Thambaiyar Et Al V. Paramusamy Aiyar Et Al.,

[PULL BENCH.]

1917 Present : Ennis J., Shaw J., and De Sampayo J.

THAMBAIYAR et al. v. PARAMUSAMY AIYAR et al.

448-C. R. Paint Pedro, 16,983.

Mortgage-Mortgaged properly under Rs. 1,000 in value-Estate of deceased mortgagor under Rs. 1,000-Action against heirs of mortgagor-Action bad-Civil Procedure Code, ss. 640 to 642.

An action to realize a mortgage cannot be brought without Making the personal representative of a deceased' mortgagor a party, even when the estate of the mortgagor is under Rs. 1,000 in value. The mortgagee must, when the property mortgaged is under Rs. 1,000, get a person specially appointed to represent the estate of the deceased mortgagor, if no administrator or executor has been appointed.

THIS case was referred to a Bench of three Judges by the following judgment of Ennis J. (February 20, 1917): -

This was an action on a mortgage bond. The plaintiffs made all the- heirs of the deceased mortgagor defendants in the action. It is admitted that the estate of the deceased mortgagor was under Rs. 1,000 in value. The learned Commissioner has dismissed the Action on a preliminary issue, holding that it could not be maintained, as no legal representative of the estate of the deceased mortgagor had been appointed under section 642 of the Civil Procedure Code.

In the case of Silva v. Fernando1 it was held that a mortgagee may sue the heirs. In Punchi Kira v. Sangu2 it was held, on the contrary, that an executor or administrator must be made a party for. the case to be properly constituted. The latter proposition was again enunciated in Bastian Pillai v. Anapillai.3 The point turns on the construction to be placed on section 642 of the Civil Procedure Code. Under that section, where the hypothecated property exceeds Rs. 1,000 in value, a mortgagee must apply for the appointment of an administrator to the estate of the deceased mortgagor. When the property is under Rs. 1,000 in value, the Court may, on the application of the mortgagee, and on its appearing to the Court necessary or desirable, appoint some person to represent the estate for the purpose of the action. It seems to me that this latter provision is a privilege given to a mortgagee, and I find it difficult to believe it was meant to debar a mortgagee from the proceeding.

1 (1897) 3 N. L. R. 15.
2 (1900) 4 N. L. R. 42.
3 (1901) 5 N. L. R. 31.

against the owners of the property, when the property is under Rs . l,000 in value, without the appointment of a person to represent
the estate. It seems rather to provide a way by which a mortgagee could bind the estate of the deceased by his decree, and not merely have satisfaction from the mortgagee property. In view of the reported decisions, I think the point should go before a Full Bench, and accordingly refer it to a Court of three Judges.

Arulanandan, for appellant.-The proviso to section 642 of the Civil Procedure Code confers a special privilege on the mortgagee, if the property mortgaged is under the value of Rs. 1,000. The granting of a privilege should not be construed as taking away the right of proceeding against the, heirs in possession. Even after the passing of the Civil Procedure Code the Supreme Court has recognized the right of a mortgagee to proceed against the heirs of a deceased mortgagor who have adiated the inheritance. See Saram v. Perera 1 and Tikiri Banda v. Mudalihamy. 2 The words in section 641 are " shall be entitled "; it will be doing violence to the language of the section to construe it as " shall sue." Such a construction may lead to highly inconvenient results. A mortgage may run on for over a century, and the property may have passed into other hands, and yet, if the mortgagor is dead, his executor or administrator has to be sued. The executor may have closed the estate, and he may be dead. In such a case, no mortgage action can be brought. Such could never have been th

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