Soysa V. Soysa

Present: Bertram C.J. and Schneider J.

SOYSA v. SOYSA.

482-D.C. Colombo, 8,565.

Mortgage-Assignment of a mortgage by way of security-Cancellation of assignment by assignee with the endorsement " bond cancelled and discharged "-Is such endorsement effective for the purpose, of revesting the mortgagee with a right of suit on the original mortgage ?-Ordinance No. 1 of 1840, s. 2.

Where a mortgagee transferred and assigned by way of security his rights on a mortgage bond and the assignee thereafter cancelled the assignment with the endorsement " bond cancelled and discharged. "

Held, that under our law such an endorsement was sufficient to revest the mortgagee with a right of suit on the original mortgage without a notarially executed retransfer of his rights by the assignee.

THE plaintiff, respondent, sued the defendant, appellant, for the recovery of a sum of Rs. 60,000 and interest alleged to be due to plaintiff from defendant upon mortgage bond No. 294 dated March 2, 1920.

The defendant filed answer stating that only a sum of Rs. 30,000 was lent by plaintiff on the said bond, and denied the right of the plaintiff to sue upon the said bond, inasmuch as by deed No. 1,717 dated may 22, 1920, the plaintiff has assigned the same to G. Fellows.

The case went to trial on the following issues: -

(1)   Does the answer disclose a defence?

(2)   Is the defendant estopped from denying that Rs. 60,000 is due on the bond by the judgment and decree in case No. 3,618?

(3) Can the plaintiff maintain the action in view of the fact that the mortgage bond sued on was assigned by deed No. 1,717 dated May 22, 1920, to G. Fellows?

(4) What amount, if any, in excess of Rs. 30,000 is due to the plaintiff on the bond?

The District Judge entered judgment for the plaintiff. The defendant appealed.

The deed of assignment was as follows: -

P. 19.                                       Deed No. 1717.

Registered B 124/94.                                                                  Kurunegala, May 25, 1920.

 (Signed) Registrar.

Bond cancelled and discharged:

Colombo, May 2, 1923.                                                  G. Fellows by his attorney P. H.

This Indenture made the 22nd day of May, 1920, between James Samuel Walter de Soysa, of Sunnyside in Moratuwa, in the Island of Ceylon, Esquire (hereinafter called the transferor) of the one part and George Follows, Alupola estate, Ratnapura, in the said Island hereinafter called the transferee) of the other part:

Whereas by a deed poll or mortgage bond bearing No.- 294 dated the 2nd day of March, 1920, and attested by Arthur Charles Abewardene of Colombo, in the said Island, Notary Public, Jeronimus William Charles de Soysa acknowledged himself to be well and truly bound to the transferor in the penal sum of Rs. 120,000 of lawful money of Ceylon, and for securing the payment of all sums of money payable thereunder the said Jeronimus William Charles de Soysa mortgaged and hypothecated to and with the transferor as a primary mortgage all that estate called and known as Dolutenne in the schedule hereto and in the first schedule hereto more particularly described:

And whereas by the said deed poll or mortgage bond it was agreed and provided that the said Jeronimus William Charles de Soysa should pay to the transferor the sum of Rs. 60,000 of lawful money of Ceylon in Colombo, upon three calendar 'months previous notice in writing requiring payment thereof being given to the said Jeronimus William Charles de Soysa by the transferor, which notice should not be given until after the 2nd day of March, 1923, and should in the meantime and until such repayment pay interest on (he said sum of Rs. 60,000 at the rate of 8 per cent, per annum of the times and in the manner therein provided:

And whereas the said principal sum of Rs. 60,000 is still due and owing to the transferor by the said Jeronimus William Charles de Soysa upon or in resp

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