[FULL BENCH.]

 1923   Present: Bertram C.J., Ennis, Porter, and Schneider JJ.,
 and Garvin A.J.

ANOHAMY et al. v. HANIFFA.

57-D. C. (Inty.) Matara, 199 H.

Lis pendens-Gift by husband to wife-Liability for debts of husband-Mortgage action not registered-Relation back of decree to mortgage

On August 31, 1918, Senaratne transferred four lands to his wife. Both husband and wife mortgaged the lands to Bastian on October 7, 1918. The deed was registered on October 16, 1918. Seyanis instituted an ordinary money action against Senaratne on October 10, 1918, and obtained judgment on February 3, 1919. Bastian put his bond in suit and obtained decree on December 1,1920. . The sale under the mortgage decree was held on February 6, 1921, and the lands were purchased by defendant, 'who obtained a Fiscal's . transfer on April 7,1921 (registered on the same day). Bastian did not register the lis pendens. Meanwhile Seyanis seized the lands in execution of his decree. Bastian caused notice to be given of his mortgage and that the bond had been put in suit. The lands were purchased by the plaintiffs, who obtained Fiscal's transfer on February 4, 1921 (registered on February 7). The plaintiffs instituted the present action for declaration of title.

Held, that the plaintiffs were not bound by the mortgage decree, ,but that the defendant, who purchased under the mortgage decree, had certain rights in equity.

The rights of the parties were not affected by any supposed doctrine of relation back of the title of the purchaser under the mortgage decree to the date of the mortgage.

(Per Full Court, GARVIN A.J. dissentiente).-Where a husband makes a gift in favour of his wife, and the wife has thereafter made a bona fide alienation of the property (along with the husband), it cannot be seized and sold to satisfy a debt of the husband.

ENNIS J.-A creditor can proceed against the property of the wife (acquired from the husband) to satisfy the husband's debt to the same extent and in the same manner as he could have proceeded against the property had it remained his. The extent to which a man's property is subject to his debt is so long as it is in his hands or can be followed; the moment he has made a bona fide alienation of the property, it cannot be seized and sold to satisfy a debt.

BERTRAM C.J.-These words (" to the same extent " in section 13 of the Matrimonial Bights Ordinance, 1876) are words of limitation, and I would construe them as intimating that the charge in favour of the creditors, created by the section, is subject always to the right of the person in whom the property is vested to alienate it or charge it.

GARVIN A.J.-It is clear from the language employed, that not-withstanding that a husband has made a gift to his. wife, the property
remains subject to his debts and engagements in the same manner  and to the same extent as if the gift had not been made. It gives a creditor the right to take the property in execution as if the title to the property were still in the husband. By creditor is meant
a person who was a creditor at the time of the gift.

THIS case was reserved for argument before a bench of five Judges by the following judgment by Ennis J.:-

The facts in this case are as follows. Four lands were conveyed by one Charles Edward Senaratne by deed No. 1,161 on August 31, 1918, to his wife, Johanna Francina Goonewardene. On October 7,1918, the husband and wife acknowledged their joint indebtedness to one Don Bastian, and executed a mortgage of the properties in favour of Don Bastian. This mortgage was registered on October 16, 1918. Don Bastian put the bond in suit in D. C. No. 9,300 and obtained a decree on December 1, 1920. At the sale in execution, the defendant purchased and obtained a Fiscal's transfer of the -three lands on April 7, 1921. This was registered the same day. It appears that one Seyanis was a creditor of Charles Edward Senaratne,