045-NLR-NLR-V-47-EBERT-SILVA-Appellant-and-WIJESEKERE-Respondent.pdf
132
HOWARD C.J.—Ebert Silva v. Wijesehere.
1046Present: Howard C.J.EBERT SILVA, Appellant, and WlJESEKERE, Respondent.
81—C. R. Panadure 9,499.
Registration of Documents—Competition between deeds of transfer executed bya person during his life time and, after hie death, by his heirs—Samesource—Decree “ affecting land ”—Decree in 247 action relating toimmovable property—Is a registrable instrument—Registration ofDocuments Ordinance (Cap. 101), ss. 7, 8, (6).
P conveyed Viis share in a land to plaintiff. After P’s death hisintestate heirs conveyed the same property to defendant. The deed infavour of plaintiff was not registered in the correct folio, whereas theconveyance hy the heirs of P to the defendant was properly registered.
Held, that the two conveyances proceeded from the same source andthat the deed in favour of plaintiff was void as against the subsequentdeed in favour of defendant by reason of prior registration.
Held, further, that a decree which the plaintiff had obtained as againstP’s heirs in an action brought by him under section 247 of the CivilProcedure Code was a registrable instrument within the meaning ofsection 8 (6) of the Registration of Documents Ordinance and the failureof the plaintiff to register it gave priority to the subsequent deedregistered by the defendant.
^I^PPEALfrom a judgment of the Commissioner of Requests, Panadure.
L. A. Rajapakss, K.C. (with him K. A. P. Rajalcaruna), for the 2nddefendant, appellant.
B. Wikramanayake (with him A. A. Rajasingham), for the plaintiff,respondent.
Cur. adv. twit.
March 6, 1946. Howard C.J.—
In this case the 2nd defendant appeals from the decision of theCommissioner of Requests, Panadure, declaring the plaintiff entitled to6/24th share of the land described in the plaint, awarding him also Rs. 30as damages and continuing damages at the rate of Rs. 3 a month fromJune, 1942, till possession is restored and costs. The original ownerof the land was one Appu Perera. The plaintiff claims li/48th of thisland by virtue of three deeds PI, P2, and P3. By PI dated March 23,1931, Hendrick Perera, one of the sons of Appu Perera, transferred to theplaintiff and one other 11 /48th share of the land he possessed by paternalinheritance. The transferees on PI by P2 dated September 7, 1931,transferred this 11/48th share to Sumaneris Silva who by P3 datedDecember 7, 1931, transferred it to the plaintiff. The 2nd defendant,
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'the appellant, who concedes that Appu Perora was the original ownerof the land, contends that half of this land was gifted by Appu Pererato his wife Podihamv by deed of gift D3 dated July 10, 1899. On thedeath of Appn Perera Podihamy became entitled to a further £ sharewhilst the 6 children of Appu Perera became entitled to 1 /24th shareeach. By Deed of GiftD7 dated December 1, 1900, Podihamy trans-ferred a £ share to Hendrick and three other children. She subsequentlydied whereby Hendrick became entitled to a 5/24th share of the landmade up as follows :—1 /24th by succession to Appu Perera, Jth by deedof gift from Podihamy and 1 /24th by succession to Podihamy. It isfurther contended that on the death of Hendrick his three childrenPodi Nona, Cecilia and Alpi became entitled to Hendrick’s 5/24th share.By deed D12 of May 3, 1942, this 5/24th share was transferred to the2nd defendant by these three children of Hendrick. The Commissionerhas accepted the evidence of the appellant supported as it is by deeds thatHendrick became entitled to 5/24th share of the land. The plaintiffwho relied on PI, P2, and P3 filed a 247 action case No. 17,639 in theDistrict Court of Kalutara. The daughters of Hendrick Perera weremade defendants in this action which resulted in the plaintiff beingdeclared entitled to a 11/48th share. But it would appear that neitherPI, P2, P3 nor the decree in D. C., Ktflutara, No. 17,639 have beenregistered in the correct folio, whereas D12, the conveyance by the heirsof Hendrick to the appellant, has been properly registorecf. In these•circumstances it is contended on behalf of the appellant that the olderregistration of D12 must prevail and that the appellant has priorityof registration. The Commissioner held against this contention on theground that Alpi, Cecilia and Podinona inherited nothing from theirfather Hendrick and had no title when they executed D12. Registrationwill be of no avail if the transferor had no title. The Commissionerfarther held that as the decree in D. C. case No. 17,639 was merelydeclaratory and did not confer title on the plaintiff, it was not a decreeaffecting land within the meaning of section 8 of the Ordinance andtherefore did not require registration. In consequence it acted asres judicata.
An exhaustive examination of the questions relating to the priorityof deeds is to be found in Jayawardene on the Registration of Deedsin Ceylon at pp. 63-66. At p. 63 it is stated that the subsequent instru-ment in addition to being registered must possess certain other require-ments before it can successfully claim the priority conferred by section 7of the Registration of Documents Ordinance (Cap. 101). The subsequentinstrument (a) must be derived from the same source, (6) mustconvey some adverse or inconsistent interest, (c) must be for valuableconsideration.
It is conceded by tire respondent that (b) and (c) exist.The only point for consideration is whether the subequent instrumentis derived from the same source. In my opinion the position in this•case is the same as in James v. Caroiis x. In that case A conveyed his land■ to B. After A’s death C, who was A’s intestate heir, conveyed the sameland to D. The deed in favour of D was registered before the deed
* 17 N. L. S. 76.
134
HOWARD C.J.—Ebert Silva v. Wijustbtre.
in favour of B. It was held that the deed in favour of B was void asagainst the subsequent deed in favour of D by reason of prior registration,as the two conveyances proceeded from the same source. It was con-tended in James v. Carolis as in the present case that the heir of A has notitle and hence his transferee could obtain no title by prior registration.With regard to this contention Laseelles C. J. stated that the scope andobject of the Ceylon Registration Ordinance is the protection of thepurchaser for valuable consideration. If an intending purchaser findson the register no adverse deed affecting the property, he is placed inthe same position, as regards his title to the land, as if no such deed existed.On the other hand the grantee under the prior unregistered deed ispenalized for his failure to put his deed on the register. He is takento have given out to the world at large that his deed did not exist and isprohibited from getting it up against the registered deed of the subsequentpurchaser for valuable consideration. The learned Chief Justice dealtwith the argument that the transferee to D could not be regarded as theheiress of A because the latter had alienated her share in the estate bydeed 08. The fallacy of this argument was that it assumed the validityof D8 which under section 14 of the Land Registration Ordinance declaresshall be deemed invalid as against the plaintiffs deed. At p. 78 in hisjudgment Laseelles C.J. also sfhtes as follows :—
“If, as js unquestionably the case, a deed by an heir to a purchasertransmits to the purchaser the title which the heir derived from hisintestate, it follows that the deed is a sound link in the chain of thetitle. It is not less effective for the purpose of transmitting titlethan a deed from one purchaser to another purchaser. In Punchiralav. Appuhamy1 this Court overruled the contention that, where thereis a conveyance from an intestate and a subsequent conveyance fromhis administrator these two conveyances do not proceed from thesame source, and that therefore the Registration Ordinance does not-apply. It was there held that an administrator represents, and hisestate is in Law identical with that of his intestate.
Now that it is settled that the heir can pass title withoutthe concurrence of the administrator, I think it follows that the estateof the heir must be regarded as that of his intestate ”
In the same case Pereira J. at p. 79 stated as follows :—
“ The policy and effect of our law of registration are such that themere fact that a person who has conveyed property had no title to itis insufficient to deprive the conveyance of priority by reason of priorregistration .”
The only remaining question for consideration is the effect of the decreein D. C. case No. 17,639. In Mokamed Alt v. Weerasooriya 2 the factswere as follows :—By a decree in D. C., Kurunegala, 3,204, E and Gwere each declared entitled to an undivided half share of certain lands.The decree was not registered. Plaintiff was successor in title to E anddefendant purchased the whole land from G. Defendant’s deed wasregistered. It was held (per Laseelles C.J. and Ennis J.) Pereira Jdissenting that defendant was bound by the decree in D. C., Kurunegala
< (1900) 7 N. L. R. 102.1 (1914) 17 N. L. R. 417.
HOWARD C.J.—Ebert Silva v. Wijeaekere.
13?
3,204, though the decree was not registered. The majority of the Courtheld that the decree in the Kurunegala ease was not a judgment “ affectingland ” and therefore not a registrable instrument. This case was, how-ever, decided under section 16 of Ordinance No. 14 of 1891. The positionis different under section 8 (6) of Cap. 101. The material words underthis provision are “ decrees and orders of any Court or authority, andawards which purport or operate to create, confer, declare … any
right, title or interest … in or over land. ” The matter waaconsidered in the case of Sockolingam Chettyv. Kalimuttu Chetty 1. At pp.335-336 in the judgment of Soertsz J. there is the following passage :—
“ Counsel’s next line of attack was that the decree entered in theold case dismissing the plaintiffs’ action, although it was entered in thecircumstances already indicated, was a registrable instrument.
The question then is whether that decree was such an instrument.
According to section 6 of the Ordinance instrument means aninstrument affecting land. It will be observed that this sectionreproduces the phrase of section 16 of the old Ordinance No. 14 of 1891,namely ‘ affecting land ’, but, probably in view of the ruling in MohamedAli v. Weerasuriya2, section 8 (6) of the new Ordinance goes on toenumerate the instruments which shall in future be deemed to * affectland as … aU instruments including wills, decrees andorders of any Court or authority and awards, which purport or operateto create, confer, declare, limit, assign, transfer, charge, incumber,release, or extinguish, any right, title or interest, whether vestedcontingent, past, present, or future, to, in or ovdi- land, or which createor record or are evidence of any contract for effecting any such object,and also a notice of seizure issued under section 237 of the Civil Proce-dure Code.’ The resulting position is that, today, decrees and ordersof any court or authority are registrable instruments if they purportor operate to create, confer, &c., any right, title or interest ….to, in, or over land.
In the case of Mohamed Ali v. Weerasuriya, two of the three Judgesheld that a decree declaring parties entitled to land in an action reivindicutio is not a judgment or order affecting land, and, therefore,not under the requirement of registration for the purpose of anticipatingany priority that may be claimed for a subsequent instrument for avaluable consideration. That was a ruling given as far back as in theyear 1913, and it has been consistently followed without question.But, it is argued that its authority has been impaired by section 8 (b)of the new Ordinance inasmuch as in virtue of it a decree or order whichpurports even if it does not operate to declare any right, title or interestto, in, or over land, is a registrable instrument and that the rulinggiven in the case I have mentioned cannot be given on the law as itstands now. I agree .”
This ease was decided on the ground that the decree in question whichwas one of dismissal did not purport to declare any right, title or interestin the plaintiffs or in the defendant. The passage I have cited from thejudgment of Soertsz J. was therefore obiter. Nevertheless I agree with
the view taken by him.
» 4i N. t. R. 330.
138
De Mel v. the Attorney-General.
Mr. Wickramanayake on behalf of the respondent maintains, however,that even If the decree in this case is a registrable document, it does notby non-registration lose its priority inasmuch as the subsequent instru-ment registered by the appellant is not one by which the latter claims“ an adverse interest ” within the meaning of section 7 of the Registrationof Documents Ordinance (Cap. 101). In support of this contention Mr.Wickramanayake calls in aid the penultimate paragraph in the judgmentof Lascelles C.J. in Mohamed AH v. Weerasooriya (supra). In thisparagraph the learned Chief Justice says that the defendant is not relievedof the bur created by the judgment merely because his deed is unregisteredand the judgment is unregistered. The plaintiff does not claim “ anadverse interest ” to the defendant in virtue of the judgment- Heclaims no interest at all under the judgment. That he merely says tothe defendant that he claims the benefit of the rule of law which forbidshim from again putting the matter in question. This paragraph of thejudgment in Mohamed Alt v. WeerasooHya was merely obiter and I do notfind myself bound by it. The right gained by the plaintiff in D. C. CaseNo. 17,639 was a right to prevent the children of Hendrick from advancinga claim to the land in question. A Claim hy Hendrick’s children wastherefore adverse to that right, and it is no more than such a claim thatthe appellant now sets up on the strength of the conveyance from Hen-drick’s children. It seems to me, therefore, that the appellant by bisdeed claimed an adverse interest on valuable consideration to the decreein D. C. Case No. 17,639. To hold that such a decree does not lose itspriority by being unregistered because it acts as res judicata wouldnullify the effect of the Ordinance, which is intended as stated by Lascelles
J. in James v. Carolis (supra) to protect bona fide purchasers for value.Such a decree is invalid.
For the reasons I have given the judgment of the Commissioner isset aside and judgment must be entered for the appellant, the2nd defendant, with costs in this Court and the Court below.
Appeal allowed.