024-NLR-NLR-V-39-CHELLIAH-PILLAI-v.-DEVADASON-et-al.pdf
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Ch«Uiah PiUai v. Devadasan.
1937
Present: Poyser and Soertsz JJ.
CHELLIAH PILLAI v. DEVADASON et al.
369—D. C. Colombo, 2,365.
Registration—Deed registered in wrong folio—Cross-references to rigm joiio—-Competing deed registered later in right folio—Priority—OrdinanceNo. 23 of 1927, s. 15.
Where a deed is registered in the wrong folio but there are cross-references sufficient to facilitate references to all existing alienations andencumbrances affecting the land, the new folio must be regarded as aright folio from the time the cross-references are made.
Mndalihamy v. Punchibanda (5 C. L. Rec. 73) followed. RamasatnyChettiar v. Palaniappa Chettiar (13 C. L. Rec. 98) referred to.
POYSER J.—Che Utah PiUai v. Devadasan.
^PPEAL from a judgment of the District Judge of'Colombo.
N. E. Weerasooria (with him E. B. Wikramanayake), for first defendant,appellant.
H. V. Perera (with him J. R. Jayaw'ardene), for plaintiff, respondent.
D. S. P. Abeysekere (with him Olegasagarem.), for second defendant,3 respondent.
Cut. adv. vult.
February 19, 1937. Poyser J.—
The only question that arises on this appeal is whether the plaintiff’sdeed, Fiscal’s Transfer No. 16,839 of November 8, 1934, takes priorityover the first added defendant’s deed No. 2,254 of December 1, 1924, byreason of due registration.
The material facts, which were admitted, are as follows : —The plaintiff’sdeed is registered (B 301/115) in a continuation of the folio in which thefirst deed relating to the land in question was registered and therefore iscorrectly registered. (See Jay a war dene on Registration of Deeds, p. 241,and the cases there cited.)
The first added defendant’s deed is registered in another folio(B 170/238), which was commenced on September 3, 1919. These twofolios, however, are connected by cross-references. In the top left handcorner of the folio where the plaintiff’s deed is registered, there appearsthe following:—“See B 170/238”. Similarly in the top right handcorner of B 170/238 there appears “ See B 243/254 ” (B 301/115 is acontinuation of B 243/254).
In regard to the cross-references, there was no evidence or informationas to when they were entered, and Mr. Perera argued that as the firstentry in B 170/238 was September 3, 1919, and the first entry in 243/254was September 27, 1927, such cross-references could not have been enteredbefore 1927. This is a logical argument, but Mr. Perera conceded thatthe cross-references in 243/254 must have been entered before his deedwas registered in 1934.
I propose to deal with this appeal on the footing that the cross-referenceswere not entered before 1927. The question therefore is whether the firstadded defendant’s deed was duly registered in 1927, for if it was, it takespriority over the plaintiff’s deed.
The learned District Judge has held that, as there was no doubt as to theidentity of the land, a new folio should not have been opened and thecross-references are consequently of no avail, and in support of this findinghe refers to regulation 13 (3) of the regulations made under the Regulationof Documents Ordinance, No. 23 of 1927, dated January 6, 1928. Thisregulation lays down that the Registrar shall only register an instrumentin a new folio if he is doubtful as to the identity of the land and shallconnect the two folios by cross-references.
This regulation, however, was not in force when the first added-defendant’s deed was registered, consequently even if the District Judge’sinterpretation of this regulation was correct, which I am not prepared1 toadmit, this case cannot be decided on such interpretation.
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POYSER J.—Cheltiah Pillai v. Devadasan.
In my view the added first defendant’s deed was duly registered so faras the plaintiff is concerned and this view is amply supported by authority.The case of Mudalihamy v. Punchibandai1 was very similar to this. Thehead note is as follows : —“ The defendant’s deed was registered in thewrong folio, but there was a side entry containing a reference to the rightfolio. The plaintiff’s deed was registered in the right folio which alsocontained a reference to the folio in which the defendant’s.- deed wasregistered. Held that the defendant’s deed was duly registered.Schneider J. in the course of his judgment, states:—“These references,in my opinion, establish a connection between the volumes and folios in-which the two competing deeds are registered sufficient ‘ to facilitatereference to all existing alienations or encumbrances affecting ’ the landin claim' within the meaning of sections 15 and 16 of ‘ The Land Regis-tration Ordinance, 1891 ’. I am unable to understand why the Registrarhad not registered the defendant’s deed in the same volume and folio inwhich he had registered the plaintiff’s deed. The name of the land, theboundaries, and other particulars are identical ”.
In this case also I am unable to understand why the Registrar did notregister the first added-defendant’s deed in the same volume and folio inwhich he had registered the plaintiff’s deed, but whatever his reasons mayhave been, the fact that the right and wrong folios were eventuallyconnected by cross-references enables the first added-defendant’s deedto be treated as duly registered so far, at any rate, as the plaintiff is.concerned.
Further, section 15 ^of Ordinance No. 23 of 1927, which applies (sub-section (2) ) to. instruments whether registered before or after thecommencement of the ■ Ordinance, contains'a proyiso which appears tomeet this case.-. The material part of the section is as follows: —
“ Every instrument presented for registration shall be registered inthe book allotted to the division in which the land affected by theinstrument is situated and in, or in continuation of, the folio in whichthe first registered instrument affecting the same land is registered.
“ Provided that— "
“ An instrument may, if the Registrar thinks fit, be entered in a newfolio, cross-references being entered in the prescribed manner so as toconnect the registration with any previous registration affecting thesame land or any part thereof ”.
This proviso would appear to give legislative effect to the decision inMudalihamy v. Punchibanda (supra) and other reported cases on this point.
I would also refer to a later case, Ramaswamy Chettiar v. PalaniappaChettiar‘ in which it was held, following Silva v. Appu3 in connectionwith the question of the right or wrong folio for registration, that the rightfolio for registration of a deed was the one in which the first deed relatingto a particular land had been registered. In this .case there were nocross-references and as appears from the judgment- of Dalton J., at page 98,if there had -been such cross-references, this case would probably have‘been differently decided.
1 S Ce/lon Lmo Recorder 73,*'* 13 Ceylon haw Recorder 98,
» (1914) 4 Bed. .V. C. 28.
SOERTSZ J.—-Elonona v. Fernando.71
. In view of the authorities cited, I would allow this appeal with cQstsboth here and in the Court below and direct that a hypothecary decree beentered for the first added-defendant as prayed.
Soertsz J.—
I agree. At one stage, I was impressed by Mr. Perera’s argument thata new folio opened by the Registrar without cross-references to the oldfolios was a wrong folio, and continued to be a wrong folio even though therequisite cross-references were made upon it later. But on further con-sideration I am of opinion that the words of proviso (a) of section 15 ofOrdinance No. 23 of 1927 are wide enough to support the interpretation thata new folio must be regarded as a right folio from the time the cross-references were entered. As pointed out by my brother, it was concededin this case that when the plaintiff’s deed came, to be registered there werecross-references on the new folio sufficient to facilitate reference to existingalienations and encumbrances. Therefore, I agree that the first added-defendant’s deed must be “ treated as duly registered as far, at any rate,as the plaintiff is concerned ”.
I subscribe to the order made by my brother.
Appeal allowed.