1937   Present: Soettsz J. and Fernando A.J.

TAMBIAH v. SANGARAJAH.

70-D. C. Jaffna, 6,290.

Thesawalamai-Mortgage of thediathetam property by husband-Hypothecary-action by mortgagee-Death of wife pending the action-Failure to make the heirs party to the action-Decree not binding on heirs-Ordinance No. 21 of 1927, s. 11.

Where under the thesawalamai the husband mortgaged thediathetam property and during the pendency of a hypothecary action brought by the mortgagee against the husband, the wife died leaving heirs,-

Held, that the heirs were not bound by the decree entered1 in the action unless they were made parties to the action.

Ambalavanar v. Kurunathan (37 N. L. R. 286) followed.

Where in an action for declaration of title to land an issue was settled as to whether the plaintiff was entitled to claim equitable relief under section 11 of the Mortgage Ordinance, No. 21 of 1927, and where objection was taken in appeal that the claim was obnoxious to section 35-of the Civil Procedure Code,-

Held, that the fact that the issue was adopted implies that the requisite leave was granted under section 35.

APPEAL from a judgment of the District Judge of Jaffna. The plaintiff brought this action to be declared entitled to a land which he had purchased in execution of a hypothecary decree he had obtained against defendant's father in respect of the land. The defendant's case was that the western portion of the land was the thediathetam property of his parents. He admitted that during his lifetime his father mortgaged the land to the plaintiff, who put the bond in suit in case No. 1,631, D. C. Jaffna, making only his father, the defendant. While the case was pending, his mother Nannipillai died. The plaintiff continued the action without making the heirs of Nannipillai parties to

the action. The defendant contended that he and his minor sister were not bound by the decree entered in the hypothecary action. The learned District Judge gave judgment for the plaintiff.

 H. V. Perera, K.C. (with him T. Nadarajah), for defendant, appellant.- Where the husband mortgages thediathetam property, and at the time action is brought on the mortgage bond the wife is dead, her heirs must be made parties to the action. Otherwise they are not bound by the decree (Ambalavanar v. KwrunaOumJ). Similarly, when the wife dies pending the action, her heirs must be joined. "On the death of the wife, community comes to an end, and the children, her heirs, become entitled to a share through their mother and their father has no rights over their property, and as they were not parties, their shares cannot be sold under the decree.

N. E. Weerasooria (with him Tissevarasinghe, N. Nadarajah, and Corea)[1 137 N. L,. R. 236], for plaintiff, respondent.-The husband has full control over thediathetam property, and is entitled to mortgage the entire property, including the wife's share. The wife is not a necessary party in an action on the bond (Sangarapillai v. Devaraja Mudaliyar[ 2 '38 N.L.R.1.]  Rights and liabilities must be considered as they existed at the time the action was instituted. Since the wife was not a necessary parry at that time, it follows that her heirs need not be made parties at her death. It is only when a party to an action dies that the legal representatives are to be substituted. The decision in Ambalavanar v. Kurunathan (supra) should' not be followed. Even if it is it can be differentiated, because in that the wife was dead at the time the action was instituted, and therefore her heirs had already become entitled to her share, and had acquired present rights.

Alternatively, plaintiff is entitled to relief under section 11 of the Mortgage Ordinance, No. 21 of 1927.

H. V. Perera, K.C, in reply.-The position as between husband and wife is entirely different. The wife is not a necessary party because the husband has full rights to deal with the whole of the thediathe