THAMBAIYAR et al. v. PARAMUSAMY AIYAR et al

097-NLR-NLR-V-19-THAMBAIYAR-et-al.-v.-PARAMUSAMY-AIYAR-et-al.pdf


( 385 )
[Full Bench.]
Present : Ennis J., Shaw J., and De Sampayo J.THAMBAIYAB et al. t>. PARAMUSAMY AIYAR et al.
448—C. B. Paint Pedro, 16,983.
Mortgage—Mortgagedproperty under Be. 1,000 invalue—Estateof
• deceased mortgagor under Be.1,000—Action'against heirs of
• mortgagor—Action bad—Civil Procedure Code, es. 040 to 642.
' An action to realize a mortgage cannot be brought 'without^making the personalrepresentative ofa deceased' mortgagor a
'.«arty, even when the estate of the mortgagor is under Rs. 1,000"£n value. The mortgagee must, when the property mortgaged isfunder Rs. 1,000, get a person specially appointed to represent theRestate of the deceased mortgagor, if no administrator or executor- lias been appointed.
T
HIS case was referred to a Bench of three Judges by the follow-ing judgment of Ennis J. (February 20, 1917): —
This was an action on a mortgage bond. The plaintiffs made all'the!' heirs of the deceased mortgagor defendants in the action.- It is admitted that the estate of the deceased mortgagor was underRs. 1,000 in value. The learned Commissioner has dismissed theAction c>n a preliminary issue, holding that it could not be maintained,as no legal representative of the estate of the deceased mortgagorhad been appointed under section 642 of the Civil Procedure Code.
, In the case of Silva v. Fernando 1 it Was held that a mortgageemay. sue the heirs. In Punchi Kira v. Sangu 2 it was held, on thecontrary, that an executor or administrator must be made a partyf6r. the case to be properly constituted. The latter proposition wasagjiin enunciated in Bastian Pillai v. Anapillai.3 The point turnson-the construction to be placed on section 642 of the Civil ProcedureC£(5e. Under that section, where the hypothecated propertyexceeds Rs. 1,000 in value, a mortgagee must apply for the appoint-ment of an administrator to the estate of the deceased mortgagor.When the property is under Rs. 1,000 in value, the Court may, onlire application of the mortgagee, and on its. appearing to the Courtnecessary or desirable, appoint some person to represent the estatefor the purpose of the action. It seems to me that this latter pro-vision is a privilege given to a mortgagee, and I find it difficult tob^Jeve it was meant to debar a mortgagee from the proceeding.
' 1 (1897) 3 N. h. B. 15.a (1900) 4 N. L. R. 42.
3 (1901) 5 N. L. R. 31.
1917,
1917.
Thambaiyar«t Paramu«eamy Aiyar
( 386 )
against the owners of the property, when the property is underBh. 1,000 in value, without the appointment of a person to representthe estate. It seems rather to provide a way by which a mortgageecould bind the estate of the deceased by his decree, and not merelyhave satisfaction from the morgaged property. In view of thereported decisions, I think the point should go before a Full Bench,and accordingly refer it to a Court of three Judges.
A-mlanandan, for appellant.—The proviso to section 642 of theCivil Procedure Code confers a special privilege on the mortgagee,if the property mortgaged is under the value of Rs.~ 1,000. Thegranting of a privilege should not be construed as taking away theright of proceeding against the, heirs in possession. Even afterthe passing of the Civil Procedure Code the Supreme Court hasrecognized the right of a mortgagee to proceed against the heirs of adeceased mortgagor who have adiated the inheritance. See Saramv. Per era 1 and Tikiri Banda v, Mudalihamy. 2 The words insection 641 are “ shall be entitled it will be doing violence tothe language of the section to construe it as ‘‘ shall sue." Such aconstruction may lead to highly inconvenient results. A mortgagemay run on for over a century, and the property may have passedinto other hands, and yet, if the mortgagor is dead, his executor oradministrator has to be sued. The executor may have closed theestate, and he may be dead. In such a case, no mortgage actioncan be brought. Such could never have been the intention of theLegislature.
Wadsworth, for respondent.—The ease is covered by authority.Since the decision of Punchi Kira v. Sangu 3 it has been theinvariable practice to sue the executor or administrator or the legalrepresentative appointed under section 642.
[Morgan de Saram, as amicus curicc, referred to the amendmentto section 70 of the Courts Ordinance consequent on the decisionreported in 1 Bal: 51.]
Arulanandan, in reply.
Cur: adv. vult.
March 8, 1917. Ennis J.— ,
The. amendment of section 70 of the Courts Ordinance introducedby Ordinance No. 13 of 1904 indicates, the intention of the Legislaturewith regard to the construction of sections 640, 641, and 642 of the’Civil Procedure Code. It is consonant with the construction put onthose sections by Bonser G:J. in Punchi Kira v. Sangu,2 I accordinglyagree with my brothers that the' appeal should be dismissed withcosts.■.
* 1 Br. 117.* 1 Br. 121.3 (1900) 4 N. L. R. 42.
( 387 )
ShARv J.—
Srnniar Chelliar, by mortgage bond dated September 9, 1909,Mortgaged certain property to one Gnanasekera Aiyar for Be. 150.
Chelliar died intestate some six or seven years ago, leaving a widow,the first defendant, and three aonb, the second, third, and fourthdefendants, as his heirs. No administration was taken out inrespect of his estate, and his heirs are in possession.
On August 16, 1916, the second plaintiff, claiming to be an heirof the mortgagee Gnanasekera Aiyar, and her husband, the firstplaintiff, filed an application in the Court of Bequests for thepprpose of getting the first defendant appointed to represent theestate of the deceased mortgagor Chelliar under the proviso containedin section 642 of the Civil Procedure Code, with a view to suingsugh representative on the mortgage bond.
finding it impracticable to get a representative appointed priorto September 9, 1916, at which date the debt on the mortgage bondwqpld have become barred by prescription, the plaintiffs discon-tinued the application, and on September 7, 1916, brought thepresent action on the bond against all the heirs, asking for paymentof the debt and interest and for an hypothecary decree.
The Commissioner of Bequests has dismissed the action on theground that it is improperly constituted, no administrator of th.e-mortgagor having been appointed, or any person appointed • torepresent the estate under the proviso to section 642. The plaintiffsappeal.
It is difficult to arrive at a satisfactory construction of sections640-642 of the Code, or one that does not give rise to obviousdifficulties. On the whole, I have come to the conclusion that theconstruction placed upon this by Bonser C.J. in Punchi Kira v.Sangu 1 is the correct one. As pointed out in the judgment in that-base, there were, prior to the passing of the Code, two actions avail-able to a mortgagee for the realization of the- moneys secured to him
-upon a mortgage, viz., a personal action on the bond against the' mortgagor or the person representing his estate, and an hypothecaryaption against the land, which actions might have been broughteither separately or together. The object of the Legislature appearsto- have been to provide that the actions should in future alwaysbe brought together, probably with the view of avoiding multiplicityof actions.
Section 640 provides that every mortgagee or person entitled tobring any action for the realization of moneys secured to him upona mortgage shall sue the mortgagee as defendant. This cannotmpan that he. shall do so when he wishes to recover merely on thecovenant to pay the money, for that was an obvious right existing-before, but it means that he must sue the mortgagor as well when- •ever he brings the hypothecary action. Nor does it appear to me
1 (1900) 4 N. L. R. 42.
1917.
Thambaiyarv. Paramu-eamy Aiyar
( 388 )
•917. that it can mean that he must in sueh case sue the mortgagor aloneShaw j in such an action without joining the person in possession of themortgaged property and who is principally interested in the resultof the suit, for such a construction would be contrary to naturalaamy Aiyar justice.
Then, section 641 provides that “ in every such case,” namely,in any action for realization of money secured on a' mortgage wherethe mortgagor is dead, the mortgagee “ shall be entitled ” to suethe executor or administrator of the deceased mortgagor.
At first sight this would appear to be entirely optional, and notto take away the previous right in the creditor to proceed againstthe land alone by the hypothecary action, should he desire to do.so, but if so, as Chief Justice Bonser pointed out, why the sectionat all? Why pass a special provision to affirm an obvious right thecreditor had to sue the estate of his debtor on his bond? And the earlypart of section 642 seems to show that it is intended that therepresentative must be a. party for it provides that “ in every suchcase, i.e., in every case of an action for the realization of moneysecured on a mortgage where no executor has been appointed orno administration taken out, “ it shall be obligatory ” on themortgagee or person bringing the action to. apply to the Court toappoint an administrator to the estate of the deceased mortgagorbefore proceeding with the action.
This obviously means that such administrator, when appointed,shall be made a defendant, otherwise, the appointment of theadministrator would be a useless formality. If, therefore, . anadministrator must be appointed and sued, if one has not alreadybeen appointed, it seems obvious that, in the case mentioned insection 641, when an executor or administrator has already beenappointed, it is intended that, although the words used are in formoptional, the executor or administrator must in all cases be sued.1Probably what the Legislature meant was that section 640 having,provided that the mortgagor must be sued, it gave the mortgageean option of suing his representative if he is dead, and so preventthe action failing altogether.
Section 642 then goes on with a proviso applying to cases where]there is no executor or administrator, and the value of the propertymortgaged is under Rs. 1,000, and provides that in such casesthe Court may, on the application of the mortgagee or otherperson entitled to bring the action, “ before action brought "appoint some person to represent the estate of the deceased mort-gagor. Here, again, the words used are optional, but the optionis that of the Court, not that of the mortgagee or person bringingthe action, and the Court may, if it thinks proper, refuse to appointa person to represent the estate, and leave the mortgagee to applyin the usual way for the appointment of an administrator, underthe earlier part of the section, before bringing .his action .
( 889 )
The effect of the sections is, therefore, in my opinion, that themortgagor or some one representing his estate must always be adefendant in an action for the realization of the moneys secured ona mortgage, and it follows that the present action is improperlyconstituted, and the appeal fails.
The construction of the sections arrived at above appears to meto be the only one practicable, but it leads to results that theLegislature can hardly have intended. A mortgage may continueas ia charge on the property, and interest may be paid on it forfifty or a hundred years after the death of the mortgagor, andfrequently in England it does so, the owner of the security beingquite satisfied with the charge on the land. It seems a uselessproceeding to seek out and sue the representatives of the mortgagor,who may have long since parted with all interest in the land and haveno assets of the mortgagors estate in their hands, but it seems to followfrom the sections that they must be sued,. and the only way to obviatethe difficulty is by amendment of the sections by the Legislature.
Another point was touched upon in the argument of the appeal,namely, whether after a person has been appointed under the provisoto section 642 to represent the estate and judgment obtained, execu-i tion ‘ can issue to discuss other land belonging to the estate of themortgagor upon failure of the land mortgaged to meet the entire claim.
It has* been held in Soysa'v. Jayawardene,1 following MohamaduLehbe v. Umma Natchia,* that it cannot. These cases appear tome to be open to doubt; but it is unnecessary to decide the pointfor'; tiie purposes of this appeal, and I think it is better to reservethe, point for discussion in some future case where it diistinotly arises..
J^would dismiss the appeal, with costs.
Dk -Bampayo J.— i
t|ie question for decision in this oase is whether, since the CivilProcedure Code came into operation, an aotion to realize a mortgagecould be brought against the heirs of the deceased mortgagor whoadi^bed the inheritance. Under the Poman-Dutch law the heirsin ^bssession of a debtor’s property may be sued for the recovery ofthe: debt by sale of the property in their hands, and the hypothecaryaction on a mortgage of immovable property may also be broughtagainst the heirs if they are in possession of the mortgaged property,|ndeed, against any person in possession to whom the mortgagedproperty has passed; but what is the effect of the provisions ofi^eetions 640, 641, and 642 of the Civil Procedure Code on thePoman-Dutch procedure with regard to a mortgage action? Therejs no difficulty as to the necessary parties when the mortgagor is^alive, for section 640 expressly enacts that the mortgagee shall sue?the mortgagor as defendant, whether the mortgagor is or is not inpossession. If the mortgagor is not in possession, and the property
i (1914) 17 N. L. R. 218.
* 30-|
1917.
Shaw J.
Thambtti&ar-
, <?. Panamu-
'gamy Aiytmr
* (18BS) 1 N. L. R. 346.
( 390 )
1917. has passed to a third party, there is nothing to prevent the mortgageeDta^~tvn from joining sueh third party, and, indeed, it is necessary for him to
J.do so in order to obtain a binding mortgage decree against him.Tfliwiirmijjifr Section 641 next provides that where the mortgagor is dead, thecujPoraMtf- mortgagee “ shall be entitled to sue the executor or administrator
’AWar 0f such deceased mortgagor.’* The phrase “ shall be entitled ” israther unhappy, for it goes without saying that a mortgagee isentitled to sue the legal representatives of his deceased mortgagor,and the language of this section has led to the argument that themortgagee may sue the legal representative if he pleases, but thathe is not obliged to do so, and may sue the heirs. But, howeverbadly worded the section may be, I do not think it is intended togive the mortgagee a choice. Permissive words, such as “ may,”"shall have power," " it shall be lawful," are often construed as-having a compulsory force See Maxwell on Statutes (4th edition),page 360, where this subject is discussed. The words " shall beentitled " in the context empowers the mortgagee to sue the mort-gagor’s legal representative instead of the mortgagor, who, if alivemust, according to the provision immediately preceding; be made;a party to the action, and-this alternative provision, in my opinion,is also obligatory. This is rendered clear by the . provision insection 642, which makes it obligatory on the mortgagee, when themortgaged property is above Rs. 1,000 in value, to have an adminis-trator appointed if there. is none already. The proviso to section642 enables the mortgagee to take the less onerous course of applyingfor the appointment of a special representative where the mortgagedproperty is less than Rs. 1,000 in value. The proviso no doubtsays that the Court " may " make such an appointment if it appearsto the Court necessary or expedient. As explained by Bonser C.J-in Punchi Kira v. Sangu,1 the discretion thus given to the Court does'not mean that the appointment of a representative may be dispensedwith, but that the Court may allow it or insist on the appointmentof an administrator. The decision just referred to contains a fullexposition of the change introduced by sections 640, 641, and 642of the Civil Procedure Code with regard to procedure in mortgageactions. It was preceded by Pattiman v. Kanapati Puile,2 decidedby Bonser C.J. to the same effect. In the still earlier case of Soys#v. Alwis,3 Withers J., referring to these sections, said: " If the mort-’gaged property of a person dying intestate amounts to Rs. 1.000,the mortgagee cannot bring a hypothecary action unless he vhasprocured the appointment of ' an administrator …. If «thejmortgaged property is under the value of Rs. 1,000, the mortgagee;who desires to enforce his hypothec may apply to the Court to^
appoint some person to represent the estate of the deceased for allthe purposes of the action." Then followed Bastian Ptllai v
i (1900) 4 N. L. R. 42.2 (1898) 1 Br. 119.
a (1895) 1 N. L. R. 225.
•'W. tOt-K
( 391 )
Anapillai,1 in which the same rule was re-enforced. In Samara-singhe v. Kurukulasuriya 2 it was held that a mortgage decreedetained against the executor of a deceased mortgagor was bindingon the heirs, and that no new action against them was necessary for.the purpose of selling the mortgaged property. As against these^cisions two cases have been cited. The first of them is De Saram. m Per era,3 in which it appears that the mortgagor had divested■ himself of the property before his death, and it was held that sofar as the hypothecary action was concerned it could be brought~~3gainst the present owner of the property. This, therefore, is hota very strong authority. The other case is Tikiri Panda v. Mudali-hamy,* which approved of an hypothecary action against certainpersons who were heirs of the deceased mortgagor; but the groundof the decision is thus stated: “ However, this action nlay be sup-ported as an hypothecary action on the mortgage, to which thosein-*^possession of the mortgaged land are made defendants, not tomake them personally liable on the bond, but to have it declaredthay the land is liable to be sold.” Both these decisions weredisapproved of in Pattiman v. Kanapati Pulle.5 In this conflictof decisions, I for my part think that the first group of cases abovereferred to are more in accordance with the obvious intention ofthe Code, and I may add that the practice of our Courts has sincebeen in conformity with the ruling therein made. The cast • ReJtfather Saibu Rawter,6 which illustrates this practice, is ratherinteresting. There the mortgagor transferred the property, wentabroad, and died without leaving any property in the Island..^Phe mortgagee applied to the Supreme Court, under section 70 ofthe Courts Ordinance, to confer sole testamentary jurisdiction onthe District Court of Colombo with the view of having an adminis-^trator appointed in compliance with section 642 of the Civil Pro-cedure Code. The Supreme Court refused the application, on theground that it had no jurisdiction to make an order where thedeceased left no property in the Island. In consequence of that■decision the Ordinance No. 12 of 1904 amended section 70 of theCourts Ordinance by adding a proviso empowering the SupremeCfourt to confer sole testamentary jurisdiction where it is necessary,for the purpose of the mortgage sections of the Code, to appoint anadministrator, notwithstanding that the deceased left no propertyin the Island. This, I think, is a recognition of the practice settledby the decisions above referred to. I think that, even if thedecisions are not sound, as I think they are, the practice should notnow be disturbed.
I would dismiss the appeal, with costs.
Appeal dismissed.
i (1901) 5 N.L. R. 31.41 Br. 121.
^ (1900) 5 N.L. R. 172.s(1898) 1 Br. U9.
® 1 Br. 117.«(1904) 1 Bal. 51.
1917.
Db SahfatO^'J.
Thambaiyarv. Paramt*-samy Aiyar