Sabapathy V. Mohamed Yoosoof Et Al

1935   Present: Akbar S.P.J. and Koch J.

SABAPATHY v. MOHAMED YOOSOOF et al.

 291-D. C. Colombo, 50,490.

Mortgage action-Necessary parties-Section 6 (1) of Mortgage Ordinance, No. 21 of 1927, not exhaustive-Person claiming adversely to mortgagor may be joined-Fidei commissum under Roman-Dutch law-Directions to executor to convey property to heirs-Use of the expression " trust"- English law of trusts not necessarily applicable-Development of the law of fidei commissum.

Section 6 (1) of the Mortgage Ordinance does not preclude the mortgagee from joining any other person as defendant in a hypothecary action, who could have been made a party under the Roman-Dutch law so as to secure a binding decree against him.

A person in possession claiming adversely to the mortgagor may be so joined.

By last will dated December 12, 1872, a testator bequeathed his properties to three sets of heirs, his father, his wife, and his children subject to the condition that his heirs were to take their shares according to the Muslim law but that neither they nor their issues or heirs were to o sell or mortgage or alienate the property but to hold them in trust for the grandchildren of his children and the grandchildren of his heirs and heiress.

The will further provided that they may receive the rents, income, and produce of the lands without encumbering them in any way and, after defraying the expenses for their maintenance, out of the surplus funds, lands should be purchased for the benefit and use of their children and grandchildren.

The will also provided for a division of the property after the death of the testator and the execution of deeds by the executor in favour of each heir containing the same conditions as are found in the will.

By deed dated February 18, 1878, the executor conveyed the property in dispute to one of the daughters of the testator, A. N., subject to the conditions of the will. The second defendant, the mortgagor, is the daughter of A. N., and the respondents are the grandchildren of A. N.

Held, that the will created a valid fidei commissum under the Roman-Dutch law.

Held, further (per Akbar S.P.J.) that the violation of the condition by the second defendant would have the effect of vesting the property in the fideicommissaries.

THE plaintiff sued the first and second defendants for the recovery of Rs. 15,000 and interest on two mortgage bonds.

The tenth to sixteenth respondents were joined in the action, as they claimed a beneficial interest in the mortgaged property, for the purpose of obtaining an effectual hypothecary decree binding on them. They claimed such interest by virtue of the last will of one Idroos Lebbe Marikar dated December 12, 1872, the terms of which are set out in the head-note.

The learned District Judge held that the tenth to sixteenth respondents were not necessary parties and dismissed the action as against them.

H. V. Perera (with him D. W. Fernando and Chelvanayagam), for plaintiff, appellant.-Two points arise for decision in this case. Firstly, are the tenth to sixteenth defendants properly made parties to this mortgage action, and secondly, are they owners of the property mortgaged by virtue of the last will No. 7,130 of December 12, 1872 ?

Section 6 (1) of the Mortgage Ordinance, No. 21 of 1927, does not exhaust the class of persons that may be sued in a hypothecary action. The expression " necessary parties " means that the parties enumerated there under cannot be left out in a properly constituted hypothecary action. It follows therefore that there may be others who may properly be made parties to a hypothecary action. The Ordinance itself is entitled " An Ordinance to amend and consolidate certain laws relating to mortgages", we must therefore look to the Roman-Dutch law to ascertain who may be sued in a hypothecary action. Under the Roman-Dutch law a mortgagee could bring two actions: one ag

Click Here to Read the rest of this document