SOYSA v. JAYAWARDENE

071-NLR-NLR-V-17-SOYSA-v.-JAYAWARDENE.pdf


( 218 )
«14.
Present: Lascelles C.J. and De Sampayo A.J.
SOYSA v. JAYAWARDENE.
75—D. G. Kalutara, 5,136.
Action on a mortgage bond—Representative of deceased mortgagor ap-pointed under section 642 of the Civil Procedure Code—Mayproperty other than mortgaged property be sold in execution ?
A judgment on ,& mortgage bond obtained against a persouappointed to represent the estate df the deceased mortgagor underthe provisions of section 642 of the Civil Procedure Code cannot beexecuted by seizure and sale of property of the mortgagor otherthan those specially mortgaged.
fJlHE faets are set out in the judgment;
Allan Drieberg, for the plaintiff, appellant.—The second defendantwas duly .appointed a representative of the estate of the deceased•under section 642 of the Civil Procedure Code. A decree obtained.against the representative binds the estate of the deceased “ for all•the purposes of the action. ” In Punchi Kira, v. Sangu 1 Bonser C.J..says (at page 46), where a representative is appointed, “ any decreemade in the hypothecary action is to bind the mortgagor’s estatein the same manner as, and in all respects as, if a duly constitutedadministrator of the deceased mortgagor were a party.” Thedecision of Bonser C.J. is later than that of Lawrie J. in MohamaduLebbe v. Umma Nachia. 2 The opinion of Lawrie J. is only obiter.Counsel also referred to Silva v. Fernando. 3 The decree in a hy-pothecary action includes a money decree, and it is binding on theestate of the deceased. All the property of the deceased is liableto be sold under the decree if the mortgaged property is insufficient.
All the property of an intestate vests on his death iu his heirs,subject to the administrator’s right to follow it for purposes, ofadministration. Silva v. Silva. 4 The creditor can seize the propertyof the intestate though the heir may have sold or alienated it.
1Gopalsamy v. Ramasamy Pulled What an administrator canfollow a creditor can follow.
Counsel also referred to Segoe Mohideen v. Ismail Lebbe Maricar, 4Pasupathy Chettiar v. Candar Pandary. 7
Wadsworth (with B. F. de Silva and Cooray), for the firstdefendant, respondent.—Mohamadu Lebbe v. Umma Natchia 2 is adirect authority in favour of the respondent.
1 {1900) 4 JV. L. R. 42.4 {1907) 10 N. L. R. 234.
» {1896) 1 N. L. R. 346.6 {1911) 14 N. L. R. 238.
* (1897) :3N. L. R. 15.e (1906) 10 N. L. R. 97.
7 i!889) 8 S. C. C. 205.
( 219 )
If the intestate hod parted with the property lo first defendant *****dining his lifetime, the creditor could not reach it unless he brings Soyaav.a Faulian action. The creditor cannot follow the property merelybecause the sale to first defendant was by the heirs. He shouldbring a Faulian action to follow the property in the hands of firstdefendant.
Drieberg, in reply.
Cur. odv, vult.
April 2, 1914. Lasceu.es C.J,—
This is an appeal in an action under section. 247 of the CivilProcedure Code by the plaintiff, who was an unsuccessful writ-holder in the claim proceedings.
The material facts are the following. One Alexander Siriwardene' died possessed of considerable property, leaving a son, FredrickAlwis Siriwardene, who died pending the administration of hisfather’s estate. Fredrick Alwis Siriwardene left a widow, the–second defendant, and two minor children. On June 8-, 1909, the-administrator of Alexander’s estate conveyed half of one-tenth ofcertain- property to the second defendant, and a like share to theminor children.
Fredrick Alwis Siriwardene at his death was indebted on amortgage bond to the plaintiff, who on July 21, 1911, obtainedjudgment against Fredrick’s estate; for the purpose of that actionthe second defendant was appointed under the proviso- to section 642 of.the Civil Procedure Code to represent Frederick's estate.
In March, 1912, the second defendant, as curatrix of her children’see.tate, and with the consent of the Court, conveyed the share of theminors in certain lands to the first defendant. There were otherdealings with the property, but for the purposes of the appeal weare only concerned with the property conveyed to the first defendant.
The plaintiff, having obtained a decree in the mortgage action,discussed the property comprised in the bond; and when this-proved insufficient- to satisfy the decree, proceeded to seize, amongstother property, the property- conveyed as above mentioned to thefirst defendant. The present appeal is from the judgment of theDistrict Judge that this property is not liable to seizure and sale to-satisfy the balance of the judgment debt’.
On appeal the question of registration, on which the judgment ofthe Court below proceeded, was not relied on. Nor was it suggestedthat the transfer to the first defendant was in fraud of creditors.
The appellant’s principal contention was that the second defend-ant-, having been appointed under section 642 to represent the estateof Fredrick Alwis 1 Siriwardene, the entirety of the estate,, and notmerely the land named in the decree, was bound by the decree inthe mortgage action. It. is, I think, impossible to accept thecontention that a person appointed under the proviso- to section 642
( 220 )
t*ll. to represent the estate of the deceased mortgagor for the purposesr.famnr.T.ng of the mortgage action is in the same position as a person appointedC.J. /to administer the estate.
Soyta v. The limited purpose for which the special representative isJayawardene appointed under section 642 is clearly expressed in the section.
He is appointed for the purpose of the action, that is, the action toenforce the mortgage bond,. He does not possess the general powersand duties of an administrator as regards the payment of the debtsof the intestate. The case of Mohamadu Lebbe v. Urn-ma Natchia 1is a clear authority that in circumstances similar to those of thepresent case no other land can be seized than that named in thedecree as executable. The decision in Punchi Kira v. Sangu 2 isrelied on by the appellant, but I do not think that it decides morethan that the mortgagor, whether he is in possession or not, mustbe joined as a party in the hypothecary action. We were also'referred to Silva v. Silva 3 and Gopalsamy v. Bamasamy Pulle, * but
I cannot see that the effect of either of these authorities is to throw
*
any doubt on the principle laid down in Mahamadu Lebbe v. UmtnaNatchia. *
I cannot see^ that the righ.ts of the plaintiff as against the propertynot comprised in the mortgage are more extensive than they wouldhave been if Fredrick Alwis Siriwardene had been living at thetime of the mortgage action.
In that ease the plaintiff could not have reached the propertynow in question, unless he was able in a Paulian action to set asidethe transfer to. the firet defendant.
In my opinion the appeal fails, and should be dismissed with costs
De Sampayo A.J.—
I am of the same opinion. The main question for considerationi6 whether a judgment on a mortgage bond obtained against a personappointed to represent the estate of the deceased mortgagor underthe provisions of section 642 of the Civil Procedure Code can beexecuted by seizure and sale of property of the mortgagor other thanthose specially mortgaged. I have no doubt that this questionshould be answered in the negative. The mortgage sections of theCode provide, in the first place, that an action to realize money dueon a mortgage should be brought against the mortgagor whetherhe i6 still owner of the property or not, or, if the mortgagor is dead.. -against the executor or administrator of his estate ; and in the nextplace, that in the event of the mortgage property being under thevalue of Bs. 1,000, some person may be specially appointed torepresent the estate of the deceased mortgagor for all the purposesof the action. It is clear to my mind that this last proviso in
qim) 1 N. L. R. 346.* (1900) 4 N. L. R. 42.
2 (1901) 10 N. L. R. 234.‘ (1911) 14 N. L. R. 238.
( 221 )
section 642 of the Code was intended to enable a mortgage ofproperty of small value, if he is content to pay himself out of themortgaged property, to sell such property against the specialrepresentative thereunder appointed instead of driving him to theexpensive course of having an administrator appointed as providedin the main part of the section. This was also the view taken inMohamadu Lebbe v. Umma Natchia 1 and in Silva v. Fernando. 2Counsel for the plaintiff, however, emphasized the words for allthe purposes of the action, ” and relied on a passage in Punohi Kirav. Sangu, 3 in which Bonser C.J., referring to the proviso in section642 said, “ any decree made in the hypothecary .action (against thespecial representative) is to bind the mortgagor's estate in the samemanner and in all respects as if a duly constituted administrator ofthe deceased mortgagor were a party.” The question of sale of theproperty other than the mortgaged property was neither involvedor considered in that case, the whole judgment of the learned ChiefJustice being directed .to an exposition of the alteration made bythe Code in the constitution of a hypothecary action and to theconsideration of the necessary parties to such an action since theCode. Moreover, the remark above quoted amounts to no morethan that as effective a hypothecary decree can be obtained againstthe special representative as against an administrator, and as undera hypothecary decree pure and simple only the mortgaged propertycan be sold, the judgment in the case cited appears not only to beconsistent with but to bear out the view above expressed. Theexpression “ for all the purposes of the action ” in section 642has no larger application, and obviously refers to the actioncontemplated by the section, viz., the hypothecary action. In thisconnection counsel pointed! out .that the decree in a hypothecaryaction includes a money decree, and submitted that it could beexecuted against any property of the deceased. The first part ofthis proposition is undoubtedly true, but the decree must in all casesnecessarily state the sum of money, in default of payment ofwhich the mortgaged property is ordered to be sold, in order that thedefendant, whoever he may be, may have the opportunity to redeemthe property by paying the money. The character of a mortgagedecree has therefore no special significance in this connection. Asto the form of plaint in a mortgage action given in the schedule tothe Code, which counsel also referred to, it is true that, though theseforms; of plaints are in no way authorized by the Code, the mortgagedecree adopted in practice is taken from the prayer of the aboveform of plaint, and has been approved as good and sufficient. ButI should say that the part of the decree which orders that, if theproceeds sale of the mortgaged property shall not be sufficient topay the amount of the decree in full, " the defendant to pay to the
1 (1896) 1 N. L. R. 3462 (1897) 3 N. L. R. IS.
(1900) 4 A7. L. R. 42.
1914.
Be SaxpaIoA.J.
Soysa v.Jayawardene
( 222 )
1014.
Ifa Sampayo
A.J.
Soyso t>.Jayawatdene
plaintiff the amount of the deficiency, M was proper only where themortgagor himself or his legal representative is the defendant, butin my opinion it is wholly inapplicable where the defendant is thespecial representative appointed under the proviso in section 642for the purpose of realizing the mortgaged property. The otherdecisions cited as to the power of an administrator to sell overagain property already alienated by the heirs have no bearing onthe present question. I may, however, refer to Gopalasamy v.Ramasamy Pulle, 1 which was relied on in support of the presentappeal. There von Langenberg J. observed that the liability ofthe alienated property to be sold for the purposes of administrationincluded the right of a creditor to follow the property for the pay-ment of his debt. This undoubtedly is so, but the creditor mustsurely proceed by means of a duly constituted action, and theplaintiff is thus brought back to the original question involved inthis appeal.
I agree that the appeal fails, and should be dismissed with costs.
Appeal dismissed.
♦