KADIJA UMMA v. MOHAMED SULAIMAN

072-NLR-NLR-V-40-KADIJA-UMMA-v.-MOHAMED-SULAIMAN.pdf


Kadija Umma v. Mohamad Sulaiman.
265
1939
Present: Abrahams C.J., Hearne and Keoneman JJ.
KADIJA UMMA v. MOHAMED SULAIMAN.
8—D. C. Colombo, 25,701.
Privy Council—Application for final leave to appeal—Security in landedproperty—Bond hypothecating land attested before Registrar—Validityof bond—Ordinance No. 31 of 1909, Schedule 1, Rule 3 (o).
Where, in an application for leave to appeal to the Privy Council,the appellant was permitted to give security in landed property, thebond hypothecating the land must comply with the requirements ofsection 2 of Ordinance No. 7 of 1840 or of Ordinance No. 17 of 1852.
Held, further, that the Supreme Court had no power to grant reliefto the appellant to enter into a proper bond after the expiration of theperiod except in accordance with the terms of Rule 3 (a) of the FirstSchedule of Ordinance No. 31 of 1909.
Queen’s Advocate v. Thamba Pulle (3 Lorensz 303) distinguished;Mohamadu Tamby v. Pathumma (I C. L. Rec. 26) not followed.
HIS was an application for final leave to appeal to the Privy Council.
-L The appellants were permitted to give security for respondents’costs in landed property. Objection was taken by the second respondentthat the bond by which the appellants hypothecated the property tenderedas security was attested before the Registrar and was therefore notvalid. The objection was taken before Soertsz and Nihill JJ. whoordered that the question should be referred to a Divisional Court.
N. E. Weerasooria, K.C. (with him E. F. N. Gratiaen), for plaintiffs,petitioners. When we made our application for conditional leave,the Supreme Court expressly directed hypothecation with the Registrar.We accordingly informed the Registrar regarding the form of thehypothecation, namely, that it would be in favour of the Registrar.No objection was at any time taken as to the form of the security althoughthe respondents had been given notice of it. The only objection takenwas not regarding the form, but that the title to the immovable propertywas not good. That objection was referred by the Registrar to theSupreme Court and on November 29, 1938, the Court ordered “ Securitytendered to be accepted ”. Rule 3 (a) of Schedule I. of- OrdinanceNo. 31 of 1909 does not specify the form of the security. It is sufficientif it is to the satisfaction of the Court. All things directed to be donehave been done. The certificate of the Registrar is to that effect. UnderRule 4 of the same Schedule, the Court can make further direction,if necessary. See also Rule 21.
The form of the security which has been tendered is good. The bondin question is not governed by section 2 of Ordinance No. 7 of 1840—Queen’s Advocate v. Thamba Pulle That case was decided in 1859 andwas followed in later cases—Mohamadu Tamby v. Pathumma=, Menikhamyv. Pinhamy Fernando v. Fernando *. In Queen’s Advocate v. ThambaPulle (supra) the provisions of Ordinance No. 7 of 1840 were considered.
1 (1859) 3 Lorensz 303.- s (1921) 23 N. L. R. 189.
* (1918) 1 C. L. Rec. 26.* (1921) 23 N. L. R. 453.
T
266
Kadija Umma v. Mohamed – Sulaiman.
N. Nadar ajah (with hirai W. W. Mutturajah), for third to sixteenthdefendants, petitioners.—-The difficulty of Soertsz and Nihill JJ. whohave referred the question to a Divisional Bench is that Ordinance No. 31of 1909 supersedes section 4 of the Civil Procedure Code, of 1889. Undersections 757 and 783 of the Civil Procedure Code, the form of th ^securityfor appeals to Supreme Court and Privy Council respectively wereidentical. Note in particular Forms No. 129 and 131. Ordinance No. 31of"*1909 retains the provisions of section 783 of the Civil Procedure Codeand does not say anything new regarding the form of security. Thusthe interpretation placed upon the provisions of section 757 of the CivilProcedure Code should still hold good—27 Halsbury (1st ed.) pp. 142 and143.
Consistently from 1859, “ judicial bonds ” have been placed on afooting of their own. The bond under consideration is a judicial bond.The cursus curiae should not be departed from—Boyagoda v. Mendis et el*,27 Halsbury (1st. ed.), para. 266.
The Registrar can enforce the bond in question—Moldrich v. Cornellsetal‘.
Even if the bond is bad, we are ready to execute another. The Courtcan extend the time' under Order 18 of the Appellate Procedure (PrivyCouncil) Order of 1921, read with Rule 4 of Schedule I. of OrdinanceNo. 31 of 1909.
H. V. Perera, K.C. (with him Peri Sunderam and Rajapakse), for seconddefendant, respondent.—The Supreme Court cannot extend the timewith regard to this matter. Order 18 bears no ^application to this caseas it is one of the. Rules and Orders made by virtue of section 5 of themain Ordinance. It is Rule 3 (a) of Schedule I. of the main Ordinancewhich governs this case exclusively and, according to it, security has tobe furnished within one month. Rule 4 can be applicable only where thesecurity has already been accepted and upon cause shown. So far,in this case, the security has not yet been accepted. We were consultedonly as regards the sufficiency of the security. This is the first oppor-tunity we have of challenging the validity of the security.
Rule 3 (a) requires good and sufficient security to be given. For thesecurity to be good, it has to be valid according to the law of the land.The usual practice has been to deposit money. Where land is hypothe-cated, section 2 of Ordinance No. 7 of 1840 has to be complied with.- Thereis only one instance where the hypothecation was before the Registrar,and one case cannot establish a cursus curiae.
Any practice that might have grown up regarding bonds given inthe District Court in connection with appeals to the Supreme Courtshould not be taken into consideration in the present case. Appealsto the Privy Council are governed by their own rules which should bestrictly complied with—Pate v. Patea.
Judicial or legal hypothec arises only out of operation of law—Leeon Roman-Dutch law (1st ed.), 164; 2 Maasdorp (5th ed.), 270—and isdistinct from a conventional mortgage. A bond given to the Registraris obviously a conventional mortgage. A limited interpretation cannot,i (1929) 30 N. L. It. 321.* (1910) 14 N. L. R. 97.
•’ (1913) IS N. L. R. 389 at p. 293.
KEUNEMAN J.—Kadija Umma v. Mohamed Sulaiman.
267
be given to section 2 of Ordinance No. 7 of 1840 or Ordinance No. 17 of1852. A close examination of Queen’s Advocate^ v. Thamba Pulle1 revealsthat the ratio decidendi was that the bond in question in that case wasvalid under the Rules and Orders which were in operation at the time.The meaning given to judicial hypothec in that case was obiter. The 'Civil P|pcedure Code took the place of the old Rules and Orders.Queen’s Advocate v. Thamba Pulle (supra) was followed in later cases, butreluctantly, because -Form 129 which is embodied in section 757 of theCivil Procedure Code has not definitely stated before whom and howthe bond in favour of the Secretary has to be executed ; the old practicewas, therefore, followed owing to the casus omissus and by virtue ofthe provisions of section 4 of the Code. In Fernando v. Fernando VKanapathipillai v. Kannakai* and Fernando v. Ranhamy the SupremeCourt definitely discouraged "the extension of the ruling in MohomaduThamby v. Pathumma". As regards appeals to the Privy Council, however,the Ordinance of 1909 does not conserve the practice which obtainedprior to 1909. There is no section similar to section 4 of the CivilProcedure Code. The hypothecation should, therefore, be notariallyexecuted—de Silva v. de Silva ”, which is exactly in point in the presentcase.
N. E. Weerasooria, K.C., in reply.—Section 2 of Ordinance No. 7 of1840 refers to contract; between parties as distinguished from somethingdone in pursuance of an order of Court. In Queen’s Advocate v. ThambaPulle {supra) the very point now urged by the respondent was taken anddealt with.
JV. Nadarajah, in reply.—Section 52 rule 9 of" the Charter of 1833speaks of “ bond ”. The full Bench ruling of 1859 decided that bondsincidental to judicial proceedings need not be notarially executed, andneither the Civil Procedure Code nor Ordinance No. 31 of 1909 introducedany change in the law as laid down in that decision. “ When you findlegislation following a continuous practice and repeating the very wordson which that practice was founded, it may be inferred that the Legisla-ture in re-enacting the Statute intended those words to be understoodin their received meaning ”—dictum of Lord Macnaughten in Commission-ers for Special Purposes of Income Tax v. Pemsel
Cur adv. vult.
March 18, 1939. Keuneman J.—
In this case two applications for leave to appeal to the Privy Councilon the part of the plaintiffs and the third to the twenty-sixth defendantsrespectively have been consolidated. Application for final leave toappeal has now been made to us. The appellants have previously beenpermitted to “ give security in landed property ”. The objection is nowtaken on behalf of the second defendant, respondent, that the bondby which the appellants hypothecated the property tendered as securityis attested before the Registrar of this Court, and not in the manner
<1859) 3 Lorensz 303.-1 (1923) 33 N. L. R. 456.
(1921) 23 A7. L. R. 453.'',5 (1918) 1 C. L. Ree. 26.
= (1921) 23 .V. L. -R. 405.-« (1927) 28 N. L. R. 350.
• (1891) A. C. 531 at p. 591…
268
KEUNEMAN j.—Kadija Vmma v. Mohamed Sulaiman.
required by section 2 of Ordinance No. 7 of 1840, or by Ordinance No. 17of 1852. This objection was taken before Soertsz and Nihill JJ., whohave ordered that the question involved be referred to us as a DivisionalCourt.
Admittedly, the bond has not been executed in the form required bysection 2 of Ordinance No. 7 of 1840, viz., before a Notary and twowitnesses, nor before the District Judge and two witnesses, as requiredby Ordinance No. 17 of 1852. The bond is before us, and is one whichhas been signed and executed before the Registrar of the Supreme Court.The point for decision is whether this is a valid security under OrdinanceNo. 31 of 1909, and the Appellate Procedure (Privy Council) Order of 1921made thereunder which relate to appeals from this Court to the PrivyCouncil.
On November 10, 1938, in consequence of an application by thepetitioners, the Supreme Court made order that the two appeals beconsolidated, and that it was open to the appellants to give securityin landed property. In the first place the security was to be tenderedto the Registrar. If the Registrar was not satisfied with the securitytendered, he could refer the matter to the Supreme Court for furtherdirections.
In pursuance of that order, on November 23, 1938, the petitionerstendered as security a certain property to the Registrar. The matterwas apparently referred by the Registrar to the respondent, and hisProctor took the objection that the title was not good, as some of thetitle deeds were not tendered, and a certain mortgage had not beencancelled at the Land Registry. Otherwise there was no objectionto the title. The matters mentioned were apparently rectified, and atany rate there is no objection made now that the title is bad, or thesecurity insufficient. The appellants thereafter entered into the bondin question in this case.
On November 27, 1938, and on November 30, 1938, the Registrarissued two certificates to the two sets of appellants, certifying that theappellants have complied with the conditions imposed under Rule 3 (a.)of the Scheduled rules, inter alia, that they had mortgaged and hypothe-cated by bond certain specified properties. These are not certificateswhich are required to be given under either the Ordinance or the Orderbut were, apparently issued as a result of the Supreme Court Order ofNovember 10, 1938.
I mention these facts because it has been argued before us that theSupreme Court delegated to the Registrar the right of determining notonly the sufficiency of the security tendered, but also the form in which:the bond should be executed.
I am unable to see that any more was delegated to the Registrar,than the right of deciding or of advising this Court on the sufficiency ofthe security. I can nowhere find any indication that this Court delegatedto the Registrar the right of determining the validity as regards form ofthe bond, and I think it would not have been proper for the Court to havedelegated any such power to the Registrar.
Under Rule 3 (a) of Schedule I of Ordinance No. 31 of 1909, the appellantds required within the period prescribed to “ enter into good and sufficient
KEUNEMAN J.—Kadija Umma v. Mohamed Sulaiman.
269
security ”, to the satisfaction of the Court, in a sum not exceedingRs. 3,000 for the due prosecution of the appeal and the payment of suchcosts as may become payable to the respondent.
The question to be determined by us is whether the appellants have■entered into “ good ” security. If the security is “ good ” as regardsform, there is no question now as to its sufficiency.
It is abundantly clear that since Ordinance No. 31 of 1909 came intooperation, the ordinary and almost invariable practice has been to callupon the appellant to deposit the required security in cash. In fact,on inquiry made by this Court in 1927, it was discovered that in theprevious ten years there had only been one instance where the securityaccepted was by the hypothecation of immovable property (vide de Silva v.de Silva'). In this case it was held that this Court had power to acceptsecurity by way of hypothecation of immovable property. Since 1927there have been further instances where this kind of security has beenaccepted. It was however stated by Counsel for the respondent and notcontradicted, that in only one previous instance has this form of security,viz., by executing the bond before the Registrar, been employed. In thecase of de Silva v. de Silva (supra) the Court specifically ordered that thebond should be duly executed before a Notary Public, and that appe'arsto be the only authority of this Court available as to the form in whichthe bond may be executed.
Counsel for the respondent argued that the only form of bond relatingto immovable property which has legal validity is a bond which is inaccordance with section 2 of Ordinance No. 7 of 1840 or Ordinance No. 17of 1852, and that the bond in the form employed in the present case is ofno force or avail in law.. He contended that this was a “ mortgage ” or atany rate “ a promise bargain contract or agreement …. forestablishing a security” within the terms of section 2 of Ordinance No. 7of 1840. He further contended that this was in effect a conventionalmortgage between the appellant on the one side and the Registrar on theother, and that the fact that it was made in, favour of a public officer,on order of the Court, did not take it outside the scope of that section.
Apart from authority, I think it is impossible to disagree with thatcontention. The language < of section 2 is very wide, and purports to■cover all mortgages. It is to be noted that under the Charter of 1833clause 52 (Ninthly) security required to be given in case of an appealto His Majesty in Council when the security related to immovableproperty was to be “byway of mortgage, &c. ” Nor can this form ofmortgage be regarded in the strict sense as a “ judicial mortgage ”.Maasdorp in his Institutes of South African Law (5th ed.), vol. II., p. 270says “ a judicial mortgage is at the present day established by an attach-ment or seizure of goods made by the Sheriff or Messenger of Court”.Apparently there had been other forms of judicial mortgage under theRoman law which had become obsolete. Further this bond cannot beregarded as a legal or tacit mortgage “ arising by mere force of law ”—vide Maasdorp, vol. II, p. 272.
There is however an authority, Queen’s Advocate v. Thamba Vulle *,which counsel for the appellants argues that we are constrained to follow.
1 28 N. L. R. 350.2 (1859) 3 Lorcntz 303.
270
KEUNEMAN J.—Kadija Ultima v. Mohamed Sulaiman.
It is dear, I think, that this is a decision of three Judges, and that numberof Judges at the period in question constituted a full Bench. Thequestion, decided was the validity of a bond relating to immovableproperty given in 1843. The bond was given by way of security in favourof tiie Secretary of the Court and was attested kfy the District Judge.
It was argued by the appellant in that case—
that this was a judicial security created by an act of Court.
that the object of Ordinance No. 7 of 1840 wa? “ to prevent frauds}
and perjuries ”, and where the bond was signed and attestedby the presiding Judge of the Court, it was not intended thatattestation by a Notary and two witnesses was needed in such' a case,
that the Rules and Orders prevailing at the period in question
only required that bonds of this character should be “ signed,,sealed and delivered in Court”, and made no mention of notarialattestation.
The judgment of the Court was delivered by Morgan J. as follows : —
“ It appears, however, to the Supreme Court that the bond inquestion creates a valid mortgage over the property. The provisions,of section 2 of the Ordinance No. 7 of 1840 evidently refer to conventionsof parties, and not to judicial hypothecs constituted as this by orderof the Court …. The forms referred to and embodied in theRules (see Form 9 p. 101, and Form 2 p. 104) make express referenceto mortgages of property, and these Rules were declared valid by anOrdinance enacted long after the Ordinance No. 7 of 1840, to wit. theOrdinance No. 8 of 1846 ".
It is argued that there is a clear finding in this case that the languageof section 2 of Ordinance No. 7 of 1840 does not apply to a mortgage ofthis character. I cannot agree with this contention. There can be nodoubt that during the argument considerable emphasis was laid uponthe Rules and the fact that these Rules have received the sanction ofthe Legislature after Ordinance No. 7 of 1840. It is to be noted that thesecond point raised by Counsel for the appellant was not dealt with at allby the Court, and I incline to the opinion that when the Court said thatthe provisions of section 2 of Ordinance No. 7 of 1840 “ evidently referredto conventions of parties and not to judicial hypothecs ” such as the bondin question, the evidence on which the Court depended was the Ruleswhich had received legislative sanction in 1846. At any rate, I am ofOpinion that the positive finding on that points was a sufficient groundon which to rest the decision of the Court, and that no necessity arose to!decide the other question.
I accordingly am of opinion that we are not fettered in any wayin consequence of that decision in our determination of the questionbefore us.
These Rules were repealed by the Civil Procedure Code of 1889, whichhowever by section 4 enacted that “ in every case where no provision ismade in the Ordinance, the procedure and practice hitherto in forceshall be followed.” The Code provided not only for appeals to theSupreme Court (sections 753 to 760) but also for appeals to the Privy
KEUNEMAN J.—Kadija Vmma v. Mohamed Sulaiman.
271
Council (sections 779 to 789). Section 757'related to security for costsof appeal in the case of appeals to the Privy Council. Section* 757provided inter alia for security “by way of mortgage of immovableproperty ”, and a similar provision appeared in section 783. The formsapplicable were forms No. 129 and 131 in the Second Schedule, and make,no further reference to the form of the bond, beyond the instruction“Follow the ordinary form of bond” and the setting out of certainwords to be employed in the body of the deed. There is no precisereference to any particular form governing the bond, such as were presentin the repealed rules.
Finally Ordinance No. 31 of 1909 repealed sections 779 to 789.of theCivil Procedure Code, and contained no section corresponding to section4 of the Code.
It has been argued that a certain practice which has grown upin respect of appeals to the Supreme Court and has obtained thesanction of the Supreme Court, should be applied by analogy to appealsto the Privy Council. In Mohamadu Tamby v. Pathumma1 in an appealto the Supreme Court a bond hypothecating immovable property wassigned by the obligor before the Chief Clerk of the District Court, andobjection was taken that it did not conform with the requirements ofsection 2 of Ordinance No. 7 of 1840 or of Ordinance No. 17 of 1852.Bertram C.J. held against the objection. He stated “It is • a bondsubstantially executed in accordance with the practice that had alwaysprevailed in the District Courts of this Colony. We should hesitatevery long before giving .a decision contrary to that general practice ”.He suggested as a possibility that this bond came within the exceptioncreated by section 20 of Ordinance No. 7 of 1840, and referred to thedictum of Morgan J. in Queen's Advocate v. Thamba Pulle 5 that section2 of Ordinance No. 7 of 1840 evidently referred to conventionsbetween parties and not to judicial hypothecs of that character. Hedealt specifically with the argument of Counsel which differentiated theearlier case, as the bond was not executed in the presence of the Judge,,but of the Chief Clerk of the Court, and held that the objection failed.
A similar objection was taken to a bond executed in. the presence ofthe Secretary of the Court in Menikhamy v. Pinhamya but was overruled.Ennis J. followed the case of Mohamadu Tamby v. Pathumma (supra)
“ with some diffidence ” as he was not sure that section 4 of the CivilProcedffre Code was “ sufficient to 'carry forward the practice which is indirect conflict with the express terms of Ordinance No. 7 of 1840 andOrdinance No. 17 of 1852 ”.
Shortly after in certain cases, the Supreme Court, resolutely, set its faceagainst the extension of the decision in Mohamadu Tamby v. Pathumma(supra).e-
In Fernando v. Fernando * Bertram C.J. himself refused to “ extendthe exception to cover a case in which a Proctor acting on behalf of hisclient executed a bond in his office and afterwards filed it in Court”.He also definitely held that a bond such as the one in question did not fallwithin the exception created by section 20 of Ordinance No. 7 of 1840.
11 C. L. Bee. 26.3 23 N. L. R. 189. –
3 (2059) 3 Lorensz 303.*23 N. L. B. 4S8
272
KEUNEMAN J.—Kadija Umma v. Mohamed Svlaiman.
In Kanapathipillai v. Kannakai1 a bond hypothecating immovable-property, executed before a Justice of the Peace was held not to havebeen properly executed. Ennis C.J. dealt there with the questionwhether Queen’s Advocate v. Thamba Pulle {supra) established theprinciple that “ judicial hypothecs ” did not fall within the provisions ofOrdinance No. 7 of 1840. “ In my opinion that case did not go so far,because it expressly stated that a bond signed before the Secretary of theCourt fulfilled the requirements of certain rules and orders which werethen in force, and which had received statutory recognition afterOrdinance No. 7 of 1840 came into operation”. He also mentioned thecase of Mohamadu Tamby v. Pathumma {supra) as a special exception.
Again in Fernando V. Ranhamy ~~ an objection was upheld by Ennis J.in a case where the bond had been signed before a Proctor without anyother witnesses.
I cannot think that this current of authority commencing in 1918can be regarded as establishing the proposition that “ judicial hypothecs ”of the nature of the bond iq the present case are not governed by theterms of Ordinance No. 7 of 1840 and Ordinance No. 17 of 1852. .1 thinkthe inference to be drawn is to the contrary. If such bonds fell outsidethe two Ordinances, and the special form required by the Rules inexistence before the Civil Procedure Code of 1889 was swept away bythat Ordinance, it is difficult to resist the conclusion that a bond in anysuch form should have been regarded as good. Clearly the SupremeCourt did not agree with that view. I accordingly cannot regard thedecision of Bertram C.J. in Mohamadu Tamby v. Pathumma {supra) asdoing more than giving judicial sanction to a practice of respectableantiquity in the case of appeals to the Supreme Court.
We are not called upon in this case to decide whether that decision isright or wrong. But I think we should resist the application to extendthat decision by analogy to appeals to the Privy Council. There is noevidence that there has been a well established practice to regard as validbonds dealing with immovable property executed before the Registrar of* the Supreme Court, or that the Supreme Court has recSghized the validityof such bonds. The only decided case may afford an argument to thecontrary. In any event the cases in which security by way of hypotheca-tion of immovable property has been allowed in the case of appeals to thePrivy Council, were of such infrequent occurrence, that it can hardly becontended that any cursus curiae has been established.
I accordingly hold that the bond in this case is invalid, as it does notconform with the requirements of section 2 of Ordinance No. 7 of 1840,or of Ordinance No. 17 of 1852.
One further question remains for determination, viz., whether we haveany power to grant relief to the appellants in this case by permittingthem to enter into a proper bond at this time. Counsel for the appellantscontended that such a power is implied in Rule 4 of Schedule I. ofOrdinance No. 31 of 1909. We are however confronted with theperemptory terms of Rule 3 (a) of that Schedule which runs as follows: —“ Upon the condition of the appellant within a period of one month
from the date of the hearing of the application for leave to appeal,» 23 N. L. R. too.-23 N. L. R. 456.
Reyal v. Assan.
273
unless the Court shall, on the ground of the absence of the appellantfrom the Colony or for some other special cause, on application made toit, before the expiration of such period have granted an extensionthereof, entering into good and sufficient security, to the satisfactionof the Court, &c.”
The period of time fixed has now expired, and no application forextension of time was made or allowed before that period expired. Ifwe give relief now, it will be in contravention of Rule 3 (a), and I am ofopinion that we have no power to do so.
I also think that in the circumstances of this case, in giving such reliefwe cannot be regarded as making further directions “ on cause shown ”under Rule 4. In this appeal the appellants contended that the form ofthe security given was valid in law and a sufficient compliance with therequirements of Ordinance No. 31 of 1909. It was suggested for thefirst time in the argument of Counsel before us that as an alternative,in the event of our finding being against the appellant on the pointreferred, we should exercise our powers under Rule 4. No such applica-.tion appears to have been made to Justices Soertsz and Nihill, nor has thismatter been referred to us by them.
The application for final leave to appeal to the Privy Council is refusedwith costs.
Abrahams C.J.—I agree.
Hearne J.—I agree.
Application refused.