Ahamado Muheyadin V. Thambiappah

1945 Present: Gannon and Canekeratne JJ.

AHAMADO MUHEYADIN, Appellant, and THAMBIAPPAH,
Respondent.

75-D. C. Batticaloa, 153.

Mortgage-Hypothecary action-Death of mortgagor-Appointment of legal representative under Mortgage Ordinance-Tender of evidence that value of mortgaged property does not exceed Rs. 2,500-Condition precedent-Mortgage Ordinance (Cap. 74), s. 7.

A condition precedent to the appointment of a person to represent the estate of a deceased mortgagor under section 7 of the Mortgage Ordinance (Cap. 74) is that evidence should be tendered that the value of the mortgaged property does not exceed two thousand five hundred rupees. Failure to comply with this condition would render the order of court appointing a legal representative void ab initio and the con-sequent sale and other proceedings a nullity as against the deceased estate.

APPEAL from a judgment of the District Judge of Batticaloa.

H. V. Perera, K.C. (with him E. B. Wikremanayake and G. Thomas)-for the plaintiff, appellant.

N. Nadarajah, K.C. (with him S. Nadesan), for the defendant, respondent.

Cur. adv. vult.

August 20, 1945. CANNON J.

This appeal depends upon a question of jurisdiction. The parties are the administrator cum testamento annexo (who has been erroneously described in the proceedings as executor) of one Marikkar, deceased, and the mortgagee of the land of the deceased who subsequently bought the mortgaged land under a decree of the Court. The mortgage was for a loan of Rs 3,000 to the deceased and his wife. The history of the transaction is that, after the mortgagor Marikar died the mortgagee put the

bond in suit and, before the action, made an application for the appointment of a legal representative of the deceased's estate for the purpose of the action under the Mortgage Ordinance, section 7. At that time representation had not been granted in respect of the estate. The Court appointed as legal representative the widow and children of the deceased, and in the subsequent action decreed a sale of the mortgaged property which was bought by the mortgagee.

The action appealed from is one which the administrator of the estate asked for a declaration of title to the lands of the deceased purchased by the mortgagee, his cause of action being an allegation that the mortgagee got the legal representative appointed without showing the Court that the mortgaged property did not exceed Rs. 2,500 as required by the Mortgage Ordinance, section 7 (2). The District Judge held that the plaintiff had not proved his case and dismissed the action. In this appeal against such dismissal it is not seriously contested that the value of the property was more than Rs. 2,500. The argument has centred round the questions (1) whether there was such evidence before the District Judge as the Mortgage Ordinance requires and (2) whether, if his decision was wrong, the District Judge nevertheless had jurisdiction to order the appointment of a legal representative for the purposes of the action. This point of jurisdiction is important because if the Court had no jurisdiction its order was void ab initio and the consequent sale and other proceedings a nullity as against the deceased's estate. The evidence of value tendered to support the application for a legal representative to be appointed to defend the action was to the effect that the net value of the deceased's estate was less than Rs. 2,500. There was no evidence before the Judge as to what the value of the mortgaged property was. His order was therefore wrong, and the final question for consideration is whether it was made without jurisdiction. Mr. Perera for the appellant contends that the Court could not by its wrong decision give itself jurisdiction. The question of jurisdiction arose in an English case-The Queen v. The Commissioner of Income Tax 1[(1888) 21 Q. B. D. 313.] and both sides rely upon what was said by the Ma

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