040-NLR-NLR-V-12-WEERAPPA-CHETTY-v.-ARUNASELAM-CHETTY.pdf
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Present: Mr. Justice Wendt and Mr. Justice Middleton.1909.
June 7.
WEERAPPA CHETTY v. ARUNASELAM CHETTY.
D. C., Badullu, 2,102.
Mortgage—Purchaser subsequent to. mortgage—Non-joinder in action—
Effect of decree—Failure on the part of mortgagee to furnish addressto the Registrar-—Omission on the part of subsequent purchaserto give notice—Civil Procedure Code (Ordinance No. 2 of 1889),
Chapter XLVI.
Held, that- before a mortgage decree can have the conclusiveeffect given to it by section 644 of the Civil Procedure Code, it mustbe clearly proved that the mortgagee has complied with the firstproviso to that section, and left an address with the Registrar ofLands for service of notices.
Pciris v. Weerasinglie 1 followed.
Held, also, that the description of the mortgagee given in to theRegistrar at the time of registration of the bond, and entered byliim in the Register of Encumbrances, is not such an address as isrequired by section 644 of the Civil Procedure Code.
A CTION rei vindicatio. The plaintiff sued the defendant to-£A_ reoover certain shares of lands. The said shares originallybelonged to one Annamalay Chetty, who by deed No. 2,145 datedMay 10, 1894, sold them to Palaniappa Chetty and OaruppenChetty. Palaniappa Ghetty by deed No. 2,481 dated May 2, 1896,and registered on June 15,1896, sold his undivided half share to theplaintiff; and Caruppen Chetty by deed No. 2,501 dated June 6,
1896, and registered on June 15, 1896, transferred his half sharealso to the plaintiff. The plaintiff, alleging that the defendant was inunlawful possession of the said shares of lands, claimed a declarationof title in his favour and also damages.
The defendant, while admitting that Palaniappa Chetty andCaruppen Chetty were the owners of the land as alleged in theplaint, averred that the said Palaniappa had by bond. No. 2,275dated April 22, 1895, and registered on May 1, 1895, mortgaged thesaid lands to the defendant’s attorney, Kulandavelu Chetty; thatthe said bond was put in suit in April, 1897, incase No. 1,301 of theDistrict Court of Badulla, and decree obtained on March 31, 1904 ;that the said lands were sold by the Fiscal on November 12, 1904,in execution of such decree and purchased by the defendant, whoobtained Fiscal’s transfers Nos. 2,102, 2,103, 2,104, 2,105, .2,106,
2,107, and 2,108, dated June 9, 1905, and registered on June 9,1905.
The conveyance (No. 2,481) by Palaniappa Chetty to the plaintiff
? (1906) 9 N. L. R. 359.
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1909.was in express terms-made subject to the mortgage (No. 2,275) in
June 7.favour of Kulandavelu Che tty. It was admitted that the mortgagee,
– Kulandavelu Chetty, left no address ydth the Registrar of Landsbeyond the description contained in the Register of Encumbrances.The following issues were framed at the trial:—
Is plaintiff in this action bound by the decree in D. C.,
Badulla, 1,301 ?
Damages.
The District Judge (W. A. G. Hood, Esq.) held as follows (June10,1908):—
“1. This is an action by a ‘ subsequent grantee ’ for declarationof title to, and for possession of, certain lands previously mortgagedwith defendant, who afterwards bought them at a Fiscal’ssale underhis mortgage decree in D. C., Badulla, 1,301.
“2. The transfer to plaintiff and the mortgage bond to defendantwere both registered, the latter having a year’s priority.'
“3. Air agreement having been come to on the question ofamages, the only issue left for my decision is, whether plaintiff, whowas not a party to D. C., Badulla, 1,301, is bound by the decree inthat case. And this hinges entirely on the point whether an address■given by defendant, the mortgagee, to the Registrar of Lands issuch as to satisfy the requirements of section 644.
“ 4. It is admitted that plaintiff furnished defendant with no. address (as required by section 643); but he contends that defendanthas failed to comply with the conditions of the first proviso tosection 644, which, as is clearly laid down in the judgment cited(9 N. L. B. 359), is a condition precedent to the mortgagee comingwithin the provisions of section 644. There is no question ofdefendant having furnished an address to plaintiff, but the abovejudgment, which refers to the case of Santiago v. Fernando,' limitsthe proviso to section 644 to the necessity of furnishing an addressto the Registrar of Lands (thereby rendering possible compliancewith the otherwise mutually destructive terms of both sections 643and 644, which decree that a mortgagee shall furnish an address toevery grantee from whom he has received the notification specifiedin section 643, as a condition precedent to the issue of such notifi-cation) and shows that in the event of defendant’s non-compliancewith this proviso plaintiff is entitled to succeed. On the other hand,compliance on defendant’s part would entitle him to judgment,plaintiff having admittedly failed to comply with the conditions ofsection 643.
“ 5. The address given by defendant to the Registrar of Landsis ‘ Mena Ana Runa Mena Kulandavelu Chetty of Colombo,’ andappears in the Register of Encumbrances against- the various deedsregistered by him under the column ‘ Grantees,’ Plaintiff contends
1 [1901) 2 Browne 126.
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that this is insufficient; that registering a deed is not what section 1909.644 contemplates ; and that a full postal address is necessary. This June <■question of sufficiency is the one and only point for decision inthe case.
“ 6. I find that section 644 does not prescribe that a Registrarshall keep a separate address book for mortgagees, as section 643does for grantees, &c., and it therefore seems to me that theRegister of Encumbrances should be considered sufficient for thepurposes of this section ; if it be not, section 644 should include astipulation similar to that of section 643, or at least make referenceto the latter.
“ 7. As for the address itself, Colombo is a large place, but I amby no means prepared to say that a Che tty resident there, whosefour initials were given, would not be traceable by the Post Officeauthorities. The question, it seems to me, is one of fact; andplaintiff should at least have tested the- sufficiency of the addressinstead of trusting to unsupported assertion.
“ 8. I therefore find that defendant, the mortgagee, has fur-nished the Registrar of Lands with an address as required by thefirst proviso to section 644, that consequently plair^ff is bound bythe judgment in D. C., Badulla, 1,301, in all respects, and that hisaction must be dismissed with costs.”
The plaintiff appealed.
H. A. Jayewardene (with him Bawa and Schneider), for theplaintiff, appellant. >
Walter Pereira, K.C.. S.-G. (with him Wadsworth), for thedefendant, respondent.
Cur. adv. vutt.
June 7, 1909. Wendt J.—
This is a rei vindieatio action in respect of certain parcels of land,of which an undivided half only is in dispute on the appeal. Thathalf was the property of Palaniappa Clietty, who in May, 1896,conveyed it to the plaintiff by a deed which was duly registered onJune 15, 1896. Palaniappa had previously, viz., on April 22, 1895,mortgaged his moiety to Kulandavelu Che tty, who registered hismortgage on May 1, 1895. The mortgagee in April, 1897, suedPalaniappa on the mortgage. Thereafter the present defendantwas made substituted plaintiff, on the ground that Kulandavelu hadbeen only his agent in the matter of the mortgage, and a mortgagedecree was duly entered in present defendant’s fayour. At theexecution sales he became the purchaser, was given credit for theprice, and obtained Fiscal’s transfer in due course. Plaintiff hadno notice of the mortgage action. The question is whether he isbound by the proceedings in it, culminating in the sale to defendant.
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1909. According to the procedure laid down in chapter XLVI. of theJwie 7. Civil Procodure Code for actions to realize moneys due upon mort-Wbnm j. gages, it was the duty of Kulandavelu, upon the issue of summonsin his aotion, to issue notice thereof in writing to all grantees whosedeeds of conveyance were of date subsequent to that of his mortgage,
“ and who shall have at any time previous to the bringing of suchaction notified to him in writing that they have duly registered theirdeeds, and shall have also furnished him with an address for theservice r»f such notice.” The present plaintiff was such a subsequentgrantee, but admittedly he had not notified Kulandavelu of theregistration of his conveyance, nor furnished him with an addressfor service. If that were all, the mortgagee was relieved of thenecessity of giving him notice of his action, but plaintiff contendsthat he was excused from so notifying the primary mortgagee bythe fact that the latter had not complied with the requirement insection 644 that he should furnish to the Registrar of Lands anaddress for service, which requirement was held in Peiris v. Weera-singhe1 to constitute a condition precedent to the liability of puisneincumbrancers to give the primary encumbrancer notice. On theauthority of this decision, the correctness of which I have no reasonto doubt, the question revolved itself into a question of fact, viz. ,whether Kulandavelu had furnished the Registrar with an addressfor service oh him of notices. The District Judge has decided, thisquestion in the affirmative, and held that the plaintiff was bound bythe mortgage decree and sale.
In order to prove the giving of an “ address ” to the Registrar,defendant put in an extract in the usual form from the Register ofLands, and pointed to the particulars relating to the registration ofthe mortgage, where in the column headed “ Grantees ” was entered“ Mena Ana Runa Mena Kulandavelu Che tty of Colombo.” Thisdescription “ of Colombo,” if it purports to be an address at all,does not purport to have been furnished as an address under section644. It is the description of the grantee given in the mortgageitself, just as the description of the grantor as “ Kawanna PanaPalaniappa Chetty of Badulla ” is that which is given there of themortgagor. I notice from the extract, which goes back to 1869,that some such general description of both the grantor and granteeas “ of Colombo,” “ of Badulla,” has often, though not invariably,been inserted in the register, being apparently taken from theinstrument registered,, and this long before there was any provisionrequiring a mortgagee to furnish the Registrar with an address. Themortgagee here did not profess to furnish such an address incompliance with the Code; he merely registered his mortgage.
Section 644 requires something additional to that: “ Provided
that the mortgage shall have itself been du.y registered, and suchmortgagee shall have, furnished an address.” I do not suppose1 (1906) 9 N. L. S. 369.
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that if the plaintiff had asked the Registrar whether an “ address forservice ” had been furnished by any prior mortgagee under section644 he would have been answered in the affhnative, and givendefendant’s address as stated in the register. The provisions ofchapter XLVI. as to these notices are b- no means ideally precise,but the effects of compliance or non-compliance with them are sodrastic that we must- construe them strictly. So regarding thefacts of this case, I hold that the defendant did not furnish theRegistrar with an address for service of notices in connection withhis mortgage. The consequence is that plaintiff has not lost histitle to the lands, and that he is entitled to have that title declaredagainst the defendant. But is lie entitled to possession or to anyother form of further relief ? His conveyance w- in express termsmade subject to the mortgage, but it was not a usufructuarymortgage, and as against the mortgagee plaintiff became entitled topossession. Presumably he entered into, and was in possession. Hecomplains that defendant took unlawful possession in October, 1903.But for the mortgage action there is no doubt that plaintiff couldsuccessfully have sued defendant in ejectment. If sued, defendantmight perhaps have been entitled to claim in reconvention a decreecompelling plaintiff to pay the mortgage debt as a condition precedentto getting possession. I say perhaps, in view of the provision ofsection 640 that the mortgagee “ shall sue the mortgagor as a defen-dant.” Can the mortgage action, which is res inter alios acta, makeany difference in plaintiff’s right'! I think not. The defendantmight in the present action have made such a claim in reconventiou,because he has now sued the mortgagor and got a decree against him.But he has made no such claim, nor did he make any application toamend. Plaintiff is therefore entitled to possession. This case differsfrom the Diklande case,1 which was mentioned at the argument,-because there the mortgagee held a decree against the mortgagor,which was binding on the plaintiff, and entitled him to continue inpossession until redeemed.
Before quitting the case, I desire to notice a contention of theSolicitor-General’s to the effect that the privilege accorded bysection 643 to subsequent mortgagees of giving notice of theirinterests to a primary mortgagee is. limited to subsequent mortgageeswhose bond gives them what is on the face of it a primary mortgage,and cannot apply to a second mortgage which is expressly madesubject to the interest conveyed by an earlier deed (as plaintiff’sconveyance is said to be expressly made subject to defendant’smortgage). I am strongly against this contention,, and think that“ grantee, mortgagee, lessee, and other encumbrancers ” mean anygrantee, &c., of the land. It would no doubt'be true that thegrantee of a conveyance expressly subject to a mortgage could neverfree the land of the encumbrance without satisfying it, but I see noM1890) 1 O. L. B. 32,
1909.
June 7.
Wendt J.
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1909. ground in the Code for depriving him of the privilege of being a. June 7. party to the ascertainment of the mortgage debt and of redeemingWendt j ^an<^ uPon tender of the amount so ascertained.
For the reasons already stated the dismissal of the action will hereversed, and judgment entered in plaintiff’s favour for the disputedmoiety of the lands with the damages agreed on, viz., Rs. 1,000 upto June 10, 1908, and thereafter at the rate of Rs. 50 per mensemtill possession is obtained. The defendant will pay plaintiff’s costsin both Courts.
Middleton J.—
Under chapter XLVI. of the Civil Procedure Code relating toaotions to realize moneys due or secured upon mortgages certainrules are laid down in sections 643 and 646, the observance of whichwill bind by the judgment as fully as though they had been partiesto the action, what are called puisne incumbrancers. These sectionsare involved and badly arranged, as Lascelles A.C.J. said in Peirisv. Weerasinghe et al.,' to which I was a party. In that case itwas held that compliance with the conditions of the first provisounder section 644 was intended to be a condition precedent to themortgagee coming' within the proviso of section 644.
In the present case Palaniappa, the original owner of the propertyin question, mortgaged his half share to Kulandavelu in 1895. In1896 Palaniappa conveyed his half share to the plaintiff, registeringhis conveyance. Kulandavelu sued Palaniappa on the mortgage in1907 without making the plaintiff a party, but pending the actionthe present defendant, on the ground that Kulandavelu was onlyhis agent, was made plaintiff, and obtained decree and execution,and the property was conveyed to him (present defendant) by aFiscal’s- transfer.
The question is whether the plaintiff in this action is barred bythe judgment against Palaniappa, resulting in the sale to defendant.The plaintiff, as a subsequent grantee, did not notify the mortgageethat he had registered his deed of transfer, nor furnish him with anaddress for service. The mortgagee, on the other hand, did notfurnish to the Registrar of Lands any address for service beyond themeagre address “ Colombo ’’ affixed to his name, and entered underthe heading “ Grantees ” upon the registration of the mortgage.The mortgagee did not specifically register his address with theRegistrar.under the section, and the address found under the headingof “ Grantees ” would hardly have been found and given by theRegistrar to any one inquiring for the same, and even if it were, itseems to me that it is eminently insufficient to enable any one tofind a Chetty in “ Colombo.”
I therefore agree that the mortgagee ha3 not furnished the Regis*trar with an address for service under the section, which would have1 (1906) 9 N. L. R. 359.
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enabled the plaintiff to fulfil his obligation of giving notice underthe section, and that consequently plaintiff is not bound by thejudgment against Palaniappa. I agree with my.brother that even ifthe conveyance to the plaintiff is drawn as subject to the defendant’smortgage, yet if Kulandavelu or defendant had complied with theprovisions of section 644 by furnishing an address for service, andthe plaintiff with those of section 643, the plaintiff as a “ grantee ”was entitled to notice so as to .enable him to come in and see to theascertainment of the mortgage debt, and if so desirous to redeemthe land upon its ascertainment. I therefore agree that the orderof the District Judge must be set aside, and that .the plaintiff isentitled to judgment declaring the dominium in and right topossession of the land in him, subject to such rights thereon as thedefendant may be entitled to have declared to be in him by virtueof his mortgage decree. The plaintiff also must have the damagesagreed on and costs in both Courts.
1909.
June 7.
Middleton
J.
Appeal allowed.