Sri Lanka is a country in which co-ownership of land is rampant and land litigation is endless. The Civil Courts of this country are overloaded with land cases, resulting in laws delays at all levels.

Land is a valuable asset in the hands of people and if not for title disputes, land would i become readily marketable and also available as security for obtaining credit facilities. Many people in this country own even small shares of land in some part of the country. If they could realise the value of what they own, many of them would not be so poor.

With this object in view registration of title to land has been considered and debated in this country over a long period of time. But it was invariably found to be too expensive and laborious. Today, with the assistance of the World Bank and with international support, a more serious effort is being made for title registration. Although it is a very expensive and difficult undertaking, it should nevertheless be considered as a part of infrastructure development that would open the door to other development activities and the reduction of poverty all over the country.

With this object in view, the Registration of Title Act, No.21 of 1998 has been enacted and certified on the 29th of April, 1998. Up to this time we did not have title registration in this country "except in a small area south of Colombo on an experimental basis." What we had hitherto was registration of documents, Under that system, the Registrar of Lands would register any deed or document of tide but would take no responsibility for the validity or accuracy of the rights dealt with in such deeds The only advantage of such registration was that a registered document would prevail over an unregistered one provided the other conditions were the same. Thus, there was no place to which a person could go and ascertain the name of the owner of a given block of land. That is why we often see lawyers and notaries searching volume after volume at the Land Registry and taking back to their office a bundle of "search notes." In their offices they have to see what they can make out of such notes.

But if there is title registration, the Registry would give the name of the owner of an identified block of land, in the same way as the registers at the Motor Commissioner's office would give the name of the registered owner of a given vehicle. If such registration of title was available, it would be easy for people to deal with property; property would be more marketable and readily acceptable to lending institutions as security for loans.

Although the Registration of Title Act referred to above is for the whole island - it has to be brought into operation in given areas - to be decided by the Minister of Lands from time to time and published in the Gazette.

There ace 3 important officers under the act: -

Commissioner of Title Settlement - who is the person entrusted with the task of investigating into title of each land and deciding thereon.

Registrar General of Title - whose duty is to maintain title Registers in each District and will have a Registrar of Title in charge of each such Registry.

Surveyor General - whose department is given the special responsibility for the carrying out of the necessary cadastral surveys and the preparation of maps and plans showing the identity, boundaries, extent etc. of each land.

Thus, it would be noted, in any Gazetted area all lands will be the subject of survey, and in respect of each identified land there will be an investigation into title and a decision and Registration of the title holder or tide holders.

Investigating into title begins by calling for claims. The Commissioner of Title Settlement is also given the power to appoint a Conciliation Board for each Grama Niladhari division, which is expected to assist people to resolve disputes among themselves,

After the investigations are concluded, the Commissioner of Title Settlement publishes in the Gazette his determination: -

(a) That a claimant has a tide of Absolute Ownership and is entitled to be registered with a First Class Title of Absolute Ownership. Such registration has the effect of vesting in such person absolute ownership of such land (subject only to subsisting interests registered as encumbrances, under this Act). Entries in the Register are made conclusive evidence of the ownership that is registered and cannot be questioned in any Court, except under the provisions of this Act.

(b) Where a Claimant does not qualify for a First Class Title of Absolute Ownership, but is found to be in bona fides possession of a portion of land, he would be registered with a Second Class Title of Ownership which if unchallenged for 10 years could be raised to a registration with a First Class Title of Absolute Ownership.

(c) There is also provision for registration as co-owners and also for registration of interests in lands like leases, mortgages and servitudes.

(d) There is separate provision for the Registration of State lands.

In the case of co-ownership, the Act provides for the appointment of a Manager, who is equated to a Trustee and the other co-owners are made beneficiaries. These provisions in my view are unrealistic and have been enacted without appreciation of the fact that many co-owners are and need to be in possession, occupation and enjoyment of some part of the land and will not be content with a share of the produce or income given by the Manager.

In the case of disputed claims, which cannot be settled or decided by the Commissioner of Title Settlement, there is provision for him to refer such claims to the District Court of the area for decision. Where the Commissioner of Title Settlement decides a claim, there is right of appeal to the District Court. After inquiry the Court has the power (like in partition cases) to declare a party entitled to a divided portion or to cause the land or a part of the land to be sold among the claimants. In such event the Court will cause the Surveyor-General to make suitable amendments in the Cadastral maps.

Once the tide investigations are concluded, the Commissioner of Title Settlement will | prepare schedules of Tide, and forward the same to the appropriate Registrar of Title and also a copy to the Registrar General. The Registrar of Title shall enter those particulars in the Registers and they will form the "Initial Entries".

Once the title Registers are so opened the present registers maintained under the Registration of Documents Ordinance will be closed giving cross-references to the new Registers. Once a land is title registered, any interest acquired thereafter in such land requires registration for validity.

Once a land is title registered it cannot be transferred in divided shares. If it is to be I transferred in divided portions a plan of sub-division has to be first prepared and registered.

There is provision for transmission of tide on death and prescription has been excluded in the case of tide registered lands.

There is provision to set up an Insurance Fund to indemnify persons suffering damage in the process of tide registration. The Partition Act will not apply to lands registered with a First Class Title of Absolute Ownership or a Second Class Tide of Ownership. But it will continue to apply to lands registered as co-owned lands.

There are several matters in the Registration of Title Act which require careful consideration:-

(a) The first feature of the proposed title registration is that the law will be applicable to all lands in declared areas. This means that registration of title in a given area is compulsory and not optional.

(b) For the purpose of Title Registration Cadastral maps have to be prepared. That is, an entire area has to be surveyed. This undoubtedly is a very good feature in a scheme for title registration. But it would involve an enormous expense and will take a considerable length of time even if modern techniques are used.

(c) Thereafter the Commissioner for Registration of Title has to investigate title to each block of land and depending on his decision declare a person entitled to be registered with a "First Class Title of Absolute Ownership" or where the person does not qualify for such registration but is in bona fides possession of a parcel of land grant him "Second Class Title of Ownership" which if unchallenged for 10 years can mature into First Class Title of Absolute Ownership. First class title of registration will be incontrovertible proof of title and second class title will be prima facie evidence of title. Where the Commissioner is not satisfied with regard to title there is provision to refer the matter for settlement by a Conciliation Board set up for that purpose in each Grama Seva Division. There is also provision to refer the dispute to the District Court having jurisdiction over the area where the land is situated.

Investigation of title of each parcel of land, it must be appreciated is no easy task. Judging by our experience of land litigation in this country we must anticipate that this would at once result in hundreds and thousands of title disputes arising for decision in this process, in any given area. As would be seen from the numerous partition cases now pending in different parts of the country this will involve innumerable disputes relating to the identification of the different lands, their boundaries and extents; with regard to the application of various deeds and other documents to a given land; with regard to the devolution of title particularly having regard to the nature of intestate succession that is applicable. Even after the Courts have ruled on the actual entitlement of parties many disputes arise in partition cases with regard to the manner of division among the accepted owners and many of these disputes result in protracted litigation going some times right up to the Supreme Court.

What would now happen, when the government embarks upon an investigation into the title of persons with regard to each and every parcel of land, is that with regard to a large number of them disputes would at once arise, although at the moment one or more persons are in possession without the need for litigation. Since the new registration is going to confer indefeasible title, even persons not in actual enjoyment and possession will wake up to the need to protect their legal rights. The disputes arising out of these are unlikely to get resolved at the level of the village Conciliation Boards, except perhaps for a very small percentage of cases. The result of this would be that there will be a big spate of land litigation and our Courts which at all levels are burdened with a big backlog of cases would find it impossible to cope with this new spate of litigation. If the proposed legislation is made applicable in several districts or provinces the problem can get completely out of hand. In any event the imposition of compulsory registration of title would create thousands of land disputes which are now dormant and would force people to incur heavy expenses and to get involved in litigation which would other wise not be needed.

It is in this context that the Law Commission of Sri Lanka and several persons have suggested that a system of registering title be started in the first instance on a voluntary basis. This would enable persons who already have good title to divided and defined portions of land to apply to the Commissioner for Settlement of Title to register them as persons having First Class Title of Absolute Ownership. On receipt of such an application the Commissioner could hold inquiries after adequate publicity and notice to affected persons, at which the applicant will have to satisfy the Commissioner that he is the absolute owner of a divided and defined parcel of land. If there are any disputes he will have to give a ruling against which there should be a right to appeal or other access to the regular Courts. But in the case of such voluntary applications the relevant applicants would be persons who are ready with the material to prove their clear ownership. This could be made use of by persons whose title is traceable to a partition decree or a crown grant or who have a sufficiently long and clear chain of title to a divided and defined parcel of land. Others who are in physical occupation and enjoyment of properties as co-owners and who are not ready to embark on litigation will remain unaffected by this process of registration of title. If at any point of time co- owners of a land desire to get the benefit of title registration they are free to agree among themselves on an acceptable scheme of division and go before the commissioner for such registration. In fact, in course of time more and more people will get encouraged to come to such settlements or to buy up the small shares of co- owners who are not in possession and to regularise their title and obtain the required registration. This method will avoid the need to push thousands of people into litigation for which they are not ready at the moment.

The proposal to have registration of Second Class Title is a good and meaningful one. That should be applicable to persons who have prima facie title, clear and undisrupted possession to divided and defined portions of land and there is no one disputing such right when the application for registration is considered. It is perfectly correct that such registration should confer only prima facie proof of the title so registered, but would be open to attack by any one who disputes such title within reasonable time. It is also correct that after the lapse of a given period of time it should become Absolute Tide entitled to First Class Registration. But even the registration of Second Class Title could be on the basis of voluntary applications by persons who are confident that they can adduce the requisite proof of title.

The question whether the registration of title should be on compulsory basis or voluntary basis received the consideration of a Commission of Inquiry appointed in 1945 headed by Justice L.M.D. De Silva and the secretary of which was Mr, H.N.G. Fernando (later Chief Justice H.N.G. Fernando). Having considered this question in full they expressed the view - " It is abundandy clear from a detailed consideration of the earlier efforts referred to and from a survey of the existing situation that a system of compulsory Registration of Title for Ceylon cannot be recommended with confidence. If adopted for selected areas in Ceylon its utility in increasing credit facilities will be limited; but even if this fact were ignored, the lesson of the working of the Ordinance of 1877 in the Southern suburbs of Colombo is that it would be too laborious and too expensive. This is at any rate true in the present state of our knowledge and experience. Many owners who are in peaceful enjoyment of their holdings will find that sleeping antagonists have been roused when their land is brought under the Ordinance. We recommend therefore that as a first step a system of voluntary Registration of Tide be introduced and that in non urban areas registration be restricted to land of an extent to be prescribed."

Another result of compulsory registration of title would be that the process of registering itself will suffer great delay due to the fact that many disputes would have arisen before registration could be affected. Then the benefit of registration will not reach the people as expected. Furthermore, if the Act is brought into operation in a few areas and if it is found that the process of registration is cumbersome and time consuming the chances are that the Act may not be made applicable to other areas and thus the entire ambitious programme may get frustrated.

On the other had if the registration of tide is on a voluntary basis and only in respect of land where the applicants already have good and clear title then the Act can become operative at once all over the island. Those who already have good title could obtain almost immediately a Certificate of First Class Registration or at least a Certificate of Second Class Registration. Those who are not armed with proof of good title at the moment can clear their tides over the years and apply for such registration. Take for example the thousands of Partition cases that are now pending before the different courts of this country today. As each case finishes and final decree is entered such parties can apply to the Commissioner and get their title registered. There may be other cases where the lands are held in common and where there are title disputes the parties may Settle their disputes, come into amicable divisions and apply for registration as and when they are ready.

I have already referred to problems that could arise in relation to lands, which are registered as co-owned lands and placed under a Manager or Trustee. When one co-owner is appointed as the Manager and Trustee, another co-owner may not be able to put up a house for himself on the land of which he is a co-owner or to do his cultivation in a part of the land of which he is a co-owner. This might mean that some of the co-owners may have to leave their lands and embark upon litigation to get the right to possess a part of the land, which he co-owns. This might also have serious social repercussions in the villages.

What is it that we are seeking to achieve by registration of tide? The object of tide registration is clearly to make land and other properties more valuable and more readily marketable by removing problems relating to tide. That would make dealings with regard to lands safer and easier and will have the effect of enhancing land value. Even if registration is on a voluntary basis more and more people will realise the value of obtaining such registration and will make every effort to qualify themselves and come into such scheme of registration.

But the value of such registration would be only if title so registered continues to be good title and is not allowed to slip back into co-ownership among innumerable persons. One way of retaining good tide would be to make the normal laws of inheritance inapplicable to lands, which have obtained registration of tide. Legal provision will then have to be made for the nomination of successors by the registered owners or for an order of succession in which only one and not all the heirs will inherit a particular property. This may involve social and cultural problems in our society where people have learnt to look for inheritance of parental property. Of course a person who owns several parcels of land can give them as distinct and separate titles to his different heirs either by nomination or by deeds executed during his lifetime. He can even do it by Last Will. Where a person owns a large piece of land he can during his lifetime divide it into distinct and separate parcels depicted in survey plans and give them to the different heirs.

A system of nomination is prevalent even today in respect of lands alienated under the Land Development Ordinance. Most lands given to villagers under colonisation schemes are governed by the Land Development Ordinance and on death of the grantee goes to a nominee and in the absence of nomination to one heir (not all the heirs). That helps to keep the parcels of land intact without getting them subdivided to uneconomical units and avoids co-ownership. Even rights of tenant cultivators and rights of tenancy in the case of urban Properties do not go to all heirs. It would therefore be necessary to consider whether some legislation on similar lines is needed to prevent lands with good title from being dragged down into co-ownership and bad title.

If it is not practicable or advisable to restrict the right of inheritance in relation to lands which have secured title registration another alternative that is available is to cancel such registration where several co-owners have become entitled to the land and retransfer it to the present land registers, where there would be only registration of documents with the relevant cross entries in both registers. In such event those co-owners who do not want to lose the benefit of title registration can always come into amicable schemes of division among themselves and prevent the cancellation of the title registration in respect of any particular property. With passage of time people will realise the benefit of registration of title and take necessary steps so that they may not lose the benefit of title registration.