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ARANA v. IBRAHIM LEBBE
NLR21V182
1919 Present: Ennis J.
and Shaw J.
ARANA v. IBRAHIM LEBBE.
285- D. C. Kalutara, 7,289
Usufructuary mortgage-Right of Mortgagee to
proceeds of a mine.
Where the bond creating a usufructuary mortgage did not refer to mining
rights, and where a mine was opened after the execution of the bond, the
mortgagee was held not to be entitled to a share of the proceeds of the mine.
THE
facts are set out in the judgment of the District Judge (Allan Beven,
Esq.): -
This is an action by plaintiff to recover from defendant the sum of Rs. 1,500,
being the balance money due to him for plumbago sold by plaintiff to defendant.
The defendant admits that a sum of Rs. 1,500 was due to plaintiff for plumbago,
but states he held a usufructuary mortgage for half the land from which plumbago
was dug, and with the consent of the plaintiff retained that sum as ground share
due to him as usufructuary mortgagee. Now, there are four valuable. lands
mortgaged for the sum if Rs. 1,500, and, according to plaintiff and his witness,
this particular land, though i plumbago land, had also coconut, jak, arecanut,
breadfruit, &c, sufficient to bring in a yearly income of Rs. 120. It was argued
by defendant's counsel that the land being primarily intended for digging for
plumbago, the usufructuary mortgagee had a right to the ground share. If this
was so, I have no doubt it would have been so mentioned in the mortgage. The
income derived from the produce of the four lands was more than sufficient for
the interest on Rs. 1,500.
The plaintiff has proved, by the production of receipts (P 1 to P 6), that he
has paid ground share for the plumbago to other co-owners. If defendant's story
is at all likely, he would have demanded his ground share every time the
plumbago was sold. He admits it was eold five times, but he waited till the
final sale to demand his ground share.
I do not think the law allows a lessee or usufructuary mortgagee the right to
dig for minerals or share in the proceeds, unless it is expressly so stipulated
in the lease or mortgage bond.
Enter judgment for plaintiff as prayed for, with costs.
The mortgage bond was as follows: -
D. l.-No. 512.
Know all men by these presents that I, Kurupitage Sodiris Fernando, of Mahagama, in Gangaboda pattu of Pasdun Korale East, ia the District of Kalutara, Western Province, am held and firmly bound unto Ismail Lebbe Marikar Ibrahim Lebbe Marikar, of Tunduwa, in Galle District, in the ram of Rs. 1,600 lawful money of Ceylon, being for so much money borrowed and received by me from him at or before the execution of these presents (the receipt whereof I do hereby admit ' and
acknowledge), and which said sum
of Rs. 1,600 I do hereby, renouncing the legal exception nan
numerate pecunia, engage and bind myself, my heirs, 4c, to repay unto the said
Ismail Lebbe Marikar Ibrahim Ibrahim Lebbe Marikar, his heirs, & c,
on demand.
And as security for the due repayment of the said principal, I do hereby
mortgage and hypothecate to and with the said Ismail Lebbe Marikar Ibrahim Lebbe
Marikar and his aforewritten, as a primary! mortgage free from incumbrances the
following property, to be possessed by him, the said Ismail Lebbe Marikar
Ibrahim Lebbe Marikar, in lieu of interest thereon, to wit : -
And I further engage and bind myself, my heirs, Sec, for the payment of any
balance sum that may be due and payable under and by virtue of these presents,
if the proceeds realized by sale of the premises hereby mortgaged be found to be
insufficient to cover the above-mentioned debt.
In witness whereof, &c.
Signed, witnessed, and attested on April 24, 1914.
Bawa, K. C, for appellant.
Cooray, for respondent.
February 27, 1919. Ennis J.-
The only question in this appeal is whether the appellant, who is the
usufructuary mortgagee, is entitled as such to the revenu
