Present: Dalton J. and Maartensz A.J.

MUDALIHAMY  v. APPUHAMY.

 65-66-C. R. Kurunegala, 7,658.

    Partition-Mortgage of undivided share of land-Partition action with respect of land-Lot in severalty allotted to mortgagor-Action by mortgagee- Purchase by him of undivided share-Sale of divided lot in execution for costs of partition-Purchase by defendant-Competition between the two transfers-Ordinance No. 10 of 1863, s. 12.

The plaintiff took on mortgage an undivided 2/3 share of two contiguous fields in October, 1927. In January, 1930, the defendant brought a partition action treating the two fields as one corpus. Final decree was entered in the action declaring the plaintiff's mortgagor entitled to a half share only of the fields and lot A was allotted to her. In January, 1931, the plaintiff put his bond in suit and purchased the undivided shares mortgaged to him at the sale in execution of his decree, obtaining a Fiscal's transfer dated January 25, 1932. Prior to that date the defendant took out writ against the plaintiff's mortgagor for pro rata costs due to him and became the purchaser of lot A, obtaining Fiscal's transfer dated April 17, 1931, in his favour.

Held, (in an action brought by the plaintiff for declaration of title to lot A), that he was entitled to 2/3 share of the lot.

CASE referred by Dalton J. to a Bench of two Judgs.

This was an action for declaration of title to a land. The facts upon which the question referred arises are fully stated in the head-note.

Rajapakse (with him R. H. E. de Silva), for plaintiff, appellant in No. 65 and respondent in No. 66.-Ukku Menika, having mortgaged her undivided share of the whole land, thereafter was declared entitled to lot A 3 in the partition decree. The lot she received (A 3) will be subject to the mortgage. (Section 12 of the Partition Ordinance, Abdul Hamid v.Perera1[1 26 N. L. R. 433], and Godage v. Dias2[ 2 30 N. L. R. 100.].) Any purchaser from her will, therefore, buy it subject to the mortgage.

All the undivided interests she had in the whole land were mortgaged; therefore, the whole of lot A 3 which she was allotted in lieu of her undivided interests became subject to the mortgage. See section 12 of the Ordinance.

Weerasooria, for defendant, respondent in No. 65 and appellant in No. 66.-Lis pendens in the partition action was registered. Hence in law the plaintiff had notice of the partition proceedings, and in fact too' he was aware of them.

Once the land was partitioned, new lots came into existence. The old land ceased to exist. The plaintiff in the mortgage action should have asked for a hypothecary decree in respect of the divided lot A. See Sidambaram Chetty v. Perera3[3 24 N. L. R, 214]. Not having made the necessary amendment in his prayer, the plaintiff got a decree which is bad, because no such land existed at the time. The practice may be different, but a bad

practice cannot make good law. See Pate v. Pate 1[1 18 N.L.R. 289.] In any case the plaintiff cannot get the whole of lot A 3. The deed has to be interpreted. Plaintiff got a conveyance of undivided 2/3 of the whole land, hence he cannot get anything more than 2/3 of lot A 3. See Bernard v. Fernando2[2 16 N. L R. 438,].

Rajapakse, in reply.-The substantive portion of section 12 of the Partition Ordinance enacts that the rights of a mortgagee are not to be affected by the decree under section 8. The proviso merely contains a curtailment of these rights, which are conserved, viz., the mortgage subsists but is limited to the specific portion allotted to the mortgagor. The section is intended to protect the rights of the mortgagee, not to take them away.

Cur. adv. vult.

 June 7, 1934. DALTON J.-

These appeals have been referred to a Court of two Judges, as they raise an important point regarding the Security of mortgagees when they have taken a bond in respect of undivided interests in immovable property, whi