042-NLR-NLR-V-17-PERERA-v.-ALVIS.pdf
( 185 )
Present:. Ennis J. and De Sampayo A.J.
PEBERA v. ALVIS.
389—D. C. Colombo, 36,334.
Partition action—Mortgage of land after decree for sale—Mortgage isinvalid as against the purchaser under the decree for sale.
A mortgage of land executed after decree for eaie under section 4of the Partition Ordinance and prior to the sale thereunder haano effect as against the purchaser at the sale.
Section 12 of the Ordinance, which' enactB that nothing in theOrdinance shall affect the right of ,any mortgagee of the land whichis the subject of the partition or sale, refers to a mortgage effectedprior to the commencement of the action, for section 17 expresslyprohibits the mortgage of an undivided share during the pendencyof the action.
fJ)HE facts are stated as follows by De Sampayo A.J.: —
This appeal, raises the question whether the mortgage bond insuit in case No. 34,136 of the District Court of Colombo is valid inlaw as against the defendant. It appears that a certain landbelonged in common to four persons named Agnes Abeykoon, JuliaAbeykoon, Thomas Wanigesekere, and Stephen Abeykoon, and inan action for partition the Court by its. decree dated July 16, 1010,ordered the land to be sold. On July 21, 1910, Agnes Abeykoonand Thomas Wanigesekere, together with two others ‘‘who were noparties to the partition action and admittedly had no interest in theland, mortgaged the entire land to the plaintiff, but the plaintiffadmits in this action that the mortgage was effective only as to anindividual half of the land, being the shares to which Agnes Abey-koon .and Thomas Wanigesekere were entitled. In pursuance ofthe decree for 6ale in the partition action, the land* WS6 sold onOctober. 22, 1910, and was purchased by Thomas Wanigesekerehimself, and a certificate of sale was issued to him by the Court onMarch 7, 1912. Before the issue of the certificate, however, ThomasWanigesekere, as purchaser of the land, sold it on January 28,; 1912,to Peter de Saram, who by conveyance dated July 16, 1912, inwhich Thomas Wanigesekere joined, sold it to the present defendant.In the meantime the plaintiff on March 27, 1912, put the mortgagebond in suit against his mortgagors, and having obtained judgmentseized the land in executon on January 24, 1913, when the defendantclaimed the same. The claim being upheld, the plaintiff brings thepresent action, under section 247 of the Civil Procedure Code, to haveit declared that an undivided half of the land is liable to be seized,and sold under his mortgage decree. .
ms.
( 136 )
1M8. Bawa, K.C. (with him Bartholomeusz), for the defendant, appellant.Pemra v,
A$wi* A. St, V, Jayewardene, for the plaintiff, respondent;
Gut, adv. vmU.
December 9, 1913. Ennis J.—
The question for determination in this appeal is whether a mort-gage of land executed after decree under section 4 of the PartitionOrdinance and prior to a sale thereunder has any effect as againstthe purchaser at the sale. The facts of the case are fully set out inthe judgment of the learned District Judge, who held that themortgage was not obnoxious to section 17 of the Partition Ordinance,No. 10 of 1863, on the ground that the decree under section i ofthe Ordinance, and not the certificate of sale, wa6 the final judgmentin the case, and that the partition action was accordingly notpending when the mortgage was executed.
Section 9 of the Partition Ordinance provides that the decree forpartition or sale given as hereinbefore provided shall be good andconclusive against all persons. Decrees for partition or sale aredealt with in section 4, and by section 6 decrees for partition arenot absolute until final judgment has been entered. As regardsdecrees for' sale, section 8 makes no express provision for a finaljudgment, but after providing for a sale and payment into Court,it concludes that “ the " certificate of the Court shall be evidenceof the title of the purchaser. The Ordinance, however, contains noprovisions relating to certificates to which the use of the definitearticle can be referred. It may, and probably did, – refer to theordinary procedure of the Courts on the sale of land by order of theCourt under which a sale of land was not absolute until the con-firmation of the sale by the order of the Court subsequent to whichthe Court issued a certificate. (Cf. section 282 et seq of the presentCivil Procedure Code, No. 2 of 1889.|
If this be so, the decree for sale “ given as hereinbefore provided,"to which reference is made in section 9, is the ordinary order ofCourt making the sale absolute. Hutchinson C.J., in Gatherina-hamy v. Bqbahamy *, held that the decree for sale referred to insection 9 was the final decree " when the sale is confirmed andcompleted by certificate of the Court under section 8.". All theprevious cases were .reviewed in the judgment in that case, and thedecision is, I consider, binding on us. This being so, the actionwas still pending at the time of the execution of the mortgage, whichis void under section 17. In my opinion there is so substance inthe objection that, as the mortgage purported to deal with theentirety of the land, it does not fall within the provisions of section17; it did in fact deal with undivided shares. 1
1 {1908) UN, L. R. 20.
0
( 1OT )
. No issue with regard to estoppel was. raised, neither does it seemto me to arise in this case.
I would set aside the decree and dismiss the claim with costs.*
Db Sampayo A.J.—
191ft
Pertro ft.
Aims'
• His Lordship stated the facts, and continued: —
The questions arising from the above state of facts are whether,in view of section 17 of the Partition Ordinance, the mortgage bondof'July 21, 1910, in favour of the plaintiff is valid, and whether, atall events, the certificate of sale operates so as to give a preferentright to the defendant as against the plaintiff.' It was contendedfor the plaintiff that the final decree in a partition action, in thecase of a sale, was the decree for sale under section 4 of the Ordinance,and that the plaintiff’s mortgage, which had been granted five daysafter the decree for sale, was not touched by the provisions ofsection 17. I do not think it necessary, even if it were competentfor us, to revive the old controversy, as we were invited to do, as towhether in the case of a sale the conclusive decree is the decreefor sale or the confirmation of the sale and issue of the certificate.The latter view was taken in Catherindhamy v, Babahamy,l whichtherefore concludes the matter against the plaintiff. But, inde-pendently of that question, I do not think that the plaintiffs positioncan be maintained. Counsel for the plaintiff relied on section 12of the Ordinance, which enacts that nothing in the Ordinancecontained shall affect the right of any mortgagee of the land whichis the subject of the partition or sale. It was contended that“ any mortgage ” included the mortgage of an undivided share.That may be so, but it is quite clear that the section refers to amortgage effected prior to the commencement of the action, forsection 17 expressly prohibits the mortgage of an undivided shareduring the pendency of the action. Nor is the contention tenablethat section 17* does not apply, because a6 a matter of fact themortgagors purported to mortgage the entire land. The plaintiffhimself admits that in reality the mortgage was only of an undividedhalf of the land. In the case of several co-owners, each must betaken to mortgage his share only, so that the bond would containso many mortgages of undivided shares. Counsel also relied onLouis Appuhamy v. Pvnchi Baba* which was 6aid to have decidedthat a mortgage, even of a share of the land, between the date ofdecree and the date of certificate was valid. The facts are notfully stated in the report of the case, and some difficulty appears toarise from the statement in the judgment that the mortgage was inrespect of a “ divided portion of land.’* I had the record of thecase sent for, and I find that the entire land was mortgaged, butonly an undivided half was sought to be realized, as the plaintiff had
_11 N. L. R. 20.
(1904) 10 N. L. R. 196.
( 188 )
19*8;subsequentlytothe mortgage purchased ahali sharefromthe
Ita&lfrri&omortgagor by private contract. Bytheexpression” divided
A.J. portion of land ” was evidently meant a distinct corpus as distin-Pertni'vgushed fromanundivided share. Themortgage in thatcasehad
AMsbeen effectedbythe purchaser on theveryday of thesaleand
before the certificate was issued by. the Court and the point of thedecision appears to me to be that the mortgage of what the purchasermight become entitled to upon the issue of the certificate was notobnoxious' to the provisions of section 17, though the learned ChiefJustice did hold that the conclusive decree, in the case of a salewas the decree for sale under section 4. The language of section 17of the Ordinance is at first sight somewhat puzzling. It prohibits anyof the co-owners from alienating or hypothecating “ his undivided6hare or interest therein, unless and until the Court. shall,
by its decree in the matter, have refused to great the applicationfor such-partition or sale.” It was argued upon this that, as in this-case the Court had by its recree granted the application for bale, themortgage-subsequently created was valid even so as to affect theland after1 the sale in pursuance of the decree. I think the solution-of the apparent difficulty arising from the phraseology of theOrdinance is to. be found in the principle that acts of parties shouldnot be allowed to disturb or affect the effectual carrying out by aCourt of its own decrees in a partition ca6e. Since before its decreethe Court has ordinarily no power to control the acts of parties, theOrdinance; supplies the necessary limitation and prohibits all dealingwith the land by the co-owners during the pendency of the pro-ceedings. . If the Court by its decree disallows the application, thenthe proceedings come to an end and the parties are restored: to theiroriginal, rights. If, on the other hand, the Court grants the appli-cation, then no express legislative provision i6 necessary to controlthe acts of. the parties. The decree ipso facto takes it out of thepower of,the parties to deal with the subject of the action. Accord-ingly the Ordinance is silent a^ to what is the effect of dealings withthe land by the co-owers after the decree, and leaves the matterto the operation of the general principle that the Court’s decreefor partition or sale is paramount. This was the suggestionthrown out . by Wendt J. in Abdul Ally v. Kelaart and I amcontent to rest my judgment in this case on this view of the law.It is not. even necessary to decide that the plaintiff’6 mortgage iswholly invalid; it is sufficient to say that it is subject to the finalresult of the partition action, and must yield to the title created bythe Court fry the issue of the certificate in pursuance of the sale heldunder. the order of the Court. It was lastly argued that ThomasWanigesekere,; the purchaser, and therefore also the defendant, areestopped .from setting up that title against the mortgage. J But noissue wa^..raised on: that point, and even if raised does not-affect the
1 (1904) 1 Bed. 40.
other mortgagors. Further, it is now settled that the exceptto orplea px that respeot only affects the original vendor or mortgagor,and not a subsequent purchaser for consideration, like the defendantin this case. Moreover, in the view 1 have taken of the effect ofthe sale, no such estoppel would arise. The certificate displacesall previous lights so far as the title to the land itself is concerned.The plaintiff's mortgage might attach to the share of the proceedssale due to the mortgagors, but the mortgagee has ceased ,to be anencumbrance on the land in the hands of the defendant-I think the appeal should be allowed with costs.
1*18.
De SiHFATO
A.J.
Perera v.Altria
Appeal allowed.