069-NLR-NLR-V-13-SILVA-et-al.-v.-APPUHAMY-et-al.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, Au9-and Mr. Justice Middleton.
SILVA et ai. v. APPUHAMY et al.
D. C., Kalutara, 4,197.
Action on a mortgage bond—Property mortgaged under Its. 1,000 invalue—Estateof mortgagor over Re,1,000—Personappointed
under s. 642, Civil Procedure Code, to represent estate ofmortgagor—Nonecessity foradministration—CivilProcedure
Code, ss. S47 and 642.
In an action on a mortgage bond where the mortgaged propertyis under the' value of Bs. 1,000, it is sufficient under section 642.
Civil Procedure Code, for the mortgagor to get a person appointedto represent the estate of the deceased mortgagor for the purposeof the action, even though the estate of the mortgagor may be overBs. 1,000 in value.
Section 547, Civii . Procedure Code, must be read subject to theprovisions of section 642. ■
A mortgagee who brings an action on a mortgage bond does notseek to recover, in the sense used in section 647, property belongingto or included in the estate of the mortgagor.
T
HE facts of the case are fully set out in the judgment of theChief Justice as follows: —
This is an appeal by the plaintiffs from an order settling an issue.
The action is brought for a declaration of title to a piece of landand to recover possession. The plaintiff’s case is that Don SalmanWijeykoon and his wife Abeynayakage Nonohamy, who weremarried in community of property about thirty-four years ago,and who were the owners of the land mortgaged it to the firstplaintiff by deed dated January 19, 1893; that Nonohamy diedintestate about twelve years ago, leaving an estate under the valueof Bs. 1,000; that the first plaintiff in 1902 applied to the DistrictCourt for an order, under section 642 of the Civil Procedure Code,to appoint some person to represent the estate of Nonohamy for thepurpose of an action on the mortgage deed, and the Court onDecember 19, 1902, made an order appointing her husband, DonSalman, to represent her estate for the purpose of the said action;that the first plaintiff then brought the said action, No. 2,664, inthe District Court of Kalutara, against Don Salman, for himselfand as representative of Nonohamy's estate, and by the decree inthe said action on February 5, 1903, the land was declared boundand executable for the mortgage debt; and that under a writ ofexecution in the said action the land was sold by public auction, andthe* first plaintiff bought it and obtained a Fiscal’s transfer dated .
I, 191V
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Aug. 8,1910 December 21, 1908. The second plaintiff is lessee of the land fromsava v. the first plaintiff. The plaintiffs allege that the defendants tookAppuhamy forcible possession of the land in October, 1909.
The first four defendants in their answers deny the first plaintiff’sright, and claim certain shares of the land through Don Harmanis,father of Don Salman; the fifth defendant claims under a leaseand planting voucher from the first three defendants; the otherdefendants do not admit the plaintiffs’ title, and deny that theyousted the plaintiffs. The first four defendants also, amongst otherpleas, denied that Nonohamy’s estate was under the value ofRs. 1,000, and said that it was worth more’ than that sum, andthat no administration has been taken out to her estate.
The Distriot Judge settled issues, the fourth of which was?
“ Was the estate of Abeynayakage worth Rs. 1,000 ? ”
. The plaintiffs appealed against the settling of this issue.
H. A. Jayewardene (with him Prins), for the plaintiffs,appellants.—The issue framed is quite irrelevant.
(1) Section 547, Civil Procedure Code, is subject to provisions ofsection 642, which is a later section. The provisions of the Codeas to mortgage actions are quite distinct'.
– (2) Even section 547 does not apply to actions against an estate.(Sevalingam Kangany v. Kumarihamy,1 Prins v. Pieris 2).
Under the Roman Dutch Law, where community of propertyexists, a decree against the surviving spouse binds the estate,whatever the estate may be worth.
As long as the decree in the mortgage action stands; the. purchaser’s title could not be questioned. Counsel also cited Silva
v. Silva.3.
A. St. V. Jayewardene (with him Weerasekera), for the respond-ents.—The plaintiffs claim title through Nonohamy, whose estatewas not administered. If the estate was worth Rs. 1,000 in value,plaintiff cannot succeed in establishing title (Gunaratne v. Hamine*Ponnamma v. Arumogam,5 De Silva v. Thomis Appu •).
H. A. Jayewardene, in reply.
Cur. adv. vidt.
August 8, 1910. Hutchinson C.J.—
His Lordship set out the facts, and continued: —
The plaintiffs objeot to this issue, and contend that it is not opento the defendants to raise the question of the value of Nonohamy’sestate in the present proceedings. They alleged in their plaint thather estate was worth less than Rs. 1,000, but they say now thatthat allegation was immaterial.
1 11891) 1 C. L. R. 11.*[1903) 7 N. L. R. 299.
* (1901) 4 N. L. R. 353.*(1905) 8 N. L. R. 223 ;1 Bal. 166.
I (1907) 10 N. L. R- 234.*(1903) 7 N. L. R. 123.
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By section 547 of the Civil Procedure Code no action shall be Aug, 8, 19i0maintainable for the recovery of any property in Ceylon belonging HuTcraraowto or included in the estate of any deceased person where the estate C.J.amounts to Rs. 1,000, unless probate or letters of administration sum v,shall first have been issued to some person as executor or adminis- Appuhtmyfcrator of the deceased; and if any such property is transferredwithout such probate or administration being first taken out, thetransferor and the transferee are guilty of an offence and are liableto a fine. And the defendants say that this is an action for therecovery of property belonging to the estate of Nonohapay.
The plaintiffs rely on section 642,- which enacts ^that in an actionby' a mortgagee for the money secured on mortgage, and where themortgagor is dead and no executor has been appointed and noadministration has been taken out to his estate, and the propertymortgaged is under the value of Rs. 1,000, the Court may, on theapplication of the mortgagee before action brought, and on itsappearing to the Court necessary or desirable, appoint some person torepresent the estate of the deceased mortgagor for all the purposes ofthe action; and the order so made, and any order consequent thereon,shall bind the estate of. the deceased mortgagor in the same mannerin ail respects as if a duly constituted administrator of the deceasedmortgagor had been a party to the action.
Effect must be given to both these enactments: section 547 mustbe read subject to the provisions of section 642. And the order ofDecember 19, 1902, made under section 642, and the orders madein action 2,664 consequent thereon, and the sale and the Fiscal'stransfer, bind the estate of Nonohamy in the same manner as if anadministrator of Nonohamy had been a party to that action,notwithstanding that her estate may have been worth Rs. 1,000or more. The purchaser at the Fiscal's sale got a good title to somuch of -the mortgaged property as formed part of her estate andhad been mortgaged by her, no matter what was the value of herestate; and neither the Fiscal nor the purchaser was guilty of theoffence or liable to the fine mentioned in section 547.
The fourth issue was, therefore, not material, and the order of theDistrict Court allowing. it should be set aside; and the defendantsshould pay the plaintiffs' costs of the contention as to that issue inthe District Court and on this appeal.
Middleton J.—
This was an action to vindicate title to property by the tirssplaintiff as lessor and the second plaintiff as lessee. The firstplaintiff was a purchaser under a Fiscal’s sale upon a decree in anaction on a mortgage bond which he brought against Don Salmanpersonally and as the duly appointed representative, under section642* of the Civil Procedure Code, of his deceased wile Nonohamy,
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AwS, 1910 vnth whom, while married in community, Don Salman mortgagedMmraErov ProPerty ^ question to the plaintiff. The defendants were thej. alleged successors in title of Harmanis, the father of Nonohamy,Sihavpleaded that the estate left by Nonohamy exceeded Rs. 1,000,
-Appuhamy and that it was necessary under section 547 to maintain this suit;
that the plaintiffs should prove that Nonohamy’s estate was underRs. 1,000, as no letters of administration had been obtained to herestate. This contention was upheld by the District Judge, and theplaintiffs appealed.
The defendants, in effect, impeach the transfer of the property tothe plaintiffs, and claim that the same is bad on the ground thatthey did not fulfil the obligations which they allege section 547imposed on them. I have carefully looked into all the cases quotedby counsel, which are Sevalingam Kangany v. Kumarihamy; 1Fernando v. Dochchi; 2 Prins v. Pieris;3 De Silva v. Thomis Appu; 4Gunaratne v. Hamine;5 Ponnamma v. Arumoyam;6 Silva v. Silva; 7Supreme Court Minutes, June 14, 1910, in D.C., Batticaloa, 3,140.
The primary object of section 547 is to compel those persons whoclaim benefit’ by inheritance from the estate of deceased persons,testate or intestate, leaving property in value exceeding Rs. 1,000,to obtain letters of probate or administration, and so to secure thepayment of the legal stamp duties, and it bars all actions for therecovery of such property unless so complied with, and makes thetransferor and transferee liable to fine. I think counsel for theappellants is right in arguing that it is not intended to bar claimsagainst an estate for debt, and is not obligatory in such a caseas this.
In the present case, the first plaintiff, being a mortgage-creditorof Nonohamy, fulfilled the obligation laid upon him by section 642in obtaining the appointment of her husband Don Salman as herrepresentative in the mortgage action. He was not then seekingto recover, in the sense used in section 547, property belonging toor included in the: estate of Nonohamy, but a debt secured bymortgage on her property. All then that he had to do was tocomply with section 642, and this he hasdone. It is said, however,now that, as he is seeking to recover property which at one timebelonged to or was included in the estate of Nonohamy, he isbound by section 547.
The property, however, passed out of the estate of Nonohamy inperfectly legal fashion, and, in my opinion, it was not intended thatevery creditor and purchaser, under the circumstances of the presentcase, was bound as well to act under seoton 642 as to obtain lettersof administration to his debtor's estate, or prove that the same was
1 {1891) 1 c. X. J?. 74.* {1903) 7 N. X. R. 123.
* (1901) $ N. X. R. 1,6.6 (1903) 7. N. X. R. 299.
» (1901) 4 N. X. R. 363.* (1905) 8 N. X. R. 223.; 1 Bed. 166.
7 (1907) 10 X. X. R. 234.
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under Its. 1,000 in value under section 547. The words of section Aug. 8,1910642 are very strong, and declare that an order made under the latter juidd^otowpart of the seotion shall bind the estate of the deceased mortgagor J.in the same manner in all respects as if a duly instituted adminis-suvav.
trator of the deceased mortgagor had been appointed.ApptJumy
I think that the test of the obligation under section 547 to provethat the estate is worth under Bs. 1,000, or that administrationshould be taken out, must be sought for by inquiring whether itwas so obligatory at the time when the impeached transfer tookplace. In my opinion it was not obligatory here at the time of thetransfer to the first plaintiff, and I would therefore set aside theorder of the District Judge admitting the fourth issue, and allowthe appeal with costs.
Appeal allowed.