062-NLR-NLR-V-45-VELUPILLAI-Appellant-and-KANDIAH-Respondent.pdf
JAYETILEKE J.—Velu.ptllai and Kandiah.
241
1944Present: Howard C-J. and Jayetileke J.VELUPILiLAI, Appellant, and KANDIAH, Respondent.
296—D. C. Point Pedro, 1,578.
Mortgage—Property purchased by the mortgagee in execution of a moneydecree—Partitionaction—Saleunder partitiondecree—Actionon
bond.
A mortgage of an undivided half share of land purchased the sharein execution of a money decree against the mortgagor. In an actioninstituted for the partition of the land the mortgagee was allotted theshare in question and on a sale of the property under the partition decreeit was purchased by the third defendant against whom the mortgageeput the bond in suit.
Held, that the mortgage was extinguished By the purchase of theproperty by the mortgagee.
A PPEAL from a judgment of the District Judge of Point Pedro.
N. Nadarajah, K.C. (with, him V. Arulambalam), for the third defend-ant, appellant.—When a mortgagee becomes the owner of the propertymortgaged the mortgage security is extinguished. The moment 3 D 1was executed the mortgage in the present case came to an end—VoetXX. 6. 1 (Berwick’s Translation, p. 443); Wille’s Mortgage and Pledge inSouth Africa (1920 ed.), p. 294; Jayasinghe Bandar v. Elias Appuhamiet al.1; Mutturaman Chettiar et al. v. Kumarappa Ghettiar et alBurge on Colonial and Foreign Laws (1838 ed.), p. 238. Section 12 ofthe Partition Ordinance does not aSeet the case of. the appellant.
[Jayetileke J. drew attention to Dias v. de Silva3.]
The money debt can be distinguished from the hypothecary claim.The former may remain after the latter is extinguished.
No appearance for respondents.
Cur. adv. vult.
May 23, 1944. Jayetileke J.—
The questions to be determined in this case are simple and appearto me to be free from doubt or difficulty. The events out of which thedispute has arisen are as. follows: —On September 20, 1934, the first andsecond defendants mortgaged to the plaintiff by bond No. 2,489 attestedby V. Sanathirajasekaram (P 1) and undivided half share of a land calledOddai to secure the payment of Rs. 600 and interest.
On September 7, 1939, the said share was sold by the Fiscal in execu-tion of a money decree obtained by "the plaintiff against the first andsecond defendants. At the sale the plaintiff purchased it for a sum ofRs. 103 and duly obtained a conveyance in his favour bearing No. 1,708dated September 30, 1940 (3 D 1).
Thereafter the third defendant instituted action No. 1,233 of the.District Court of Point Pedro for the partition of the entire land calledOddai. In the decree that was entered in that -action the plaintiff was,allotted the half share which he purchased on 3 D 1.
1 (1909) 12 AT. L. It- 300.* {1942) 43 N. L. R. 499.
* {1937) 39 N. L. R. 358.
242
JAYKTXIjEKFi J.—Velupillai and Kandiah.
As a partition of the land was found to be impracticable the Courtordered a sale of the property. At the sale held in pursuance of thatorder the third defendant purchased the land for a. sum of Its. 1,595 andobtained a certificate of title in his favour 3 D 2.
The plaintiff drew from Court the half share of the proceeds of saleto which he was entitled and thereafter instituted this action on P 1claiming a hypothecary decree. The third defendant pleaded that thehypothecation came to an end when the plaintiff acquired the ownershipof the mortgaged property.
Upon this point there is very clear authority. It is sufficient to quotethe well known passage in Voet’s Commentaries XX. 8. 1 Ber. Tr. p. 443:—
“ The Vinculum Pignoris may be dissolved (or the Jus Pignorisextinguished) in many ways; for example, by the creditor becomingowner of the mortgaged thing by contract, succession, or otherwise;for just as one cannot have a servitude over his own property; Dig. 7, 6,fr. pr. (si usufruct, pet. vel. ad al. pert, neg.) so neither can It be bound inpledge to him, and therefore it falls into the predicament that it cannotbe the subject of pledge. Dig. 13, 7. fr. 29 (de pignorat. act.); Dig. 50.17, 45 (de reg. juris.).”
The plaintiff contended that when the property was sold under thedecree for sale his rights on the bond revived. This contention appearsto me to be wholly untenable. When the plaintiff became the ownerof the land the mortgage in his favour was at law merged in the owner-ship. The question of revival can only arise where merger does not take-place. If the transfer in favour of the mortgagee is for some reasoninvalidated merger does not take place and the mortgage must thereforebe treated as in existence.
This view is supported by the decision of this Court in Silva v. Silva.1In that ease the transfer in favour of the mortgagee was invalidated undersection 238 of the Civil Procedure Code by reason of a prior duly registeredseizure under another creditor’s writ. It was held that the mortgagee wasentitled to fall back on the mortgage and enforce his rights under it.
This case was cited with approval in Wijesinghe v. Dingiri Appuhamya,where Pereira J. said: —
“ If, however, the deeds C and AD 5 are to be deemed to have theeffect of rendering ineffectual deed D in the plaintiff’s favour, thenclearly, the plaintiff’s rights on the mortgage bonds (A and B) grantedby the first and fourth defendants must be taken to have revived. Thisview is well supported by the decision in the cases of Silva v. Silva (supra),Elaris Appuhamy v. Moises Fernando3, and also by the principle under-lying the law enunciated by Voet in XX. 5. 10 and XX. 6. 1 oi his com-mentaries which do not appear to have been cited in the argument inSilva v. Silva (supra).”
Bor the reasons given above I am of opinion that the judgment of thelearned District Judge is wrong and musfle set aside.
I would accordingly allow the appeal and dismiss the action againstthe third defendant with costs here and in the Court below.
Howard C.J.—I agree.
Appeal allowed.
J 13 N. L. R. 33.cC. A. C. 139.* Times of Ceylon 17. 2.1905.