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comes into existence upon service of summons; and the statute law is clear that a lis pendens must be registered.
The nature of the action No. 71,257 is such that it is a lis coming within the purview of the Ordinance. I do not think it necessary to discuss the law because it is admirably discussed and summed up in Part III., Chapter VII., of Jayawardene's The Law of Registration of Deeds-a book of the highest practical value upon one of the most intricate branches of our law.
The transfer in favour of the first defendant is expressly stated to be subject to the mortgage upon which the action No. 71,257 was founded, but this fact makes no difference in deciding the question of title.
I therefore uphold the judgment of the Commissioner, and dismiss the appeal, with costs.
Present: Bertram C.J.
BANDA et al. v. APPUHAMY et al.
113-C. R. Kurunegala, 2,955.
Court of Requests-Misjoinder of causes of action-Action by usufructuary mortgagee for damages in respect of two contiguous lots-Action against three trespassers as to one lot, and against two only as to the other lot-Civil Procedure Code, s. 805.
Plaintiffs who are usufructuary mortgagees brought an action in the Court of Requests in respect of two contiguous lots of land over which they claimed a charge under their mortgage. In respect of the first lot the action was brought against all three defendants, and in respect of the other lot against the first two defendants only.
Held, that there was a misjoinder of causes of action.
In the Court of Requests, where in the same plaint two or more causes of action are joined, it must appear on the face of the plaint that all the causes of action so united are consistent with each other, that they entitle the plaintiff to the same kind of relief, and that they affect all the parties.
THE plaint in this case was as follows :—
For a First Cause of Action.
1. The parties to this action are residents within the jurisdiction of this Court.
2. The plaintiffs were the mortgagees of the lands described in the schedule hereto annexed, by right of mortgage bond No. 44,328 of November 23, 1920, herewith filed, with its translation marked P 1.
3. The defendants above named, who have no manner of right of title whatever to land No. 1 in the schedule hereof, unlawfully prevented and are preventing the plaintiffs from possessing or taking the Appuhamy produce of their shares of the said land, from date of the execution of the said mortgage bond, to their loss and damage of Rs. 56.
For a Second Cause of Action.
4. The plaintiffs were the mortgagees of the lands as described in paragraph 1 hereof.
5. The first and second defendants above named, who have no manner of right or title whatever to land No. 2 in the schedule hereof, unlawfully prevented and are preventing the plaintiffs from possessing or taking the produce of their shares of the said land from date of the execution of the said mortgage bond, to their loss and damage of Rs. 15.
6. The defendants above named have failed and neglected to pay the plaintiffs the said damages, in both causes of action or any portion thereof, though thereunto often requested.
Wherefore, the plaintiffs pray-—
(1) For a decree for Rs. 71 against first and second defendant; (2) for a decree for Rs. 56 against the third defendant; (3) for costs of suit; (4) for such further and other relief as to this Court shall seem meet.
R. SABAPATHY, Proctor for Plaintiffs.
J. Joseph (with him Rajakarier), for appellant.
Croos-Dabrera, for respondent.
August 22, 1922. BERTRAM C.J.—
This is an appeal against a judgment of the Commissioner of Requests of the Kurunegala Court of Requests dismissing the plaintiff's action on the ground of misjoinder of parties and causes of action. The action is brought by the plaintiffs who are usufructuary mortgagees. It is brought in respect of two contiguous lots of land over which they claim a charge under their mortgage. It is brought in respect of the first lot against all three defendants, and in respect of the other lot against the first two defendants only.
All the defendants combine together, engage the same proctor, and put in a common answer. Their case is that the plaintiffs had obtained this mortgage in fraud of their rights under certain informal engagements with plaintiffs' mortgagor. It would certainly be a singular thing if two claims of this sort could not be tried together in a single action. But, for one circumstance, I should have upheld the contention of the plaintiffs without qualification. What the plaintiffs are doing in effect is this: They bring an action on one cause of action against first three defendants with regard to the first lot of land, and they combine with this claim a claim on another cause of action, viz., a claim against two of the defendants only. In other words they are combining two sections of the Civil Procedure Code, namely, sections 14 and 36, and this, by the
judgment of Pereira J. in the case of The London and Lancashire Fire Insurance Co. v. The Peninsula and Oriental Co.,1 they have been expressly held entitled to do.
There is, however, one circumstance to which I have alluded above, which is fatal to the plaintiffs' claim in its entirety. That is, Appuhamy that this action is in a Court of Requests, and is accordingly governed by section 805 of the Civil Procedure Code. That section enacts that where in the same plaint two or more causes of action are joined, it must appear on the face of the plaint that all the causes of action so united are consistent with each other, that they entitle the plaintiff to the same kind of relief, and that they affect all the parties. It is clear, therefore, that the plaintiffs are not entitled to proceed in respect of the first lot against the three defendants, and in respect of the other lot against the first two defendants only.
Mr. Croos-Dabrera, who appears for the respondent, takes a further point. Basing himself on the case of Rabot v. D'Silva, he claims his right to uphold the judgment on any other ground without giving notice to the other side. The ground he takes is that the value of the land in respect of which action is brought exceeds Rs. 300 in value. I do not think that this is a good objection. The claim is a claim for damages on the ground that the plaintiffs have been deprived of their security. The damages they claim are only Rs. 71. Mr. Croos-Dabrera relies mainly upon two decisions of this Court reported in 18 N. L. R. 84, a judgment of Mr. Justice Pereira, and in 20 N. L. R. 343, a judgment of Mr. Justice de Sampayo. Both these cases were possessory actions, and in the first of them Mr. Justice Pereira insisted on the circumstance that what was claimed was the right to the perpetual possession of the land.
This is not a possessory action, and I do not think that those authorities apply. The claim is a claim for damages. To this Mr. Croos-Dabrera replies by citing Dingiri Appuhamy v. Appuhamy.3 There it was held by my brother De Sampayo that although in that case the claim was a claim for damages, in respect of the removal of crops, the actual title to the land in question was in dispute. Here, however, the title to the land is not in dispute. All that is in dispute is a certain interest in the land, namely, a right to hold the land and to take the produce in lieu of interest.
What we have to interpret in section 77 of the Courts Ordinance, No. 1 of 1889, which confers jurisdiction on Courts of Requests in all actions in which the title to, interest in, or right to possession of any land shall be in dispute, provided that the value of the land or the particular share, right, or interest in dispute shall not exceed Rs. 300. (I have omitted certain words which appear intended to deal with partition suits only.) These words: (1) "title to interest in or right to possession of " and (2) "the value of the land or the
1 (1914) 18 N. L. R. 22.
3 3 C. A. C. 87.
2 (1905) 8 N. L. R. 22.
Banda v. Appuhamy
particular share, right, or interest in dispute" are clearly to be interpreted reddendo singula singulis. As the interest in dispute is not the whole title to the land, and as the value of that interest is less than Rs. 300, I think the case is within the jurisdiction of the Court of Requests.
The question now arises, what should be done in view of the defect in plaintiffs' claim to which I have above alluded. The learned Commissioner has dismissed the action. Herein, I think, he is wrong. I think the learned Commissioner's judgment should be set aside, and the case sent back for retrial, and that thereupon the plaintiffs should be given the option of waiving their claim against the third defendant, or of severing their claims in respect of the two lots of land, and abandoning one of their claims, reserving the right to bring a fresh separate action in respect of the claim so abandoned.
The appeal is allowed, with costs.
Present: Ennis and Schneider JJ.
VELUPILLAI et al v. MUTTUPILLAI.
14-D. C. Jaffna, 3,531.
Tesawalamai—Property acquired after death of second wife—Is it acquired property of the second marriage ?
S, a Tamil, subject to the Tesawalamai, was married twice. By his first wife he had a child R, and by his second wife he had a child V. After the death of the second wife, S purchased a land at Anuradhapura, and died some time later. V died in 1917 intestate and issueless.
Held that, on the death of S, the property devolved on R and V in equal shares, and on the death of V his half share devolved on R, and no portion devolved on V's mother's mother.
HE facts are set out in the following judgment of the District
One Sivagurunather was married twice. By the first marriage he had one child Rasamma, the second petitioner, appellant; and by his second marriage with Chinnachchipillai (administratrix's daughter) he had another child Visuvalingam.
After the death of the second wife, Sivagurunather purchased a piece of land at Anuradhapura. Sivagurunather died first, and in 1917 Visuvalingam died. Visuvalingam's estate was administered by his mother's mother, the present administratrix in this case.
The petitioners, appellants, filed papers for judicial settlement of the estate, making the administratrix and others as respondents. The disputes between the parties were settled, and a paper of settlement was filed. By that paper the second petitioner, appellant, was given Muttupillai the Anuradhapura land, but the administratrix, respondent, reserved to herself the right to claim a share of the Anuradhapura land if so advised.
Later, on the application of the administratrix for a declaration in her favour, the District Judge made the following order: The question to be decided is whether property acquired after the death of the second wife by a husband who was married twice should, for the purposes of the administration of the estate of the only child of the second marriage, be treated as the acquired property (thediathetam) of the second marriage, or whether it should be treated not as acquired property of the husband, but as his own property which, on his death before the child of the second marriage, devolved on the orly child of the first bed and the only child of the second bed in equal shares, and that the half share of the child of the second bed on his death devolved upon his half brother, the child of the first bed.
The thediathetam is the property in which under the Tesawalamai both husband and wife have a mutual interest, and which is in common between them; it comprises the profits arising from each of their respective separate properties, namely, the husband's mudusom and the wife's dowry and inheritance and of what is acquired by the exertions of the spouses during the marriage (see Mutukristna, pp. 260, et seq.).
It follows that if the wife is living apart from the husband, and while so living apart acquired money, we will say, by teaching or by typewriting, with which money she bought a property, that property clearly would not fall into the thediathetam. The decision in Mutukristna, pp. 181, 182, is clearly grounded on such a consideration. I think if it had been proved in that case that though the spouses were living apart, yet the wife acquired the land, we will say, with the profits arising from her dowry property, the deci ion would have been different
The test would always be out of what fund the property was acquired?
If, then, of two married persons, the wife dies first, the presumption, until the contrary is proved, is that property acquired by the husband after the death of the first wife and before his second marriage is the acquired property of the first marriage.
Similarly, property acquired by the husband after the death of the second wife must be presumed to be the acquisition of the second marriage.
I am of opinion that "during marriage' "does not imply duration of time, but connotes merely the fact of marriage. In other words it means simply by reason or in consequence of the marriage.
That appears to be the view upon which the case in Mutukristna, p. 16, was decided. The assessors were asked (see p. 17) whether, if a father who has a child by the first marriage enters into a marriage with his concubine without making a division of the accumulation before the second marriage, the children of the first bed were not entitled to succeed to all the dowry property of their mother, together with the acquisition up to the second marriage. The answer was in the affirmative. And the assessors further advised that the half of the father's mudusom and the entirety of the acquisition from the second marriage onwards should go to the children of the second bed.