[FULL BENCH]

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

MUTTURAMEN v. MASSILAMANY.

331-D. C. Colombo, 34,176.

Purchaser under mortgage decree-Registration, of mortgage bond enures to benefit of purchaser-Competition between purchaser and a lessee of the mortgagor-Lease executed before mortgage, but registered after-Is mortgagee bound to give notice, to lessee under s, 643, Civil Procedure Code ?

A leased his land to B by a deed dated 1908 and registered in February, 1910. Thereafter A mortgaged his land to C by a bond dated 1907 and registered in the same year. Under the mortgage decree obtained by C against A the land was purchased by D in April, 1910, D obtained a Fiscal's transfer on August 19, 1910, and registered it on the 25th of the same month.

Held, that B's lease was void as against D, as the competition was between the lease and the mortgage and not between the lease and the Fiscal's transfer.

The prior registration of a mortgage bond enures to the benefit of the purchaser in execution of the mortgage decree.

The duty of a mortgagee under section 643 of the Civil Procedure Code to notice subsequent incumbrances arises only when the latter have notified their deeds to him in the manner provided by the section.

A mortgagee is not bound to give notice of his action to a lessee, whose deed was executed before but registered after the execution and registration of the mortgage bond, as section 643 excludes instruments the date of which is earlier than that of the mortgage.

LASCELLES C.J.-The date of execution is the test of the applicability of section 643, and the section does not extend to instruments which, if they can be described at all as subsequent incumbrances, can only be described as such in a figurative sense on account of the artificial priority which the Registration Ordinance gives to a competing deed.

APPEAL from the judgment of the District Judge of Colombo. The facts are fully set out in the judgment of the Chief Justice.

This case was referred to a Bench of three Judges by Lascelles C.J, and Wood Renton J. by the following judgments: -

March 5, 1913. LASCELLES C.J.-

The facts in this case are of the simplest character. They are such as must frequently occur in. the course of everyday transactions; and it is surprising that our system of law should leave room for well-founded doubt as to the rights of the parties.

The joint owners of the property in question mortgaged it by bond dated October 11, 1907. The bond was registered three days later. The mortgagee put the bond in suit, and the premises were sold by the Fiscal and bought by the plaintiff on April 11, 1910. The Fiscal's transfer Was issued on August 19, 1910, and registered on August 25 of the same year. The defendant claims possession under a lease from the joint owners dated June 25, 1905 (i.e., prior to the date of the mortgage), and registered on February 22, 1910. i.e., before the Fiscal's transfer.

The learned District Judge has declared that the plaintiff is entitled to the premises, but has dismissed his claim to possession. In other words, he has held that the plaintiff's purchase at the Fiscal's sale was subordinate to the defendant's lease. Against this decision the present appeal has been filed.

At the outset it should be noticed that the decision of van Langenberg A.J. in Massilamany v. Santiago,1[(1911) 14 N. L. R. 292.] though given on the same facts, is not an adjudication of the question now at issue, nor is it an authority for the decision of the learned District Judge in this case. In that case the contest was between the present defendant as plaintiff and his own sub-tenant as defendant; and it was contended by the latter that the present defendant's title as lessee was determined by the prior registration of the mortgage in favour of Ramanathan Chetty. It was held, and, if I may respectfully say so, rightly held, that, t