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MUDIANSE v. WILSON
NLR12V134
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Grenier.
MUDIANSE v. WILSON et al.
D. C., Randy, 18, 374.
Civil Procedure Code, s. 547- Mortgage without administration- Validity.
A mortgage is not a transfer, and does not fall within the purview of section 547 of the Civil Procedure Code:
ACTION rei vindicatio. Appeal by the plaintiff from a judgment of the District Judge. The facts sufficiently appear in the judgment of the Chief Justice.
E. W. Jayewardene (with him R. L. Pereira), for the plaintiff, appellant.
Wadsworth, for the defendants, respondents.
Cur. adv. vult.
May 3, 1909. Hutchinson C. J.-
The appellant brought this action to recover two pieces of land called Galahitiyawakumbura and Galahitiyawahena. The lands belonged to Punchi Naide, who died intestate in December, 1902, leaving an estate worth (as alleged in the plain and admitted in the answer) more than Rs. 1, 000, and leaving as his sole heir Pallegedera Appu, who took out administration in October, 1905, and then conveyed the lands to himself as heir, and thereafter sold them to the plaintiff. But before he had obtained administration, Pallegedera Appu had mortgaged the lands; and in two actions against him they were sold in execution and transferred by the Fiscal to the Ceylon Land and Produce Company, which is not a party to this action; the original defendant is the Company's manager of the lands, and the added defendant is the Company's attorny. The first question is whether the mortgages granted before administration was taken out were void by reason of section 547 of the Civil Procedure Code; and if they were not void, a further question arises as to the priority of registration. The material facts are as follows:-
January 17, 1903.-Mortgage of the field by Pallegedera Appu (not as stated in the answer to the plaintiff, but to M. Punchi Banda); registered on January 6, 1903.
January 15, 1904.- Mortgage of the hena by Pallegedera Appu to the same person; registered in February, 1904,
March 15, 1905.-Action against Pallegedera Appu on the mortgage of the field.
April 16, 1905. -Sale of the hena to the Company by the Fiscal in execution of a money decree in action against Pallegedera Appu.
October 16, 1905.-Administration to Punchi Naide's estate granted to Pallegedera Appu.
October 25, 1905.- Fiscal's transfer of the hena to the Company on sale in execution of the money decree against Pallegedera Appu; registered May 9, 1906.
November 29, 1905.-Transfer of the lands by Pallegedera Appu as administrator to himself as heir, reciting that it was necessary to close the estate by conveying the immovable property of the deceased to the heir.
November 29, 1905.-Transfer of the lands by Pallegadera Appu to the plaintiff; registered December 6, 1905.
February 14, 1907. -Fiscal's transfer of the field to the Company on sale in execution of a decree in an action against Pallegedera Appu on the mortgage of January, 1903; registered February 22, 1907.
There is no evidence as to the dates of the decrees under which the sales to the Company took place; but it appears from the Fiscal's transfers that the writ of execution under which the hena was sold was dated February 28, 1905, and that the writ under which the field was sold was dated December 14, 1905. The Civil Procedure Code imposes a penalty on any one who transfers any property of an intestate before administration is taken out. The appellant contends that a mortgage is a transfer, and that not only is the mortgagor in a case like this liable to the penalty, but that the mortgage itself is void by reason of the rule of construction that anything in respect of which a penalty is imposed by the Legislature is absolutely void. But a penal enactment should be construed strictly; and a mortgage is not a transfer. In my opinion the mortgages made by Pallegedera Appu were not void. They were liable to be defeated by the administ
