042-NLR-NLR-V-34-SILVA-et-al.-v.-SILVA.pdf
Silva v. Silva.
1*5
1932
Present: Garvin S.PJ. and Dalton J.
SILVA et al. v. SILVA.
72—D. C. Colombo, 31,987.
Mortgage Ordinance—Addresses not registered—Transfer of property—Saleunder hypothecary decree—Mortgage to be kept on foot—Payment ofcompensation—Ordinance No. 21 of 1927, s. 11—Retrospective effect.
Section 11 of the Mortgage Ordinance, No. 21 of 1927, does not affecta land, title to which has been acquired before the Ordinance came intooperation. ■
HIS was a partition action in which 'fifth defendant-appellant
intervened, claiming the entire property. The original owner,Santiago Silva, mortgaged the property with one Hendrick Perera whoassigned the bond to the fifth defendant: He put the bond in suit,purchased the property at a Fiscal’s sale and obtained transfer by deed(D 3) dated March 19, 1928, and registered in 1929. Neither fifthdefendant nor Hendrick Perera had registered their addresses. Plaintiff’scase was that Santiago Silva conveyed the land in 1923 to Thomas Silvaand others from whom he purchased in June, 1927. Neither Thomasnor plaintiff had registered their addresses. The fifth defendant claimedthat, even if plaintiff’s title was superior, he was entitled to compensationunder section 11 of Ordinance No. 21 of 1927. The learned DistrictJudge rejected the claim.
J. R. Jayewardene, for fifth defendant-appellant.—The only questionis whether under section 11 of the Mortgage Ordinance of 1927 we areentitled to a hypothecary charge on the property. This section has beendrafted to meet the requests of the Supreme Court as expressed inKristnappa v. Horatala1 and Anohamy v. Haniffa3 that some form ofequitable compensation should be granted to those in the position of theappellant, i.e., a bona fide purchaser at a mortgage sale. See 9 C. L.Rec. XLV1I1. Why should he suffer for the fault of the mortgagor ormortgagee, who have not registered their addresses ?
This doctrine is analogous to the English doctrine and applies to saleseffected before or after the Ordinance of 1927. The words “ will notaffect a title acquired for valuable consideration ” before the new Ordi-nance preclude us from claiming title to the land or attacking their title ;they do not prevent us from claiming compensation. There is no otherremedy open to us, but to intervene in this partition action and claimthe amount of money which we paid at the sale or the amount of themortgage—see Girigoris v. Amolis
A. Rajapakse (with him R. C. Fonseka), for plaintiff-respondent.—r-Thewords “ will hot affect title ” preclude the appellant from claimingcompensation. A hypothecary charge as created by section 11 affects
3 31 N. L. R. 481.
1 25 N. L. R. 39.
= 25 N. L. R. 289.
146
DALTON J.—Silva v. Silva.
title. It has been repeatedly held that the non-registration of the addressof a mortgagee prevents the sale on a mortgage bond binding persons towhom the mortgagor has transferred the mortgaged property, subsequentto the mortgage. We are not bound by the sale. Our title is good.Section 2 restricts the application of section 11 to sales after thecommencement of the Ordinance.
Jayewardene, in reply.
October 25, 1932. Dalton J.—
This appeal raises a question under section 11 of the Mortgage Ordi-nance, 1927. The fifth defendant-appellant, intervened in the action,a partition action, claiming the ' entire property. He pleaded that aprevious owner, Santiago Silva, mortgaged the property to one HendrickPerera, who had assigned the bond to him. He put the bond in suit,obtained judgment, purchased the property at Fiscal’s sale, and obtainedtransfer by deed (D 3) dated March 19, 1928. That deed was registeredin 1929, but neither • Perera nor appellant had registered their addresses.
Plaintiff’s case was that Santiago Silva conveyed the land in 1923 toThomas Silva and his other children. Thomas sold his interest to theplaintiff in June, 1927, by deed P 3. That deed was registered in June,
but neither Thomas nor plaintiff had registered their addresses,' andso appellant could not make them parties to the mortgage action. Theywere therefore not bound by the decree in the mortgage suit.
Under these circumstances, the fifth defendant claims that even if thetitle of the plaintiff is superior to his, nevertheless he is entitled to theamount due on the mortgage decree or to a hypothecary charge on theproperty to the amount of the mortgage that was extinguished by thesale. In support of this contention, he relies upon the provisions ofsection 11 of Ordinance No. 21. of 1927.
The trial Judge has held, on this point, that as plaintiff obtained titlein June, 1927, this section does not apply in view of the provision insub-section (2). The Ordinance came into force on January 1, 1928,and it is provided that the section “ shall not affect any title acquired forvaluable consideration before the commencement of this Ordinance ”.There was a discussion before us as to the meaning of the words “ any titleacquired ” ; but reading the whole section together, the meaning – of thesection seems to me to be that the section shall not affect any land thetitle to which is acquired for valuable consideration before January 1,
1928.
Counsel for appellant has, however, referred to Girigoris v. Arnolis a similar case up to a point, in which the Court held that the unsuccessfulplaintiff, having taken action v/hich resulted in the mortgage being wipedout, was entitled to be compensated under the previsions of section 11.The successful defendants in that action derived title from a conveyanceby the mprtgagor dated June 21, 1926.
An examination of the judgment, and also of my notes taken duringthe course of the argument, shows that under the circumstances there
< 31 N. L. H. 481.
147
AKBAR J.—In re De Saram.
the defendants did not press the question of the payment of the amountdue on the mortgage, which amounted to only Rs. 50, by them, nor wassub-section (2) of the section referred to in the course of the argument.
In view of the provisions of this sub-section, I am of opinion that thejudgment of the lower Court was correct and section 11 does not applyin this case. It is not necessary therefore to consider the nature of the'relief given by that section.
The appeal is dismissed with costs.
Garvin S.P.J.—I agree.
Appeal dismissed.