, 3,377. Section 6 of the- Prescription Ordinancehas no application and action is not prescribed.
Nagalingam, in reply.—The unreported judgment does, not apply asthe judgment of Moncrieff J. shows that the second action was in thenature of a 247 action, and the cause of action was the claim by thedefendant, though incidentally ‘ the plaintiff had pleaded the mortgagebond in his favour.
Cur adv. vult.
• 37 N. L. R. 236.* 33 .V. L. R. 33.’ 38 N. L. R. 1.
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SOERTSZ J.—Savarimuttu v. Annamah.
May 27, 1937. Soertsz J.—
The original plaintiff in this case had lent A. Bastianpillai a sum o£Rs. 5,000 and had ta'ken mortgage'bond No. 38 dated October 3, 1925, tosecure the payment of that sum and interest. By that bond Bastianpillaihypothecated a house and premises in Colpetty. Bastianpillai was aJaffna Tamil subject to the Thesawalamai, and he and his wife weregoverned by Ordinance No. 1 of 1911. He acquired the property hehypothecated on the bond referred to, during the subsistence of hismarriage with the defendant in this action and therefore this property wasthediathetam and by the law governing the parties vested on acquisitionequally in him and his wife. Bastianpillai died on March 2, 1933. Sometwo years later the original plaintiff sued the administrator of his estateon the bond and obtained a decree which declared the entirety of themortgaged property bound and executable. If that decree had beenentered against Bastianpillai himself, the plaintiff would have had aclear course in view of the Divisional Bench ruling in the case of Sangarap-pillai v. Devaraja Mudaliyar that the husband as the manager ofthediathetam property could mortgage it and that it would suffice to sue himin order to render the whole property executable. But a difficulty arosein consequence of the decree, being one against the administrator ofBastianpillai’s estate. His wife was no party to that action and, therefore,on the ruling in Amhalavanar v. Kurunathan' she was not bound by themortgage decree. In view of this the plaintiff appears to have made anapplication to the Testamentary Court in Jaffna to be allowed to sell theentire premises,, but this application was refused and he was informed thathe could sell only Bastianpillai’s half sharej which was the only shareinventoried in the testamentary case. He then launched this actionagainst the defendant, Bastianpillai’s widow, and prayed “ that the courtbe pleased to declare that the said undivided one half (i.e., the widow’sshare . . . ., be held and bound executable for the payment of thesaid debt of Rs. 10,000 and legal interest, &c.,” The learned DistrictJudge entered decree in terms of plaintiff’s prayer.
The appeal is from that order. For the appellant, it was contended,(1) that the earlier case instituted by the plaintiff against Bastianpillai’sadministrator, was a bar to this case, (2) that this action is barred by -theStatute of Limitations.
Mr. Nagalingam for the appellant frankly admitted that the ruling inKadappa Chettiar v. Ramanayake3, was against him on the first point,but he pressed the second point and relied on section 6 of OrdinanceNo. 22 of 1871. It is admitted that the present action was institutedafter ten years had elapsed from the date of the bond. But Mr. Nadarajamaintained that section 6 of Ordinance No. 22 of 1871, does not applybecause, he said the present action is not one for the recovery of money,and that its purport is only to render Bastianpillai’s widow’s half shareexecutable for a debt due on a decree he has already obtained. Atthis point I think it best to consider section 6 of the Prescription Ordinance.It enacts “ no action shall be maintainable for the recovery of any sum.due upon any hypothecation or mortgage …. unless the sameshall be commenced in the case of an instrument payable at or providing
» 38 N. L. R. 33.
1 38 AT. L. R. 1.
! 37 N. L. R. 286.
SOERTSZ J.—Savarimuttu v. Annamah.
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for the performance of its conditions within a 'definite time within tenyears from the expiration of such time, and in all other cases within tenyears from the date of such instrument of mortgage or hypothecation, orlast payment of interest ….
The question is whether the present action is one for the recovery of anysum due upon any hypothecation or mortgage of any property. On theface of it, it certainly is such an action. Paragraph 7 of the plaint runsas follows: “ There is now justly due and owing to the plaintiff on thesaid bond the total sum of Rs. 10,009.61 which sum though oftendemanded the defendant the said administrator in the said testamentarycase …. has failed to pay. The plaintiff restricts his claim toRs. 10,000. Paragraph 8 continues—“ A cause _ of action has therebyaccrued to the plaintiff to have the said undivided half of the said landdeclared held and bound for the payment of the said sum of Rs. 10,000 andliable to be sold for the payment of the same unless the defendant or theadministrator pays the said debt. Clause 2 of the prayer is in these terms :“ that in default of payment of the said debt by the said administrator. . . . or the said defendant, the said undivided half … •. be
sold ”, &c. Mr. Nadaraja, however, sought to argue that althoughostensibly this was an action to recover Rs. 10,000 from the defendant, inreality the plaintiff’s object was to have the defendant’s half share soldfor a judgment which the plaintiff had already obtained. But theanswer to that, in rny opinion, is that although the plaintiff had obtaineda judgment against the administrator he found himself unable to recoverall his money in that quarter, and was now seeking to recover it from thedefendant as well, by making her pay the amount or suffering her landto be sold. It cannot be denied that the plaintiff has made a gallantattempt to frame his plaint so as to enable such an argument as that putforward to be advanced, but he could not escape the necessity of anaverment that the land be declared executable, if the amount due is notpaid. The more he tries to change the appearance of the action the moreit remains an action for the recovery of a sum due upon a hypothecationor mortgage. It was also contended that a mortgage creates a jus in remand that the right subsisted so long as the debt was due. There is nodoubt about its creating a real right. But the enforcement of the. righthowever real is subject to legal bars such as, for instance, those createdby the statute of limitations. Section 16 (1) of the Registration Ordinancedoes not affect this question. That section makes it possible for .morethan one action to be brought in respect of the same remedy notwith-standing section 34 of the Civil Procedure Code but all -the possible actionsmust be commenced against the different parties sought to be boundwithin the period mentioned in section 6 of Ordinance No. 22 of 1871.
I have examined the case cited to us from the S. C. Minutes of February19, 1905, but the ruling in that case has no bearing on the facts of thepresent case. In the present case, the position would have been differentand Mr. Nadaraja’s argument sound, if on the decree obtained in theearlier case, the plaintiff was seeking to levy on the widow’s share.Whether he could do so despite the fact that the widow was not a party tothe earlier action was a question that arose incidentally in Sangarappillai’scase ‘{supra) and Dalton J. observed ‘^having regard- to the powers
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ABRAHAMS CJ.—Zahiro Ummd v. Abeysinghe.
of the husband in respect of the common property of the spouse to mort-gage the whole of the property, the wife is not a necessary party to theaction to make her interest in it bound by the decree of the Court in asuit on the mortgage bond …. It is possible that other consider-
ations might arise in cases where the community had come to an end beforethe action was brought or in the course of the action, but whether they wouldor not it is not necessary here to decide.
But in the later case of Ambalavanar v. Kwrunathan (supra) to whichI have already referred Poyser and Koch JJ. held that in the contingencycontemplated by Dalton J. the wife would have to be. added as a party.Once the plaintiff yielded to the authority of Ambalavanar v. Kurunathanand acknowledged that a separate action was necessary to bind thewidow’s share, he had to be clear of the bar created by section 6 of•Ordinance No. 22 of 1871.
I would allow the appeal and dismiss the plaintiff’s action with costs inboth Courts.
Fernando A.J.—I agree.
Appeal allowed.