015-NLR-NLR-V-59-D.-A.-GABRIEL-PERERA-Appellant-and-H.-P.-P.-CHANDRASEKERA-et-al.-Respondent.pdf
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PUJ-tLE, «T»—Perera v. Chandrasekera
1956Present:. Qunasekara, J., and Pulle, J. – . '! –
D. A. GABRIEL PERERA, Appellant, and H. P. P. CHAISTDR ASEKERA•el al., Respondents'
':S. G. 211—D. C. Gam-palm, 864jP
Execution of decree—Seizure oj immovable -properly—Failure to, register notice ofseizure—Private sale oj seized property by judgment debtor—Validity as againstsubsequent conveyance by Fiscal to execution purchaser—Civil Procedure Code,238, 289, 291.-•’
. Where immovable property is seized in oxecution of a decree, failure to registerthe notico of seizure in terms of section 238 of the Civil Procedure Code willcause a subsequent private sale of.that property by tho judgment debtor toprevail against a conveyance executed lator by the Fiscal in favour of tho exe-
1 cution purchaser, oven though, prior to the date of the Fiscal’s conveyance,the purchaser at tho oxecution sale had sold the same property to a third partyand repurchased it from him and the sale to tho third party and the repurchasewore duly registered prior to tho date of the private alienation by the judgmentdebtor. In such a case, the provisions of soction 2S9 of the Civil ProcoduroCode cannot avail the oxecution purchasor to claim title to tho property as againstthe private alienee.•-
^^PPEAL from a judgment of the District Court, Gampaka. '
H. W. Jayewardene, Q.G., with J. M. Jctyamanne., for the 1st defendant-• appellant.
G. Weeramantry, for the 2nd and 11th defendants-respondents.
‘.•'Our. adv. vidt. ’
June 13, 1956. Polle, J.—-
The question which arises for determination in this appeal is whethera share (1/2 of ll/12ths) of the property sought to be partitioned, which. once belonged to one Eusenia Pieris, has devolved on the plaintiff andthe 2nd and 11th defendants as found by the learned District Judge or-ou the 1st defendant who is the appellant. ‘The facts are not in dispute.
In execution of a decree in D. C. ChilawCase No. 10,SSI against Eusenia. Pieris her right, title and interest in the property was sold by the Fiscalon 2nd June, 1939, and was purchased by one Jeramanu Perera. Thesale was confirmed on 3rd November, 1939. In 1942 Jeramanu Perera,who had hot then obtained a Fiscal’s conveyance, by deed P18 purportedto sell an'undivided 1/2 of ll/12ths of the land and in 1943 the vendeeon P18 reconveyed the share to Jeramanu Perera by deed PI 9. JeramanuPerera died thereafter leaving as his heirs his widow the 2nd defendantand two children the plaintiff and the 11th defendant.' The plaintiff,as the administrator of the estate of his fa'ther,‘applied f<? the court inwhich writ of execution was laken out against Eusenia Pieris for an orderon the Fiscal to issue a conveyance to him in his capacity of administrator.
On this application the. Fiscal executed a convej-ance in favour of thoplrintifif by P20 of 1951. ’ -………
■rUI-LE, J. — Pcrcra c. Chaiulra-schcro'it
The claim of the 1st defendant is based on a deed, 1 .Do of 1946, by■which Eusenia Pieris’s mother and a brother and sister, as her solesurviving heirs, sold 1/2 of ll/12ths of the land to the 1st defendant.
The dispute between the parties centres round the fact that the seizureof the share of Eusenia Pieris was not registered before the.execution of1 Do of I9IG or at any time whatever. The submission on behalf of the1st defendant is that the failure to register is decisive of the case in hisfavour. Learned Counsel for the respondents, the heirs of JeramanuPerera, concedes that a Fiscal’s conveyance of a property, the seizure of■which had not been registered, would not generally prevail against aprior deed of sale of the property, but submits that, in view of the contentsof the two deeds PIS and PL9 referred to earlier by which JeramanuPerera sold and re-purehased the interests of Eusenia Pieris and of thefact that they were duljr registered, the deed 1 Do was ineffective to .pass title to the 1st defendant.
In the Divisional Bench ease of Hendrick Sing ho v. Kalanis Appu 1De Sampayo, J., dealt with the failure to register a seizure and the con-nexion between sections 23S and 2S9 of the Civil Procedure Code asfollows :
“ Registration of the seizure is a safeguard, on the one hand, onbehalf of the execution creditor who may thus prevent the executionbeing rendered nugatory by a private alienation, and, on the otherhand, on behalf of a person who may bona fide deal with the debtorin ignorance of any seizure. If the seizure is not registered, the neces-sary implication of section 23S is that a bona fide private alienee is stall mseenrus. I think that section 2S9, as regards relation back, must beread in the light of section 23S, and its operation should not be extendedto a case where the seizure has not been registered. Section 2S9 is not -intended to override the effect of section 23S, but is a general provisionconnecting the conveyance with the sale and giving to-the purchaserin an appropriate case the advantages of ownership as from the dateof the sale. Having once declared that the title of the debtor was not. divested by the sale until the confir mation of the sale and the executionof the Fiscal’s conveyance, it had necessarily to state what would be■ the result if the sale was confirmed and the conveyance executed. ”
The Divisional Bench case and some of the earlier authorities and thelater case of Leanagunawardene v. Balaliamy 2 were cited to the learnedtrial Judge who took the view that the failure to comply with section 23Sby registering the seizure did not deprive the heirs of Jeramanu Pererathe c‘" privileges conferred by the due registration ” and that they wereentitled to rely on any link in the chain of title such as PIS or P19 whichwere obstacles to a claim based on 1 Do of 1916. I am unable to secwhat privileges were conferred on Jeramanu Perera by reason of the deedsPIS and P19 being registered. Certainly the registration of PIS or PI9cannot be regarded as compliance with section 23S which contemplatesthe registration of a seizure and not the registration of deeds executedby those not having title at that time. Before P18 or PI9 can be broughtinto the field of competition with 1 Do they must be referable to a common.' {1021) 23 _V. Z,. R. SO.- 1194-5) 46 21. L. R. 463., '
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PUELE, J.-—Percra v. Chandrasekera.
source of ownership, unless by reason of a Fiscal’s conveyance it coulcLbe said that- the grantee was deemed to be vested with tlielegal estatefromthe time of the sale. The crucial question then is whether the Fiscal’sconveyance related back to the date of the sale. It is apparent that.ultimately the competition is between 1 Do the earlier deed in favour of'the 1st defendant and the later Fiscal’s convej'ancc P20. On this viewof the matter it appears to me that the failure to register the seizureresulted in the title to the whole of Eusenia Perera’s interests passing tothe 1st defendant unaffected by the execution proceedings. In other-words so long as 1 D5 was not void its effect was to derogate from any.legal estate that could have passed to the purchaser or his representatives-under the Fiscal’s conveyance.
One of the submissions outlined in the argument in the court belowbut not dealt with in the judgment was pressed before us. It is based,on a passage in the judgment of Bertram, C.J., in Hendrick Singho v.Kalanis Ajrpu x. In dealing with the historj- of section 289 of the Code-the learned Chief Justice noted that even before its enactment the rule-was that the effect of a Fiscal’s conveyance was to vest title as from thedate of sale. He then proceeded to state,■
. Section 2S9, then, was intended to enact a legal principle alread}'in force. Its object was not to qualify or neutralize the change of laweffected by section 238. It had a principle of its own. The principleof section 289 appears to be that after sale and until conveyance the-jndgment debtor and any person holding under him and deriving titlethrough him holds any legal title he may possess in trust for the pur-chaser till the sale, and although until that event he has only an.
‘ equitable ’ estate, yet when once the conveyance is executed, thegrantee is deemed, for the purpose of all rights and transactions thatdepend on his title, to have been vested with his legal estate from thedate of the sale (see Silva v. Hendrick Appu 2). Thus if the purchaserhas made any conveyance in the interim, such a conveyance is deemedto have passed title, even though, at the date of the conveyance, titlehad not actually accrued.”
I think the word ‘ sale ’ which I have underlined above should read‘ conveyance The argument on' behalf of Jeramanu Perera’s heirs issomewhat on these lines. Although Jeramanu Perera had no legal titlein 1942 he had an equitable title in the sense that being the purchaser -at a Fiscal’s sale he was entitled, upon the confirmation of the sale, toa conveyance that would relate back his title to 1939. The deed P18 bywhich Jeramanu Perera in 1942 purported to seU the share in question,was not only registered but it contained a reference to the effect that thevendor held and possessed the property “ by right of purchase upon theFiscal’s receipt bearing No: 94G34 dated 2nd June, 1939, under decreein Case No. 10,8S1 of the District Court of Chilaw The judgmentdebtor, Eusenia Pieris, and those to whom her title was transmitted byinheritance held the property in trust for Jeramanu Perera. At the time:
-1 (1921) 23 iV. L. R. SO.3 (1S95)• 1 H. L. R. 13.
Pl'J.LK, J. — i'crcra r. Clitiwlmxcfccru
of 1st defendant's purchase he had construct ire notice of the Fiscal'ssale by reason of the registration of PIS and even though lie had paid fullvalue he was bound to the same extent as the persons from whom hebought, namely, to hold what he purchased hi trust for Jeramanu Perera’sheirs.. The execution of the Fiscal’s conveyance, therefore, resulted in.Jeramanu Perera’s heirs obtaining a title superior to the 1st defendant's.
I do not think that when the learned Chief Justice stated that the. judg-ment debtor or anyone deriving title through him holds " any legaltitle he may possess in trust for the purchaser " he intended to investhim with the character of a constructive trustee as contemplated by theTrusts Ordinance (Cap. 72). He was attempting to formulate a legaltheory' to explain the precarious nature of the judgment debtor’s titlein the interval between the sale and the execution of the conveyance, evenbefore the Civil Procedure Code was enacted when there was no provisioncorresponding to section 2S9. With all respect I may' state that there isno justification for regarding a judgment debtor as holding his title forthe purchaser because section 2S9 expressly provides how, and the datefrom which, Ins title is extinguished, while the limits of his use and enjoy-ment of the property pending the execution of the conveyance are laiddown in section 291. The statute operates and not a trust.
The rights of a vendee on a sale by' a judgment debtor or his heirs-before the execution of a Fiscal’s conveyance axe governed byr section23S. If the sale was effected after the seizure and registration of thenotice of seizure and while such registration remained in force it was void.
If the seizure was not registered then on facts, not complicated by' theregistration of a document like PIS in the present case, it has been heldthat the sale prevails over a Fiscal’s conveyance executed on a later date.Does the registration of PIS make'a fundamental difference ? I do notthink so. If knowledge alone of a sale in execution on the part of a vendeewould render his conveyance inoperative one would have expected theLegislature to have so provided for it. To contend otherwise would beto regard the registration of PIS as equivalent to the registration of thenotice of seizure. One would not be justified in inventing grounds foravoiding the deed in favour of .the 1st defendant where the purchaserat the sale in execution was not vigilant enough to register the seizure.
– In the court below one of the grounds unsuccessfully' urged by' the 1st-defendant was that the decree in D. C. Chilaw, Case Ho. 10,8S1 was void.The same point has been taken in the petition of appeal but was notpressed.•
In myr opinion the appeal succeeds so that Eusenia Perera’s share will beallotted to the 1st defendant. The 1st- defendant will be entitled to half"the costs of appeal. The order as to costs of the contest in favour of theheirs of Jeramanu Perera will be set aside. The costs of the contest in the ■District Court will be borne by' eac-h party. '•
Cunasekara, J.—I agree.
A j?peal allowed..