1945 Present: Keuneman, Jayetileke and Rose JJ.

SARAM, Appellant, and THIRUCHELVAM, Respondent,

73-D. C. Kegalla, 2/289.

Mortgage-Usufructuary mortgage in favour of A-Subsequent mortgage in favour of B-Right of subsequent mortgage to discharge the previous mortgage.

L granted to the defendant a usufructuary mortgage bond in 1940 and subsequently in 1942 granted another usufructuary mortgage bond to the plaintiff. Plaintiff brought the amount of the earlier bond into court, not in the name of the debtor but in his own right as subsequent mortgagee, and asked for an order that the defendant should accept the said sum and give a discharge of the bond.

Held, that in the absence of proof that the prior mortgagee (the defendant) had taken steps to enforce his rights the plaintiff was not entitled to redeem the mortgage granted to the defendant.

CASE referred to a Bench of three Judges in terms of section 775 (1) of the Civil Procedure Code. The facts appear from the argument.

E. B. Wikremanayake (with him H. Samaranayake), for the plaintiff, appellant.-By deed of August 14, 1940 (D 2), one L granted a usufructuary mortgage to the defendant, and subsequently on October 8, 1942, gave a usufructuary mortgage (P 2) of the same property to the plaintiff. Plaintiff has tendered to the defendant Rs. 625 in full payment of the debt due under D 2 and asks in the present action that the bond D 2 be discharged. He is entitled in law to succeed. A secondary mortgagee can in his own right discharge a prior mortgage and the prior mortgagee is under a legal duty to accept payment and discharge the bond. This view was accepted in Heema v. Punchibanda 1[ (1921) 23 N. L. R. 95.] although in that case the person who offered payment was the agent of the debtor. The plaintiff in the present case can, although he does not have the authority of the debtor, oblige the defendant who is the creditor to receive the payment which he offers in the name of the debtor-Walter Pereira's Laws of Ceylon (2nd ed.) pp. 765, 534; Grotius Jurisprudence 2, 48. 43. (Lee's Translation p. 289) ; Wille's Mortgage and Pledge in 8. Africa (1920 ed.) pp. 269, 236.

[JAYETILEKE J.-Voet 20. 4. 35 which is referred to in Nathan's Common Law of 8. Africa, Vol. 2, Art. 1037A would appear to be against you.] The words " in his name and on his behalf " in Voet 20. 4. 35 do not mean that the person who offers payment should have the authority of the debtor. Pother's Obligations 3. 1. 1 (463) (Evans' Translation p. 330) is directly in point.

N. Nadarajah, K.C. (with him H. W. Thambiah), for the defendant, respondent.-The defendant cannot be compelled to accept payment from the plaintiff unless the payment is made at the instance of the debtor of unless the defendant has sought to enforce by action his rights under D 2

against the debtor-Sanmugam Chetty et al. v. Khan et al.1; Pothier's Obligations (Evans' Translation pp. 328-332, particularly at p. 331); Rattaranhamy v. Appunaide et al.2; Grotius Jurisprudence (Lee's Translation p. 489, ss. 7, 8 and 10); Burge's Colonial Law, Vol. 3, p. 316 (1st ed.)

E. B. Wikremanayake replied.

Cur. adv. vult.

March 5, 1945. KEUNEMAN J.-

This matter has been referred to this Bench of three Judges in terms of section 775 (1) of the Civil Procedure Code. One Liyanasekera granted to the defendant a usufructuary mortgage bond-D 2 of 1940-and subsequently granted another usufructuary mortgage bond-P 2 of 1942--to the plaintiff. The plaintiff brought the amount of the earlier bond, into court and asked for an order that the defendant should accept the said sum and give a discharge of the bond. At the trial the following issues were framed: -

(1) As the plaintiff is only a mortgagee from the owner of the land, is he entitled to maintain this action and obtain a discharge of the bond in favour of the defendant?

(2) Did plaintiff tender the amount due on the bond in favour of def