007-NLR-NLR-V-36-MUDALIHAMY-v.-APPUHAMY.pdf
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Mudalihamy v. Appuhamy.
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Present: Dalton J. and Maartensz A. J.MUDALIHAMY v. APPUHAMY.
65-66—C. R. Kurunegala, 7,658.
Partition—Mortgage of undivided share of land—Partition action with respectof land—Lot in severalty allotted to mortgagor—Action by mortgagee—Purchase by him of undivided share—Sale of divided lot in execution forcosts of partition—Purchase by defendant—Competition between the twotransfers—Ordinance No. 10 of 1863, s. 12.
The plaintiff took on mortgage an undivided 2/3 share of two contiguousfields in October, 1927. In January, 1930, the defendant brought a parti-tion action treating the two fields as one corpus. Final decree was enteredin the action declaring the plaintiffs mortgagor entitled to a half shareonly of the fields and lot A was allotted to her. In January, 1931, theplaintiff put his bond in suit and purchased the undivided shares mort-gaged to him at the sale in execution of his decree, obtaining a Fiscal’stransfer dated January 25, 1932. Prior to that date the defendant tookout writ against the plaintiff’s mortgagor for pro rata costs due to himand became the purchaser of lot A, obtaining Fiscal’s transfer datedApril 17, 1931, in his favour.
Held, (in an action brought by the plaintiff for declaration of title tolot A), that he was entitled to 2/3 share of the lot.
(j ASE referred by Dalton J. to a Bench of two Judgs.
This was an action for declaration of title to a land. The facts uponwhich the question referred arises are fully stated in the head-note.
Rajapakse (with him R. H. E. de Silva), for plaintiff, appellant in No. 65and respondent in No. 66.—Ukku Menika, having mortgaged her un-divided share of the whole land, thereafter was declared entitled to lotA 3 in the partition decree. The lot she received (A 3) will be subject tothe mortgage. (Section 12 of the Partition Ordinance, Abdul Hamid v.Perera1, and Godage v. Dias*.) Any purchaser from her will, therefore,buy it subject to the mortgage.i
All the undivided interests she had in the whole land were mortgaged ;therefore, the whole of lot A 3 which she was allotted in lieu of herundivided interests became subject to the mortgage. See section 12 ofthe Ordinance.
Weerasooria, for defendant, respondent in No. 65 and appellant inNo. 66.—Lis pendens in the partition action was registered. Hence inlaw the plaintiff had notice of the partition proceedings, and in fact too'he was aware of them.
Once the land was partitioned, new lots came into existence. The oldland ceased to exist. The plaintiff in the mortgage action should haveasked for a hypothecary decree in respect of the divided lot A. SeeSidambaram Chetty v. Pereraa. Not having made the necessary amend-ment in his prayer, the plaintiff got a decree Which is bad, because nosuch land existed at the time. The practice may be different, but a bad
1 26 N. L. R. 438.2 30 N. L. R. 100.
3 24 N. L. R. 214.
36/6
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DALTON J.—Mudalihamy v. Appuhamy.
practice cannot make good law. See Pate v. Pate In any case theplaintiff cannot get the whole of lot A 3. The deed has to be interpreted.Plaintiff got a conveyance of undivided 2/3 of the whole land, hence hecannot get anything more than 2/3 of lot A 3. See Bernard v. Fernando *.
Rajapakse, in reply.—The substantive portion of section 12 of thePartition Ordinance enacts that the rights of a mortgagee are not to beaffected by the decree under section 8. The proviso merely contains acurtailment of these rights, which are conserved, viz., the mortgagesubsists but is limited to the specific portion allotted to the mortgagor.The section is intended to protect the rights of the mortgagee, not to takethem away.
Cur. adv. vult.
June 7, 1934. Dalton J.—
These appeals have been referred to a Court of two Judges, as theyraise an important point regarding the Security of mortgagees when theyhave taken a bond in respect of undivided interests in immovable property,which property has subsequently been the subject of a partition action-The question raised now has not been raised before, although it is admittedthe mortgagee in suing on the bond as he has done here has followed theusual procedure adopted in such circumstances.
The plaintiff brought this action that he be declared entitled to a lot ofland, described in the plaint and which I will call lot A 3. He also askedthat defendant be ejected therefrom and claimed damages.
In October, 1927, Ukku Menika mortgaged an undivided 2/3 shareof a field named Malgahamulaliadde and an undivided 2/3 share of a fieldcalled Karawagahamulaliadde, each one pela in extent and contiguous,to the plaintiff. On January 7, 1930, the present defendant instituted apartition action, D. C. Kurunegala, 14,487, to partition these two fields,treating them as one land and calling them Malgahakumbura. In thispartition action it was ascertained that Ukku Menika was entitled to anundivided half share of the two fields she had mortgaged, the defend-ant being entitled to the remaining half share. Final decree, datedAugust 18, 1930, followed accordingly, the land was partitioned, andlot A 3, described in the plan, was allotted to Ukku Menika for herundivided share. '
On Jauary 8, 1931, the present plaintiff put his bond in suit in C. R.Kurunegala, 12,363, seeking to have the interests as described in themortgage seized and sold. His lis pendens was registered on January 13,1931. He obtained judgment and himself purported to purchase theundivided interests described in the bond, obtaining Fiscal’s transfer (PI)on January 25, 1932. Before, however, he had obtained this transfer,the defendant himself had issued writ against Ukku Menika for pro ratacosts in the partition action, seizing lot A 3. This lot was sold by theFiscal on February 9, 1931, and purchased by the defendant. Fiscal’stransfer (D 1) therefore was issued to defendant on April 17, 1931. Twofurther facts may be mentioned here. Plaintiff was fully aware, beforehe obtained the decree in the mortgage action, that the land had beenpartitioned and that his mortgagor’s interest at the time of the execution
l'l8 N. L. R. 289.= 1C N. L R. 438.
DALTON J.—MudaUhamy v. Appuhamy.
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of the bond was not an undivided 2/3 but only an undivided half share inthe lands. Defendant was also fully aware at the time he purchased lotA 3 that plaintiff was claiming that this lot was subject to his mortgage.
In the action the trial Judge found that in view of the provisions ofsection 12 of the Partition Ordinance, inasmuch as the share that UkkuMenika had mortgaged was more than the share that she was found to beentitled to in the partition action, the whole of the lot A 3, allotted to heras her share in severalty, was subject to the mortgage in plaintiff’s favour.He further found that defendant was bound by the decree in the mortgagesuit. That decree, however, was in respect of Ukku Menika’s allegedundivided 2/3 share in the two fields as described in the mortgage bond.Although the plaintiff was aware that a decree had issued alotting a sharein severalty to Ukku Menika in place of her undivided interest, he choseto ignore it and proceeded with his suit as for an undivided 2/3 share. Inthat event the learned Judge has held that plaintiff was entitled to claimonly a 2/3 share in Ukku Menika’s interest in the divided lot A 3, and hefound accordingly.
Both plaintiff and defendant appeal from this decision, plaintiff urgingthat he is entitled to the whole of lot A 3, and defendant on the groundthat plaintiff having obtained a decree for an undivided share that hadpreviously been extinguished by the partition decree, the resulting seizureand sale at his instance were the seizure and sale of something that hadno existence, and plaintiff therefore had no basis for his present claim.The logical sequence of this argument on behalf of the defendant mightwell be that defendant had bought lot A 3 subject to the mortgage, butMr. Weerasooria stated it was not necessary for him to meet thatposition in this case, since plaintiff’s action must be dismissed.
As I mentioned before, it seems that plaintiff in suing Ukku Menikaon the bond as he did, and asking that the undivided interest mortgagedbe seized and sold in execution, acted in conformity with the procedurewhich is commonly followed in such cases. Where, however, as a resultof a partition under the Partition Ordinance the undivided interestmortgaged has become a share in severalty, I certainly think that somesuch procedure as is denoted by the learned trial Judge, amongst otherthings invoking the aid of section 12 of the Partition Ordinance and askingthat the share in severalty be declared liable to be seized and sold,should more properly be adopted. If that had been done in this case,I do not see that plaintiff could have failed to obtain all he wanted. Hechose, however, not to do so, unwisely, I think.
The argument for defendant on the appeal, that the original bond hasbeen extinguished by the partition decree, is not, I think, sound. WhatI have stated in the preceding paragraph will supply at least one reasonfor that. Further, section 12 of the Partition Ordinance says thatnothing in the Ordinance shall affect the right of any mortgagee save inthis one respect, namely, that his right shall be limited to the share inseveralty allotted to his mortgagor. In all other respects the bondstands, so far as it is applicable to a share in severalty. The intention ofthe section is clearly to protect the rights of the mortgagee, and no newdeed is required for that purpose. –
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MAARTENSZ A.J.—Mudalihamy v. Appuhamy.
In holding that plaintiff is entitled to an undivided 2/3 share only of lotA 3, the learned Judge states he finds support for his conclusion inBernard v. Fernandol. In that case the plaintiff sued the defendants fora declaration of title to lots A and D and for ejectment. The facts showthat some time prior to the action an undivided 1/5 share of a land thathad belonged to one X was the subject of a partition decree in 1905 andbecame lots A and D. The defendants in the action, although they knewof the partition in 1905, purchased from X in 1907 and 1909 his formerundivided 1/5 share in the entire land. In 1912 the plaintiff bought lotsA and D from X. In their answer to plaintiff’s claim, defendants pleadedthat their undivided 1/5 share, as a result of the partition decree, wasrepresented by lots A and D, and they asked that plaintiff’s action bedismissed. It was held by the trial Judge, however, and the Court ofAppeal decided it was correctly held, that as the defendants had purchasedan undivided share in the entirety, they could not establish on their deedstitle to the divided lots A and D. The Court however, varied the judg-ment of the District Judge, who had found in favour of plaintiff for thewhole of lots A and D. The Court of Appeal (Pereira J. and de Sam-payo A.J.) held that defendants’ deeds were sufficient to give them anundivided 1/5 share in the divided lots A and D, and that plaintiff wasentitled to an undivided 4/5 share only of the two lots.
Applying the reasoning in that case to the one before us, I think thelearned trial Judge was justified in holding that, inasmuch as plaintiff,in the circumstances I have detailed, seized, and had sold by the Fiscal,and himself purchased only an undivided 2/3 share in the entirety, he isentitled as a result to an undivided 2/3 share only in the share in severalty.
I agree that the question is one not without some difficulty, but I can seeno sufficient reason to say that the trial Judge was wrong in his con-clusion. In those circumstances the judgment of the lower Court willbe affirmed, and both appeals must be dismissed with costs.
Maahtnesz A. J.—
This is an action for declaration of title, to the parcel of land markedA 3 in plan 1,246 filed of record to which plaintiff claims title thus :One Ukku Menika purporting to be entitled to 2/3 of two lands calledMalgahamulaliadde and Karagahamulaliadde, mortgaged her intereststo the plaintiff by bond No. 4,226 dated October 8, 1927. The bond wasregistered on the 12th of the same month. .
The bond was sued on in case No. 12,363 of the Court of Requests ofKurunegala, on January 8, 1931. In execution of the mortgage decreeentered on February 4, 1931, Ukku Menika’s interests were sold onOctober 31, 1931, and purchased by the plaintiff, who obtained a Fiscal’stransfer No. 10,341 dated January 25, 1932, for an undivided 2/3 shareof the two lands.
The defendant before the action on the bond was filed had filed suitfor the partition of the two lands which he described as one land calledMalgahamulakumbura alias Etamkotuwekumbura, 2 pelas in extent.Ukku Menika in the partition suit was found to be entitled to only halfthe land and was by the partition decree dated August 18, 1930, allottedA 3 in severalty.
116 N. L. R. 438.
MAARTENSZ AJ.—MudaUhamy v. Appuhamy.
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In execution of a writ issued in the partition suit to recover fromUkku Menika her pro rata share of the costs incurred in that suit, lotA 3 was sold by the Fiscal on February 9, 1930, and purchased bythe defendant, to whom the Fiscal issued a transfer No. 10,193 datedApril 17, 1931.
The question for decision is whether the plaintiff acquired title tolot A 3 or any part of it under the Fiscal’s transfer No. 10,341. Theanswer to this question depends on whether the plaintiff can, as hecontended, derive his title from his mortgage bond which was prior indate and registration to the defendant’s Fiscal’s transfer. The lis pendenswas registered.
In support of his contention the plaintiff reKed on section 12 of thePartition Ordinance, No. 10 of 1863, which enacts as follows : —
“ Nothing in this Ordinance contained shall affect the right of anymortgagee of the land which is the subject of the partition or sale:Provided that if at the time any partition or sale shall be made anundivided share only of the land, and not the whole thereof, shall besubject to mortgage, the right of the mortgagee shall be limited to theshare in severalty allotted to his mortgagor by and under the sameconditions, covenants, and reservations as shall be stipulated in themortgage bond so far as the same shall apply to a share in severalty;and the owner of the share in severalty so subject to mortgage shallwithout a new deed of mortgage, warrant and make good to themortgagee the said several part after such partition as he was boundto do before such partition
It was argued that by virtue of this section the mortgage to the plaintiffwas not affected by the partition action except that the rights of themortgagee were limited to the share in severalty.
The defendant also relied on this section and contended that the trueeffect of the section was to substitute the share in severalty for theundivided share, and the plaintiff should have framed his action so as toobtain decree declaring the share in severalty bound and executable,and that as he had not done so and had bought the undivided shares,which had been extinguished by the partition decree, the plaintiffacquired no title to lot A 3 under his Fiscal’s conveyance.
I am of opinion that section 12 has not the far-reaching effect contendedfor by defendant’s counsel so as to deprive the plaintiff of any rightsunder the mortgage decree because the lot in severalty was not declaredbound and executable and conveyed to the plaintiff by his Fiscal’stransfer. At the same time having failed to take the necessary stepsto have lot A 3 declared bound and executable and sold he cannotclaim the entirety of lot A 3. Having purchased an undivided 2/3share of the whole land, when the execution debtor was entitled to lotA 3 he is only entitled to an equivalent share, namely 2/3 of A 3(Bernard v. Fernando1).
I am of opinion that the District Judge has come to a right decision inthe case and would dismiss the appeals with costs.
Appeal dismissed.
‘ {1913) 16 N. L. R. 638.