MAN WONG TAN KWAI v. MAN YUI CHEONG AND ANOTHER

HCMP No. 3259/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3259 OF 1998

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J U D G M E N T

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1. This is an application by Originating Summons in relation to the Plaintiff's half share of certain land, namely Lot No. 521 in Demarcation District No. 99 and the Lots No. 380 and 451 also in Demarcation District No. 99.

2. The evidence shows that on 7th January 1921, there was registered in the Yuen Long New Territories Land Registry a Memorial of a mortgage. The mortgage was given by the lessee of the first lot to a Tong of which a Man Yui Cheong was trustee. The particulars of the mortgage were that the consideration was $25 and the mortgage was to secure payment of that amount on the 7th day of January 1922 at certain interest there specified.

3. The second mortgage (in relation to the second lot) was made on 10th March 1937 and given by the lessee, this time, to an individual. The consideration for the mortgage was $50 and the particulars were that it was security for payment on 10th March 1938 of the said loan of $50 with interest there stated.

4. So it would be seen that in respect of both these mortgages, they were for a fixed period of time, namely for one year after the date of the mortgage.

5. The Plaintiff is the administratix of Man Kan Yin who had succeeded to the said half share of the two lots in question. In her affirmation, the Plaintiff says that she is now 86 years of age and that her husband had died in 1967. She was not aware of the mortgages until recently when she intended to dispose of the said lots in question and she has deposed to the fact that for upwards of 20 years prior to the commencement of these proceedings, ever since her late husband had succeeded to the lots by way of succession in 1967, she has enjoyed and her late husband had enjoyed undisturbed possession of the lots.

6. I was at one time troubled by the presence of the co-owner, that is to say, the owner of the other half share in the lots and whether he might have done anything to acknowledge the debt in question so as to prevent the Limitation Ordinance from applying. However, I am persuaded by Mr. Lee that if there was any question of acknowledgement, that is a defence for the Defendants to raise if it applies.

7. As far as the Defendants are concerned, the 1st Defendant Tong is not known to the Tso and Tong Registry as is evidenced by a letter from the District Lands Officer. As far as the 2nd Defendant is concerned, there has been substituted service. (I would add that there has also been substituted service in relation to the 1st Defendant Tong.)

8. In all the circumstances as recounted above, I would order as follows: that the mortgage dated 7th January 1921 registered in the Yuen Long New Territories Land Registry under Memorial No. 47697 over Lot No. 521 in Demarcation District No. 99 is no longer subsisting or capable of taking effect and in relation to the 2nd Defendant, I would order that the mortgage dated 10th March 1937 registered in the Yuen Long New Territories Land Registry under Memorial No. 99288 over Lots No. 380 and 451, both in Demarcation District No. 99, is also no longer subsisting or capable of taking effect.