122-NLR-NLR-V-58-VELLAITHAMBY-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
1957Present: Weerasooriya, J., and Sinneiamby, J.
YEUL AITK AM BY. Appellant, and THE ATTORNEY- GENERAB,
Respondent
S. C. 11—D. C. Batlicaloa. 1,090,‘L
Irrigation Ordinance (O'/-*. 312)—Certificate of sale in favour of Croioi—dSaturc ofCrown's title—Sections 2 (J) (1), 00 (2), GS—Jicgislralion of Documents Ordinance(Cap. 101), s. 7 (1).
Where land said under the Irrigation Ordinance for non-payment of irrigationrates duo in respect of it is purchased by the C'cown and a cert ificate is thereafterissued vesting title in the Grown, all previous titles to tiro land must, by virtue ofsections 2 and G6 (2) of the Ordinance, bo regarded as wholly extinguished, orsuspended, by operation of law, and a new titlo is created in the Crown which isgood against all persosis. Accordingly, a subsequent transferee from the originalowner of the land cannot claim title to it by priority of registration a3 againsttho Crown..
-A-PPEAL from a judgment of the District Court, Batticalon.
Walter Jat/awardene. with A. 8. Ytmigasooriyar,. for tho plainliff-appellant.
V. Tennekoon, Crown Counsel, with JI. Fernando, Crown Counsel, fortho defendant-respondent.•
Cur. adv. vj.lt.
February 22, 1957. Wf.erasoohiva, J.—
On tlie ISth June, 1945, two allotments of land called Akkarni Vj'al■were sold under tko provisions of the Irrigation Ordinance (Cap. 312)for juin-payment of irrigation rates due in respect of them and werepurchased by the Crown, and on the 19tli March, 19-16, there were issuedthe two certificates of sale JD2 and D3 vesting title to them in the Crown..Section G6 (2) of the Ordinance provides that on such a sale taking place acertificate substantially in the form given in Schedule II of the Ordinanceshall be issued. The certificates D2 and D3 are substantially in thatform, and it is clear from the provisions of section 66 (2), read with theterms of the relevant form of certificate, that on the issue of the certifi-cates the said two allotments vested absolutely in the Crown free fromall encumbrances. Although the certificates D2 and D3 wero subse-quently registered, purportedly under the provisions of the Registrationof Documents Ordinance (Cap. 101), it was granted by learned CrownCounsel that the registration was not in accordance with the provisionsof section 15 (1) (a) of that Ordinance and that they must, therefore, bedeemed not to have been duly registered.
Notwithstanding the sale, the original owners purported to transferthe two lands for consideration by deed PI of the 26t-h December, 19-15,and the subsequent devolution of the title so disposed of appears from thedeeds P2 to PG, under the last of which the plaintiff-appellant claims tohave acquired title. All these deeds have been duly registered. P3 toP6 wero executed subsequent to the issue of the certificates D2 and D3.
£
Tire case for the appellant is that the deeds in his chain of title prevailagainst the unregistered certificates D2 and D3 by virtue of section 7(1)of the Registration of Documents Ordinance and it is on that basis thathe filed this action against the Crown for declaration of title to the twolands and consequential relief. The learned District Judge dismissedthe action with costs, and the present appeal has been filed against thatorder.
One of the questions canvassed at the trial and in appeal was whetherthe Crown is bound by the provisions of the Registration of DocumentsOrdinance. But this question, which does not appear to be covered b3rany previous authority, need not be considered as the appellants’s claimmust fail on another point of fundamental importance the decision ofwhich, in my opinion, and also as conceded by learned counsel for theappellant, is fatal to the appeal.
To deal with that point immediately, it is clear that the provisions ofsection 7 (l) of the Registration of Documents Ordinance would notcome into operation unless the appellant shows that the deeds in hischain of title, as well as the two certificates of sale, are from the samesource, vide the case of Jame-s v. Carolis . The effect of a certificate ofsale vesting title absolutely and free from encumbrances was consideredin Nugatccla v. The dfunicipal Council, Kandy-. The question thatarose there was whether a land sold for non-payment of municipal ratesand purchased by the Kandy Municipal Council had vested in the Council
1 {1938) 40 JV. £. R. 106.
by virtue of a cei'tificate of sale issued under the relevant provisions oflaw, free from any obligation to perform or commute certain serviceswhich governed the tenure of the land prior to the sale, and that questionwas answered in the affirmative by a bench of two Judges who, in doingso, dissented from an earlier decision of this Court (also of two Judges)in Sivacoluiulu v. Noormciliya, *. For the purpose of the present ease,however, it is not necessary to attempt to resolve the conflict betweenthese two decisions as on a consideration of the relevant provisions of theIrrigation Ordinance (Cap. 312) it is possible to reach the conclusion thatby virtue of the certificates D2 and 03 there came into existence anentirely new title in the Crown to the lands in suit which was notdependent on any transmissible interest which the proprietor of the landor other person had in them immediately prior to the sale.
Sub-section (1) of section 2 of that Ordinance (which has since beenreplaced by the Irrigation Ordinance, No. 32 of 1046) provides that anirrigation rate under the Ordinance with reference to any land to whichit relates is a charge in favour of the Crown, and under sub-section (4)such charge “ shall bo binding on the land and every part thereof, andsuch land and every part thereof, and the proprietors of such land andevery part thereof, shall be liable for the payment of the same, into who-soever hands the ownership, possession, tenancy or occupancy of suchland or any part theroof under any circumstances may at any time pass,until the said charge shall be extinguished, and such charge shall havepriority over all mortgages, hypothecations, encumbrances, and chargeswhatsoever, whether antecedent in date or otherwise, affecting the landSection 62 provides for the seizure and sale of amr land for default in thepa3’mont of rates due in respect of it. Sub-section (1) of section 66 dealswith a sale to a purchaser other than the Crown and it provides thaton the issue of a certificate of sale in the prescribed form the land shallvest in the purchaser free from all encumbrances whatsoever. Sub-section (2) of section 66 deals ■with a purchase on behalf of the Crown andin such a case, in terms of the prescribed certificate of sale, on the issuethereof the land would vest absolutely in the Crown free from allencumbrances. Section 67 deals with the cancellation of a sale of landpurchased by the Crown on payment (at a 113' time before re-sale to a thirdpart3r) b3* or on behalf of the proprietor of the amount due in respect ofthe land, and it provides that on an endorsement being made b3r theGovernment Agent on a certified cop3* of the certificate which issuedunder section 66 (2) and on the registration of such endorsement in theoffice of the Registrar of hands the land shall re vest- in the proprietoras though such sale had never been made. Section 6S provides for are-sale of the land to a third part3‘ by a similar endorsement and it isimportant to note that on such an endorsement being registered in thooffice of the Registrar of Lands what is declared to vest- in the purchaseris the right-, title and interest which would have been acquired b3"him if hehad purchased the land at the original sale. These provisions indicatethat in the case of a sale of the land in the first instance to a purchaserother than the Crown onl3' the right, title and interest to and in the land
(free of nil encumbrances) are transmitted, whereas in the case of a saleto tho Crown the land itself vests in the Crown absolutely and free of allencumbrances.
In my opinion, as long as the title to the lands in suit remains vested inthe Crown all previous titles must be regarded as wholly extinguished,or suspended, by operation of law, and a new title created in the Crownwhich is good against all persons. Tho position appears to bo no differentfrom a decreo for partition of land which, it was held in Rcrnard v. Fer-nando 1, creates a new title in tho parties and which, though unregistered,prevailed over a subsequent registered conveyance by which one of theco-owners sold his undivided interests in the land prior to partition.
The appeal is, therefore, dismissed with costs.
Sinn'etamby, J.—I agree.
Appeal dismissed: