SAMI APPU v. DISANAYAKE.

SAMI APPU v. DISANAYAKE.

C. R. Matara, 1,553.

Purchase of land-Mortgage duly registered-Decree thereon-Sale in execution. -Purchase under such decree-Subsequent purchase under original mortgagor, subject to his mortgage-Prior registration of such deed of purchase-Validity of title.

B mortgaged his interest in a land to A by deed dated May, 1896, and registered it in June, 1896. A obtained a mortgage decree on 19th March, 1900, and at the Fiscal's sale held on 9th November, 1900, he became purchaser of B's share of the land, which was conveyed to him on 22nd April, 1901. The deed was registered on 18th May, 1901. C obtained a money decree against B and sold in execution on 22nd February, 1900, B's land subject to A's mortgage. At the Fiscal's sale held on 22nd February, 1900, D purchased it. His deed, dated 26th September, 1900, was registered on 1st October, 1900.

Held, that D's purchase, having been made pending the mortgage suit of A, was null and void as against the decree in that suit, and could obtain no force or validity as against it by prior registration.

IN this partition suit, before the decree was entered the fifth, sixth, seventh, and eighth defendants intervened. According to the original defendants, the land sought to be partitioned was owned by three families in equal shares. The sixth, seventh.

and eighth added defendants came in saying that the owners of the land were only one of the three families mentioned by the original defendants. The District Judge, Mr. W. E. Thorpe, found in favour of the contention of the original defendants, as regards this issue and the second issue whether one Balahamy, the mother of the plaintiff, and the fourth defendant was or was not a daughter of Wattu and sister of Dingihami. The third issue was between the third defendant and the fifth added defendant. Both claimed one Balappu's share. The third defendant alleged it was one-twelfth, and the fifth defendant alleged it to be much more. Upon this issue the District Judge gave judgment as follows:-

" The important point is, Who is entitled to this share ? What the share is I will go into later on. The point is an instance of the evergreen controversy as to whether the purchaser, under a writ issued under a mortgage decree obtained on a duly registered mortgage bond, has a prior title over a subsequent purchaser from or against the original mortgagor, whose conveyance has been registered before that of the purchaser under the mortgage decree.

" I think it is impossible to reconcile the decisions on the point, but tin spite of that I see no difficulty in deciding such cases in accordance with common sense and justice.

" In this case the fifth defendant was the mortgagee, and in course of time put his bond in suit. A proper mortgage decree was entered, and in due process of law a Fiscal's conveyance was obtained and registered. But meanwhile the third defendant had bought this same land under a writ issued in pursuance of a simple money decree entered against the mortgagor, and obtained a Fiscal's conveyance and registered it before the conveyance relied upon by fifth defendant. There was no unreasonable delay on the part of the fifth defendant after he had once got his judgment in doing all that the law required him to do. The Registration Ordinance gives priority of course to the document first registered. But, to get over the manifest injustice this rule inflexibly applied would frequently work and the door it would open to fraud, the doctrine has been evolved that the Fiscal's conveyance finally obtained under the registered mortgage relates back to the date of the registered mortgage. The matter is not complicated by any consideration of whether the decree is a mortgage decree or not, as it is admitted that the fifth defendant's decree is a proper mortgage decree.

" On behalf of the third defendant, it is contended that there is no such rule at all-anyhow that the mor

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