009-NLR-NLR-V-69-S.-K.-SELLATHURAI-Appellant-and-YOGAMMAH-Respondent.pdf
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SRI SKANDA RAJAH, J.—Sellathurai v. Yoga tumult
Present : T. S. Fernando, J., and Sri Skanda Rajah, J.S. K. SELLATHURAI, Appellant, and YOGAMMAH, RespondentS.C. 485/64—D.C. Jaffna, 5043/MB
Mortgage—Co-mortgagors bound in solido—Death of one of them—Action institutedagainst the survivor—Maintainability.
Prescription—Joint and several obligation—Institution of action against one of theco-debtors—Interruption of prescription against the other debtors.
Where the liability of two co-mortgegors is joint and several, and one of themortgagors dies, the mortgagee is entitled to maintain a hypothecary actionsubsequently against, the survivor and the legal representative of the deceased.
Whero two debtors are jointly and severally liable, the institution of actionagainst one of them interrupts the course of prescription against the other.
PPEAL from a judgment of the District Court, Jaffna.
Bala Nadarajah, for 1st Defendant-Appellant.S. Sharvananda, for Plaintiff-Respondent. •
Cur. adv. vult.
July 10, 1966. Sri Skanda Rajah, J.—
The 1st defendant-appellant and his wife, Avayambal, granted theplaintiff-respondent a mortgage bond on the 4th of September, 1952.The land mortgaged was Avayambal’s dowry property, but'the bond wasan obligation in solido (joint and several). Four days before the term ofprescription, namely, on 30th August, 1962, the plaintiff-respondentfiled the plaint in this case against the 1st defendant, husband of Avay-ambal who it was discovered later had died over three years before theaction. When the fact of the death of Avayambal came to the plaintiff-respondent’s knowledge, he made an application to appoint the 1stdefendant-appellant himself to represent the estate of the deceasedAvayambal, which estate was stated in the petition for such appointmentto be worth under Rs. 2,500. That application was made on 18th ofFebruary, 1963, and the 1st defendant-appellant on whom notice of thatapplication was served was absent on 28th of March, 1963, and on thatdate the application to appoint him to represent the estate of the deceasedAvayambal was allowed. Answer was filed thereafter. There was noappeal from the order allowing that application.
SRI SKANDA RAJAH, J.—Sellalhurai v. Yogammah
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The case went to trial on a number of issues. The issues relevant forthe decision of this appeal are :
Was the action properly constituted in so far as the 2nd defendant
was dead at the time of the institution of this action ?
If so, is the appointment of the first defendant as legal represen-
tative of the deceased wife valid ?
In any event, is plaintiff’s claim prescribed as against the estate
of the deceased, wife of the first defendant ?
These issues were answered by the learned trial Judge as follows :—
I hold that the joinder of the second defendant as a party defen-
dant in this case was not proper in view of the fact that thesecond defendant was already dead at the time of this action,but this does not prescribe plaintiff’s claim against 1st defendant.
No.
Does not arise.
It was argued before us that the action was a nullity. In the case ofMuthu Ramaie et al. v. Athimulam et al.,1 where a mortgagee instituteda hypothecary action in respect of a land mortgaged to him by twoco-mortgagors A and B and B had died prior to the date of action but arepresentative of his estate was appointed in the mortgage action andadded as a defendant, it was held that the death of co-mortgagor Bprior to the institution of the mortgage action could not render the actiona nullity.
It was also argued that the action against the second defendant wifewas prescribed because the substitution was made over 10 years afterthe date of the mortgage bond. But in this case the institution of theaction against the husband, the 1st defendant, was sufficient to interruptprescription against the estate of the deceased wife. In Dharmasena v.Lewis et al. 2 the facts were as follows : The plaintiff sued the defendants■ for the recovery of money due upon a mortgage bond dated August 1,1917. The mortgage was executed by the first and second defendantsand their mother, Nona Rodrigo, jointly and severally. The plaint wasfiled on July 27, 1927, four days before the expiration of ten years, as inthe present case. Nona Rodrigo had died six months before action, andthe third defendant was described as her legal representative. OnDecember 12, 1927, on the application of the plaintiff the third defendantwas appointed as a fit person to be the legal representative of the deceasedmortgagor. It was contended for the defence that the action was pre-scribed as it must be regarded as having been instituted on December 12.The learned District Judge held that the action was instituted on July 27,and gave judgment for the plaintiff. This Court held that the actionagainst the third defendant must be regarded as having been institutedon December 12, that is over 10 years after the bond, but went on to hold> (1961) 66 N. L. R. 251.* (1930) 31 N. L. R. 353.
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Stephen v. Inspector of Police, Fort
that the institution of an action against one of several debtors in solidointerrupts the course of prescription against the others. Therefore, inthis case, too, the institution of action against the 1st defendant-appellantinterrupted the course of prescription against the estate of the deceasedAvayambal. For these reasons, the 1st defendant-appellant’s appeal isdismissed with costs.
There was a cross-objection filed by the plaintiff-respondent becausethe learned District Judge did not hold that the 1st defendant wasproperly appointed to represent the estate of the deceased. In view ofour findings that the appointment has been properly made and that theclaim is not prescribed, this cross-objection is entitled to succeed.
Enter decree as prayed for in the plaint.
T. S. Fernando, J.—I agree.
Appeal dismissed.