Abdul Hamidu V. Perera

Present: Ennis A. C. J. and Jayewardene A. J.

ABDUL HAMIDU v. PERERA.

316-D. C. Ratnapura, 4, 065.

Partition-Mortgage of undivided share-Safe of mortgagor's interest in execution to third party-Partition action, -Share allotted to purchaser-Does the mortgage attach to the share-Ordinance No. 10 of 1863, s. 12.

A co-owner mortgaged his undivided share of a land, which was subsequently sold in execution against him and bought by a third party, who intervened and was allotted the share in a partition action, to which neither the mortgagor nor mortgagee was part}'.

Held, that it was not necessary for the mortgagee to have intervened in the partition action to preserve his rights, and that under section 12 of the Partition Ordinance the mortgage attached to the divided portion allotted to the purchaser in execution.

APPEAL from a judgment of the District Judge of Ratnapura. Action by the plaintiff on a mortgage bond dated January 7, 1916, by which the first defendant mortgaged the undivided share of a certain land to him. The mortgage was registered on August 12, 1916. In execution in case No. 32, 325, D. C. Colombo, the mortgagor's interests were sold on June 30, 1916, and purchased by J. B. M. Pereira, who obtained a Fiscal's transfer on June 22, 1918. He sold his interest to the second defendant. In the meanwhile a partition action had been instituted in respect of the land, and the share which belonged to the first defendant had been allotted to J. B. M. Pereira, neither the plaintiff nor the first defendant being parties to the action. The learned District Judge held that the non-intervention of the plaintiff in the partition action extinguished his mortgage.

E. G. P. Jayatilleke. (with him Weerasuriya), for plaintiff, appellant. -If the judgment is correct, then the mortgagor by transferring his rights immediately after the mortgage can get rid of the burden on the undivided share.

This would be adding one more hardship on the mortgagee.

A correct construction of section 12 would give relief to all mortgagees, whether of the whole land or any share or interest therein; these encumbrances should attach to the portion allotted in severalty. Mortgagor includes any person claiming under him.

In the construction of section 12 I would draw the attention of the Court to a dictum of Bertram C. -T. in Colombo Stores, Ltd., v. Silva [1 (1924) 26 N. L. R. 185.] on the effect of a proviso.

Counsel cited Sidambaram Chetty v. Perera [1 (1922) 24 N. L. R. 214.] and Silva v. Wijesinghe. [2 (1917) 20 N. L. R. 147.]

H. V. Perera (with him Francis de Zoysa), for respondent. - The case Sidambaram Chetty v. Perera (supra) is exactly in point, and the trend of the decisions is to create a distinction between mortgages of the whole land and a share of the land (Silva v. Wijesinghe (supra) ).

Mortgagees always take certain risks, and this is one of them. Either the mortgagor or the mortgagee should have intervened in the partition action to conserve their rights. If that is not done, the land is rid of the encumbrance.

The proviso to section 12 throws much light on the construction of the words in the substantive section. There is a distinction created between " a mortgage of the land " and " mortgage of an undivided share of the land. "

May 8, 1925. Ennis A. C. J. -

This is an action by a mortgagee. It appears that on a mortgage bond No. 4, 190 of January 7, 1916, the first defendant mortgaged an undivided share of a certain land to the plaintiff. That mortgage was registered on August 12, 1916. On May 29, 1916, the land was seized in execution in case No. 32, 325, D. C, Colombo. The seizure was registered on June 2, 1916, and the sale was on June 30, 1916. The mortgagor's interests were purchased by J. B. M. Pereira, who obtained a Fiscal's transfer on June 22, 1918. He sold his interests on November 1, 1922, to the second defendant. But before doing so a partitio

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