020-NLR-NLR-V-61-A.-M.-LAIRIS-APPU-et-al-Appellants-and-E.-N.-TENNAKOON-KUMARIHAMY-Respondent.pdf
97
BASNAYAKE, C.J.—Lairis Appu v. Tennakoon Kumarihamy
1953Present : Basnayake, C.J., and Sinnetamby, 3,
M. LAIRIS APPU et al., Appellants, and E. N. TENNAKOON
KUMARIHAMY, Respondent
S. C. 260 and 261—D. C. Kurunegala, 7915(L
Registration of Documents Ordinance {Cap. 101)—Prior registration—Will—Disposi-tions made thereunder—Effect thereon of non-registration of the will—Competingdeeds—Must they be traced to same source ?—Sections 6, 7 (1) (2) (4), 8 (b), 10,26.
The effect of section. 10 (1) of the Registration of Documents Ordinance isthat a disposition by will by a testator cannot be defeated by a transfer made byan heir on the basis of an inheritance by intestacy, merely by virtue of theprior registration of the latter instrument.
Quaere, whether the priority created by section 7 (1) of the Registration ofDocuments Ordinance attaches only to a competing deed from the same source.
J^.PPEAL from a judgment of the District Court, Kurunegala.
S. V. Perera, Q. G., with N. E. Weerasooria, Q.G., and W. D. Gunasehera,for 1st Defendant-Appellant in S. C. 260 and for 2nd and 3rd Defendants-Appellants in S. C. 261.
E. <?. Wilcramanayake,Q.C., with H. W. Jayewardene, Q.C.,
P. Banasinghe and K. Shiny a, for Plaintiff-Respondent in both appeals.
Cur. adv, mitt.
November 28, 1958. Baseayaee, C.J.—
This is an action for declaration of title to a land called Kandubodahena,2 acres 1 rood and 24 perches in extent, with the building thereon, forejectment of the 1st defendant-appellant (hereinafter referred to as theappellant) therefrom and for damages. The 2nd and 3rd defendants arepersons to whom the appellant had mortgaged the land in dispute.
Tennakoon Dissawe by deed No. 5843 of 29th June 1919 (PI) the ori-ginal of which has not been produced, gifted this land and several otherlands to his son Charles Wilmot Tennakoon. The copy of the deedwhich is in Sinhalese has not been translated in full. The operative partsof the translation read :—
“ I the said Charles Edward Tennakoon Ratemahatmaya for andin consideration of the natural love and affection which I have andhear unto my loving son, Kandegedera Wijesundera Guneratne Ten-nakoon Herath Mudiyanse Ralahamillage Charles Wilmot TennakoonBandara Mahatmaya and for diverse other good causes and consider-ations, me hereunto moving, do hereby give grant convey make ovey
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JiASHATTAKE, C.J.—Lavris Ajypu «. Tennakoon K.%tmarihamy
and confirm unto him the said Kandegedera Wijesundera GuneratneTennakoon Herath Mudiyanse Ralahamillage Charles Wilmot Tenna-koon Bandara Mahatmaya as a GIFT OR DONATION subject to mylife interest and also subject to the revocation of these presents. Pro-vided however that the said donee shall not sell, mortgage, gift, pledgeas security or in any wise alienate the said premises or lease for a termbeyond four years at a time or execute any subsequent leases thereforbefore the expiration of the period of a previous lease but he shall onljrhold and possess the same during his life time, and after his deaththe same shall devolve on his two children, who are now alive, and whoare my grand-children, namely, Kandegedara Wijesundera GuneratneTennakoon Herath Mudiyanse Halahamillage Nandawathie EnidTennakoon Humarihamy and—do—Charles Ennoruwe TennakoonBandara Mahatmaya and also on any other lawful child or children inequal shares who may be born to my said son, Charles Wilmot Tenna-koon Bandara Mahatmaya and they are hereby empowered to holdand possess the said premises at their will and pleasure.”
The gift was not accepted either by the donee or by the fidei commis-saries and is not registered. Tennakoon Dissawe died in 1932. Beforehe died, by deed No. 55586 of 1930 (P2), he revoked the deed of gift(PI) in respect of some of the lands in it; but that revocation didnot affect the land in dispute. By deed No. 2079 attested by D. N.Weeratunga, Notary Public, on 19th December 1944 (P10) CharlesWilmot Tennakoon leased for a period of ten years commencing on 1stJanuary 1945 the land in dispute to the 1st defendant and on 12thApril 1945 the former by deed No. 3014 attested by D. N. Wlratunga(D3) sold the land to the latter for a sum of Rs. 10,000. The executionof both P10 and D3 are contrary to the prohibition contained in PI.The title recited in D3 is not Pi but right of paternal inheritance fromhis deceased father Tennakoon Dissawe. Both the deed of lease and thedeed of transfer are duly registered.
Tennakoon Dissawe left a last will No. 55867 of 1930 (P14) by whichhe devised and bequeathed the land in dispute and other lands to thetwo children of Charles Wilmot Tennakoon, viz., Charles Ennoruwe Ten-nakoon and Enid Nandawathie Tennakoon, the plaintiff. The will wasproved in D. C. ELurunegala Case No. 4066 and the estate was administeredby Eva Tennakoon wife of Wilmot Tennakoon. Probate of the willwas granted in June 1935. By deed No. 2823 of 1945 (Pll) the plaintiffand her brother divided the inheritance and in the division the plaintiffreceived the land in dispute. Wilmot Tennakoon died on 21st May 1951.
The plaintiff bases her claim on both the deed of gift PI and the lastwillP14. Learned counsel did not press his objection to the validity of thedeed PI on the ground that the gift was not accepted although it wasraised in the petition of appeal. I shall therefore proceed on the assump-tion that PI is a valid deed of gift.
The appellant’s claim to the land by virtue of the prior due registrationof his deed D3 was the sole ground urged in appeal. The deed of gift PIand the last will P14 are not duly registered while D3 the transfer in
BASNAYAKE. C.J.—Lairis Appu v. Tennakoan Kamarihamy
99
favour of the appellant is. The material portions of section 7 of theRegistration of Documents Ordinance on which the appellant reliesread—
“ 7. (1) An instrument executed or made on or after the first day ofJanuary, eighteen hundred and sixty-four, whether before or afterthe commencement of this Ordinance shall, unless it is duly registeredunder this Chapter, or, if the land has come within the operation of theLand Registration Ordinance, 1877, in the books mentioned in section26 of that Ordinance, be void as against all parties claiming an adverseinterest thereto on valuable consideration by virtue of any subsequentinstrument which is duly registered under this Chapter, or, if the landhas come within the operation of the Land Registration Ordinance,1877, in the books mentioned in section 26 of that Ordinance.
*' (2) But fraud or collusion in obtaining such subsequent instrumentor in securing the prioy registration thereof shall defeat the priority ofthe person claiming thereunder.
f ‘(4) Registration of an instrument under this Chapter shall notcure any defect in the instrument or confer upon it any effect orvalidity which it would not otherwise have except the priorityconferred on it by this section.”
The learned District Judge while holding that the 1st defendant’sdeed D3 was duly registered has held that fraud in obtaining it hasdefeated his priority. In arriving at this conclusion the learned DistrictJudge appears to have been influenced by the fact that the appellanthad been fined for making false income tax returns and also by theimpression he had formed in the course of the trial that the appellant was” an astute and clever man who does not appear to be over scrupulousabout the means by which he could amass lands and money”. Healso formed the view that the appellant had taken undue advantage ofWiimot Tennakoon’s desire to sell the land as he was “ sorely in needof money for his drinks ”.
For the purpose of bringing a deed within the ambit of section 7 (2)it is not sufficient to establish that the person who obtained the deed wasan unscrupulous person who would take undue advantage of any situationfor the purpose of gain or that he had been punished for evasion ofrevenue laws or that he had committed fraud on previous occasions.Fraud or collusion in obtaining the particular deed in question must beestablished. It is contended on his behalf that neither fraud nor col-lusion has been established. I have in my judgment in S. C. 688, D. C.Tangalla L. 393, delivered on 13th November, 1968,2 dealt with themeaning of fraud and collusion in this context. Learned counsel’s con-tention that fraud or collusion within the meaning and content of thoseexpressions in section 7 (2) has not been established is in my view correctand must be upheld.
It was urged on behalf of the respondents that the priority created bysection 7 (1) attaches only to a competing deed from the same source.Reliance was placed on the case of James v. Carolis1. I shall discuss thiscase after I have examined section 7.
1 (1914) 17 N. L. It. 7$ at 81.
* (1958) 60 N. L. R. 409.
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BAS5TAYAKE, C. J.—Lairia Appu v. Tennakaon Kumarihamy
That section contemplates the existence of two instruments affectingthe same land, one prior and the other subsequent, the subsequentinstrument being duly registered under the Ordinance and the prior instru-ment either not registered at all or registered after the subsequent instru-ment. The prior mMriimehb is declared to be void as against all partiesclaiming an adverse interest to the land by virtue of the subsequentinstrument.
It is clear from the section that it does not give to a person with asubsequent prior registered instrument a right or title which his instrumentdoes not confer on Mm. The effect of the sub-section (l)isto render voidthe unregistered or subsequently registered instrument as against allparties claiming an adverse interest to the land. Sub-section (4) seeks toemphasise this aspect of sub-section (1) by providing that registration ofan instrument shall not cure any defect or validity or confer upon it anyeffect or validity which it would not otherwise have except the priorityconferred by the section.
In the instant case the appellant claims that in regard to the landin dispute PI is void as against him as he is claiming an adverse interestin the land by virtue of the subsequent instrument D3 wMch is dulyregistered. The expression “ void ” means of no effect in law, having nolegal force, wholly ineffectual in law. The effect of the section is that asfar as the plaintiff’s claim is based on Pi she cannot be regarded as havingany rights to the land based on it as against the appellant. The plaintiff’srights as against the appellant in respect of the land in dispute will haveto be determined as if PI did not exist at all. The plaintiff cannottherefore rely on any rights flowing from it. The next document theplaintiff relies on is the will P14. That instrument is also not registered.Is that also void as against the appellant in respect of his claim to theland in dispute ? The answer to this question lies in section 10. Itprovides as follows :—
“ 10. (1) A will shall not, as against a disposition by any heir of thetestator of land affected by the will, be deemed to be void or lose anypriority or effect by reason only that at the date of the disposition bythe heir the will was not registered under this Chapter.
“( 2) This section applies whether the testator died beforeor after the commencement of this Ordinance, but does not apply—
(а)where the disposition by the heir was executed before thecommencement of this Ordinance ; or
(б)where, at the time of the disposition by the heir, being not lessthan one year after the death of the testator, letters of administrationto the estate of the testator have been granted on the footing that hedied intestate.”
The effect of the section is that PI 4 though not registered is not deemedto be void as against the disposition D3 by Wihnot Tennakoon by reasonof the fact that at the date of D3 the will was not registered. The effectof P14 wMch by virtue of section 10 is not void as against the appellantis that it deprived Wilmot Tennakoon of any right to the land in disput e
BASNAYAKE, C.J.—Lairis Appu v. Tennakoon Kitmarihamy
101
At the time he executed"D3 and claimed that he was entitled to the landby right of paternal inheritance he had no such right and D3 conveyed noright or title to the appellant.
The will P14 in effect revokes the gift PI. They cannot co-exist.Tennakoon Dissawe, being a Kandyan, was entitled to revoke his gift.In fact when Wilmot Tennakoon executed D3 he seems to have acted onthe footing that PI did not exist for he recited his title as based on rightof paternal inheritance, Tennakoon Dissawe his father being dead at thetime.
Before I part with this judgment I should like to refer to the argumentof learned counsel for the respondent that section 7 (1) applies only todeeds from the same source. The argument is based on the ease ofJames v. Carolis (swpra).
It is not clear why it is necessary to introduce into section 7 (I) theconcept of two conveyances proceeding from the same source. There isnothing in section 7 (1) that requires that there should be read into it morethan what it plainly states. Nor can I see anything in Warburton v.Loveland3 which authorises such a rendering of our section of the Regis-tration Ordinance. The statutory provisions the House of Lords wascalled upon to interpret in that ease are widely different from section 7.I think we should interpret our statute without being influenced by themeaning put upon a statute dealing with the same subject in anothersystem of law. The principles that should be applied in a case such asthis are stated in Warburton’s case thus :—
“ No ease can be found either upon the English Registry Acts, orupon the Irish Act now under consideration, in which this precise ques-tion has been decided by a Court of Law. It must therefore be deter-mined upon principle, not upon authority; and the only principle ofdecision that is applicable to it is the fair construction of the statuteitself, to be made out by a careful examination of the terms in whichit is framed, and by a reference in all cases where a doubt arises to theobject which the Legislature had in view when the statute was passed.Where the language of the Act is clear and explicit, we must giveeffect to it, whatever may be the consequences ; for in that case thewords of the statute speak the intention of the Legislature.”
Before I proceed to discuss this aspect of section 7 I shall examine thecase of Warburton v. Loveland (supra). The facts of that case as stated inthe headnote to the report are as follows:—
“ A term of 399 years, in certain lands in Ireland, being vested in
for life, with the' residue in his daughter, a settlement is made onthe intermarriage of the daughter and W., by which the whole termsis conveyed to trustees, on trust to pay the rents and profits to B. thefather for life, then to W. the husband for life, then to the daughterfor life, if she survived him, and afterwards to convey the term to thefirst son. This settlement is not registered. On the death of B. the
* 2 Dow. & Clark 480, 6 13. S. 80S.
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BASNAYATCE, C.J.—hairis Appu v. Tennakoon Kumarihamy
fatter, W. the husband, demises the whole term for valuable considera-tion to El., and the indenture is duly registered, and K. afterwardsassigns for like consideration his lease of the term to I.”
It was held that—
“ the registered indenture shall prevail over the unregistered settle-ment, and -that the title of the assignee of the lease is to be preferred tothat of the widow of W-, and of the trustees under the settlement;and that this is so whether the assignment from K. to I. was registeredor not, for the unregistered assignment would pass the interest as bet-ween the lessee and assignee, and there is no conflicting claimant undera registered deed.
It was also stated that that construction of the Irish Registry Act,6 Anne c.2, holds good whether the party executing the prior secret con-veyance, and the subsequent registered deed, be the same party or not.
The provision of law the Blouse of Lords was called upon to construein that ease was the fifth section of the Irish Register Act. While dis-cussing the fifth section the House of Lords had also to deal with an-argument based on the fourth section which it was urged should he readwith the fifth. The portions of the fourth and fifth sections reproducedin the judgment read—
Fourth Section.— “ that every such deed or conveyance a memorialwhereof shall he duly registered, shall he deemed and taken as goodand effectual both in law and equity, according to the priority of timeof registering such memorial, according to the right, title and interestof the person or persons so conveying such honours, etc., against alland every other deed, conveyance or disposition of the honours, etc.,comprised or contained in any such memorial as aforesaid.”
Fifth Section.—“ Every deed or conveyance not registered of all orany of the honours, etc., comprised or contained in such a deed orconveyance, a memorial whereof shall be registered in pursuance of thisAct, shall he deemed and adjudged as fraudulent and void, not onlyagainst such a deed or conveyance registered as aforesaid, hut likewiseagainst all and every creditor and creditors, by judgment, recognizance,statute merchant or of the staple, confessed, acknowledged or enteredinto as for or concerning all or any of the honours etc. contained orexpressed in such memorial registered as aforesaid.”
The question that arose for decision in Wartnirton’s case is thus set outin the judgment—
“ The question appears to turn almost entirely on the construction■of the fifth section of the statute, which declares in what cases, andunder what circumstances, an unregistered deed shall he void. Eoras to the fourth section, to which considerable importance has beenattached in the course of the argument, it appears to us to he confinedto the case of priority of registered deeds as between themselves, and tohave very little, if any, bearing upon the question immediately underdiscussion … ”
BASTSTAYAKE, C.J".—Lairis Appu v. Tennakoon JCvmarihamy
103
“ But it is contended by the plaintiff in error, that the operation ofthe Irish Registry Act extends no further, but it is confined to casesin which both the earlier and the subsequent conveyances are deedsof the same grantor ; and whether such is the case, or on the contrarythe Act extends to give a preference to the subsequent deed whenregistered against the prior unregistered deed, notwithstanding thesame was executed by a former owner of the estate, is, in substance,the question now proposed for our consideration.”
It was held that the application of the section was not confined to theease of two conveyances by the same grantor.
After discussing the preamble to the Act and the first five sections theHouse of Lords summed up its opinion thus—
“ From this general view, therefore, both of the preamble and of thefive first clauses of the statute, we think it cannot be doubted but thatthe statute meant to afford an effectual remedy against the mischiefarising to purchasers for a valuable consideration from the subsequentdiscovery of secret or concealed conveyances, or secret or concealedcharges upon the estate. Now it is obvious that no more effectualremedy can be devised than by requiring that every deed by whichany interests in lands or tenements is transferred, or any charge createdthereon, shall be put upon the register, under the peril that if it is notfound thereon, the subsequent purchaser for a valuable consideration,and without notice, shall gain the priority over the former conveyanceby the earlier registration of his subsequent deed.”
With the greatest respect I wish to say that I can find nothing inWarburton’s case which requires that the competing deeds must proceedfrom the same source. The sections of the Irish statute and the wholescheme of that statute are different from the provisions of our Ordinanceand its scheme. Under our Ordinance whether the competing deedsbe from the same source or not if they relate to the same land the unre-gistered deed is void as against all parties claiming an adverse interestthereto under the subsequent registered instrument. But that does not-confer title cm the subsequent grantee if his grantor had none. Sub-section (4) makes this clear. Prior registration under our law does notconfer title on the holder of the prior registered subsequent instrument.The right or title of the instrument holder depends on the right or title-of the grantor.
In the instant case as Tennakoon Dissawe. had by will bequeathed theland in question to Wilmot Tennakoon’s son and daughter, Wilmot hadno title to the land after the death of his father in 1932 and his deedT)3 of 1945 passed no title to the appellant.
It is not established that Wilmot Tennakoon possessed this landbefore or even after the death of his father. The rente were collectedby his wife who managed her father-in-law’s property. There is thereforeixo evidence that Wilmot Tennakoon acquired a right to a decree under
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SUHN-ETAM .BX, J.—La-iris A.ppu v. Tennahoon Rurrtarihamy
section 3 of the Prescription Ordinance in his favour. In fact the claimbased on possession though formally raised in the appellant’s answer doesnot appear to have been pressed at the trial as the learned trial Judge has-held that the question of prescriptive rights of parties does not arise.Per the above reasons–the–appeal ©f-the 1st defendant-appellant isdismissed with costs.
The mortgagees who are the 2nd and 3rd defendants have also appealed.Their case is inextricably bound with that of the 1st defendant-appellanttheir mortgagor. As the 1st defendant’s appeal has failed their appealmust suffer the same fate. Their appeal is also accordingly dismissedwith costs.
SnrasTBTAMBX, J.—
The facts of this case relevant to the appeal may shortly be stated asfollows : One Tennekoon Dissawe was the original owner of the landwhich forms the subject matter of this suit. By deed No. 5483 of 29thJune, 1919, PI, he donated the land in question and other lands to hisson, Wilmot Tennekoon, subject to a fidei commissum in favour of WilmotTennekooa’s two children, viz., the plaintiff and Charles, and subject toa life interest in himself. This deed was not registered. TennekoonDissawe died in 1932 leaving a last will, P14, dated 27th October, 1930,by which he left infer alia all his residuary estate, movable and immovable,which would include the premises in suit, to the plaintiff and Charles.The will was admitted to probate but not registered. The plaintiffand Charles amicably divided their common properties between them-selves and the land in question was by that division allotted to theplaintiff.
Wilmot Tennekoon by deed No. 3014 of 12th April, 1945, D3, claimingto be entitled by right of paternal inheritance from his deceased father,transferred the land in suit to the first defendant. This was duly regis-tered on 19th April, 1945. Wilmot Tennekoon thus derived only adefeasible title to the land in dispute by the unregistered deed, PI. Hewas left no property under Tennekoon Dissawe’s last will, P14, Themain question that arises for decision is whether by the due registrationof D3 the first defendant obtained a good and valid title as against thefidei commissaries designated in the deed PI. In my opinion the entirecase can be disposed of by the answer to this question. The learnedDistrict Judge without discussing the question held that D3 was entitledto prevail over PI hut went on to bold that there was fraud and collusionin seeming the registration of the deed. The present appeal has beenpreferred by the defendant against this finding.
Although under the Registration Ordinance there is no express provi-sion that competing documents must be traced to the same source for thepriority created by section 7 of the Ordinance to operate, it is well
SEXXETA3EBY, J".—JL^zirzs jLppu v. Te&nakaan J&cmarzkamtf
105
recognised, that rbi* must necessarily be so. As Sampayo, J. observed inJcsrms v. Carolis 1—
“ There Is no question that under the lav relating to registration,the eocipetmg- deeds must proceed from the same souree, nor, on theother band is there any question that they need not be granted by thesame person.”
In that case the competing deeds were one executed by the ownerduring bis lifetime and the other by bis heir after bis death.
Our Begistratkjn Ordinance (Cap. 101} provides for the registration ofdocuments and not for the registration of titles. If it had been thelatter then from whatever source the title was derived registration byitself would give title to the transferee. When, however, provision is madeonly for the registration of documents of title the object, in its simplestform, is to safeguard a purchaser from a fraud that may be committedcn Trim by the concealment or suppression of an earlier deed by bisvraidor. The effect of registration is to give the transferee whatever titlethe vendor had prior to the execution of the earlier unregistered deeds.This was the principle enunciated in Warimrtcm v. Loveland a whichwas adopted and followed in James v. GaroHs (supra). Jt does notgiv b brrer a title which is in any way better than the title the vendor had.Thus if his vendor had no title the vendee by mere registration wouldget none at all and if the vendor had a defeasible title he would get onlya defeasible title. Indeed, section 7 (4) expressly states that registrationof an instrument does not confer on it any effect or validity it would,not otherwise have except priority. This, I venture to think, is how theprinciple of ce the same source ” originated in the application of the-Registration Ordinance to competing documents.
In the present case we have a deed of Tennekoon Dissawe which,subject to the fiduciary rights of Wilmofc Tennekoon, vested title in“the plaintiff (Pi) and a deed by Wiimot Tennekoon reciting title byinheritance convey mg the same property absolutely to the defendants(D3J. If the recital in the deed B3 of VVihnot Teimekoon’s title is correct-there can be no doubt but that the competing deeds proceed from the samesource and D3 would by virtue of prior- registration prevail over PI.Tennekoon Dissawe would be the source and one channel through whichtitle devolves would be by inheritance to WHmot Tennekoon and thenceby D3 to the first defendant, while the other channel would be by PI toWiimot Tennekoon and thence to the plaintiff. The title by inheritancewould be an absolute title and that by PI a defeasible title. By priorregistration of D3 the title which devolved by inheritance would prevailora: the title created by the unregistered deed PI. This 13 whathappened in James s. Carolis (supra) and in JJ& Silva v. W^agapadigedera s.
Hr. 31 V. Perera who appeared for the appellants relied strongly on theease cf Fonseba v. Fernando -. In that ease the plaintiff Ponseka was
1 :i3Z4>; I? -3T- £- n. 81,3 ' 1929} 3S XX X. S. 317.
– 11831] 2 Dow. & Clark 439.* {1912) IS XT. L. S. 49J.
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RTN~NTF.T ATffRTj J.—Lairis A.ppa v. Tennahoon Kurnariharny
entitled under the 'will of his father Manuel de Ponseka to an annuity ofRs. 480 a year. S. R. de Ponseka -was the residuary legatee under thesame -will and he by a duly registered deed transferred a land whichformed part of the residuary estate to the defendant Pemando. Theplaintiff instituted the action for a declaration that the land which thedefendant purchased was bound and executable for the payment of hisannuity of Rs. 480 on the basis that he had a tacit hypothec over theresiduary estate of the deceased Manuel de Ponseka for the payment of theannuity. Probate of the will was not registered and the Supreme Courtheld that the tacit hypothec was void as against the defendant’s deedby. reason of the registration of this deed and the non-registration ofprobate.
Mr. Perera argued that in Fcmseka v. Fernando (supra) although thetitle the defendant vendor had was subject to the hypothec, nevertheless,the registration of the defendant’s deed gave the defendant absolute titlebecause of the non-registration of probate. On a parity of reasoninghe contended that although Wilmot Tennekoon had only a defeasibletitle in PI by registration of 03 the defendant obtained absolute titleas against the fidei commissaries whose rights were based on the unre-gistered deed PI.
It seems to me that in Fonseka v. Fernando (supra) the question ofwhether competing instruments were from the same source was not givendue consideration. The main argument in the case centred on twoquestions, viz., whether the interests claimed were adverse and whetherprobate of a will is a registrable instrument or not. The decision of theSupreme Court was based on the answer to these questions and sufficientattention does not appear to have been focussed on the question of whe-ther the vendor to the defendant could have conveyed a better title thanthe vendor himself at any stage had. Indeed it would appear that thisaspect of the matter was not considered at all. Some argument no doubtwas addressed to the Court to the effect that if the will is void it woulddestroy the very foundation on which the defendant’s title was based-This contention the Court answered by declaring that the title was voidonly quo ad the adverse interest claimed by the defendant. It is notknown whether S. R. de Ponseka who conveyed to the defendant was alsoan heir on the basis of intestacy of Manuel de Ponseka. In that event hewould certainly have conveyed absolute title in respect of the share hewould then have inherited and the defendant would have obtained goodtitle to that share by virtue of prior registration of his deed.
In the present case it seems to me to he impossible to hold that thedefendant got absolute title if his vendor’s rights are confined to theinterests he derived from PI. Reamed Queen’s Counsel who appeared for
SINNETAMBIT, J.—Lairis Appu v. Tennakoon Kwmarihamy
107
the defendant at the trial in the original Court appn ently realised this forhe raised an issue numbered 10 to the following effect :—
Issue 10.—Was the said Wilmot Tennekoon the sole heir of the said
E. Tennekoon Dissawe ?
meaning thereby intestate heir and when it transpired in the oonrse ofevidence that Tennekoon Dissawe left a will which was admitted toprobate but not registered he framed issues 17,18 and 19 which are asfollows :—
Issue 17.—Was the probate of the Last Will of Charles WilmotTennekoon duly registered ?
Issue 18.—If not, does any title pass thereunder to the plaintiffor any devisee under the will ?
Issue 19.—Is the first defendant’s deed No. 3014 entitled to prevailover the plaintiff’s title, if any, under the Last Will by reason of dueand prior registration ?
If no will had been left and if Wilmot Tennekoon was the sole heir thereis no doubt that D3 would prevail over PI on the authority of the SupremeCourt decision in de Silva v. Wagapadigedera {supra). Does the fact thatTennekoon Dissawe left a will which was admitted to probate make anydifference ? In this connection it is relevant to note that OrdinanceNo. 23 of 1927 effected a change in the law as it stood at the time of thedecision in Fonseka v. Fernando. Cap. 101 of the Legislative Enactments(Vol. 3) embodies the main provisions of Ordinance No. 23 of 1927 asamended subsequently in regard to certain minor particulars.
Section 8 (5), which is the provision that applies to the facts of thiscase as Tennekoon Dissawe’s will was made after the enactment ofof Ordinance No. 23 of 1927, read with section 6 makes a will a registrableinstrument under the Ordinance. It is to be noted that Probates are nolonger registrable and to that extent the decisions in Fonseka v. Fernando{supra) and Fonseka v. Comelis 1 have "been superseded. The amend-ments incorporated in section 8 makes the will registrable but the effect'of the proviso to section 26 of Gap. 101 is that a will cannot be presentedfor registration unless it has been admitted to probate and is accompaniedby the probate or letters of administration to which the will has beenannexed. The result is much the same but now it is the last will and not-the probate that is required to be registered.
Section 10 of Cap. 101 is a new provision specially enacted to overcome-the difficulty created by the decision in Fonseka v. Comelis {supra)-.and envisaged by Sampayo, J. in the course of his judgment in that case—vide statement of Objects and Reasons annexed to the Bill when it was
1 (1917YJ0 N* L. B. 97.
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SrPnSTET ATWBY, J.—Lairis A.japw v. TennaJcoon K.-umarihamy
first introduced in the Legislative Council and which is reproducedin Volume 9 Law Recorder 9 of May, 1928, at page 69. As the law thenstood an heir was able to defeat the intention of the deceased testator bytransferring the deceased’s property for consideration to an outsider andgetting the transfer deed registered before registration, or even grant,of the probate. Section 10 (1) provides that—
“ A will shall not, as against a disposition by an heir of the testatorof land affected by the will, be deemed to be void or lose any priorityor effect by reason only that at the date of the disposition by the heir,the will was not registered under this Chapter.”
The effect of this provision, therefore, is that a disposition by a testatorcannot be defeated by a transfer made by an heir merely by virtue of theprior registration of the latter instrument. Tennefcoon XHssawe had lefta last will devising his property to the plaintiff and Charles and thisbequest could not be defeated by the intestate heir Wilmot Tennekoontransferring the property in question to the first defendant on the basisof an inheritance by intestacy from Tennekoon XHssawe. Issues 17, 18and 19 must accordingly have been answered against the first defendant.The resulting position would no doubt have been quite different if Tenne-koon Dissawe bad left no will. The non-registration of last will PI 4does not affect the dispositions made by that last will and the first defen-dant would get no title merely by registration of his deed T>3. Whateverrights he got under D3 must be confined to the fiduciary interests WilmotTennekoon had under PI. On the death of Wilmot Tennekoon theserights ceased to exist and his claim to the property in dispute musttherefore fail.
In view of the opinion I have formed on the question of registrationI do not consider it necessary to go into the question of whether therehas been fraud and collusion in securing registration of deed 1)3. I wouldaccordingly dismiss the appeal with costs.
Since writing the above I have seen the judgment prepared by MyLord the Chief Justice. I do not see much difference between the viewshe has expressed and mine. Though he has expressed the view that underour- Ordinance whether the competing deeds be from the same source ornot the unregistered deed is void as against the subsequent deed he hasfurther qualified it by stating that a subsequent grantee from a strangerwould get no better title if his grantor had none. The effect is that inactual practice the subsequent grantee’s deed will prevail over the priordeed by virtue of prior registration only if it is from the same source : ifthe competing documents are from two diflerent sources the rights ofthe grantees would depend on the title of the grantors and not onregistration.
Appeal dismissed.