091-NLR-NLR-V-25-SAMARA-et-al-v.-ELVES.pdf
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Present: Bertram C. J. and Ennis J.
SAMARA et al. v. ELVES.
326—*D. G. Kandy, 29J51.
Lis pendens—Ordinance No. 29 of 1917—Applicable to cases pendingat the date of passing of the Ordinance—Prescription—Un-interrupted possession —Possession need not continue till dateof action.
Section 3 of the Land Registration Amendment Ordinance,No. 29 of 1917, whioh enacts that a lis pendens shall not bind apurchaser unless and until it is registered, applies to a lis pendensinitiated but not concluded before the passing of the Ordinance.
N. E. Weemsuriya, for plaintiff, appellant.
H. V. Perera, for defendant, respondent.
February ll, 1924. Bertram C.J.—
This case raises a question of law. 'That question is whethersection 3 of the Land Registration Amendment Ordinance, No. 29of 1917, as amended by Ordinance No. 21 of the following year,which declares that “ a lis pendens shall not bind a purchaserunless and until it is registered,” applies to a lis pendens initiatedbut not concluded before the passing of the Ordinance.
The facts are these : Plaintiffs and a brother (since dead) broughtan action against one Babappu (since dead) and his son Eporis forthe recovery of a piece of land on March 14,1912. At the date ofthe institution of the action Babappu and Eporis had already beenfor some years in possession. The action, for various causes, wasprotracted; other defendants were substituted -for the brotherwho died; judgment was not entered until July 8, 1920. Now,it is settled that a lis pendens continues pending until the completionof the execution. But for recent legislation, therefore, plaintiffswould have been protected up to the time when they obtainedpossession under the .execution. They could have snapped theirfingers at any person who in that interval bought from thedefendants, or against any purchaser at a Fiscal’s sale against thedefendants. Such a purchaser did in fact present himself. Inpursuance of a sale on January 21, 1920, he obtained a Fiscal’s•transfer on July 15, 1920, that is to say,, after plaintiffs’ judgmentand before execution. But for recent legislation he could have gotnothing by this Fiscal’s transfer, because any such transfer wouldhave been subject to the execution in plaintiff's action. If hewas bound by plaintiffs’ action his purchase was worthless to him,
1924.
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1924.
Bertram
C.J.
Santorov. Elves
because the title was in plaintiffs and was so declared by thejudgment. If, however, he was not bound by the action, thenhe could count his predecessor’s possession right up to the timewhen it first began, and could thus show a prescriptive title as'against the plaintiffs when sued in the present action.
The difficulty is that the Ordinance referred to came into operationwhile the action was still pending, and the question arises whethersuch an action is affected by the Ordinance.
There is always a strong presumption that an enactment is notintended to have a retrospective operation so as to destroy existingvested rights, but the question here is whether the Ordinance isto affect a process which is initiated before the date of its enactment,but not yet completed. There are two authorities in the Englishboohs which have a bearing on this question. The first is Evans v.Williams,l In that case there had been a change in the law withregard to registration of judgments. During a certain period thelaw had been in the following position. A judgment had twoeffects: It bound the debtor’s land and it gave the judgment-creditor priority as against other creditors in the administrationof estates. Eor some time the law had been that though registrationof a judgment was necessary for the purpose of binding land, itwas not necessary for the purpose of obtaining the aforesaid priority.In 1860 the law was changed. Eor the purpose of this case it isonly necessary to consider the provision dealing with judgmentsalready registered for the purpose of binding lands. The fourthsection of the new Statute, 23 and 24 Viet., C. 38, declared thatno judgment so registered should be entitled to priority C( unlessat the death of the testate or intestate five years shall not haveelapsed from the registration.'’ In other words, the Statute requiredre-registration of judgments every five years. A case arose in whichthe testator had died before the passing of the Act. The judgmenthad been registered, but more than five years had elapsed betweenthe registration and the death. It was pointed out that at thepassing of the Act the judgment-creditor’s right had already vested.He was already entitled to priority at that date, and it was heldthat “ unless the Court secs a clear indication in the Act to legislateex post facto, so as to deprive a man of a right which existed at thetime of the passing of the Act, the Court will always assume thatthe Legislature never does intend to deprive that man, by ex postfacto law, of a right which existed at the time that Act passed.”Maxwell in his vro&on the Irderpreta&ion of Statutes, 4th ed.,p. 331,discusses this case and makes the observation that if the debtorin the case had not died till after the Act, the omission to renew theregistration would have been fatal, and he supports this observationby a series of cases relating to the old question of the settlementand removal of paupers. In these cases local authorities used to'(I860) 34 L. J. Ch. 661.
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contend with one another as to their responsibility for the main-tenance of paupers who were found in one district, but whose realsettlement was in another. If a pauper died in one district leavinga widow who belonged to another, the local authority was entitledto expel the widow from the district and deport her to her originalhome. In 1846 an Act was passed which in such cases prohibited■such deportation until the expiration of twelve months after thehusband’s death, and the question arose whether this provisionapplied to a case in which the husband had died before its enactment.See The Queen, v. The Inhabitants of St. Mary, Whitechapel.1 Thehusband died in Bermondsey before the Act; his widow belongedto Whitechapel. It was maintained that the Bermondsey localauthority on his death had a vested right to deport the widow, andthat the Statute could never have been intended to deprive themof this privilege. Lord Denman, delivering the judgment of theCourt, made the following observations: “It was said that theoperation of the Statute was confined to persons who had becomewidows after the Act passed, and that the presumption against aretrospective Statute being intended supported this construction,but we have before shown that the Statute is in its direct operationprospective, as it relates to future removals only, and that it is notproperly called a retrospective Statute because a part of the requisitesfor its action is drawn from time antecedent to its passing.”
I think that this principle applies to the present case. TheOrdinance, if applied to the present case, cannot be described asinterfering with vested rights. No right, vested as against apurchaser up to the date of its passings is interfered with; it isonly the position of purchasers after the enactment of the Ordinancewhich is improved as against the suitor. The Statute declares thatin order to secure the same advantages against future purchasersas the suitor enjoyed against purchasers, who might have purchasedbefore the enactment, the suitor must comply with a new condition.He must register his suit. This is not to destroy a vested right,it is merely to impose a new formality of an existing" privilege infuture circumstances. There is no presumption against such anapplication of a Statute. It is entirely in accordance with thespirit of the Ordinance that future purchasers should be protectedeven in the case of suits already initiated. I am of opinion,therefore, that the learned District Judge was right in ruling thatthe Ordinance applied.
There was a further question of law to which reference was made.Plaintiffs under their execution actually obtained possession ofthe property and occupied it for some little time until they wereousted by the defendant. The possession, therefore, of thedefendant and his predecessor was interrupted, and did not continueuntil action brought. It was suggested, therefore, that the1 (1848) 12 Q. B. 118 ; also 116 E R. 811.
1924.
Bkbtbam
C-J.
Samarav. Rites
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1924.
Bertram
C.J,
Samar**v. Elve*
possession was not such an uninterrupted possession as is requiredby section 3 of the Prescription Ordinance, No, 22 of 1871. It may,however, be taken as settled law that the possession required neednot continue till action brought. See Banda v. Banda1 and WaiterPereira’s Laws of Ceylon, p. 392. For reasons I have given, I amof opinion that the appeal must be dismissed, with costs.
Ennis J.—I agree.
Appeal dismissed.*