THE LAND COMMISSIONER, Appellant, and V. P.JAYEWARDENE and another, Respondents

042-NLR-NLR-V-62-THE-LAND-COMMISSIONER-Appellant-and-V.-P.JAYEWARDENE-and-another-Respondents.pdf


The Land. Commissioner v. Jayewardene,
183
[Ih the Privy Cotjncix.]
1960 Present : Lord Tucker, Lord Keith of Avonholm, Lord Jenkins,Lord Morris of Borth-y-Gest, Mr. L. M. D. de Silva
THE LAND COMMISSIONER, Appellant, and V. P. JAYEWARDENE
and another, Respondents
Privy Cornsrcn, Appear No. 26 of 1959
S. C. 191—D. C. Colombo, 6499fL
Land Redemption Ordinance, No. 61 of 1942 {as amended by Ordinance No. 02 of1947)—Acquisition of lands by Land Commissioner—Section 3 (1) (6)—Construction.
Where several lands are mortgaged, and the mortgagor transfers to thomortgagee some but not all of the lands in satisfaction of the mortgage docreo 1
1 {1927) 2 IC. B. 517.
184
LORD MORRIS—The Land Commissioner v. Jayewardene
entered against him, section 3(1) (i>) of the Land Redemption Ordinanceis applicable if the Land Commissioner subsequently makes a determinationto acquire a part of the lands conveyed.
A PPEAL from a judgment of the Supreme Court reported in{1958) 60 N. L. B. 265.
E. F. N. Gratiaen, Q.C., with Walter Jayawardene, for the defendant-appellant.
Sirimevan Amerasinghe, for the plaintiffs-respondents.
Cur. adv. vuU.
July 27, 1960. [Delivered by Lord Morris of Borth-y-Gest]—
This appeal is brought against the Judgment and Order of the SupremeCourt of Ceylon dated the 7th February, 1958 (Basnayake, C.J., andPulle, J., K. de Silva, J., dissenting) affirming a Judgment and Decree ofthe District Court of Colombo dated the 6th November, 1953. By suchJudgment the District Court directed that an injunction should issue infavour of the plaintiff in the action restraining the Land Commissionerfrom acquiring certain lands under the Land Redemption Ordinance.The principal issue which is raised in the appeal is one of the constructionof that Ordinance (No. 61 of 1942).
The facts which gave rise to the proceedings are not in controversy.One Suriyapperuma owned certain lands which by Bond No. 1987 datedthe 30th January, 1932, he mortgaged to one Cyril Pinto Jayewardene assecurity for the repayment of a sum of Rs. 5,500 which had been lent toSuriyapperuma. Jayewardene put the mortgage bond in suit and obtaineda mortgage decree dated the 18th July, 1934. Thereafter by deed datedthe 20th July, 1935, Suriyapperuma conveyed to Jayewardene some butnot all of the hands which had been mortgaged. The conveyance was insatisfaction of the amount due on the mortgage decree. Possession ofthe lands conveyed was taken. Jayewardene died in August, 1937, andhis widow and child who were the plaintiffs in the action which was laterbrought acquired title to the lands conveyed as heirs of Jayewardene. Ata much later date (the 31st December, 1950) the Land Commissionermade a determination to acquire two lands being part of the lands con-veyed by the Deed of the 20th July, 1935. The determination was madeunder section 3 (1) (b) of the Land Redemption Ordinance. Noticewas given by the Land Commissioner to the two plaintiffs who in 1952commenced proceedings against the Land Commissioner. By their Plaintdated the 24th March, 1952, they stated that the two lands did not fall“ within the description in section 3 of the Land Redemption OrdinanceNo. 61 of 1942 ” and that they were not therefore subject to acquisitionby the Land Commissioner under the Ordinance. The plaintiffs claimedan Injunction restraining the Land Commissioner “ from the acquisition
LOBD MORRIS—The Land Commissi oner v. Jayewardene
185
of ** the two lands. In the Answer *of the Land Commissioner it waspleaded that his determination was final and could not be canvassed ina court of law and it was further pleaded that the action was wronglyconstituted against the Land Commissioner inasmuch as any steps for theacquisition of the lands would be taken by the Minister and not by theLand Commissioner.
As mentioned above the claim succeeded and it was directed that anInjunction should issue. At the trial of the action issues were framedand were answered as follows :•—•
Issue'Answer
“ 1. Are the lands in question capable of beingacquired under section 3 of the Land RedemptionOrdinance ? (It is admitted that the Land Commissionermade a determination under section 3, sub-section 4, ofthe Land RedemptionOrdinance.)No.
Even if issue 1 is answered in favour of the plaintiff
is the plaintiff entitled to an injunction restraining theLand Commissioner fromtakingsteps to acquire them ?Yes
Is the action properly constituted as against the
Land Commissioner ?Yes
Is the Land Commissioner’s determination final and
conclusive ?No
If issue 4 is answered in the affirmative, can the Does not
said determination be canvassed in a Court of law V*arise
In the Supreme Court the majority upheld the decision of the DistrictCourt. In regard to procedural issues and in particular to the questionwhether such an action as that which was brought could be maintainedagainst the Land Commissioner nomine officii the majority made referenceto the case then recently decided in the Supreme Court of LadamuttuPillai v. Attorney-General and ot7iersx. In regard to the constructionof the Land Redemption Ordinance Pulle, J., expressed himself asfollows :—“ If the learned Judge’s interpretation of the section is thatit is a condition precedent to the exercise of the power of acquisition thatall the lands bound by the mortgage must be transferred I am in agree-ment with him ”. The learned Judge rejected a submission that hadbeen made that section 3 (1) (6) had no application because it could notbe said that immediately prior to the transfer the debt created by thedecree was secured by a mortgage. He added —“ The correctness ofthe ruling in JH. S. Perera v. Unantenna? was questioned before us.I concurred in the judgment in that case and having reconsidered it I
1 {1957) 59 N. L. It. 313.
8 {1953) 54 N. L. R. 457.
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LORD MORRIS—The Land Cornrniaaioner v. Jayewardene
see no reason for "thinking that it was wrongly decided. ”. The learnedChief Justice summarised his conclusions as follows :—
“ (a) Section 3 (1) (6) of the Land Redemption Ordinance appliesto a case of a transfer, in satisfaction or part satisfaction of the debt,of the entire land where only one land is mortgaged and of all thelands where more than one land is mortgaged.
(6) The Court has power to grant an injunction against the LandCommissioner restraining him from taking steps to acquire a landunder the Land Redemption Ordinance.
(c) The Land Commissioner may be sued nomine officii.
{d) Section 3 (4) of the Land Redemption Ordinance does notpreclude a person from challenging in a regular action the legalityof the determination of the Land Commissioner to acquire a land.”
35L. D. de Silva, J., was of a different opinion and in his Judgment hesaid :—
“ Without unduly straining the language of section 3 (1) (6), X donot think it can be said, that the legislature contemplated the applica-tion of this provision only to cases where all the mortgaged landshave been transferred. The object of this Ordinance was to renderassistance to a class of debtors who got into difficulties during anabnormal period of financial stress. If the view put forward onbehalf of the respondents is to prevail that object would be defeatedto a very large extent. According to that view if a person borroweda sum of Rs. 50,000 by hypothecating ten lands—nine of which werevery valuable—as security for the loan and he later transferred to themortgagee the nine valuable lands in satisfaction of the debt he wouldnot be entitled to obtain any relief through the intervention of theLand Commissioner even though the 10th land which he did nottransfer was worth only Rs. 100. Tt is difficult to believe that theLegislature, in passing this Ordinance, intended to countenance sucha situation.
In my view the lands in question come within the purview ofsection 3 (1) (6) and the Land Commissioner was entitled to acquirethem. . I would therefore allow the appeal and dismiss the plaintiffs’action, with costs in both Courts.”
Their Lordships have had occasion in dealing with the case of Ladamultuv. Attorney-General1 to consider the provisions of section 3 of the LandRedemption Ordinance.
Section 3, sub-section 1, of the Ordinance (No. 61 of 1942) as amendedby Order No. 62 of 1947 is in the following terms :—
“ 3.—(1) The Land Commissioner is hereby authorised to acquireon behalf of the Government the whole or any part of any agricultural
{I960) 62 N-.L.R. 169.
1
LORD MORRISThe Land Commissioner v. Jayeioardene
187
land, if the Land Commissioner is satisfied that that land was, at anytime before or after the date appointed under section 1, but notearlier than the first day of January, 1929, either—
(а)sold in execution of a mortgage decree, whether or not thatland was subject to the mortgage enforced by that decree, or
(б)transferred by its owner or his executors or administratorsto any other person or the heirs, executors or administrators ofany other person in satisfaction or part satisfaction of a debtwhich was due from that owner or his predecessor in title tothat other person and which was secured by a mortgage of thatland subsisting immediately prior to the transfer, or
(c) transferred by its owner or his executors or administratorsto any other person, at the request of a mortgagee of that land,in satisfaction or part satisfaction of a debt which was due fromthat owner or his predecessor in title to that mortgagee andwhich was secured by a mortgage of that land subsistingimmediately prior to the transfer.
The preceding provisions of this sub-section shall not applyto such undivided shares of an agricultural land as were sold ortransferred 'within the period specified in those provisions andin the circumstances and manner set out in any of the precedingclauses (a), (6) and (c), but, where those shares were convertedafter the sale or transfer into any divided allotment or allot-ments by a partition decree of any court or by a duly executeddeed of partition, those provisions shall apply to such allotmentor allotments, and accordingly the word “ land ” occurring in thisOrdinance shall be construed to include such undivided shareswhich have been converted after sale or transfer as aforesaid intoany divided allotment or allotments.”
The lands which were transferred to Jayewardene by the Deed of the20th July, 1935, were agricultural. The Land Commissioner made adetermination to acquire two of the lands, i.e. a part of the land trans-ferred. The lands were transferred by Suriyapperuma in satisfaction of adebt due from him to Jayewardene. The lands were secured by a mortgagewhich was subsisting immediately prior to the transfer. It would followtherefore that section 3 (1) (6) applied and in their Lordships’ view itmatters not that there was additional land covered by the mortgage whichwas not included in the transfer. Their Lordships cannot agree with theview that section 3 (1) (6) only applies (where several lands are mortgaged)if all the mortgaged lands are transferred in satisfaction or part satisfactionof the debt.
Before their Lordships’ Board it was contended that after a mortgagedecree has been directed the debt is not secured by a mortgage of the land.It was said that thereafter it is the decree of the Court that secures the
188
Mode.rn Pat-wwata Go-opercUive Fishing Society Ltd. v. Qunawardena
land. Their Lordships cannot accept this view and they see no reason todiffer from the conclusion reached in M. S. Per era v. Unantenna1.
"For these reasons their Lordships will humbly advise Her Majesty that-the appeal should be allowed and that the action should be dismissed.The respondents must pay the costs both before their Lordships’ Boardand the costs in the District and-Supreme Courts.
Appeal allowed.