Siva Et Al., V. Gunawardena

[FULL BENCH.]

1915.   Present  : Wood Renton C.J., Shaw J., and De Sampayo A.J.

SILVA et al. v. GUNAWARDENA.

434-D. C. Negombo, 10,019.

Registration-Mortgage executed after deed of gift-Prior registration of mortgage-Must mortgagee make donee a party to mortgage action to get a decree binding on donee ?-Civil Procedure Code, ss. 642, 648, 644.

A gifted his land to B, and thereafter mortgaged it to C. The mortgage bond was registered before the. deed of gift. Neither B nor C registered their address under chapter XLVI. of the Civil Procedure Code, C obtained judgment on the mortgage bond with making B a party.

Held, that B was bound by the mortgage decree, though he was not a party to the action, and that the title of the purchaser at, the execution sale held under the mortgage decree prevailed over that of B.

Mutturamen v. Massilamany1[(1913) 16 N. L. R. 289.] followed.

THE facts are set out in the judgment of the Chief Justice.

Bawa, K.C., and Samarawickrema, for plaintiffs, appellants.

A. St. V. Jayewardene, for defendant, respondent.

Cur. adv. vult.

February 2, 1915. Wood Renton C.J.-

This case raises a question as to the interpretation of section 17 of the Land Registration Ordinance, 1891 (No. 14 of 1891), which has already been frequently considered by this Court. The competing instruments are a deed of donation of the land in suit in favour of the plaintiffs, who are the children of the original owners, and a mortgage of the same land by ore of the owners in favour of a Chetty, The deed of donation is dated October 14, 1895. It was not, however, registered till April 2, 1898. The mortage is dated October 24, 1895, and it was duly registered on the following day. The Chetty put the bond in suit in an action instituted on November 19, 1900, and obtained a mortgage decree on March 19, 1901. In the execution of this decree the property was sold. It was pur-chased by Fredrick Appuhamy, who obtained a Fiscal's conveyance on March 27, 1902, and on December 80, 1903, Fredrick Appuhamy sold it to Cornells Appuhamy, from whom it was purchased by the defendant on November 25, 1911. Neither the plaintiffs nor the

Chetty gave to the Registrar of Lands for the district in which the property is situated an address for service, and therefore no rights arise to either side under sections 642 and 643 of the Civil Procedure Code, and the legal position of the parties has to be defined with reference to the common law and the statute law of the Colony, apart altogether from that Code. The plaintiffs were rot, in fact, made parties to the mortgage action, and they contend that they are, therefore, not bound by the decree in that action. The learned District Judge has over-ruled this contention and dismissed the plaintiffs' action with costs. Hence this appeal.

At the close of the argument we gave formal judgment dismissing the appeal with costs, intimating that the reasons for this judgment would be delivered subsequently. The question at issue-and no other point has been taken in support of the appeal-appears to me to be directly covered by the decision of three Judges in Mutturamen v. Massilamany1[(1913) 16 N. L. R. 289.] (see also James v. Carolis2[(1914) 17 N. L. R. at p. 78.]). Counsel for the plaintiffs admitted that the mortgage in favour of the Chetty had acquired priority by virtue of its prior registration over the deed of donation. But they argued that the effect of this priority was merely to give to the deed of donation a secondary place, and that the donees were still entitled to insist on their right at common law to be made parties to the mortgage action, and even, by the registration of their deed in 1898 before the mortgage action was instituted to acquire a new priority over the mortgage itself. In the case of Mutturamen v. Massilamany1[(1913) 16 N. L. R. 289.] Sir Alfred Lascelles C.J. and I in our interlocutory judgment expressly

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