Patel v Badal [1943] FijiLawRp 20; [1875-1946] 3 FLR 322 (10 April 1943)

[1943] 3 FLR 322

SUPREME COURT OF FIJI

 

A. D. PATEL
(TRUSTEE FOR BAI DAHI)

v.

BADAL & OR.

[Civil Jurisdiction (Corie C.J.) 10 April 1943]

Deed of assignment of crop lien and collateral mortgage - voluntary assignment - deed executed "as executor" - whether a validassignment - second crop lien subsequently executed in substitution for that assigned - whether court will order substituted crop lien to be delivered to transferee of original crop lien - position between mortgagor and equitable assignee of mortgage.

In 1936 the defendant Badal executed a crop lien and collateral mortgage in favour of one Motibhai. Motibhai died in 1928 and his will was proved by P. Patel, the second defendant, as executor and sole beneficiary.

In 1939 P. Patel executed a voluntary assignment of certain debts and securities, including the mortgage and crop lien, to A. D. Patel, the Plaintiff, in trust for the use and benefit of Dahi, the mother of the deceased Motibhai. At that time the mortgage and crop lien were already in the possession of A.D. Patel and they remained in his custody. No registerable transfer of the mortgage was executed. At the date of the assignment, probate of Motibhai's will had not been registered at the Land Registry.

In 1940 the crop lien expired and a fresh one was executed by Badal in favour of P. Patel but was not assigned to A.D. Patel, nor was it delivered to him. A.D. Patel as trustee for Dahi claimed that the second crop lien was fraudulent and void or alternatively that it should be delivered to him; he also claimed in a separate action to recover from Badal the amount secured by the mortgage.

HELD. - (1) A deed of assignment of a debt is executed by the executor and sole beneficiary of the deceased creditor " as executor" is as valid an assignment as though executed as beneficial owner.

(2) In Fiji, a conveyance as executor does not imply a more restricted convenant than a conveyance as beneficial owner.

(3) The Court will not order the lienee of a crop lien executed by the parties to an original crop lien to an assignee of the original lien but will restrain the lienee under the substituted crop lien) from disposing of the same otherwise than to the assignee of the original crop lien.

Cases referred to:

(1) Re King Sewell v King  [1879] 14 Ch.D. 179; 49 L.J. Ch. 73; 8 Dig. 497; 40 Dig. 536.

(2) Re Patrick, Bills v. Tatham  [1891] 1 Ch. 82.

ACTIONS TO RECOVER MONEYS secured by mortgage and for an injunction to the lienee under a collateral crop lien. The actions were consolidated by agreement. The facts are fully set out in the judgment.