1913 Present: Lascelles C.J. and Wood Renton J.

ELYATAMBY v. VALLIAMMAI et al.

222-D. C. Jaffna, 7,995.

Mortgage of an undivided share-Mortgagee not registering address and not making puisne incumbrancer a party to mortgage action- Subsequent action for partition-Mortgagee not entitled to a declaration that the share mortgaged is subject to the mortgage-Civil Procedure Code, ss. 643 and 644-Utilis impensa.

Compliance by a mortgagee with the requirements of sections 643 and 644 of the Civil Procedure Code is a condition precedent to a puisne incumbrancer being made bound either directly or indirectly by the decree in the mortgage action.

A mortgagee of an undivided share did not register his mortgage or his address, in accordance with section 643, Civil Procedure Code, and did not make the person to whom the mortgagor had subsequently gifted the land by an unregistered deed a party to the

mortgage action. Under his decree the mortgagee himself purchased the land. Thereafter a co-owner brought an action for partition, and the mortgagee asked for a declaration that the title of the subsequent donee was subject to his mortgage.

Held, that the title of the subsequent donee was not subject to the mortgage.

WOOD RENTON J.-The appellant's (puisne incumbrancer's) deed was admittedly not registered, but there would be no obligation on her part to register it in any competition between it and the respondent's mortgage deed, unless the mortgagee had both registered that deed and provided the Registrar of Lands with an address to which puisne incumbrancers might send notices of their incumbrances.

THE facts material to this report are set out in the following extract from the judgment of the District Judge: -

Now I come to the most important point in dispute, viz., the title to the 25 lachams which belonged to Ponnachchi. She dowried to her daughter Valliammai 24 lachams out of this. She had previously mortgaged the 25 lachams to the second defendant. On the same day the dowry deed was executed the 24 lachams were sold to the second defendant by Valliammai; and second defendant considered that the mortgage bond given in his favour by Ponnachchi was discharged by the sale by Valliammai. There was litigation, and it was held that the deed by Valliammai in favour of second defendant was invalid. Thereupon second defendant sued Ponnachchi on the mortgage bond granted by her, and obtaining judgment sold up the 25 lachams and purchased them by Fiscal's conveyance dated March 25 last. In the hypothecary action Valliammai was not made a party. The question for decision is whether Valliammai is not entitled to 24 lachams out of 25 lachams by the dowry deed in her favour. The dowry deed was executed in contemplation of future marriage, but the marriage has not taken place. Therefore, it appears to me that the dowry deed must be regarded as a settlement or a donation. It was urged that this so-called dowry deed is of no effect, because it has not been accepted by a competent person on behalf of Valliammai. Valliammai herself has signed this deed, and I have to hold, following the decision reported in 11 N. L. R. 232, that Valliammai by signing the deed duly accepted the donation. The question as to whether a minor by signing a donation deed could accept it effectually has not been specifically dealt with in any other case but this. The decision in this case is, therefore, binding on this point. Therefore, I must hold that Valliammai, the first defendant, is entitled to 24 lachams, subject to the mortgage in favour of the second defendant, and that the second defendant is entitled to the balance 1 lacham.

The first defendant appealed.

A. St. V. Jayewardene, for the first defendant, appellant.-The second defendant did not register his mortgage bond and his address, and did not make the first defendant (to whom the land was given by way of dowry by the mortgagor) a