DALTON SJPJ.—Appuhamy v. Appuhamy,329
1932Present: Dalton S.PJF. and Poyser J.APPUHAMY v. APPUHAMY.
5—D. C, Kurunegala, 15,311.
Bill of sale—Deed of gift of stock-in-trade and good will—No delivery—Regis-tration—Ordinance No, 23 of 1927, ss. 17 and 18,
A deed of gift of the stock-in-trade and good will of a business is a billof sale within the meaning of section 17 of the Registration of DocumentsOrdinance.
^ PPEAL from a judgment of the District Judge of Kurunegala.
Croos Da Brera, for plaintiff, appellant.
N, E, Weerasooria, for defendants, respondents.
Cur, adv* vult,
December 7, 1933. Dalton S.P.J.—
The plaintiff claimed a declaration that he is entitled to the stock-in-trade, good will, and book and other debts of the business carried on at65, Bazaar street, Kurunegala, and for damages. One Tinanhamy, thematernal grandfather of the plaintiff, had been the owner of the propertynow claimed, and plaintiff pleaded that Tinanhamy, by the deed P 1 ofAugust 8, 1926, conveyed the property in question to him.
The defendants are son and mother, the first defendant claiming Tinan-hamy as an uncle. They say that Tinanhamy in return for servicesrendered donated the property in dispute to them by deed D 1 ofOctober 8, 1928. The deed P 1 has not been registered, but D 1 wasregistered on October 9, 1928.
The question raised in the issues tried is whether the deed D 1obtains priority over deed P 1, by reason of the registration of theformer.
DALTON S.P.J.—Appuhamy v. Appithamy.
The trial Judge has found that plaintiff never obtained possession onhis deed, since Tinanhamy remained thereafter in charge of the business.Although the deed P 1 purports on the face of it to have been a trans-action by way of sale, the trial Judge also finds that no money passed,and that it was in fact a gift. The deed D 1 is stated to be a deed of gift,and there is no question raised as to that. On the execution of this deedD 1 the trial Judge also finds that the first defendant obtained possessionof the property donated to him. On these questions of fact we have notbeen asked to interfere with the learned Judge’s conclusions. Theprincipal question raised on the appeal is whether the deed P 1 is a billof sale and as such requires to be registered under the Registration ofDocuments Ordinance, No. 23 of 1927. The meaning of the term “ billof sale ” is set out in section 17 of the Ordinance, and it is conceded that,so far as the deed purports to convey choses in action, it is not a bill of sale.The plaintiff is therefore entitled to the book and other debts. Is a- giftof the stock-in-trade and good will of the business a bill of sale of mov-able property within the Ordinance ? Mr. Weerasooria for defendantsurges that it is a “ transfer " of these interests, and also an “ assurance ”of movable property within the meaning of those terms as used in section17 (1) of the Ordinance.
The purport underlying the requirement of 17 & 18 Viet. c. 36 andof the Bills of Sale Acts of 1854 and 1878 was to prevent false credit beinggiven to people who are allowed to remain in possession of goods whichapparently are theirs, the ownership of which they have parted with(Charlesworth v. Mills ’). The Acts, further, are stated to strike at docu-ments and not at the transactions themselves (Chalmers’ Sale of Goods,Appendix I., p. 181). The definition of “bill of sale” in section 17 (1)of the local Ordinance includes, however, documents, and perhaps trans-actions, e.g., pledge, which do not come within the definition of bill of salein the English Act of 1878. The controlling words of section 4 in thelatter Act are “ other assurance of personal chattels ”, and no documentcan come within the Act unless it is an assurance on which the title claimeddepends (Halsbury’s Laws of England, Vol. 111., pp. 9 and 10, ss. 14 and 15).In the local Ordinance, however, a pledge or conventional hypothecationis included in the definition; hence it is difficult to see how one can applyEnglish decisions on this point, since the title to the goods would notdepend upon such a document, and there would appear to some extentto be a radical departure in the local Ordinance from the idea underlying theEnglish Statutes. It has, however, been held that the word “ assurance ”in section 17 (1) includes a conveyance (Gunatileke v. Ramasamy Pulle').In ex parte Hubbard ’ Lord Esher expressed the opinion that the word“ transfer ” in section 4 means a document which, though not in form abill of sale, assumes to transfer the property in goods in the same way asa bill of sale would. This conclusion was presumably reached, havingregard to the controlling words of the section.
With regard to the document P 1, however, it certainly purported toconvey title in movable property, whilst possession of that property wasnot given to the transferee, since the evidence shows the transferor retained* (1S92) A. C. 231, at 'p. 235.5 6 C. W. R. 125.
a 17 Q. B. D. 690.
Istnail v. Mohamed.
possession of it and, I think it haay be assumed from his actions, intendedto remain in possession. To this extent then, it would come within theterm “ transfer ” as construed m section 4 of the English Act. There ismuch to be said in support of the contention that a document making agift, not accompanied by the delivery of the article, can hardly comewithin the idea underlying the term “ bill of sale ”, since there is nothingof a sale or transfer for value in the transaction; but 1 think the trans-action here falls within the term “ transfer ” as used in the section and,except in so far as it refers to the book debts and other debts, does notcome within any of the exceptions of section 17 (2). I would thereforehold, but with some amount of hesitation, that on the evidence the trialJudge was entitled to hold that the document P was a bill of sale andrequired to be registered, and therefore is not valid or effectual under theprovisions of section 18 of the Ordinance, except in so far as it related tothe book and other debts of the business. I wish to make it clear thatit is not necessary to consider the nature of the document D 1.
The plaintiff is entitled to the declaration he seeks in respect of the bookand other debts, but in regard to the other property his claim must bedismissed. The appeal is therefore allowed to that extent. Under allthe circumstances I would order that each party pay his own costs inboth Courts.
Poyser J.—I agree.
APPUHAMY v. APPUHAMY