(PROVINE COURT)

EL HAJ ALl RAHAMA v. HEIRS OF AMNA EL HIAJ ABDEL GADIR

PC-REV-102-1959 Ed Damer

Principles

·  Land Law—Mortgage—Transfer of mortgage, whether registered or unregistered may be effected without mortgagor’s consent—Payment of mortgage debt by third party makes payor new mortgagee

·  Prescription—Mortgagee against mortgagor—.-act of denunciation necessary

MB., acting as representative of respondents, who shared in the inheritance of a certain plot of land with applicant, mortgaged the plot to MN. The mortgage was not registered but M .N. entered into possession. After twenty-two years applicant paid M.N. the amount of the mortgage debt, without authority from respondents, and himself entered into possession. After a further ten years applicant claimed to have established a prescriptive title to the plot, but his claim DC.CS.61-1959 (Berber) was dismissed on the ground, inter alia that applicant appeared to have obtained possession initially by fraud. Applicant sought revision of the District Court’s decision.
Held: (i) Payment of the mortgage debt by a third party, without more, constitutes a transfer of the mortgage, the payor becoming the new mortgagee. where the mortgage was unregistered, and the former mortgagee, who had been in possession, relinquished possession to the payor upon payment.
(ii) The consent or authority of the mortgagor is not necessary to such a transfer of a mortgage.
(iii) A mortgagee in possession of the mortgaged land cannot acquire a prescriptive tide defeating the mortgagor’s right of redemption merely by remaining in possession for ten years. Some act of denunciation of the mortgage must be done by the mortgagee for him to gain a prescriptive title, e.g., building extensively on the land, or remaining in possession for an extremely long time.

MB., acting as representative of respondents, who shared in the inheritance of a certain plot of land with applicant, mortgaged the plot to MN. The mortgage was not registered but M .N. entered into possession. After twenty-two years applicant paid M.N. the amount of the mortgage debt, without authority from respondents, and himself entered into possession. After a further ten years applicant claimed to have established a prescriptive title to the plot, but his claim DC.CS.61-1959 (Berber) was dismissed on the ground, inter alia that applicant appeared to have obtained possession initially by fraud. Applicant sought revision of the District Court’s decision.
Held: (i) Payment of the mortgage debt by a third party, without more, constitutes a transfer of the mortgage, the payor becoming the new mortgagee. where the mortgage was unregistered, and the former mortgagee, who had been in possession, relinquished possession to the payor upon payment.
(ii) The consent or authority of the mortgagor is not necessary to such a transfer of a mortgage.
(iii) A mortgagee in possession of the mortgaged land cannot acquire a prescriptive tide defeating the mortgagor’s right of redemption merely by remaining in possession for ten years. Some act of denunciation of the mortgage must be done by the mortgagee for him to gain a prescriptive title, e.g., building extensively on the land, or remaining in possession for an extremely long time.

Judgment

Osman El Tayeb P.J. October 5, 1959:—This is an application for revision from decree of District Judge Berber dated June 7, 1959 in his CS-61-1959 dismissing plaintiff’s claim of prescription in respect of 3.5 uds in Sagia No. 70, Um Baharein Island of Berber District.

The facts of the case are: in 1926 the 3.5 uds were registered in the name of predecessor of defendants by decision of court in CS-13-1926 The case was one of pre-emption, that was attended by one Mutilla Bint El Hag Rahama on behalf of the other heirs. As the case succeeded Mutilla paid the purchase price that was £S.4. She borrowed this sum from Mahgoub El Nagi (D.W. 1), and in that same year (1926) Mutilla mortgaged the same plot to Mahgoub to secure that debt. Mahgoub entered into possession of the land as a mortgagee, until 1948 when plaintiff sought to pay the debt and take possession of the land. This took place and was reduced into a sanad dated November 27, 1948. Ever since plaintiff has been in possession of the plot until the institution of this case.

The learned District Judge entertained some doubt as to whether plaintiff has completed the prescriptive period of ten years from the date of paying the mortgage debt to Mahgoub until the institution of this case. Then he proceeded to say that plaintiff released the mortgage without authority from defendants, and in doing that he obtained possession by fraud and so was not entitled to acquire a prescriptive title.

I am not happy about this reasoning, as the action of plaintiff, looked upon from the proper angle. appears to be a transfer of the mortgage. The transfer of a mortgage, even if registered, can be effected without the consent of the mortgagor.

Here it was a possessory. unregistered mortgage. The first mortgagee was in possession. In 1948 he accepted the mortgage debt from plaintiff and gave up possession to him, so plaintiff entered into possession as a mortgagee. The question to be decided is whether the right of redemption has been lost by lapse of time.

It appears that plaintiff has completed ten years as mortgagee. The mortgage was transferred to him on November 17. 1948, and this case was started on April 19, 1959. But this state of affairs does not amount to a denunciation of the mortgage within the meaning intended in Heirs of Nur El Gowab v. Heirs of Abdel Hadi Abdulla Dar Sileik, AC-REV- 46-1943, and as applied and explained in Heirs of Duoud Mohamed v. Mohamed Saddik Mohamed, PC-REV-83-1957 (Ed Damer) and AC-REV-121-1958

In the first of these two cases the acts of denunciation were extensive buildings, and in the second case they were continuous  possession for a period of forty years.

Here the period of possession is just ten years, and plaintiff, when he paid the mortgage debt. did so as a person who was entitled to a share in the same land by inheritince. For these reasons no acts of denunciation could be proved or inferred from the facts.