RAJAPAKSA v. FERNANDO

063-NLR-NLR-V-20-RAJAPAKSA-v.-FERNANDO.pdf


( 301 )
Present : Ennis J. and Shaw J.
EAJAPAKSA v. FERNANDO.
407—D. C. Kurunegala, 6,369.
Sale by a person who has no title—Subsequent acquisition of title—Exceptio
rei venditae.
Where A without title sells to B, and A subsequently acquirestitle, the title ensures to the benefit of B, without a further deedfrom the vendor.
Don Carolis v. James 1 and Mohammed Bhoy v. Lebbe Maricar3dissented from.
C, when he had no title (in 1909), sold a piece of land to M and S,throughwhomdefendant acquiredtitlein 1915and went into
possession.The deedof1909wasregistered infolioF 68/253.
C obtained a Crown grant in 1912, and the property was sold inexecutionagainsthim, and purchasedin1916 byplaintiff's prede-
cessor in title. The Crown grant was registered in a different folio,without reference to the previous registration.
Held, that defendant's title was superior.
EnnisJ.—C’s salein 1909 createdan equitable right,a right
which,by Roman-Dutchlaw,onconfirmation bysubsequent
acquisition of legal title, gave the purchaser in possession an inde-feasible claim. The instrument of sale was in writing, and theregistration oftheinstrument gave constructivenotice to all
persons-subsequentlydealing withtheproperty.I am therefore
of opinion that byestoppel and registration the defendant was
entitledtosucceed Theearliest registrationof land
determines theplacefor subsequent registration.The plaintiff's
documents have, therefore, not been duly registered. 1
1 (1909) 1 C. L. B. 224.* (1912) 15 N. L. B. 466.
1918.
( 302 )
1918.
Rajapaksa«. Fernando
" A person who ought to search the register must be taken ashaving notice of what he would find there if he did search. Facts
and circumstances that might thus be discovered will then be thesubjectof constructivenotice,andconstructive notice, quiteas
much as actual notice* may afford evidence of fraud or want ofbona fides. "—Hogg.
ShawJ.—I i>^ ofopinionthatthe defendant is entitledto
defend his pna««3sion under the provisions of the common law.
rJ~' HE facts are set out in the judgment.
A. St. V. Jayawardene (with him Samarawickreme}> for appellant.
Bawa, K. G. (with him Drieborg and Cooray), for respondent.
March 6, 1918. Ennis J.—
Cur. adv. wit.
This was an action for declaration of title to land, ejectment,and damages. The plaintiff bases his title on a grant (P 1) datedFebruary 22, 1912, from the Crown to Thomas Carry, whomortgaged the property by bond No. 1,237 (P 2), dated March 23,1915, to Suppramaniam Chetty, who put the bond in suit. Theproperty was sold under the orders of the Court and purchased byA. W. Perera, to whom it was conveyed by document No. 1,700(P 6) on July 10, 1916. The next day A. W. Perera conveyedit to the plaintiff by document No. 1,701 (P. 7).
The defendant is in possession of the property as part of Medagodaestate, purchased in 1909 from Thomas Carry by H. L. de Mel andW. Eae Sands. De Mel conveyed an undivided half share to oneWills on April 27, 1912, and W. Eae Sands conveyed his half to hiswife Mary Sands on February 22, 1912. Wills and Maiy Sandsconveyed on November 13, 1915, to the defendant.
The learned Judge decided in favour of the defendant, and theplaintiff appeals.
It appears (D 7) that Thomas Carry, in 1897, purchased from theCrown an allotment of land called Medagodamukalana, depictedon the plan attached to the grant. At various times, from 1899 to1904, he purchased from villagers their holdings in the lands to theeast of Medagodamukalana and planted these with rubber. OnDecember 11, 1909, he executed a conveyance (D 2) No. 4,602 toDe Mel and Eae Sands of -the estate known as Medagoda. Theschedule described the estate as consisting of Medagodamukalana(t.e., the land purchased from the Crown on D 7) and twenty otherallotments of land, “ which adjoin each other and now form oneproperty, and which from their situation as respects each other canbe included in one survey.”
This property, excluding two of the twenty allotments, which wereapart from the rest, was registered as one property in folio F 68/253,and cross references to the folios in which the separate allotments had
( 303 )
been previously registered were given. The extract of incumbrancesrelating to this property is D 9. De Mel and Rae Sands entered intopossession of the property, which De Mel caused to be surveyed.His survey plan is D 3 dated March 23, 1912. It appears that atthe time of the sale Thomas Carry gave De Mel the plan D 1 datedApril 6, 1906, as the plan of Medagoda estate. These plans andMr. de Mel's evidence make it clear that the property now claimedby the plaintiff is a portion of Medagoda estate to the east of theportion purchased from the Crown in 1897. It is . the portionpurchased by Thomas Carry from the villagers and planted by himwith rubber.
It wTas argued that the defendant’s deed had not been duly regis-tered, as the land had not been accurately described. The extractof incumbrances (D 9) gives a very full description of the propertyregistered, and had the register been searched at the time of thesubsequent dealing with the land, the fact that the land was alreadyregistered must have been discovered. It appears, however, thatthe search was dispensed with. In my opinion the land wassufficiently described when registered in 1909.
It was then argued for the appellant that the grant by the Crownshows that the villagers from whom Carry bought had no title tothe land, and therefore Carry himself had no title when he conveyedto De Mel and Rae Sands in 1909. The legal title was, therefore,not vested in Carry till 1912, when he bought from the Crown, andif, as between De Mel, Rae Sands, and their successors in title onthe one hand and Carry and his “ representatives ” on the other,Carry and his representatives would be estopped from setting up theirtitle, it was urged that as the land was sold by order of the Court inexecution, the purchaser, Perera, was not bound by the estoppel, ashe was not a representative of Carry.
A distinction appears at one time to have been drawn betweenthe position of a purchaser on a sale in execution and the purchaserat a private sale, on the ground that the former obtained his titleby operation of law freed from all incumbrances effected by the judg-ment-debtor subsequently to the attachment of the propertysold in execution (Dinendro Rath Sannayal v. Ramcooniar Ghose1);but in the later case of Mahomad Hasseem v. Kishori Mohun Roy 2it was held by the Privy Council that an auction purchaser wasbound by an estoppel which bound the person whose right, title,and interest he purchased (Caspersz, Estoppel, 4th ed.t p. 214). Inthe case before us there was nothing secret in the transaction whichgave rise to the estoppel. The sale in 1909 was in writing, and thedocument was duly registered, so that it complied with two require-ments of the Ceylon law designed for the benefit of bona fide pur-chasers (and others) for value, viz., in the Ordinance No. 7 of 1840(For the Prevention of Frauds and Perjuries) and the Ordinance
1 (1881) 81. A. 65.* (1815) I. L . R. 22 Gal. 902.
1918.
Ennis J.
Rajapakea vFernando
( 804 )
1918.
'Enhis J.
Rajapaksa
Fernando
No. Id of 1891 (The Land Registration Ordinance). The appellantcontended, however, that to comply with the provisions of theOrdinance No. 7 of 1840 a written conveyance of the legal title fromCarry to De Mel and Bae Sands was requisite, and the casesof Don CaTolis v. James,1 Mohammed Bhoy v. Lebbe Maricar,a andKadirawel Pulle v. Pina3 were cited. Kadirawel Pulle v. Pina 3 wasa Full Court case, but it is to be observed that the documentevidencing the original transaction in that case did not purport to con-vey the dominium, the vendor covenating to obtain the legal title later.In the present case Carry, in 1909, purported to convey the fulldominium and gave possession. I am not in accord with the deci-sions in Don Carolis v. James 1 and Mohammed Bhoy v. LebbeMaricar.3 The Ordinance No. 7 of 1840 provided that “ No sale, pur-chase, transfer, assignment, or mortgage of land …. and no promise,bargain, contract, or agreement for effecting such object should beof force or avail in law unless in writing.” This is clearly an enumer-ation of personal transactions, and does not include in its scopetransmission of property by operation of law, for instance, on deathto heirs, &c., on an order of the Court to the Fiscal or the auctioneer.It seems to me that the English law doctrine, that where A without'title sells to B, and A subsequently acquires title, the title enuresto the benefit of B; and the Roman-Dutch law doctrine insimilar circumstances of “ confirmation ” (Voet 21, 3, 1) is sucha transmission. It does not alter the position to say that it is afictitious ownership, which passed by operation of law ratherthan a real one. The point is one which comes into prominencewhen considering the effects of registration. Lord St. Leonards inDretv v. Norbury * cited in Hogg on Deeds of Registration, page• 115,said:“ Act of Parliament does not convert an equitable estate
into a legal estate; that would be to confound the nature ofthose two estates; but it so impresses, the title with the liability togive effect to the equitable estate that the person who obtains thelegal estate, is. bound to support the equitable title and clothe itwith the legal estate.”
And the learned author of Deeds of Registration (page 110) says:“ The rights conferred by registration are statutory; the statutemakes one instrument effective and the other ineffective pro tanto,f*and this effect was commented on by Lascelles C.J. in Kanapathz-pillai v. Mohamadutamby Levai.5 As to the application and effectof registration, it seems clear that deeds conveying the equitableestate before the land has been formally granted by the Crown areregistrable (section 18 of Ordinance No. 14 of 1891; and seeHogg, page 19), and being registrable they obtain the benefit ofpriority of registration. The object of registration is the protection
1 (1909) 1 C. L. R. 224.8 (1899) 9 S. C. G. 3$
8 (1912) 15 N. L. R. 466.4 (1846) 3J&L.,at page 302.
5 (1912) 15 N. Is. R. 177.
( 306 )
of bona fide purchasers; it enables them by search to discoverprevious dealings with the property; and Hogg {page 99) enunciatesthe consequent rule as follows: “ The rule that a person searchingthe register has notice of what is on the register—in Lord Redesdale’swords in Bushell v. Bushell, * if he searches he has notice ’—seemsto supply the right principle on which to rest the further rule, thata person who ought to search the register must be taken as havingnotice of what he would find there if he did search. Facts andcircumstances that might thus be discovered will then be thesubject of constructive notice, and constructive notice, quite asmuch as actual notice, may afiord evidence of fraud or want ofbona fidc8.”
An examination of the Ceylon Registration Ordinance leaves nodoubt in my mind as to its object. It provides (section 9) that theSurveyor-General shall prepare a plan of the various villages anddistricts in the Island in divisions convenient for the purpose of theOrdinance. The registrar is then (section 15) to allot to a separatebook a defined division, “ so that every deed relating to land situatetherein may be registered therein,” and when a deed is producedfor registration, it has to be registered (section 18) '* on the appointedpage of the book assigned for the division.” On first registration“ the property ” is regarded as registered, and subsequent instru-ments dealing with the same property have to show the volumeand folio of the register in which “ the property ” has been pre-viously registered (section 24). This scheme is clearly meant tooperate to give notice to subsequent purchasers and others ofprevious dealings with the property, be those dealings equitable orotherwise. Carry’s sale in 1909 created an equitable right, a rightwhich, by Roman-Dutch law, on confirmation by the subsequentacquisition of the legal title, gave the purchaser in possession anindefeasible claim (Voet 21, 3, 3). The instrument of sale was inwriting, and the registration of the instrument gave constructivenotice to all persons subsequently dealing with the property. I amtherefore of opinion that by estoppel and registration the defendantwas entitled to succeed.
It is to be observed that the property was first registered in 1909in folio F 68/253. The subsequent Crown grant and mortgage byCarry were registered in another folio without reference to F 68/253.In Fernando v. Pedro PuUe,1 Senaratne v. Petris,2 and Peris v. Perera 3it was held that the earliest registration of land determines theplace for subsequent registration. The plaintiff’s documents have,therefore, not been duly registered.
For these reasons I am of opinion that the decree appealed fromis right, and would dismiss the appeal, with costs^.
1918.
Ennis J.
Rajapaksav. Fernando
1 2 C.W. R. 73
» 4 C.W. R. 63
3 1 A. C. R. 85.
( 306 )
1M8. Shaw J.~
The land in dispute having been found to have been chenaland in a Kandyan province, and not coming within one of theexceptions mentioned in section 6 of the Crown Lands Encroach-ments Ordinance, No. 12 of 1840, it must be deemed to have beenthe property of the Crown at the time Carry obtained his deedsfrom the villagers. Carry therefore had no legal title when he soldto the defendant’s predecessors in title in 1909, and his title onlybecame perfected when he obtained the grant from the Crown in1912.
The first point taken on behalf of the defendant-respondent isthat under the Eoman-Dutch law the title so acquired enured tothe benefit of the defendant, and he is entitled to defend his possessionin a suit by a subsequent purchaser of Carry’s interest after thedate of the Crown grant. In my opinion the defendant is entitledto succeed on this ground.
The Roman-Dutch law as laid down by Voet in book XXI., titleIII., Do exceptione rei venditeB et traditce, appears to me to admitof no doubt. The following extracts are from Berwick’s Translation,pp. 531 et seq.:—
“ Section 1.—Since on the confirmation of the right of an alienator(which was defective at the time of the alienation) the originallydefective right of the alienee becomes confirmed from the venmoment that the vendor acquired the dominium; and thereforethe dominium, from that time annexed to the original purchaser,could not be taken away from him without his own act or consent;hence' he has the right of suing his vendor or a third party-possessoron account of the loss of Jiis possession, and of defeating his oppo-nent’s plea by the replication of ownership.”
“ Section 2.—But if the purchaser still possess the thing, and thesame persons that are liable to be sued (by him) in respect of (its)eviction bring an action to evict the property from him, it is inhis discretion, whether he will suffer eviction and afterwards, wheDit has been taken from him, sue the successful party by the actionex stipulatio in duplum, or by the action exempto for the id q<odintrest (damages), or whether he will prefer to keep the propertyand repel his vendor and other like persons seeking to evict himeither by the exceptio rei venditce et trdditec or by the exceptiodoli."
“ Section '3.—This plea may be opposed, not only to the original
vendor, but to all. those who claiming under him endeavour to
evict a thing from the first purchaser; such as those to whom
the vendor has again alienated the same thing, whether by an
onerous or lucrative title after he became owner (i.e., after he
^ v
acquired the dominium which he did not have when he firstsold it).”
( 307 )
There are, however, some decisions of this Court to the effect thatthe Boman-Dutch law as laid down by Voet has been altered inthis Colony by legislation. In Don Garolis v. James 1 Hutchinson
J. held, that in consequence of the provision in Ordinance No. 7of 1840 requiring transfers of land to be in writing, the legal titleto the land could not pass to the first purchaser upon his vendorsubsequently acquiring title except by a writing under the Ordi-nance, and this deoision was approved, on the ground given byHutchinson C.J., by Laseelles C.J. and . De Sampayo A.J. inMohammed Bhoy v. Lebbe MaricaT * That oase, however, was nota case of a first purchaser seeking to defend his possession, but of aperson out of possession laying claim to the land.
Although feeling some mistrust of an opinion opposed to suchauthorities, I find myself unable to accept the correctness of theview taken in these cases. The provisions of section 2 of OrdinanceNo. 7 of 1840 do not appear to me to refer to, or to be intended torefer to, assignments by act of law, nor does any further assignmentappear to me to have been necessary under the Boman-Dutch law,as stated by Voet, to enable the first purchaser to defend hispossession. It would seem to me to be as reasonable to argue thatlands cannot now pass to an heir on an intestacy because there isno assignment in writing. In Mohammed Bhoy v. Lebbe Maricar 2De Sampayo A.J. suggested that it was not very clear from thepassage in Yoet that under the Boman-Dutch law the title passedto the first purchaser, but in view of the express statement in Voet31, 3, 3, it appears clear that such a purchaser could, at any rate,defend his possession at the suit of a subsequent purchaser underthe plea de exceptions rei venditce et traditcB. The case ofKadirawel Pulle v. Pina 3 does not appear to me to be in point. Inthat case all that the purchaser bought was the right to have aconveyance when his vendor obtained a ■ Fiscal's transfer, whichconveyance was not obtained.
I am of opinion that the defendant is entitled to defend hispossession under the provision of the common law, and that he isentitled to judgment on this ground alone. It is therefore unneces-sary for me to consider the other points involved in the action.
I would dismiss the appeal, with costs.
Appeal dismissed.
H1909) 1 C. L. R. 224.»(1912) 15 N. L. R. 466.
*(1899) 9 S. C. C. 36.
1918.
Shaw, J.
Rajapaksav. Fernando