1922 Present : Ennis and Porter JJ.

DON DAVITH v. DON DAVITH.

317-D. C. Matara, 9,524-R. F.

Mortgage by widow and son for paying of husband's debts-Action by mortgagee-No registration of He pendens-Purchase under mortgage decree by defendant-Half land sold on a writ against widow and purchased by plaintiff.

L, the widow (administratrix) of W, and her son mortgaged in August, 1916, the whole of the land in question to P, for. the purpose of paying the debts of W (husband). P put the bond in suit in. October, 1919, and without registering the lis pendent obtained judgment, and under the sale under the mortgage decree defendant purchased the land and obtained a Fiscal's transfer in September, 1920. Under writ issued against L in C. R. Tangalla, 9,187, half of the land was seized, and plaintiff purchased at Fiscal's sale in March, 1920, and obtained Fiscal's transfer in July, 1920.

Held, that plaintiff purchased the land subject to the mortgage.

" At the time of the institution of the mortgage action, the plaintiff had no title and could not be made a party; but the mortgagee failed to register the (is pendens, and by section 27 (a) (1) of the Land Registration Ordinance, 1891, as amended by Ordinance No. 29 of 1917, the failure of the mortgagee to register his action left the plaintiff free to purchase without being affected by the action. The plaintiff completed his purchase in July, 1920, and the defendant did not acquire any title to the land until September, 1920. A new position, therefore, appears to be created, which is not covered by the case of Suppramaniam Chetty v. Weerasekera [(1919)20 N L .R. 170.] which decided that a mortgagee could have but one action on the bond. The Ordinance which says that the purchaser is not bound by any unregistered lis pendens enables a person to acquire title who could not possibly be made a party to the conclusive mortgage decree referred to in the case of Suppramaniam Chetty v. Weerasekera

THE facts are set out in the following judgment of the District Judge (C. W. Bickmore, Esq.): -

About June, 1919, plaintiff sued one Lokuhamy in her representative capacity in C. R, 9,187, Tangalla, and got a decree by default on August 22 1919. Writ was taken out in November, 1919, and property seized on December 2, 1919. On February 5, 1920, the Fiscal returned the writ for extension, and on the extended writ the property was sold on March B, 1920. Fiscal's transfer (P8) was issued on July 10, 1920, and registered on July 12, 1920, Meanwhile, another chain of title had been accruing. On May 7, 1916, Lokuhamy and Bainis (her son) made a note in favour of Davit Appu for Rs. 100, reciting the necessity for

money in connection with the testamentary case No. 2,288 and promising to execute a bond. On May 9, 1916, Bain is paid a sum of Rs. '281 into Court in case No. 1,760-not 2,233, be it remarked- Thereafter Lokuhamy made several attempts to induce the Court to grant her permission to sell or mortgage properties ,but without success, and meanwhile on August 17, 1916, she gave one Podihamy the bond D1.she did this without the authority of court ,she does not recite in it that she makes it in her representative capacity ,but she says the property belongs to her by virtue of testamentary case No.2,233.

On October 14,1919, as suit was brought on the bond No.10,843, and on writ dated January 6,1920 , the property was sold to defendent .He obtained a Fical's transfer dated September 9,1920,and registered it on September 22,1920.

I might note that defendent 's land was registered on August 24,1916,and also that he attended the sale on plaintiffs writ and bid for the property (p4) . plaintiff says that the bond was only to bind Loku Hamy's share of the estate, and he adds that in 10,843, she was not sued in her representative capacity. He points out that the amount of the bond is very small for such a valuable property.

D