Murugappa Chetty V. Alpisingho Et Al.,

1936 Present : Akbar S.PJ. and Koch J.

MURUGAPPA CHETTY v. ALPISINGHO et al.

417-D. C. Colombo, 27,787.

Mortgage action-Mortgage of shares to be allotted in partition action-Lease pending action-Mortgage subject to lease-Ordinance No. 10 of 1863, ss. 12, 13, 17.

The first and second defendants mortgaged with the plaintiff, during the pendency of a partition action the shares of the land to which they , would be declared entitled under the decree in the action. Thereafter they executed a lease of their undivided interests to the third defendant, also during the pendency of the partition action.

Held (in an action brought by the plaintiff to enforce the mortgage), that the mortgage was subject to the lease in favour of the third defendant.

PLAINTIFF instituted this action against the first and second defendants to recover a sum of Rs. 4,000 and interest on a mortgage bond dated March 26, 1924. The defendants by the bond mortgaged with the plaintiff all that share and portion of the whole land which they shall be declared entitled to in a partition action and all that share of the proceeds of sale of the said land in the event of a sale.

An action for the partition of the land had been instituted at the date of the mortgage but neither interlocutory decree nor final decree had been entered therein.

The third defendant was made a party to this action as he had obtained a lease from the first and second defendants on June 23, 1927, which was also executed pending the partition action.

H. V. Perera (with him E. B. Wikramanayake), for third defendant, appellant.-The mortgage pending a partition action of the share to be ultimately allotted to the mortgagor in the final decree creates no real right in the land. If it did, such right would be wiped out by the final decree. It is merely an agreement to mortgage (Fernando v. Atukorale [1 28 N. L. R. 292. ]). A lease pending a partition action is not obnoxious to the provisions of section 17 (Kirihamy v. Mudiyanse [2 23 N. L. R. 272.] , Appuhamy v. Nonis[3 23 N. L. R. 415.]). This lease of an undivided share would operate from the date of its execution. Under section 13 the lease would attach to the share allotted to the mortgagor in severalty immediately final decree was entered. Therefore when the mortgage came to be attached to the land allotted to the mortgagor it would already be subject to the lease which would therefore have priority over the mortgage.

N. E. Weerasooria (with him T. S. Fernando), for plaintiff, respondent. It was held by the Full Bench in Khan Bhai v. Perera [ 4 26 N. L. R. 204.] that persons desiring to charge or dispose of their interests in a property subject to a partition suit can only do so by expressly charging or disposing of the interest to be ultimately allotted to them in the action. This is not obiter. The mortgage creates a real right. It would attach to the lot allotted

to the mortgagor directly final decree was entered. Section 12 is not confined to mortgages executed before the filing of the action. It would include a case such as this. The mortgage deed is prior in date and is registered. The lessee has notice of it. The mortgage document is not a mere agreement to mortgage. It is an effective mortgage. (Rajapakse v. Dassanayake [1 29 N. L. R. 509.])

Cur. adv. vult.

H. V. Perera, in reply.

May 20, 1936. AKBAR S.P.J.-

In this appeal the question relating to the validity of alienations and hypothecations pending partition proceedings has arisen, a question on which there are a number of conflicting decisions by the Supreme Court.

The plaintiff-respondent instituted this action for the recovery of Rs. 4,000 and interest said to be due to him from the first and second defendants on a mortgage bond dated March 26, 1924. The third defendant-appellant was made a party to this action as he had obtained a lease from the first and second defendants on

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