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NLR - Vol.12- P139
NLR - Vol.12, Page No - 139 Present: Mr. Justice Wendt and Mr. Justice Middleton. WEERAPPA CHETTY v. ARUNASELAM CHETTY. D. C., Badulla, 2, 102. Mortgage-Purchaser subsequent to mortgage-Non-joinder in action- Effect of decree--Failure on the part of mortgagee to furnish address to the Registrar-Omission on the part of subsequent purchaser to give notice-Civil Procedure Code, (Ordinance No. 2 of 1889), Chapter XLV1. Held, that before a mortgage decree can have the conclusive effect given to it by section 644 of the Civil Procedure Code, it must be clearly proved that the mortgagee has complied with the first proviso to that section, and left an address with the Registrar of Lands for service of notices. Peiris v. Weerasinghe 1 followed. Held, also, that the description of the mortgagee given in to the Registrar at the time of registration of the bond, and entered by him in the Register of Encumbrances, is not such an address as is required by section 644 of the Civil Procedure Code, Cont..
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NLR - Vol.12- P373
NLR - Vol.12, Page No - 373 Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, and Mr. Justice Grenier. ABEYESUNDERE v. ABEYESUNDERE. D. C., Galle, 8, 707. Partition-Land subject to fidei commissum. A land which is subject to a fidei commissum may be partitioned or sold under the Partition Ordinance. Obiter: Hutchinson C. J. - Where it is not practicable to partition the land and a sale is ordered under the Partition Ordinance, it might be right to have a petition presented under Ordinance No. 11 of 1876 and to make the order under both the Ordinances, so that the purchase money may be dealt with in one of the ways directed by the latter Ordinance. APPEAL from a judgment of the District Judge of Galle. This was an action to partition a land alleged to be subject to a fidei commissum. The will by which the fidei commissum was created contained a direction that the management of the estate should be left entirely in the hands of the first defendant, and that he be allowed a salary as superintendent, independent of his own one- third share. The District Judge ordered a partition as prayed for, subject to the fidei commissum; Cont..
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NLR - Vol.15- P241
NLR - Vol.15, Page No - 241 Present: Lascelles C.J. SINNO APPU v. PODI NONA et al. 63-C. R. Galle, 6,747. Mortgage by married woman who represented herself to be femme sole- By minor who represented himself to be of full age--Estoppel. A party cannot by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is under a legal disability from creating. A mortgage executed by a married woman who represented herself to be a famme sole, and by a minor who represented himself to be of full age, was held to be invalid, and the mortgagors were held not to be estopped from denying the validity of the mortgage. PLAINTIFF sued on a mortgage bond the defendants, who were the legal representatives of the mortgagors. The defendants pleaded that the bond was invalid, as it was executed by a married woman Cont..
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NLR - Vol.15- P253
NLR - Vol.15, Page No - 253 Present: Lascelles C.J. and De Sampayo A.J. ARUMUGAM v. THAMPU et al. 48-D. C. Jaffna, 7,690 Appeal-Interlocutory order-Privy-Judgment obtained by third party against mortgagor after execution of mortgage-Is mortgagee bound by the decree against the mortgagor? Interlocutory appeals in the course of a trial, having the effect of suspending the proceedings, are generally to be deprecated, when the matter of such appeals may well be brought up at the final appeal. But where the point is not a mere incidental matter, but goes to the root of the case, an interlocutory appeal is convenient, especially if it would prevent necessary. evidence being shut out, and thus obviate a second trial for the reception of such evidence. A judgment is not conclusive against a person as privy in estate to a party litigant, unless it is shown that he derives title under the latter by an act subsequent to the commencement of the action. Cont..
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NLR - Vol.15- P 265
NLR - Vol.15, Page No - 265 [Privy Council.] Present: Lord MacNaghten, Lord Shaw, Lord Mersey, and Lord Robson. FERNANDO v. GUNATILLEKE. D. C. Colombo, 29,620 Gift subject to condition that donee should not sell or mortgage-Sale by donor and donee to third party-Mortgage by donee without consent of donor-Life-interest-Fidei commissum. By a deed of 1882 Maria gifted her land to Palis, his heirs, &c., subject to the following conditions: - (1) The said Maria shall have the right of possessing and enjoying the rents, income, &c., until Palis shall have arrived at the age of twenty-five years. (2) After the said Palis shall have arrived at the age of twenty-five years, if I, the said Maria, Cont..
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NLR - Vol.15- P327
NLR - Vol.15, Page No - 327 Present: Lascelles C.J. and Wood Renton J. PERERA v. JOSEPH et al. 46 and 47-D. C. Colombo, 2,447. Mortgagee proving debt in insolvency proceedings-Is he bound to share proceeds pro rata with unsecured creditors?-Who is a "trader" -Reckless trading-Books not kept. A mortgagee who elects in the first instance to prove in the insolvency would not lose the advantage of his security, and is not bound to share pro rata with the unsecured creditors in the proceeds. Section 109 deals with the case of a creditor who has brought an action against the insolvent in respect of a demand prior to the filing of the petition. In that case the creditor cannot prove in the insolvency without relinquishing the action, and the act of proving the claim amounts to a relinquishment of the action. Cont..
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NLR - Vol.15- P414
NLR - Vol.15, Page No - 414 Present: Lascelles C.J. and Pereira J. PERERA v. ABEYRATNA et al. 181-D. C. Colombo, 33,620. Mortgage decree under s. 201, Civil Procedure Code-Separate action by a party to set aside sale on ground of irregularity-Civil Procedure Code, s. 344. It is not open to a party to an action in which a mortgage decree under section 201 of the Civil Procedure Code has been entered up to bring a separate action to have a sale of land in execution of the decree set aside on the ground of irregularity. He must, in terms of section 344 of the Code, move in the Court executing the decree. THE facts are set out in the judgment of Pereira J. Bawa, K.C. (with him H. A. Jayewardene), for appellants. Sampayo, K.C. (with him R. L. Pereira), for respondent. Cont..
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NLR - Vol.17- P173
NLR - Vol.17, Page No - 173 Present: Pereira J. and De Sampayo A.J. ABDUL CAFFOOR v. PATTUMUTTU. 237-D. C. Galle, 11,580. Partition-Allotment of a lot to a party by decree-Conveyance of share to another-Subsequent variation of decree-Different lot allotted under decree-Action by purchaser 1o rectify deed. Where A being allotted a certain portion of land in a decree in a partition suit, conveys that portion to B, and the decree is subsequently varied, and A is allotted another portion in lieu of the portion conveyed by him,- Held, that B cannot maintain an action against A for rectification of the deed of conveyance. THE facts appear from the judgment. A. St. V. Jayawardene, for plaintiff, appellant. V. Grenier, for defendant, respondent. September 22, 1913. Pereira J.- I think that the view taken by the District Judge on the question involved in this case is correct. The first defendant was by partition decree entered up in case No. 8,138 of the District Court of Cont..
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NLR - Vol.23- P399
NLR - Vol.23, Page No - 399 Present : De Sampayo and Porter JJ. 1922 AHAMPARAPILLAI v. PODI SINGHO. 23-D, C, Batiicaloa 5,144. Partition action-House built on an agreement with one co-owner- Purchase by builder of co-moner'a /than*-It builder entitled to the entire house?-Compensation. The defendant built a house on a land under an agreement with one of the co-owners A, by which it was provided that the defendant should build, at his own expense, and that when he died or left the house, it should belong to the said co-owner A without payment of compensation. The defends ought the half share of A after the house was built. Held, that defendant was not the sole owner of the house, nor entitled to compensation. THE facts are set out in the judgment. Cont..
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NLR - Vol.24- P158
NLR - Vol.24, Page No - 158 1922 Present: Ennis and Schneider JJ. ROBERT v SILVA et al. 75-D. C. Galle, 18,949. Mortgage bond-Usufructuary mortgage as to part of the amount lent'- Agreement to pay interest for the balance--No interest paid- Prescription. Defendant granted a mortgage bond to the plaintiff for Rs. 400; for the purpose of interest the mortgage was made a usufructuary one in respect of Rs, 300, and for the remaining Rs. 100 there was a promise to pay interest at 15 per cent. No interest was paid. Held, that as the bond was one and indivisible, prescription did not run as to the Rs. 100 as long as plaintiff had possession. THE plaintiff-respondent sued the first defendant, appellant, upon a mortgage bond for Rs, 400, by which it was agreed that second defendant should possess the mortgaged property in lieu of interest Cont..
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NLR - Vol.24- P175
NLR - Vol.24, Page No - 175 1922 Present : Ennis and Schneider JJ. ELLAPATA et al. v. FERNANDO. 109-D. C. Ratnapura, 3,721. Last will creating fidei commissum-Probate not registered-Mortgage fry daughter of testator- Registration of mortgage-Priority of mortgage in respect of intestate share of the mortgagor. D mortgaged a half share of a land to defendant. When the property was seized in execution, the plaintiffs (who were children of D) claimed it, asserting that the will of D's father had created a fidei commissum, by which, on the death of D, it devolved upon the survivors. The defendant urged that as the probate wag not registered, the registered mortgage took priority. Held, that the mortgage gained priority by registration. If the defendant asserts title independently of the will, the mortgagor had title only to what the inherited from her father by intestate succession. Cont..
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NLR - Vol.24- P193
NLR - Vol.24, Page No - 193 1922 Present : Ennis and Porter JJ. DON DAVITH v. DON DAVITH. 317-D. C. Matara, 9,524-R. F. Mortgage by widow and son for paying of husband's debts-Action by mortgagee-No registration of He pendens-Purchase under mortgage decree by defendant-Half land sold on a writ against widow and purchased by plaintiff. L, the widow (administratrix) of W, and her son mortgaged in August, 1916, the whole of the land in question to P, for. the purpose of paying the debts of W (husband). P put the bond in suit in. October, 1919, and without registering the lis pendent obtained judgment, and under the sale under the mortgage decree defendant purchased the land and obtained a Fiscal's transfer in September, 1920. Under writ issued against L in C. R. Tangalla, 9,187, half of the land was seized, and plaintiff purchased at Fiscal's sale in March, 1920, and obtained Fiscal's transfer in July, 1920. Held, that plaintiff purchased the land subject to the mortgage. Cont..
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NLR - Vol.24- P222
NLR - Vol.24, Page No - 222 1922 Present : Bertram C.J. and Schneider J. APPUHAMY et al. v. BABY SINGHO. 101-D. C. Galle, 18,853. Assignment of a usufructuary mortgage-Mortgage of the land by the assignee as though he were the owner-Land sold by auctioneer- Conveyance of land to purchaser-Right of purchaser to take the produce. Plaintiff executed a usufructuary mortgage of. the land in favour of. T. T assigned this mortgage to J, ,J executed in favour of P what was apparently intended to be a mortgage of his mortgage rights. The deed, however, purported to mortgage the lands originally mortgaged by the plaintiff as though J was the owner. P put the bond in suit, and under the decree the land was sold by an auctioneer, who conveyed the land itself to the purchaser. Held, that the purchaser under this deed acquired the usufructuary rights of J to take the produce of the land in lien of the interest on the mortgage debt. Cont..
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NLR - Vol.24- P477
NLR - Vol.24, Page No - 477 1923 Present : De Sampayo A. C. J. and Schneider J. MOHAMADU BUHARI v. SILVA 263-C. R. Matara, 12,186 Sale under mortgage decree-Mortgage action not registered-Lis pendens -Sale under simple money decree-Right of purchaser under mortgage decree to refer back to mortgage bond. D mortgaged the land in question to S in 1915 by a bond which was registered in the same year. S put the bond in suit in 1920 and obtained a decree in the same year. The lit pendent was not registered. The mortgaged property was sold in execution on May 11, 1921, and purchased by L. Fiscal's transfer was issued to L on August 22, 1921, and registered on August 23, 1921. On a writ against D on a simple money decree on March 7, 1921, one-eighth share of the land was sold on May 4, 1921, and purchased by defendant, to whom the Fiscal issued the transfer on August 22, 1921, which was registered on September 7, 1921. Cont..
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NLR - Vol.24- P481
NLR - Vol.24, Page No - 481 1923 Present: De Sampayo A.C.J. and Garvin J. VALLIAMMA v. LOWE et al. 439-D. C. Chilaw, 6,511. Husband and wife-Mortgage of immovable property by wife without the written consent of husband- Subsequent ratification by deed- Does ratification render mortgage valid ?-Money bond. A mortgage of immovable property by a wife without the written, consent of her husband cannot be regularized by subsequent ratification by the husband. But the ratification renders the bond valid and effectual as an ordinary money bond. THE facts appear from the judgment. Samarawickreme (with him Arulanandan), for plaintiff, appellant- Section 9 of Ordinance No. 15 of 1876 has not done away with the Roman-Dutch law relating to the marital rights of the husband. A married woman could not enter into any contracts without the assistance of the husband, but the Cont..
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NLR - Vol.25- P 284
NLR - Vol.25, Page No - 284 Present: Jayewardene A.J. 1923. ADAPPA CHETTY et al. v. BABI. 207-C.R.Kegalla, 18,347. Mortgage decree-Effect of not registering decree. R mortgaged the land in question to A in 1912. The bond was registered in the same year. In 1915 he mortgaged the same land to C. In 1918 C put his bond in suit and obtained mortgage decree, which decree was never registered. At the execution sale defendant purchased the land in September, 1920 (Fiscal's transfer, June 10,1921). A put his bond in suit in February, 1920, and obtained decree in March, 1920, and registered the decree in October, 1920. The plaintiff purchased the property at the execution sale on June 5, 1921 (Fiscal's transfer in 1923). The defendant was in possession, and the plaintiff (purchaser under the first mortgage) sued him for declaration of title. Neither mortgagee had complied with the provisions of sections- 643 and 644 of the Civil Procedure Code. Held, that as the decree in favour of A (first mortgagee) was registered the plaintiff had superior Cont..
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NLR - Vol.25- P433
NLR - Vol.25, Page No - 433 Present; De Sampayo and Porter JJ. - 1922. WICKREMESINGHE et al. v. ENSOHAMY et al. 184-D. C. Matara, 9,018. Gift of share derived by purchase-Mortgage of share described as derived by inheritance-Smaller share derived by inheritance-Prior registration of mortgage-Is mortgage good for the entire share mortgaged ? - Recitals - Conveyancing - Estoppel - Vendor and Purchaser-Misdescription in Fiscal's conveyance of area of property sold under mortgage decree-Seizure. A, who was entitled to a 1/18 of a land by inheritance and another share by purchase, donated a share to his children (the plaintiffs), describing it as property belonging to him by right of purchase. Subsequently, he mortgaged to S 1/3 share which he stated he was entitled to by inheritance. The mortgaged bond was registered first. The plaintiffs contended that as the share mortgaged was described as the share acquired by right of inheritance, the mortgage did not come into conflict with the deed of gift which dealt with a Cont..
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NLR - Vol.25- P500
NLR - Vol.25, Page No - 500 1922 . Present: De Sampayo and Schneider JJ. MEURLING v. GIMARAHAMY et al. 133-D.C. Matard, 9,845. Sale under the Partition Ordinance-Mortgage of share, by purchaser-o Sale of entirety-Registration- Undivided shares registered in different folios before partition action--Subsequent mortgage and sale also registered in different folios-Bight folio-Action on mortgage bond against administrator before letters of administration were taken out. The land in question was sold under the Partition Ordinance and bought by B, who thereafter mortgaged a share to M. At the wale under the mortgage decree, plaintiff purchased the share. B sold the entirety of the land to defendants, who registered the deed in A 35/120. The mortgage bond and Fiscals' transfer were registered in A 80/394. Prior to the partition decree, the undivided shares were registered in the two folios without cross reference. A 80/394 was the folio in which any deed relating to the land was first registered. Cont..
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NLR - Vol.26- P106
NLR - Vol.26, Page No - 106 Present: Bertram C.J. and Schneider J. SOYSA v. SOYSA. 482-D.C. Colombo, 8,565. Mortgage-Assignment of a mortgage by way of security-Cancellation of assignment by assignee with the endorsement " bond cancelled and discharged "-Is such endorsement effective for the purpose, of revesting the mortgagee with a right of suit on the original mortgage ?-Ordinance No. 1 of 1840, s. 2. Where a mortgagee transferred and assigned by way of security his rights on a mortgage bond and the assignee thereafter cancelled the assignment with the endorsement " bond cancelled and discharged. " Held, that under our law such an endorsement was sufficient to revest the mortgagee with a right of suit on the original mortgage without a notarially executed retransfer of his rights by the assignee. Cont..
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NLR - Vol.26- P385
NLR - Vol.26, Page No - 385 Present: Bertram C. J. and Ennis J. SARAVANAMUTTU v. SOLAMUTTU. 483-D. C. Colombo, 7581. Mortgage-Registration of his pendens-Failure to register decree-Sale by mortgagor after decree- Purchase by mortgagee-Equitable rights-Ordinance No. 14 of 1891, ss. 16 and 17. A mortgagee registered his mortgage and his address, and on instituting his action on the bond failed to register either lis pendens or the decree, and bought the land in execution of his decree. After the decree, the mortgagor sold the land to the plaintiff who registered his transfer. Held, that a mortgage decree requires registration under section 16 of the Land Registration Ordinance, and that, unless it is so registered, it is void as against a purchaser for valuable consideration, who acquires title after judgment and before execution. Cont..
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NLR - Vol.27- P1
NLR - Vol.27, Page No - 1 Present: De Sampayo and Schneider JJ. PUNCHIHAMY v. PREMARATNE HAMINE. 330-D. C. Kurunegala, 8,224. Registration-Mortgage of share of land with other lands by the same bond-Lease-Action by purchaser in execution-Correct folio- Consolidation for purpose of registration. Where the owner of the undivided share of a land mortgaged it with other lands by the same bond and registered it in a certain folio, Held that the said folio was not the proper one for the registration of subsequent deeds dealing with the undivided share of land, and that there had been no consolidation of the lands for the purpose of registration. Fernando v. Perera1[1 (1917) 20 N. L. R. 119.] followed. Cont..
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NLR - Vol.30- P27
NLR - Vol.30, Page No - 27 Present : Schneider and Garvin J J. ADAICAPPA CHETTY v. PERERA et al. 6-D. C. (Inty.) Colombo, 20,443. Mortgage of movables-Sale under two hypothecary decrees-Right of preference of prior hypothecary creditor-Judicial hypothec. Where movable property was sold in execution of hypothecary decrees entered in pursuance of two mortgages effected under duly registered instruments in writing,- Held, that the prior mortgage creditor had a preferent right to the proceeds of the sale. APPEAL from an order of the District Judge of Colombo. H. V. Perera, for appellant. Cont..
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NLR - Vol.30- P314
NLR - Vol.30, Page No - 314 Present: Garvin J. and Jayewardene A.J. ABDUL AZIZ v. THAMBY APPU et al. 5-D. C. Avissawella, 23. Partition action-Sale after final judgment, but before formal decree- Validity Where, in. a partition action, the Court approved of the scheme of partition proposed and made order allotting the shares in severalty in accordance with the scheme, but no final decree was entered,- Held, that the order allotting the shares constituted the final judgment in the, action and that a conveyance made after such judgment, but before the final decree was entered up, was valid. THIS was an action for declaration of title to an allotment of land, which formed part of a larger land, in respect of which proceedings were instituted for partition. Interlocutory decree was entered on April 22, 1013, declaring the shares to which the co-owners were entitled. , A Cont..
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NLR - Vol.31- P129
NLR - Vol.31, Page No - 129 Present : Fisher C.J. and Drieberg J. 1929. ABDUL LEBBE v. ABIDEEN et al. 58-D. C. (Inty.) Colombo, 19,269. Hypothecary action-Action by creditor against purchaser of mortgaged property-Burden of proof. Where a creditor on a mortgage bond asks for a hypothecary decree against the property, title to which has passed to a third party by a subsequent transfer by the debtor, the burden is upon the plaintiff to prove the execution of the mortgage, and the sum of money due upon it. An admission by the debtor of the amount due does not discharge the onus which is on the creditor of proving, as against the subsequent transferee, what sum, if any, is due on the bond. APPEAL from an order of the District Judge of Colombo. The facts appear from the judgment. H. E. Garvin, for third defendant and appellant. H. V. Perera (with him Peri Sunderam), for plaintiff, respondent. Cont..
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NLR - Vol.31- P304
NLR - Vol.31, Page No - 304 1929. Present: Fisher C.J. and Drieberg J. RAMANATHAN v. PERERA et al. 232-D. C. Colombo, 29,990. Mortgage--Sale of mortgaged property-Personal action against the debtor-Hypothecary action deferred- Ordinance No. 21 of 1927, s. 16. Where title to mortgaged property has passed from the mortgagor, it is open to the mortgagee to bring a personal action against the mortgagor to recover the debt without at the same time asking for a hypothecary decree against the transferee in possession. APPEAL from a judgment of the District Judge of Colombo. The defendant mortgaged two lands, Dalupotha and Alothia, to secure a loan of Rs. 40,000. The ,land Alothia was subsequently released by the mortgagee, while shortly afterwards title to Dalupotha passed, subject to the mortgage, to the added defendant. The plaintiff, to whom the mortgage bond Cont..
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NLR - Vol.31- P481
NLR - Vol.31, Page No - 481 Present: Dalton and Akbar JJ. 1930 GRIGORIS v. ARNOLIS et al. 312-D. C. Ratnapura, 4,912. Registration-Sale of property under mortgage decree-Non-registration of a mortgage action and decree-Alienation by mortgagor-Prior registration of transfer-Ordinance No. 21 of 1927, s. 11 (f). Plaintiff claimed title to the land in question on a Fiscal's transfer registered on October 5, 1926, issued in execution of a decree in a mortgage action brought upon a bond registered on January 13, 1919. Neither the mortgage action nor the decree nor the seizure of the land was registered. Defendants derived title from a sale by the mortgagor dated June 21, 1926, and registered on June 22, 1926. Held, that the defendant's title prevailed subject to plaintiff's right to compensation for the Cont..
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NLR - Vol.32- P206
NLR - Vol.32, Page No - 206 1931 Present: Akbar J. SITHARAM CHETTIAR v. UMBITCHY. 207-C. R. Colombo, 58,481. Joint Stock Company-Unpaid capital- Mortgage of debts-Sale in execution- Right of purchaser to recover amount of unpaid shares-Ordinance No. 4 of 1861, ss. 25, 69, and 107. Where a Joint Stock Company in Ceylon mortgaged " all the assets including all the moneys now due or hereafter to become due to the company in respect of shares sold" and in execution of a decree in an action on the mortgage the following property was sold and conveyed to the purchaser " all the moneys whatsoever due to the company by the several persons enumerated ",- Held, that capital unpaid cannot be regarded as a debt due to the company from a. shareholder, until a call has been Cont..
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NLR - Vol.32- P222
NLR - Vol.32, Page No - 222 1931 Present: Macdonell C.J. and Garvin S.P.J. SANTIAGOE v. SEGU MOHAMADO. 210- D. C. (Inty.) Colombo, 39,202. Insolvency-Mortgage by insolvent prior to adjudication-Mortgagee's right to sell property-Ordinance No, 7 of 1853 s. 111. The holder of a decree in an action on a mortgage, granted by an insolvent before the date of the petition for the sequestration of his estate, is entitled to have the mortgaged property sold under the decree. APPEAL from an order of the District Judge of Colombo. H. V. Perera (with him Soertsz), for appellant. No appearance for respondent. Cont..
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NLR - Vol.32- P228
NLR - Vol.32, Page No - 228 1931 Present: Dalton and Akbar JJ. PERERA v. TENNA et al. 263- D. C. Kurunegala, 11,102 Transfer-Land owned in common-Dividedly possessed- Conveyence of undivided share - Claim to divided portion. Where land owned in common was dividedly possessed by the two co-owners and one of them transferred an individed half of the whole land to the plaintiff,- Held, that the plaintiff could not, on the conveyance, claim the divided portion of the land possessed by his vendor. THIS was an action for declaration of title to the southern block of a certain land marked D and Dl in the plan filed in the case. The original owners of the land, which consisted of lots marked A, Cont..
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NLR - Vol.32- P78
NLR - Vol.32, Page No - 78 1930 Present: Garvin S.P.J. and Akbar J. 40 (Inty.)-In the Matter of an Appeal under the Stamp Ordinance. CROOS v. ATTORNEY-GENERAL. Stamp Ordinance-Deed of gift-Property subject to lease and mortgage-Ordinance No. 22 of 1909, Schedule B, Part I., item 30 (c). Property donated by a deed of gift was subject to a lease, under which the donor had received rent in advance, and was also subject to a mortgage. Held, that in assessing the value of the property for purposes of stamp duty, a deduction should be made in respect of the lease but not in respect of the mortgage. APPEAL under section 32\of the Stamp Ordinance from a ruling of the Commissioner of Stamps on the valuation placed upon certain lands which formed the subject of a deed of gift. It was contended that the value of a mortgage to which the land was subject should be deducted and also that Cont..
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NLR - Vol.33- P279
NLR - Vol.33, Page No - 279 1931 Present: Garvin S.P.J. and Maartensz A.J. ZAHAN v. FERNANDO. 101-D.C. (Inty.) Colombo, 37,745. Mortgage decree-Conditions of sale-Breach of condition by purchaser- Technical irregularity-Power of Court to grant relief. The directions which a Court gives for the conduct of a sale in execution of a hypothecary decree and the conditions of sale are intended to secure the interests of the parties to the action and also the purchaser at the sale. The Court is o entitled to grant relief in a case in which it would; be inequitable to penalize the purchaser for the breach of a condition of sale, which may be regarded as a mere technicality. APPEAL from an order of the District Judge of Colombo. Cont..
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NLR - Vol.33- P313
NLR - Vol.33, Page No - 313 1932 Present : Macdonell C.J. and Lyall Grant J. FERNANDO v. FERNANDO. 125-D. C. Negombo, 4,757. Mortgage bond-Principal payable on demand-Interest payable in advance every six months -Acceptance of interest-Claim for principal-Waiver. Where a mortgage bond, which provided for the payment on demand of the principal sum secured, also stipulated for the payment of the interest in advance every six months. Held, that the acceptance of the interest by the mortgagee in advance for a priod of six months did not operate as a waiver of the right to demand payment of the principal sum during that period. THE plaintiff sued the defendants for the recovery of a sum of Rs. 10,536 being principal and interest due on mortgage bond No. 253 dated July 6, 1929. The defendants admitted their liability to pay the principal sum due on the bond but contended that a sum of Rs. 770 had been paid as Cont..
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NLR - Vol.33- P319
NLR - Vol.33, Page No - 319 1932 Present: Garvin S.P.J. and Maartensz A.P.J. SOKALINGAM CHETTIAR v. RAMANAYAKE et al. 171-D. C. (Inty.) Colombo, 43,649. Cause of action-Mortgage bond-Security for payment of advances made by two obligees-Action by obligees to recover money due to them. Where a. mortgage bond, granted as security for the repayment of monies to be advanced from time to time by two obligees, provided inter alia "that the obligor will on demand pay to the obligees or their aforewritten all and every sum of money which shall become due to the obligees upon promissory notes or cheques made or endorsed by the obligor and delivered to the obligees or either of them . . . . or in respect of loans, advances, or payments made by the obligees or either of them " . . . . " All sums so lent and advanced by the obligees shall be deemed to have been lent and advanced by the obligees and to be recoverable by the obligees in the proportion of half part or share by the Cont..
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NLR - Vol.34- P106
NLR - Vol.34, Page No - 106 1932 Present : Garvin S.P.J. and Jayewardene A.J. RAMANATHAN CHETTIAR v. KURERA et al. 118-D. C. (Inty.) Chilaw, 8,706. Mortgage action-Sale by auctioneer-Confirmation of sale-Notice to judgment-debtor not necessary- Ordinance No. 21 of 1927, s. 12 (1). Where property is sold by an auctioneer in pursuance of a hypothecary decree entered under the provisions of the Mortgage Ordinance, No. 21 of 1927, the Court is not bound to give notice of confirmation of sale to the judgment-debtor. APPEAL from an order of the District Judge of Chilaw. The facts appear from the judgment. Weerasooria (with him Rajapakse, Samarakoon, and J. R. Jayewardene) , for the first and second defendants, appellants. H. V. Perera (with him E. F. N. Gratiaen), for the plaintiff and purchaser, respondents. Cont..
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NLR - Vol.34- P145
NLR - Vol.34, Page No - 145 1932 Present : Garvin S.PJ. and Dalton J. SILVA et al. v. SILVA. 72-D. C. Colombo, 31,987. Mortgage Ordinance-Addresses not registered-Transfer of property-Sale under hypothecary decree- Mortgage to be kept on foot-Payment of compensation-Ordinance No. 21 of 1927, s. 11-Retrospective effect. Section 11 of the Mortgage Ordinance, No. 21 of 1927, does not affect a land, title to which has been acquired before the Ordinance came into operation. THIS was a partition action in which fifth defendant-appellant intervened, claiming the entire property. The original owner, Santiago Silva, mortgaged the property with one Hendrick Perera who assigned the bond to the fifth defendant. He put the bond in suit, purchased the property at a Fiscal's sale and obtained transfer by deed (D 3) dated March 19, 1928, and registered in 1929. Neither fifth defendant nor Hendrick Perera had registered their addresses. Plaintiff's case was Cont..
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NLR - Vol.35- P289
NLR - Vol.35, Page No - 289 1934 Present: Garvin S.P.J. and Akbar J. SUBASINGHE et al. v. PALANIAPPA PILLAI. 160-D. C. (Inty.) Colombo, 33,589. Mortgage action-Decree entered-Sale of property hypothecated in execution of a money-decree- Intervention by purchaser under money-decree- Right to intervene-Distribution of proceeds of sale- Mortgage Ordinance, No. 21 of 1927, s. 6 (2), (3), (4). A person who during the pendency of a hypothecary action purchases the property under mortgage, in execution of a money decree, may intervene under the provisions of section 6, sub-section (3), of the Mortgage Ordinance, No. 21 of 1927, but such intervention may be permitted only before the distribution of proceeds of sale under the mortgage decree. APPEAL from an order of the District Judge of Colombo. H. V. Perera (with him Nadarajah), for the petitioner, appellant. S. W. Jayasuriya, for the first and second plaintiff, respondents. Cont..
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NLR - Vol.35- P31
NLR - Vol.35, Page No - 31 1933 Present: Dalton S.P.J. and Drieberg J. SANGARAPILLAI v. DEVARAJAH MUDALIYAR. 185-D. C. Colombo, 2,860. Land Acquisitions-Mortgage of land acquired-Person interested-Rights of mortgagee to compensation- Ordinance No. 3 of 1876, ss. 3 and 7. A mortgagee is a person interested in the land within the meaning of section 3 of the Land Acquisition Ordinance, and as such is entitled to put forward a claim to the compensation paid under section 7 of the Ordinance. APPEAL from an order of the District Judge of Colombo. The facts are fully stated in the judgment. H. V. Perera (with him Chelvanayagam), for first defendant, appellant. N. E. Weerasooria (with him Amerasinghe), for third defendant, respondent. Cont..
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NLR - Vol.35- P352
NLR - Vol.35, Page No - 352 1933 Present: Garvin A.C.J. and Maartensz A.J. CARRON v. FERNANDO et al. 360-D. C. Negombo, 6,637. Lease-Mortgage of leasehold interest-Nature of notarial lease-Jus in Effective charge against third party-Rate of interest-Proof that it is ; not unreasonable-Ordinance No. 2 of 1918, s. 4. A notarially executed lease of land creates a real right in the land and a duly registered mortgage of the leasehold interest is an effective and an enforceable charge into whosoever's possession that interest may pass. A person is not entitled to recover interest at a higher rate than 15 per cent. upon a loan exceeding Rs. 2,500 in the absence of proof of special circumstances showing that the rate is not unreasonable. THE plaintiff, as the executrix of the estate of the late T. K. Carron, instituted this action to Cont..
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NLR - Vol.35- P389
NLR - Vol.35, Page No - 389 1933 Present: Drieberg and Akbar JJ. MOTTE v. AYIDEEN. 101-D. C. Kandy, 40,608. Mortgage action-Sale of land-Appraised value in excess of plaintiff's claim- Direction of Court not to sell below the appraised value-Mortgage of several lands-Plaintiff's right to purchase. Where, in a hypothecary action, the land mortgaged has been valued at a sum considerably in excess of the plaintiff's claim, the Court should not give a direction that the sale should not be below the appraised value. Where there are several lands mortgaged, the plaintiff should be allowed to purchase any one of them at a price which bears the same relation to his aggregate claim as the appraised value of that land bears to the total appraised value of the lands. APPEAL from an order of the District Judge of Kandy. Cont..
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NLR - Vol.36- P113
NLR - Vol.36, Page No - 113 1934 Present: Macdonell C.J.and Drieberg J. PUNCHI APPUHAMY v. DHARMARATNE 283-D. C. Kurunegala, 14,736 Seizure Return of writ-Death of judgment-debtor-Sale in execution-Validity of seizure-Mortgage action-Death of mortgagee-Sale of mortgaged property-Rights of purchaser-Equitable relief-Ordinance No. 21 of 1927, s. 11. Where, on a writ issued in execution of a decree for money, the Fiscal seized property and returned the writ to Court as the charges for advertising the sale had not been paid, and where the Court reissued the writ on fresh stamps,- Held, that the seizure already made remained effective and was not deprived of its validity by the return of the writ. The purchaser of property sold in execution of a decree in a mortgage action to which the legal Cont..
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NLR - Vol.36- P137
NLR - Vol.36, Page No - 137 1934 Present: Dalton J. PUNCHIMENIKA v. UKKU BANDA. 113-C. R. Badulla, 6,610. Mortgage-Bond not registered-Sale of mortgaged property also not registered- Transferee not a necessary party-Ordinance No. 21 of 1927, s. 6 (3). Under section 6 (1) of the Mortgage Ordinance a subsequent encumbrancer is a necessary party only where his instrument is duly registered and where, if the mortgage in suit is duly registered, he has also registered an address for service. APPEAL from a judgment of the Commissioner of Requests, Badulla. Choksy (with him E. B. Wickramanayake and B. P. Pieris), for plaintiff, appellant. L. A. Rajapakse, for defendant, respondent. March 23,1934. DALTON J.- Cont..
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NLR - Vol.36- P33
NLR - Vol.36, Page No - 33 Present: Dalton J. and Maartensz A.J. MUDALIHAMY v. APPUHAMY. 65-66-C. R. Kurunegala, 7,658. Partition-Mortgage of undivided share of land-Partition action with respect of land-Lot in severalty allotted to mortgagor-Action by mortgagee- Purchase by him of undivided share-Sale of divided lot in execution for costs of partition-Purchase by defendant-Competition between the two transfers-Ordinance No. 10 of 1863, s. 12. The plaintiff took on mortgage an undivided 2/3 share of two contiguous fields in October, 1927. In January, 1930, the defendant brought a partition action treating the two fields as one corpus. Final decree was entered in the action declaring the plaintiff's mortgagor entitled to a half share only of the fields and lot A was allotted to her. In January, 1931, the plaintiff put his bond in suit and purchased the undivided shares mortgaged to him at the sale in execution of his decree, obtaining a Fiscal's transfer dated January 25, 1932. Prior to that date the defendant took out writ against the plaintiff's mortgagor for pro rata costs due to him and became the purchaser of Cont..
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NLR - Vol.36- P367
NLR - Vol.36, Page No - 367 1934 Present: Macdonell C.J. and Drieberg J. NEIYAPPA CHETTIAR v. SEYADU LEBBE et al. 23-D. C. Kandy, 43236. Money Lending Ordinance-Action on mortgage bond-Application for relief after decree-Power of Court- Ordinance No. 2 of 1918, s. 2 (1). The power given to a Court to re-open a transaction under section 2 (1) of the Money Lending Ordinance cannot be exercised after decree in the action. APPEAL from an order of the District Judge of Kandy. H. V. Perera, for first defendant, appellant. Weerasooria, for respondent. July 31, 1934. MACDONELL C.J.- This is an application for relief under section 2 (1) of the Money Lending Ordinance, No. 2 of Cont..
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NLR - Vol.37- P179
NLR - Vol.37, Page No - 179 1935 Present : Koch J. and Soertsz A.J. WIJEWARDENE v. PEIRIS et al. 112-D. C. Colombo, 54,000. Sale-Mortgagor sued on bond-Transfer of property to mortgagees subject to agreement to reconvey Nature of deed-Claim for reconveyance-Tender of price. The plaintiff, mortgagor of certain property, on being sued on the bond by the defendants, the mortgagees, entered into an agreement with them by which he undertook to execute a valid transfer of the mortgaged premises to them for a sum which represented the debt he owed them for principal and interest due on the bond, and costs of action. The defendants on their part agreed to execute at the plaintiff's cost a valid conveyance in his favour on his paying to them on or before a certain date, a price to be ascertained in a certain way. Cont..
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NLR - Vol.37- P369
NLR - Vol.37, Page No - 369 1926 Present : Dalton S.P.J., Akbar and Poyser JJ. A. G. A., KEGALLA v. WIJEWARDENE et al. 223-C. R. Kegalla, 7,513. Mortgage decree-No directions in decree regarding credit to judgment-creditor-Validity of sales-Law before Ordinance No. 21 of 1927 came into operation. Where property was sold under a mortgage decree before Ordinance No. 21 of 1927 and directions for the sale and the giving of credit to the judgment-creditor were not embodied in the decree itself,- Held, that the sale was not invalid but merely voidable. Walker v. Mohideen [1 26 N. L. R. 310.] explained. CASE referred by Maartensz J. to a Bench of three Judges. The facts are stated in the reference as follows :- This is a proceeding under the Land Acquisition Ordinance, which was referred to Court as no Cont..
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NLR - Vol.37- P51
NLR - Vol.37, Page No - 51 1934 Present : Garvin S.P.J. and Akbar J. IBRAHIM v. HONG KONG AND SHANGHAI BANK. 40-D. C. (Inty.) Colombo, 47,760. Registration-Seizure of property on a mandate of sequestration-Mortgage by owner subsequent to seizure-Prior registration of mortgage-Seizure void as against the mortgage-Seizure does not create an interest in land within the meaning of section 6 (1) of Ordinance No. 21 of 1927- Seizure is an instrument affecting land within the meaning of the Registration of Documents Ordinance, No. 23 of 1927. A notice of seizure issued by the Fiscal on a mandate of sequestration was registered after a mortgage effected by the owner, which was subsequent in date to the seizure but prior in registration. Held, the notice of seizure on a mandate of sequestration was an instrument affecting land within the meaning of section 6 of the Registration of Documents Ordinance, No. 23 of 1927, and was void Cont..
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NLR - Vol.37- P70
NLR - Vol.37, Page No - 70 1935 Present: Akbar S.P.J. and Koch J. SABAPATHY v. MOHAMED YOOSOOF et al. 291-D. C. Colombo, 50,490. Mortgage action-Necessary parties-Section 6 (1) of Mortgage Ordinance, No. 21 of 1927, not exhaustive-Person claiming adversely to mortgagor may be joined-Fidei commissum under Roman-Dutch law-Directions to executor to convey property to heirs-Use of the expression " trust"- English law of trusts not necessarily applicable-Development of the law of fidei commissum. Section 6 (1) of the Mortgage Ordinance does not preclude the mortgagee from joining any other person as defendant in a hypothecary action, who could have been made a party under the Roman-Dutch law so as to secure a binding decree against him. A person in possession claiming adversely to the mortgagor may be so joined. By last will dated December 12, 1872, a testator bequeathed his properties to three sets of heirs, Cont..
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NLR - Vol.37- P89
NLR - Vol.37, Page No - 89 1935 Present : Akbar S.P.J. and Koch J. ARUNACHALAM CHETTIAR v. RAMANATHAN CHETTIAR. 38-D. C. Colombo (Inty.), 1,284. Mortgage Ordinance-Action on mortgage bond-Representation of estate of deceased mortgagor- Application for letters of administration likely to be delayed-Ordinance No. 21 of 1927, s. 7 (2) (b). An order for representation of the estate of a deceased mortgagor may be made under section 7 (1) of the Mortgage Ordinance whether an application for letters of administration to the deceased's estate has been made or not. The only point the Court has to consider under section 7 (2) (b) is whether there is likely to be undue delay in the grant of representation. APPEAL from an order of the District Judge of Colombo. Cont..
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NLR - Vol.38- P1
NLR - Vol.38, Page No - 1 1936 Present : Macdonell C.J., Dalton S.P.J., Poyser and Koch JJ. SANGARAPILLAI v. DEVARAJA MUDALIYAR et al. 165-D. C. Colombo, 47,637. Thesawalamai-Husband's right to mortgage tediatetam property-Action on mortgage bond-Wife not a necessary party-Ordinance No. 1 of 1911, ss. 2, 21, 22-Mortgage Ordinance, No. 21 of 1927, s. 6 (1). Under the Thesawalamai the husband has the same right to mortgage property which forms part of the tediatetam property, after the passing of Ordinance No. 1 of 1911 as he had before the Ordinance was enacted. The wife is not a necessary party to a hypothecary action against the husband on a mortgage effected by him in respect of tediatetam property, in order to make her interest in the property bound by the decree. THIS was a case referred to a Bench of four Judges on two points : - (1) Whether the Jaffna Cont..
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NLR - Vol.38- P33
NLR - Vol.38, Page No - 33 1936 Present : Abrahams C.J. and Dalton S.P.J. KADAPPA CHETTIAR v. RAMANAYAKE et al. 289-D. C. Colombo, 49,485. Mortgage action-Action on mortgage bond against mortgagor-Failure to join secondary mortgagee and transferee-Subsequent action against them- Ordinance No. 21 of 1927, s. 16. Where a mortgagee, in an action against the mortgagor on the mortgage bond, failed to make a secondary mortgagee and a subsequent transferee of the property parties thereto, he is not debarred from bringing another action to have the property bound and executable as against them. THIS was an action brought against the three defendants on a mortgage bond No. 1,101 for Rs. 40,000 executed by first defendant in favour of the plaintiff. On February 24, 1931, the first defendant executed a secondary mortgage in favour of the second defendant and on March 10, 1931, executed a conveyance of the property to his wife, the third defendant. Plaintiff, who was unaware of the secondary mortgage and the conveyance, instituted action No. 46,335 in the District Court of Cont..
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NLR - Vol.38- P420
NLR - Vol.38, Page No - 420 1936 Present : Soertsz J. and Fernando A.J. MOHAMED LEBBE v. CADER LEBBE 327-D. C. Kandy, 46,405. Cheetu club-Mortgage bond to secure payment of money due-Bond invalid and unenforceable-Action by assignee. A mortgage bond given to secure payment of money due to a cheetu club is invalid. Such a bond is unenforceable in the hands of a bond fide assignee for value. Sinnathurai v. Chinniah (10 N. L. R. 5) followed. Narayani v. Kanapathy (6 S. C. C. 68) referred to. APPEAL from a judgment of the District Judge of Kandy. H. V. Per era (with him Rajapakse), for plaintiff, appellant. Navaratnam (with him Gratiaen), for defendant, respondent. Cont..
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NLR - Vol.38- P57
NLR - Vol.38, Page No - 57 1936 Present : Akbar S.PJ. and Koch J. MURUGAPPA CHETTY v. ALPISINGHO et al. 417-D. C. Colombo, 27,787. Mortgage action-Mortgage of shares to be allotted in partition action-Lease pending action-Mortgage subject to lease-Ordinance No. 10 of 1863, ss. 12, 13, 17. The first and second defendants mortgaged with the plaintiff, during the pendency of a partition action the shares of the land to which they , would be declared entitled under the decree in the action. Thereafter they executed a lease of their undivided interests to the third defendant, also during the pendency of the partition action. Held (in an action brought by the plaintiff to enforce the mortgage), that the mortgage was subject to the lease in favour of the third defendant. PLAINTIFF instituted this action against the first and second defendants to recover a sum of Rs. Cont..
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NLR - Vol.38- P71
NLR - Vol.38, Page No - 71 1936 Present : Garvin S.P.J. and Maartensz A. J. NAGOOR PITCHE v. KAWALA UMMA. 23--D. C. Colombo, 35,054. Mortgage action-Sale of property under decree-Application by purchaser to remove person in possession-Proof that the respondent is a person bound by the decree-Ordinance No. 21 of 1927, s. 12. In an application under section 12 of the Mortgage Ordinance by a purchaser of property sold under a mortgage decree for directions as to the delivery of the property to him and the removal of the respondent who was in possession, it is essential that the petitioner should show that the respondent is bound by the decree , within the meaning of the section. APPEAL from an order of the District Judge of Colombo. Hayley, K. C. (with him H. V. Perera , Canakeratne, and Ferdinands), for petitioner, appellant. Keuneman, for the respondent. Cont..
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NLR - Vol.39- P143
NLR - Vol.39, Page No - 143 1937 Present: Soertsz and Hearne JJ. THANGAMMA v. NAGALINGAM 26-D. C. (Inty.), Jaffna, 10,289 Mortgage action-Intervention of judgment-creditor of mortgagor, who had seized the property-Not necessary party-No right to intervene-Civil Procedure Code, s. 18-Mortgage Ordinance, No, 21 of 1927, s. 6 (1). Where in a mortgage action a person who had effected a seizure of the mortgaged property on a writ which he had obtained against the defendant, applied to intervene on the ground that the action was a collusive one brought to frustrate his seizure,- Held, that the petitioner was not entitled to intervene as he was not a necessary party for the adjudication of the questions involved in the action between the plaintiff and the defendant. Held further, that he was not a necessary party within the meaning of section 6 (1) of the Mortgage Cont..
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NLR - Vol.39- P175
NLR - Vol.39, Page No - 175 1937 Present: Soertsz J. and Fernando A.J. SAMARASINGHE v. SECRETARY, DISTRICT COURT, MATARA. 1-D. C. Matara, 3,590 (Testy). Estate duty-Application for execution and sale of property-Application must be made by Commissioner of Stamps-Citation to issue to donee of property-Person interested-Mortgage of property-Ordinance No. 8 of 1919, ss. 18 and 32. An application for execution by sale of property for failure to pay estate duty must be made by the Commissioner of Stamps under section 32 of the Estate Duty Ordinance upon, a citation issued to the person accountable to pay the duty. Where the duty is payable by a person to whom the deceased has gifted the property notice must be served on such- party. Cont..
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NLR - Vol.39- P61
NLR - Vol.39, Page No - 61 1937 Present: Soettsz J. and Fernando A.J. TAMBIAH v. SANGARAJAH. 70-D. C. Jaffna, 6,290. Thesawalamai-Mortgage of thediathetam property by husband-Hypothecary-action by mortgagee-Death of wife pending the action-Failure to make the heirs party to the action-Decree not binding on heirs- Ordinance No. 21 of 1927, s. 11. Where under the thesawalamai the husband mortgaged thediathetam property and during the pendency of a hypothecary action brought by the mortgagee against the husband, the wife died leaving heirs,- Held, that the heirs were not bound by the decree entered1 in the action unless they were made parties to the action. Ambalavanar v. Kurunathan (37 N. L. R. 286) followed. Cont..
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NLR - Vol.40- P318
NLR - Vol.40, Page No - 318 1938 Present: Maartensz and Moseley JJ WIJEYESEKERE v. VAITHIANATHAN. 367-D. C. Colombo, 316. Servitude-Mortgage of property-Subsequent gift of property with a right of way-Sale of mortgaged property in execution of mortgage decree-Claim by purchaser of right of way-Nature of servitude gifted. By mortgage bond No. 397 dated July 1, 1930, P. mortgaged with J. and another a denned block of land and the buildings standing thereon. By deed of gift dated March 28, 1931, P. gifted the same premises to V. F. together with a right of way over and along the reservation for a road twenty feet wide, forming the eastern boundary of the premises and belonging to P. J. and his co-mortgagee put the bond in suit against P. and V. F. and purchased the mortgaged property in execution of the decree in their favour. They transferred the premises to defendant, who claimed a right of way over the road reservation. Cont..
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NLR - Vol.42- P25
NLR - Vol.42, Page No - 25 1940 Present : Wijeyewardene and Cannon JJ. AIYADURAI v CHITTAMBALAM 64-D. C. Jaffna 2,284. Mortgage action-Application to re-issue commission to sell-Not an application to execute a decree- Not time-barred-Civil Procedure Code, s. 337- Mortgage Ordinance, s. 12 (6) (Cap. 74). An application for the re-issue of a commission to sell in a mortgage action is not an application to execute a decree within the meaning of section 337 of the Civil Procedure Code and is not time- barred under the section. The words " the decree " in section 12 (6) of the Mortgage Ordinance mean either the final decree entered under section 86 of the Civil Procedure Code or the decree absolute under section 14 of the Mortgage Ordinance. Cont..
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NLR - Vol.42- P371
NLR - Vol.42, Page No - 371 1941 Present: Keuneman J. AMARASEKERA v. ARUNASALEM CHETTY. 162-C. R. Negombo, 44,390. Mortgage bond-Payment of interest in advance-Right o) mortgagor to redeem bond-Recovery of interest overpaid-Condictio sine causa.. Payment of interest in advance on a mortgage bond does not fetter the mortgagor's right of redemption during the period for which the payment in advance is made. Where a mortgagor who has paid interest in advance exercises his right of redemption during the period for which the payment in advance is made and, while paying the capital in full, makes it clear that he does not waive his right to claim the interest overpaid. Held, that he is entitled by means of the condictio sine causa to recover such interest. THIS was an action instituted by the plaintiff to recover a sum of Rs. 100 alleged to be overpaid in respect of a mortgage bond dated October 5, 1938. The facts appear from the judgment. Cont..
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NLR - Vol.42- P95
NLR - Vol.42, Page No - 95 1940 Present : Moseley J. PERERA v. PERERA. 72-C. R. Panadure, 7,289. Mortgage bond-Assignment to heir of mortgagor-No discharge of bond- Right to sue on bond. Where a mortgage bond was sssigned to one of the heirs of the deceased mortgagor who put the bond in suit against the legal representative of the deceased. Held, that the assignment of the bond did not operate as a discharge of the bond and that the plaintiff was entitled to sue on the bond. Peiris v. Pei ris (3 C. W. R. 222) followed. APPEAL from a judgment of the Commissioner of Requests, Panadure. A. C. Z. Wijeratne, for the plaintiff, appellant. No appearance for the defendant, respondent. Cont..
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NLR - Vol.43- P477
NLR - Vol.43, Page No - 477 1942 Present: Howard C.J. and Soertsz J. AIYATHURAI v. THURAISINGHAM et al. 24-D. C. Jaffna, 22,284. Conveyance in mortgage action-Sale of undivided shares in mortgaged property-Partition action pending sale-Allotment of divided portions to mortgagors-Application by purchaser for writ of possession-Rectification of deed. In execution of a mortgage decree, the appellant purchased the property mortgaged, an undivided 2/5 share of a land, and a conveyance was executed by the Commissioner in favour of the appellant on November 5. 1940. While the mortgage action was pending an action was instituted to partition the land mortgaged, to which the mortgagors were parties. In the final decree entered on August 29, 1940, a year after the sale of the land to the plaintiff, certain divided lots were allotted to the mortgagors in lieu of 'their undivided shares, subject to the decree entered in the mortgage action. Cont..
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NLR - Vol.43- P499
NLR - Vol.43, Page No - 499 1942 Present: Howard C.J. and de Kretser J. MUTTURAMAN CHETTIAR et al. v. .KUMARAPPA CHETTIAR et al. 14-D. C. Kurunegala, No. 17,309. Mortgage-Money lent by three persons-Purchase of property by two most- gagees-Action on the bond by the third-Right of purchasers to claim concurrence-Merger-Roman-Dutch Law. Plaintiff and the second and third defendants lent the first defendant the sum of Rs. 27,500 on a mortgage bond, plaintiff contributing _s, 10,000 and the second and third defendants Rs, 17,500. The bond, which authorized the obligees to sue jointly or severally for the amounts due to them, contained the following clause: "And it is further agreed that, in the event of the said security being realised and the proceeds of such realisation not being sufficient to satisfy the clail1ls in full of the said obligees and their respective before written, they shall be entitled to claim pro' rata only on. such proceeds but nothing herein contained shall prevent the said obligees, respectively, from securing the whole of any balance of their respective claims from him, the said Cont..
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NLR - Vol.43- P59
NLR - Vol.43, Page No - 59 1941 Present: Moseley S.P.J. UDUMANACHY v. MEERALEVVE. 114-C. R. Kalmunai, 950 Prescription-Mortgage bond-Death of creditor-Minority of heirs-Payment to administrator-No new cause of action. On November 29, 1940, the plaintiffs, sued the defendant on a mortgage bond dated November, 1912, granted by the defendant in favour of plaintiffs' intestate. The latter died in 1916, leaving as his heirs, the plaintiffs, who were minors. An administrator was appointed to the estate to whom a payment on account was made in 1917. Held, that the action was prescribed. Tillainathan v. Nagalingam (39 N. L. R. 118) followed. Held, further, that the payment on account could not be regarded as a new cause of action. It merely extended the period of prescription. Cont..
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NLR - Vol.44- P163
NLR - Vol.44, Page No - 163 Present: Wijeyewardene and Jayetileke JJ. PUBLIC SERVICE MUTUAL PROVIDENT ASSOCIATION, Appellant, and ABRAM et al. Respondent. 90-D. C. Colombo, 5,588. Insolvency-Mortgage debt of insolvent-Arrangement to pay debt by instalment from pension-Payment of instalment after adjudication-Right of Assignee to amount paid. The insolvent, a Government servant, who had retired on pension, owed money to the Public Service Mutual Association on a mortgage bond. The bond was put in suit by the Association and a decree was entered in its favour. Prior to adjudication the Insolvent had arranged that the Treasury should pay out of his pension a sum of Rs. 69.50 monthly to the Provident Association in reduction of the claim on the bond. The assignee applied for an order on the Provident Association to bring to the credit of the Cont..
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NLR - Vol.44- P499
NLR - Vol.44, Page No - 499 1943 Present: Hearne and Wijeyewardene JJ. KANDIAH et al, Appellants, and SIVAKANUPILLAI et al., Respondents. 224-D. C. Jaffna, 16,179. Mortgage-Sale of property subject to payment of mortgage debt-Discharge of mortgage by vendee- Seizure in execution of property-Claim by vendee-Right to payment of mortgage debt. On January 1, 194O, third defendant conveyed the property in question to the plaintiff, subject to a mortgage which the plaintiff undertook to discharge and to pay the third defendant a certain sum of money in addition. On July 29, 1940, first and second defendants issued writ against the property and seized it. On August 5, 1940, the plaintiff discharged the mortgage debt. On seizure of the property plaintiff claimed it, but his claim was disallowed and the present 247 action followed. Held, that the property was liable to be sold under the writ issued by the first and second Cont..
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NLR - Vol.45- P1
NLR - Vol.45, Page No - 1 1943 Present : HOWARD C. J. and KEUNEMAN J. BODIGA et al, Appellants, and NAGOOR, Respondent 217-D. C. Kandy, 738 Mortgage-Sale of property mortgagor set aside on ground of laesio enormis-Buyer consents to decree setting aside sale-Mortgage unaffected by annulment of sale. Where a sale of property is set aside by the seller on the ground of laesio enormis and where the buyer consented to the decree setting aside the sale,-- Held, that a mortgage of the property granted in the meantime by the buyer would not be affected by the annulment of the sale. APPEAL from a judgment of the District Judge of Kandy. The facts appear from the argument. Cont..
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NLR - Vol.45- P164
NLR - Vol.45, Page No - 164 1944 Present: Howard C.J. and Soertsz J. PEIRIS, Appellant, and SENEVIRATNE et al. Respondents. 57-D. C. (Inty.) Kalutara 16,934. Mortgage sale-Execution of mortgage decree-Directions of Court-No material irregularity-No injustice to applicant-Sale upheld. Where an application is made to set aside a sale of property held in execution of a mortgage decree in accordance with the provisions of the Civil Procedure Code and further directions of Court- Held, that the sale should not be set aside where there has been no material irregularity or where no injustice has been caused to the applicant. APPEAL from an order of the District Judge of Kalutara. Cont..
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NLR - Vol.45- P241
NLR - Vol.45, Page No - 241 1944 Present: Howard C.J. and Jayetileke J. VELUPILLAI, Appellant, and KANDIAH, Respondent. 296-D. C. Point Pedro, 1,578. Mortgage-Property purchased by the mortgagee in execution of a money decree-Partition action-Sale under partition decree-Action on bond. A mortgage of an - undivided half share of land purchased the share in execution of a money decree against the mortgagor. In an action instituted for the partition of the land the mortgagee was allotted the share in question and on a sale of the property under- the partition decree it was purchased by the third defendant against whom the mortgagee put the bond in suit. Held, that the mortgage was extinguished by the purchase of the' property by the mortgagee. APPEAL from a judgment of the District Judge of Point Pedro. Cont..
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NLR - Vol.45- P311
NLR - Vol.45, Page No - 311 1944 Present: Soertsz C.J. PERERA, Appellant, and JAYAMANNE, Respondent 241-C. R. Colombo, 88,050. Mortgage-Movable mortgaged by person not owner-Subsequent acquisition of ownership-Sale to third party-Mortgage confirmed. Where a person who is not the owner of a movable mortgage it and subsequently acquires ownership, the mortgage is confirmed and prevails against a subsequent sale of the movable by the mortgagor. APPEAL from a judgment of the Commissioner of Requests, Colombo. L. A. Rajapakse (with him S. R. Wijayatilake), for the defendant, appellant. E. B. Wikremenayake, for the plaintiff, respondent. May 3, 1944. SOERTSZ J.- Cont..
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NLR - Vol.45- P395
NLR - Vol.45, Page No - 395 1944 Present: Howard C.J. and Keuneman J. BARONCHI, Appellant, and ARIYADASA, Respondent 32-33-D. C. Matara, 13,679. Mortgage action-Claim for hypothecary decree 'against transferee-Burden of proof-Matters that should be proven by plaintiff. In an action on a mortgage bond in which the plaintiff asks- for a hypothecary decree against a subsequent transferee . who has acquired interests in the mortgaged property by purchase or mortgage the plaintiff is bound to prove (1) that the land belonged to the mortgagor at the time of the mortgage,' (2) that it was duly mortgaged to him at the time of the mortgage, (3) that the mortgage debt has not been paid and that a 'definite sum of money is' still due, (4) that the plaintiff is entitled to levy a definite sum of money out of the mortgaged property. APPEAL from a judgment of the District Judge of Matara. The facts appear from the argument. Cont..
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NLR - Vol.45- P569
NLR - Vol.45, Page No - 569 1944 Present: Keuneman and Cannon JJ. VELUPILLAI, Appellant, and DE SILVA et al., Respondents 39-D. C. Galle, 63. Mortgage decree-Sale of property-Surplus proceeds ' after satisfaction o) decree-Claim by unregistered transferee of property and by creditor of mortgagor-Claim* of transferee preferred. In execution of a mortgage decree the mortgaged property was sold, and after satisfaction of the mortgage in suit, the surplus proceeds were claimed, on the one hand, by a transferee of the mortgaged property, whose transfer was not registered and who was therefore not a party to the mortgage action, and on the other by a . creditor of the mortgagor, who seized the surplus in execution of a money decree,- Held, that the transferee was entitled to the surplus proceeds. APPEAL from a judgment of the District Judge of Galle. Cont..
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NLR - Vol.46- P145
NLR - Vol.46, Page No - 145 1945 Present: Keuneman, Jayetileke and Rose JJ. SARAM, Appellant, and THIRUCHELVAM, Respondent, 73-D. C. Kegalla, 2/289. Mortgage-Usufructuary mortgage in favour of A-Subsequent mortgage in favour of B-Right of subsequent mortgage to discharge the previous mortgage. L granted to the defendant a usufructuary mortgage bond in 1940 and subsequently in 1942 granted another usufructuary mortgage bond to the plaintiff. Plaintiff brought the amount of the earlier bond into court, not in the name of the debtor but in his own right as subsequent mortgagee, and asked for an order that the defendant should accept the said sum and give a discharge of the bond. Held, that in the absence of proof that the prior mortgagee (the defendant) had taken steps to enforce his rights the plaintiff was not entitled to redeem the mortgage granted to the defendant. CASE referred to a Bench of three Judges in terms of section 775 (1) of the Civil Procedure Code. Cont..
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NLR - Vol.46- P265
NLR - Vol.46, Page No - 265 1945 Present: Howard C.J. and Keuneman J. MITCHELL, Appellant, and FERNANDO et al., Respondents. 344-D. C. Colombo, 731. Mortgage-Shares in Company-Delivery of scrip-Delivery of possession-Cession of right-Sale in execution against mortgagor-Knowledge of mortgage-Title of Fiscal's transferee-Action on mortgage bond- Roman-Dutch law. The first and second defendants mortgaged shares in a Company with the plaintiff by bond and deposited the share certificates with the plaintiff along with the bond. While the shares were under mortgage the third defendant purchased the shares in execution of a money decree against the first and second defendants and obtained Fiscal's conveyance. Thereafter the shares were registered in the Company's, register under the name of the third defendant. Held (In an action on the bond by the plaintiff), that delivery of the share certificates was not sufficient evidence of the effective delivery of the shares mortgaged. The possession of the share Cont..
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NLR - Vol.46- P370
NLR - Vol.46, Page No - 370 1945 Present: Gannon and Canekeratne JJ. AHAMADO MUHEYADIN, Appellant, and THAMBIAPPAH, Respondent. 75-D. C. Batticaloa, 153. Mortgage-Hypothecary action-Death of mortgagor-Appointment of legal representative under Mortgage Ordinance-Tender of evidence that value of mortgaged property does not exceed Rs. 2,500-Condition precedent-Mortgage Ordinance (Cap. 74), s. 7. A condition precedent to the appointment of a person to represent the estate of a deceased mortgagor under section 7 of the Mortgage Ordinance (Cap. 74) is that evidence should be tendered that the value of the mortgaged property does not exceed two thousand five hundred rupees. Failure to comply with this condition would render the order of court appointing a legal representative void ab initio and the con-sequent sale and other proceedings a nullity as against the deceased estate. Cont..
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NLR - Vol.47- P110
NLR - Vol.47, Page No - 110 1946 Present: de Silva J. ELIYATHAMBY, Appellant, and MIRANDO, et al., Respondents. 198 ? C. R. Kalmunai, 1, 848. Contract- Mortgage- Loan of Paddy- Agreement to pay interest in form of paddy- Outbreak of war- Impossibility of performance of contract as contemplated by the parties- Equitable order. The plaintiffs had borrowed on a mortgage bond 16 avanams of paddy of the value of Rs.160 and had undertaken to repay the amount with interest at the rate of 10 maracals for one avanam of paddy per annum. They brought this action to redeem the mortgage bond and undertook to pay the principal, Rs. 160, and interest at the rate of 20 per centum on the basis that it was impossible for them to pay the interest in the from of paddy. The defendant claimed that, according to the price of paddy at the date of action, he was entitled to nine times the sum which had been lent as principal. Cont..
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NLR - Vol.47- P141
NLR - Vol.47, Page No - 141 1946 Present: Wijeyewardene and Cannon JJ. UMMUKULATHUMMA, et al., Appellants, and UTHUMALEBBE, Respondent. 365-D. C. Batticaloa, 275. Contract-Mortgage-Loan of paddy-Condition for redeeming mortgage-Return of paddy or its value ?then selling?-Computation of sum necessary for redemption of mortgage. In 1933 the plaintiffs executed a usufructuary mortgage over their property on borrowing from the defendant 45 avanams of paddy ?of the present value of Rs. 360?. They bound themselves to redeem the bond by delivering 45 avanams of paddy or ?the value of paddy then selling?. The plaintiffs sought in this action to redeem the bond by offering Rs. 360, the value of the paddy at the time of the execution of the Mortgage. They admitted, however that ? the present market price at which the Government purchased paddy under the internal purchase scheme is Rs. 45 per avanam?. Cont..
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NLR - Vol.47- P301
NLR - Vol.47, Page No - 301 1946 Present: Keuneman and Cannon JJ. CHANDRAWATHIE et al., Appellants, and PEERIS APPUHAMY, Respondent. 313-D. C. Tangalla, 5,205. Mortgage-Hypothecary action-Death of mortgagor-Appointment of legal representative under Mortgage Ordinance-Evidence of valve of mortgage property-Condition precedent-Mortgage Ordinance (Cap. 74), s. 7. Where the only evidence for the appointment of a legal representative under section 7 of the Mortgage Ordinance was that the deceased mortgagor died leaving an estate under Rs. 2,500 in value- Held, that in the absence of specific violence that the mortgaged property was under Rs. 2,500 in value the appointment of the legal repetitive and though Fiscal?s sale, thereafter, of the mortgaged property were of no avail. Cont..
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NLR - Vol.47- P509
NLR - Vol.47, Page No - 509 1946 Present: Keuneman S. P. J. and Canekeratne J ABEYESINGHE et al., Appellants, and ABEYESINGHE, Respondent 2 Inty-D. C. Negombo, 13,066 Partition action-Cannot be brought in respect of portion of the proper corpus Prescription between co-owners. Action cannot be brought to partition a corpus which in itself is an undivided portion of a larger common land. When a co-owner who has erected a new building on the common land remains in possession of that building such possession does not necessarily mature into a prescriptive title to the building and the soil on which it stands as against the remaining co-owners. The more fact of execution, by co-owners, of deeds dealing with specific or divided portions of a Cont..
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NLR - Vol.48- P34
NLR - Vol.48, Page No - 34 1946 Present : Dias J. and Nagalingam A.J. KUMARAPPA CHETTIAR, et al, Appellants, and GUNAWATHIE, et al., Respondents. 373 - D. C. Kegalla. 2,857. Mortgage - Compulsory novation - Right to have the bond revived as against a stranger - Right to bring more than one hypothercary action upon a mortgage bond - Mortgage Ordinance (Cap.74 ) s. 16. Where the mortgagees in a hypothecary action had made inter alios the mortgagor and a puisne encumbrance: who was in fact dead, parties defendants and by reason of a conveyance of the mortgaged property executed in favour of the mortgagees by the mortgagor and a person who was not the lawful heir of the estate of the puisne encumbrancer, a compromise decree was entered dismissing the hypothecary action - Held, that the decree must first to be got out of the way before the rights of the mortgagees under the mortgage bond could be considered to have revived as against the lawful heirs of the estate of Cont..
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NLR - Vol.49- P20
NLR - Vol.49, Page No - 20 1947 Present: Howard C.J. and Soertsz S.P.J. ANGO NONA, Appellant, and MUTHTHIRULAPPA PILLAI, et al. Respondents. S. C. 214-D. C Negombo, 6,532 Mortgage decree-Sale by auctioneers-Sale below appraised value-Legality of sale. Where, in execution of a mortgage decree, the Judge directed that the property should not be sold below the appraised value- Held, that a sale below such value was without legal authority and should not be confirmed. APPEAL from a judgement of the District Judge, Negombo. H. V. Perera, K.C. (with him D. S. L. P. Abeysekera and Vernon Wijetunge), for the first defendant, appellant. Cont..
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NLR - Vol.50- P484
NLR - Vol.50, Page No - 484 1949 Present : Nagalingam and Windham, JJ. NANAYAKKARA, Appellant, and ABEYGUNAWARDENE, Respondent S. C. 332-D. C. Galle, L 755 Mortgage Ordinance-Hypothecary action-Lis pendens not registered-Sale by mortgagor after decree- Sale in execution--Who has superior title- Necessary party-Section 6-Chapter 74. Section 6 of the Mortgage Ordinance must be read as limiting the scope of its provisions to necessary parties in esse at the time that a hypothecary action is instituted. The title of a purchaser under a hypothecary decree does not relate back to the date of his bond. APPEAL from a judgment of the District Judge, Galle. H. W. Jayewardene, for plaintiff appellant. E. B. Wikramanayake, K.C., with Cyril E. S. Perera, for defendants respondents. Cont..
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NLR - Vol.51- P392
NLR - Vol.51, Page No - 392 1948 Present: Nagalingam J. and Basnayake J. AHAMADO MUHEYADIN, Appellant, and THAMBIAPPAH, Respondent S. C. 177-D. C. Batticola, 629 Mortgage Ordinance (Cap. 74)-Sections 11 and 16 (1)-Right of mortgagee to bring two separate actions in respect of same remedy-Joint and several mortgagors-Extent of liability of each. Under section 16 (1) of the Mortgage Ordinance (Cap. 74) several actions in respect of the same remedy are made available to a mortgagee, the only limitation on that right being what can be gathered inferentially from the terms of section 11. Where, therefore, a mortgagee obtains a hypothecary decree in respect of two properties and has one of the properties sold but, before proceeding to sell the other, discovers that that other property has passed into the hands of a third party who has not been made a party to the action, there is nothing in the Ordinance which bars the right of such a mortgagee from bringing a second hypothecary action against the mortgagor and the third party to obtain an effectual hypothecary decree binding that other property. Cont..
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NLR - Vol.52- P108
NLR - Vol.52, Page No - 108 [IN THE PRIVY COUNCIL] 1950 Present . Lord Porter, Lord Oaksey, Lord Radcliffe, Sir John Beaumont and Sir Lionel Leach VALLIAPPA CHETTIAR, Appellant, and J. VANDER POORTEN et al., Respondents Privy Council Appeal No. 51 of 1948. S. C. 34-D.C. (Inty.) Colombo, 20,662. Mortgage-Enlargement of mortgagee's rights-Covenant that mortgagee may possess as " absolute owner " with full power to put mortgaged property to such use as he shall think fit-Validity-Interest- Rate to be fixed by trial Court- Power of Appellate Court to alter it. A covenant in a mortgage bond providing that the mortgagee could remain in possession of the mortgaged land and that the mortgagor should accept on the debit side all monies properly expended by the mortgagee in the management and control of the property is valid although ultimately the Cont..
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NLR - Vol.53- P299
NLR - Vol.53, Page No - 299 1950 Present: Nagalingam J. and Pulle J. NATCHIRE, Appellant, and LEWIS HAMY et al., Respondents S. C. 150-D. C. Gampaha, 114 Mortgage Ordinance (Cap. 74)-Representation of estate of deceased mortgagor- Sections 6 and 7. Where a hypothecary action was instituted against an heir of a deceased mortgagor who was in possession of the mortgaged property- Held, that where there is no executor or administrator appointed to the estate of a deceased mortgagor, an order of Court should be obtained under section 7 of the Mortgage Ordinance (Cap. 74) to appoint a person to represent the estate and such person must be made a party to the action. Otherwise, the action is not properly constituted and cannot be maintained, APPEAL from a judgment of the District Court, Gampaha. H. W. Jayewardene, with J. M. Jayamanne, for the 1st defendant appellant. Cont..
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NLR - Vol.54-P238
NLR - Vol.54, Page No - 238 1952 Present : Pulle J. and L. M. D. de Silva J. ABDEEN, Appellant, and PARAMASIVAN PILLAI, Respondent S. C. 195-D. C. Colombo, 18,460 Rent Restriction Ordinance-Joint tenancy-Quantum of rent chargeable-Authorised rent. Where premises were let as a whole to two persons jointly, each of whom occupied separate portions in respect of which they paid rents separately to the landlord- Held, that the rent received by the landlord for the two portions of the premises should not exceed in the aggregate the authorised rent under the Beat Restriction Ordinance for the whole premises. APPEAL from a judgment of the District Court, Colombo. Cont..
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NLR - Vol.54- P457
NLR - Vol.54, Page No - 457 1953 Present : Rose C.J. and Pulle J. M. S. PERERA (Assistant Government Agent, Kandy), Appellant, and UNANTENNA et al., Respondents S. C. 9-10-D. C. Kandy, X 1,397 Mortgage-Land Redemption Ordinance, No. 61 of 1942, as amended by Ordinance No. 62 of 1947-Section 3 (1) (b)-" Transfer "-Includes voluntary conveyance of mortgaged property subsequent to date of hypothecary decree- Hypothecary decree-Does mortgage become merged in decree ? Where a land is mortgaged and the mortgage is put in suit and decree is entered against the mortgagor for the payment of the amount due on the mortgage bond, a subsequent voluntary conveyance by the mortgagor in favour of the mortgagee, the consideration for which is set off in full settlement of the amount due on the said decree, is a transfer as contemplated in section 3 (1) (b) of the Land Redemption Ordinance. In such a case it cannot be contended that, notwithstanding that the charge on the land created by the mortgage bond existed even after the decree, the debt due from the mortgagor personally to the mortgagee became merged in the decree and ceased to exist and Cont..
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NLR - Vol.55- P152
NLR - Vol.55, Page No - 152 1953 Present : Gratiaen J. and K. D. de Silva J. CHETTINAD CORPORATION LTD., Appellant, and A. M. M. ZANEEK, Respondent S. C. 165-D. C. Colombo, 379Z Rent Restriction Act-Notarial lease-Lessee in arrears of rent-Right of lessor to eject lessee- Termination of lease-Condition precedent. A lessor cannot sue his lessee for ejectment under the Rent Restriction Act for being in default of rent unless he can first establish the termination of the contract of lease either by due notice or by effluxion of time. Cont..
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NLR - Vol.55- P397
NLR - Vol.55, Page No - 397 1953 Present: Pulle J. E. DAVID APPUHAMY, Appellant, and K. SUBRAMANIAM, Respondent S. C. 46-C. R. Gampaha, 5,446 Rent Restriction Act-Deposit held by landlord-Right of tenant to set off monthly rent against the deposit. Where a monthly tenant deposits a sum of money with the landlord on the agreement that it is to be held by the landlord and paid back to the tenant when the premises are handed over to him, it is not open to the tenant to set off the rent, as it falls due each month, against the deposit held by the landlord. If he does so set off, he is liable to be held to be in arrears of rent. Cont..
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NLR - Vol.55- P465
NLR - Vol.55, Page No - 465 1954 Present: Pulle J. and Swan J. C. N. FERNANDO, Appellant, and M. J. C. FERNANDO, Respondent S. C. 104-D. C: Colombo, 26,306 Rent Restriction Act-Appropriation of payments-Onerous nature of debt due as rent- When a tenant who is protected by the Rent Restriction Act owes his landlord not only rent but also money due on certain money lending transactions, any payment made by him must, if its purpose is unspecified, be first appropriated to pay off the arrears of rent. The payment " must be carried to that account which it is most beneficial to the debtor to reduce ". APPEAL from a judgment of the District Court, Colombo. S. J. Kadirgamar, for the plaintiff appellant. Cont..
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NLR - Vol.56- P243
NLR - Vol.56, Page No - 243 1954 Present: Nagalingam S.P.J. and Fernando A.J. K. CHARLES APPUHAMY, Appellant, and T. B. ABEYESEKERA, Respondent S. C. 406-D. C. Kandy, M. R. 5,051 Rent Restriction Act-Applicability to " lease " of a business. Whore a business of the nature of a hotel and tea kiosk was " leased " by A to B and, under the contract, A gave over to B the management, control and conduct of the business for a term of years. Held, that at the end of the specified period B was not entitled to the protection of the Rent Restriction Act in regard to the premises in which the business was carried on. APPEAL from a judgment of the District Court, Kandy. Cont..
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NLR - Vol.59- P115
NLR - Vol.59, Page No - 115 1957 Present : H. N. G. Fernando, J. P. CORNELIS, Appellant, and THE URBAN COUNCIL, DEHIWELA-MT. LAVINIA, Respondent S. C. 149-. R. Colombo, 57,219 Landlord and tenant-Test as to whether a person is a licensee or a tenant-Rent Restriction Act. Upon a non-notarial permit issued by the plaintiff, the defendant occupied a bare land and erected buildings thereon though he was expressly prohibited from erecting buildings. Thereafter the plaintiff issued similar permits to the defendant to occupy the land and the buildings at a yearly rental, payable in monthly instalments, upon the agreement that the buildings should become the property of the plaintiff without payment of any compensation. The amount of the assessment rates levied upon the buildings was also paid by the defendant. Cont..
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NLR - Vol.59- P166
NLR - Vol.59, Page No - 166 1957 Present : H. N. G. Fernando, J. M. V. FERNANDO et al., Appellants, and REUBEN PERERA et al., Respondents S. C. 62-C. R. Colombo, 59,351 Rent Restriction Act-Business premises -" Reasonable requirement "-Tenant not a citizen of Ceylon--- Expiration of his temporary residence permit - Is it a factor to be considered ? When considering under the Rent Restriction Act whether or not it is reasonable for the tenant to insist on the continuance of his tenancy for the purposes of a business which he has carried on at the premises in question, the circumstance that the tenant is not a citizen of Ceylon and that his temporary residence permit has expired should not be taken into account if there is no provision of law which prohibits non-residents from carrying on business in Ceylon and in the absence of evidence that it is necessary for the tenant to reside in Ceylon in order to carry on the business. Cont..
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NLR - Vol.59- P68
NLR - Vol.59, Page No - 68 1957 Present : H. N. G. Fernando, J. K. P. BAGAWATHIYA PILLAI, Appellant, and M. H. ZAHEED et al., Respondents S. C. 69-C. R. Colombo, 57,670 Rent Restriction Act, No. 29 of 1948-Joint landlords-Requirement of leased premises for purposes of trade or business-Tenant's liability to be ejected. Where there are two or more joint landlords ejectment of the tenant cannot be sought by them tinder the Rent Restriction Act on the ground that they require the premises for the purposes of trade or business unless they can show that all of them jointly carry on the same trade or business and require the premises for the purposes of their joint venture or that each of them requires, the premises for the purpose of his separate trade or business. Cont..
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NLR - Vol.60- P340
NLR - Vol.60, Page No - 340 1956 Present : Basnayake, C.J., and Weerasooriya, J. EDWIN, Appellant, and DIAS et al., Respondents S. C. 416-D. C. Kandy, 1,720/MB Mortgage-Hypothecary action-Withdrawal of it by plaintiff-Right of mortgagee to sue again-Civil Procedure Code, ss. 406, 408-Mortgage Ordinance (Cap. 74), s. 16 -Mortgage Act, No. 6 of 1949, ss. 7, 26. The provisions of section 7 (1) of the Mortgage Act, No. 6 of 1949, must be read subject to the provisions of section 406 and also section 408 of the Civil Procedure Code. Accordingly, where a hypothecary action instituted against the mortgagor is dismissed with the consent of the mortgagee and without any permission applied for by him or granted by Court to bring a fresh action, the mortgagee is precluded from bringing a second hypothecary action against either the mortgagor or the person to whom the mortgagor has transferred the mortgaged property. APPEAL from a judgment of the District Court, Kandy. Cont..
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NLR - Vol.60- P 68
NLR - Vol.60, Page No - 68 1957 Present: Weerasooriya, J., and Sansoni, J. KANAKASABAI, Appellant, and CADER, Respondent S. C. 39-D. C. (Inty.) Matale, 210/M.B. Mortgage Act, No. 6 of 1949 - Sections 49, .50 (4), 61 (1) - Hypothecary sale - Application to set it aside for material irregularity - Power of Court to hear objections - Civil Procedure Code, s. 282 (2), Where mortgaged land is directed to be sold by the Fiscal without being previously seized as provided in section 49 of the Mortgage Act, and application is subsequently made to set aside the sale when it has taken place, section 282(2) of the Civil Procedure Code is applicable by virtue of section 61(1) of the Mortgage Act and precludes the Court from inquiring into any objections not notified to Court within 30 days of the receipt of the Fiscal's report relating to the sale. APPEAL from an order of the District Court, Matale. S. B. Yatawara, for plaintiff-appellant. Cont..
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NLR - Vol.61- P481
NLR - Vol.61, Page No - 481 1958 Present: Basnayake, C.J., Pulle, J., and Sinnetamby, J. WEERAPPERUMA and another, Appellants, and DE SILVA and another, Respondents S. C. 220-D. C. Galle, 1218/MB Addition of parties-Conditions necessary for a intervenient to be added as a party-Questions involved in the action "-Civil Procedure Code, ss. 11, 14, 18- Mortgage Act, No.6 of 1949, s. 16. Where an intervenient seeks to be added as a party under section 18 of the Civil Procedure Code, any question arising on the case set up by him in his petition and not arising on the case set up in the pleadings of the parties is not a question involved in the action within the meaning of the section. No person is entitled to be added 88 a party under section 16 of the Mortgage Act, No.6 of 1949, unless there is an instrument in existence which gives him an interest in the land mortgaged on he bond which is being sue4 upon. Cont..
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NLR - Vol.64- P265
NLR - Vol.64, Page No - 265 1962 Present: Basnayake, C. J., Herat, J., and Abeyesundere, J. I. D. JAYASUNDERA, Petitioner, and WEERAPPERUMA and another, Respondents S. C. 406-Application for Final Leave to Appeal to the Privy Council in S. C. 220/D. C. Galle 1218 M. B. Privy Council-Objection as to right to appeal thereto-Right to take it at the stage of application for final leave-Application by a person 10 be added as a party to a pending action-Refusal by Supreme Court-Bight to appeal therefrom to Privy Council-" Final judgment in a civil suit or action "-Civil Procedure Code, s. 18-Mortgage Act, s. 16-Appeals (Privy Council) Ordinance, s. 3, Schedule, Rules 1 (a), 2, 3, 20, 21, 22. There is nothing in the Rules of the Schedule to the Appeals (Privy Council) Ordinance which bars the party respondent to an application for leave to appeal to the Privy Council from submitting to the Court at any stage before the grant of final leave that no appeal lies to the Privy Council; the Court is free at any stage to determine that question ex mero motu or oil objection taken. The Cont..
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NLR - Vol.66- P10
NLR - Vol.66, Page No - 10 1959 Present: Basnayake, C.J., and Sansoni, J. U. L. M. M. SAIDO HADJIAR, Appellant, and AMINA BEEBEE and others, Respondents. S. C. 661-D. C. Galle, 618/MB Mortgage-Hypothecary action-Death of a person entitled to notice of the action- Appointment of representative-Procedure-Defect in mode of appointment of representative-Validity of hypothecary decree and execution sale-Mortgage Act, No. 6 of 1949, ss. 5, 26, 31 (2) (.3). When a secondary mortgagee is dead, the non-issue of notice on his heirs in proceedings under the Mortgage Act does not render the mortgage decree invalid so as to vitiate the sale in execution. In proceedings for the appointment of a representative of a deceased under the proviso to section 31 (2) of the Mortgage Act it is not necessary to hear the heirs of the deceased prior to making the appointment, even if they have been named as respondents to the application. In any Cont..
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NLR - Vol.66- P251
NLR - Vol.66, Page No - 251 1961 Present: Sansoni, J., and Tambiah, J. MUTHU RAMAIE et al, Appellants, and ATHIMULAM et al., Respondents S. C. 32/1960 (lnty.)-D. C. Kandy, 4851/P Mortgage-Hypothecary action against two mortgagors-Death of one mortgagor before the action was filed-Validity of subsequent proceedings in the action-Mortgage Act, No. 6 of 1949, a. 26. A mortgagee instituted a hypothecary action in respect of a land mortgaged to him by two co- mortgagors A and B. B had died prior to the date of action, but a representative of his estate was appointed in the mortgage action and added as a defendant. Held, that the death of co-mortgagor B prior to the institution of the mortgage action could not render the action a nullity. Accordingly, the subsequent mortgage decree and execution sale were valid. ' Cont..
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NLR - Vol.68- P495
NLR - Vol.68, Page No - 495 1965 Present : H. N. G. Fernando, S.P.J., and T. S. Fernando, J. D. A. ABEYWARNA, Appellant, and R. SARALENCHIHAMY and others, Respondents S. C. 586/63-D. G. Tangalla, 6207 Mortgage-Sale of mortgaged property in execution of hypothecary decree-Transfer of the property by mortgagor after registration of lis pendens of the hypothecary action-Transferee's claim, to the property as against purchaser at execution sale,-Validity-Mortgage Act, ss. 5, 16, 34, 35, 36, 54, 55. Where mortgaged property is sold in execution of a hypothecary decree in a case in which the purchaser would be entitled to an order for delivery of possession in terms of section 54 of the Mortgage Act, a person who claims the property on the ground that he obtained a transfer of it from the mortgagor after the registration of the lis pendens of the hypothecary action is not entitled to possess the property as against the purchaser at the execution sale. Cont..
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NLR - Vol.69- P40
NLR - Vol.69, Page No - 40 1966 Present : T. S. Fernando, J., and Sri Skanda Rajah, J. S. K. SELLATHURAI, Appellant, and YOGAMMAH, Respondent S.C. 485/64-D.C. Jaffna, 5043/MB Mortgage-Co-mortgagors bound in solido-Death of one of them-Action instituted against the survivor- Maintainability. Prescription-Joint and several obligation-Institution of action against one of the co-debtors- Interruption of prescription against the other debtors. Where the liability of two co-mortgagers is joint and several, and one of the mortgagors dies, the mortgagee is entitled to maintain a hypothecary action subsequently against the survivor and the legal representative of the deceased. Where two debtors are jointly and severally liable, the institution of action against one of them interrupts the course of prescription against the other. Cont..
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NLR - Vol.69- P481
NLR - Vol.69, Page No - 481 1967 Present : H. N. G. Fernando, C.J., and Sirimane, J. M. H. M. SHAFEEK, Appellant, and G. H. G. SOLOMON DE SILVA and 2 others, Respondents S. C. 134/64 - D. C. Galle, 6519 Mortgage - Hypothecary action-Order for issue of summons-Filing of declaration required by s. 8 of the Mortgage Act is condition precedent-Failure to file such declaration-Effect-Principles applicable in determining whether or not a provision of procedural law is imperative-Mortgage Act (Cap. 89), ss. 5, 8, 9,10,12,13,14,15,16,18, 25, 29, 31, 37. In a hypothecary action, the failure of a Proctor to tile, before the issue of summons, the declaration required by section 8 of the Mortgage Act regarding registration of lis pendens, etc., renders null and void (and not merely voidable) the hypothecary decree ultimately entered and the sale in execution of it. In such a case, a person who bought the mortgaged property from the mortgagor subsequent to the date of the mortgage bond and prior to the institution of the hypothecary action has valid title to it, as against the purchaser at the sale in execution of the Cont..
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NLR - Vol.6- P 220
NLR - Vol.6, Page No - 220 MEYAPPA CHETTY v. RAWTER. D. C, Chilaw, 2,216. Mortgagees-Action by primary mortgagee against puisne incumbrancers-Civil Procedure Code, ss. 640 and 643-Ordinance No. 14 of 1891, s. 17. There is nothing in the Civil Procedure Code to prevent a primary mortgagee joining a puisne incumbrancers as a defendant in his suit to realize his mortgage. The plaintiff and the second and the third defendants were mortgagees of the first defendant. Plaintiff's mortgage was registered, but not that of the second and third defendants, who put their bond in suit and obtained a decree on 5th April,. 1900, which was registered on 16th October, 1900. The second and third defendants bought the land in execution of their decree, but the fiscal did not give them possession or a conveyance. The plaintiff had no notice of this suit, but, having knowledge of the mortgage in favour of the second and third defendants, which had become subject to his own by reason of the registration of his mortgage, sued the first defendant as mortgagor, and joined in the suit the second and third defendants also. Cont..
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NLR - Vol.6- P 45
NLR - Vol.6, Page No - 45 UKKU v. BODIA. C. R., Panwila, 1,036. Mortgage-Payment thereof by one of the heirs of the deceased mortgagor- Utilis impensa-Right of person paying off the mortgage to recover from his co-heirs their shares-Right of such person to remain in exclusive possession till such contribution is made. A co-heir who has paid off in full the amount of a mortgage granted by his deceased parent has the right to recover from the co-heirs their respective shares of that amount as utilis impensa, but he cannot exclude his co-heirs from possessing the land till their quota is paid. THE four plaintiffs in this case sued their elder brother, the defendant, for a declaration of title to an undivided four-fifths of certain lands, alleging that the lands belonged to their father, who died intestate in 1886, when the plaintiffs were minors. The defendant answered that the deceased intestate had mortgaged the lands mentioned to one Punchappu in 1877, and that the defendant had paid and settled that debt, and was holding possession of the lands till his brothers, the plaintiffs, paid to him the four-fifths of the amount of the mortgage bond. Cont..
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NLR - Vol.71- P138
NLR - Vol.71, Page No - 138 1968 Present : Weeramantry, J. U. ABRAHAM SINGHO, Appellant, and R. ARIYADASA, Respondent S. C. 126 of 1967-C. R. Colombo, 91889/R. E. Rent Restriction Act (Cap. 274), as amended by Act No. 12 of 1966-Sections 12 A and 13 (1) (d)- Meaning and effect of words " has been convicted of using the premises for an illegal purpose ". Section 13 (1) (d) of the Kent Restriction Act (Cap. 274) is as follows :- "Notwithstanding anything in any other law, no action or proceedings for the ejectment of the tenant of any premises to which this Act applies shall be instituted in or entertained by any court, unless the board, on the application of the landlord, has in writing authorized the Cont..
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NLR - Vol.71- P230
NLR - Vol.71, Page No - 230 1967 Present : Tambiah, J., and Siva Supramaniam, J. DHAMMINDA NAYAKE THERO, Appellant, and THE CEYLON THEATRES LTD. and another, Respondents S. C. 353/64-D. C. Colombo, 781/Z Landlord and tenant-Landlord's tacit hypothec over tenant's movable property- Execution of a prior conventional mortgage over the movables-Decree for arrears of rent-Sale of tenant's goods in execution-Claims to the proceeds of sale-Superior rights of the landlord-Mortgage Act (Cap. 89), ss. 105, 111 (1). Where, in execution of a decree for arrears of rent due to him from a tenant, a landlord has seized and sold goods belonging to the tenant and the proceeds of the sale have already been realised, his rights to the proceeds of the sale are superior to the rights of a person who has a prior conventional mortgage over the goods sold. In such a case, the general provisions of section 105 of the Mortgage Act are subject to the special provisions of section 111 (1) of that Act. Cont..
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NLR - Vol.72- P 20
NLR - Vol.72, Page No - 20 1967 Present : Siva Supramaniam, J. S. D. ABDUL LATIFF, Appellant, and M. N. SEYED MOHAMED and another, Respondents S. C. 105/1965-C. R. Kurunegala, 2302 /L Rent Restriction Act-Subletting of premises in the guise of a "partnership agreement "- Immateriality of the label to the transaction. Where a tenant of rent-controlled promises enters into a "partnership agreement" with a person in relation to the premises but such agreement is only a blind to cover the subletting of the premises, the tenant and the sub-tenant are liable to be ejected by the landlord if the landlord has not given his written consent to the agreement. APPEAL from a judgment of the Court of Requests, Kurunegala. C. Ranganathan, Q.C., with Ananda Paranavitane, for the plaintiff-appellant. Cont..
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NLR - Vol.72- P426
NLR - Vol.72, Page No - 426 1969 Present : Sirimane, J., and de Kretser, J. V. T. JOSEPH and another, Appellants, and A. J. THIRUCHELVAM and another, Respondents S.C. 57/1967 (Inty.)-D.C. Jaffna, 4885/MB Mortgage-Hypothecary sale-Conditions of sale-Whether they can be varied after sale has taken place- Mortgage Act (Cap. 89), ss. 50 (3), 50 (4) (d), 61-Civil Procedure Code, ss. 260 to 262. Where a hypothecary sale of mortgaged property has already taken place, subject to the conditions of sale prescribed by the Court, the provisions of section 50 (4) {d) of the Mortgage Act debar the Court from varying the conditions of sale at the instance of the purchaser, except with the consent of all the parties who would be affected by such variation. APPEAL from a judgment of the District Court, Jaffna. S. Sharvananda, with M. A. M. Baki and M. Waniappa, for the 7th and the 8th respondents-appellants. Cont..
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NLR - Vol.73- P110
NLR - Vol.73, Page No - 110 1969 Present: Weeramantry, J. E. N. FERNANDO, Appellant, and G. WIJESEKERA, Respondent S. C. 73/67-C. R Colombo, 92762/R. E. Landlord and tenant-Attornment of tenant to a new landlord-Precise meaning of ?Attornment ?-Whether it carries the implication of a continuation of the prior contract of tenancy-Landlordship by title paramount or by assignment and novation-Effect-Rent Restriction Act. The term ?attornment? in relation to the acknowledgment by a tenant of a new landlord connotes a constructive method of delivery to the new landlord through an alteration in the tenant?s mental state by which he acknowledges the landlordship of a person other than his original landlord. ? The notion of attornment contains no element which points to the continued existence of the prior contract-a meaning which is often mistakenly supposed to be inherent in the term.? Cont..
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NLR - Vol.73- P337
NLR - Vol.73, Page No - 337 1970 Present : H. N. G. Fernando, C.J., Alles, I., and Weeramantry, J. Mrs. A. E. ALWIS, Petitioner, and D. S. KULATUNGE and another, Respondents S. C. 612/69-C. B. Colombo, 97922 Rent-controlled premises--Deserted wife of tenant Her right to continue in occupation after desertion-Doctrine of protection for the deserted wife-Right of the wife to tender the monthly rental to the landlord-Debt-Right of a third party to pay it- Consent decree entered without jurisdiction-Its liability to be set aside on the ground of nullity. Under both English law and Roman-Dutch law a husband has the duty to provide his wife with accommodation and cannot eject her from the matrimonial home without offering her alternative accommodation or maintenance. Furthermore, in the particular sphere of Rent Control legislation, Cont..
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NLR - Vol.74- P140
NLR - Vol.74, Page No - 140 1971 Present : Samerawickrame J., and Wijayatilake. J. P. C. S. FERNANDO, Appellant, and W. V. MAHANTILA (Government Agent, Colombo District) and another, Respondents S. C. 98/69 - Application in Revision in D. C. Colombo, 9995/ MB Mortgage-Hypothecary sale-Power of Court to order sale of mortgaged property in blocks. Where the mortgaged property is ordered by Court to be sold in order to satisfy the amount due under a hypothecary decree, it is not necessary that the entire property should be sold. It is open to the Court to direct that the sale of the land should be in blocks, and that only such blocks be sold as would suffice to realize the amount due under the decree. APPLICATION to revise an order of the District Court, Colombo. H. W. Jayewardene, Q.C., with K. N. Choksy, for the 2nd defendant-petitioner. Cont..
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NLR - Vol.74- P209
NLR - Vol.74, Page No - 209 1971 Present: Weeramantry, J. J. E. BRITTO, Appellant, and A. S. SWAMIKANNU and 4 others, Respondents S. C. 102/68-C. R. Colombo, 92368 Rent Restriction Act-Subletting-Requisites of exclusive occupation and ascertainable rent-Whether sharing of certain common areas of accommodation negatives subletting-Definiteness of rent-Proof. Where defined areas or rooms of a rented house are sublet by the tenant to different families and each such family is in exclusive occupation of the area sublet to it, a sharing by the families of the kitchen, a small common hall and the bathroom facilities of the house does not negative the subletting. Cont..
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NLR - Vol.74- P215
NLR - Vol.74, Page No - 215 1970 Present: Thamotheram, J. F. A. FELIX SINGHO, Appellant, and THE URBAN COUNCIL, KALUTARA, Respondent S. C. 104/68-C. R. Kalutara, 6250 (R. E.) Rent-controlled premises-" Service tenant"-His right to protection of Rent Restriction Act. When an employee occupies, as a tenant, rent-controlled premises owned by his employer, he is a service tenant and, therefore, is entitled to the protection of the Rent Restriction Act. APPEAL from a judgment of the Court of Requests, Kalutara. N. S. A. Goonetilleke, for the defendant-appellant. No appearance for the plaintiff-respondent. September 30,1970. THAMOTHERAM, J.- Cont..
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NLR - Vol.75- P136
NLR - Vol.75, Page No - 136 1971 Present : Weeramantry, J. M. ASILIN NONA, Appellant, and K. DON WILLIAM, Respondent S.C. 188/69-C.R. Colombo, 93890/RE Rent-controlled premises-Conviction of tenant for unlawful possession of arrack- Whether the tenant can be held to have used the premises for an immoral or illegal purpose-Rent Restriction Act. Where a tenant of rent-controlled residential premises has been convicted once of unlawful possession of arrack, he is not liable to be evicted by the landlord on the ground of user of the premises for an immoral or illegal purpose. APPEAL from a judgment of the Court of Requests, Colombo. A. Sivagurunathan, for the defendant-appellant. S. Parameswaran, for the plaintiff-respondent. Cont..
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NLR - Vol.77- P154
NLR - Vol.77, Page No - 154 1974 Present: Walgampaya, J., Vythialingam, J., and Walpita, J. V. KANAPATHIPILLAI, Appellant, and P. KANAPATHIPILLAI, Respondent S. C. 558/68 (F)-D. C. Point Pedro, 9716 Mortgage Act-Section 26-Co-mortgagors-Death of one of them prior to date of institution of hypothecary action-Appointment of representative of the deceased mortgagor-Question whether the action is prescribed-It cannot be decided at a stage where only a question of substitution of heirs arises. Hypothecary action was filed against two mortgagors, one of whom had already died long before the action was filed. The action was filed a few days before the action was prescribed. An application filed about six months later for the appointment of a legal representative to represent the estate of the deceased mortgagor was refused by the Court on the ground that, as the mortgage bond was not a joint and several bond and the hypothecated property belonged to the deceased mortgagor, the heirs of the deceased mortgagor should have been substituted in her place before the Bond got prescribed. Cont..
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NLR - Vol.78- P481
NLR - Vol.78, Page No - 481 1976 Present : Wimalaratne, J., Sirimane, J., and Wijesundera, J. MERCANTILE BANK LIMITED, Appellant, and A. H. H. M. ANVER and others, Respondents S. C. 30/71 (Inty)-D. C. Galle 2424/M. B. Mortgage Act-Sections 2, 46, 48-Mortgagee of movables-Right to have recourse to property other than the mortgaged movables-Civil Procedure Code, Section 34. It is open to the mortgagee of movable property, to have recourse to other property of the mortgagor if the amount realized by the sale of such mortgaged property is insufficient to satisfy the mortgage debt. "The Mortgage Act has no doubt improved the position of a mortgagee of movables by incorporating special provisions regarding the mortgage of shares, life policies, book debts and motor vehicles (sections 73 to 104) and by safeguarding his rights in the event of the mortgaged property being seized in execution by other creditors (section 105). But yet the insecurity of a mortgagee of Cont..
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NLR - Vol.79I- P90
NLR - Vol.79I, Page No - 90 1976 Present: Tennekoon, C. J., Weeraratne, J. and Sharvananda, J. C. H. WIMALASURIYA, Appellant and M. S. JAYAWEERASINGAM and another, Respondents S. C. 81/71 (F)-D. C. Colombo 1159/Spl. Debt Conciliation Ordinance-Sections 14, 30, 40, 43, 44-Jurisdiction of District Court to enter hypothecary decree-Exercise of such jurisdiction. Waiver-Irregular procedure adopted in entering hypothecary decree-Acquiescence-Validity of such decree-Mortgage Act, section 8. There is a fundamental distinction between the existence of jurisdiction and the exercise of jurisdiction. A challenge to the method of the exercise of jurisdiction of a court can never, in Cont..
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