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Present: Ennis J. and De Sampayo A.J.
DANIEL et al. v. SILVA et al.
326—D. C. Gatte, 2,152.
Deed of 1836—Copy filed in an action in 1862—Deed not registered underOrdinance No. 6 of 1866—Deed inadmissible—Prescription—Emphyteusis,
By deed dated December 24, 1836, A granted to B and C aperpetual lease of a field on the terms that they should cultivate itand deliver one-third o* the crops to the landowner as ground share.The lease was. not registered as required by Ordinance No. 6 of 1866.In 1862 a copy of the lease was filed in a District Court actionbrought by B against A and others in consequence of an ouster;the lessees were held in that action entitled to possession, providedthey fulfilled the condition of the lease. In the present actionbrought by the successors in title of A against the heirs of B and C,it was held that the lease was not admissible in evidence.
The interest created by the deed is one in the nature of anemphyteusis, and such an interest may be acquired by prescription.
rpHE facts appear from the judgment.
A. St. V. Jayewardene (with him Jayaiileke), for appellants.
E. W. Jayewardene, for respondents.
Cur. adv. vult.
November 14, 1913. Ennis J.—
In this action the plaintiffs claim title to a field called Hathaul-kumbura, which originally belonged to one Gallegey Henderick.Henderick, in 1836, gave a perpetual lease to two persons, Aberanand Daniel, on condition that they cultivated the field and gaveone-third of the profits to him. The defendants claim throughAberan, but it appears that Aberan and Daniel's deed of 1836 wasnever registered, and one of the issues in the case was its admis-sibility in evidence. It appears that in 1862 Daniel brought anaction No. 20,810 in the District Court of Galle against Henderickand his brother Girigoris for the possession of part of this field andfor a declaration of title in terms of the deed of 1836, Henderick andGirigoris having ousted him from possession. Decree was enteredin 1863, the Court finding on the construction of the deed of 1836that both Aberan and Daniel had jointly covenanted to cultivatethe field, that no forfeiture had been incurred, and that the ousterof the plaintiff (Daniel) was illegal.
It appears that the original deed of 1836 was not filed in thatcase, a certified copy only having been put in. It was not, therefore,utterly beyond the power of the defendants’ predecessors to have
3*6- fc-T. N. 85177 a HU>
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registered the deed, which remained in their possession and has beenproduce by them in this case. The old case leaves no doubt asto the genuineness of the deed of 1836, and it seems to me a highlytechnical objection in this particular case to urge the effect of theOrdinance No. 6 of 1866, which was intended to prevent theproduction of false deeds in evidence, to defeat the defendants.
Technically, I consider the deed of 1836 is not admissible, andno issue has been raised as to whether the defendants have acquiredby prescription the rights they claim. I think, in the circumstancesof this case, such an issue should be framed now, and the partiesheard thereon. I would accordingly frame an issue: “ Have thedefendants acquired by long possession a right to possess and taketwo-thirds share of the crops? M and send the case back to theDistrict Court for the trial of that issue. The costs of the appealshould be costs of the cause.
De Sampayo A.J.—
One Henderick Silva was admittedly the owner of three-fourths ofthe field called Hathaulkumbura. By deed dated December 24,1836, he granted to two persons named Dangamuwege Daniel andPathiranage Aberan a perpetual lease of the field, on the terms thatthey should cultivate it and deliver one-third of the crops to thelandowner as ground share. Henderick Silva by deed datedFebruary 15, 1862, sold the field to his brother Frederick aliasGirigoris, whose heirs by deed dated June 25, 1912, sold it to theplaintiffs. The action is brought for possession and damagesagainst the defendants, who are the heirs of Pathiranage Aberan.The defendants set up their right under the deed of 1836, and aremet by the objection that the deed is not admissible in evidence byreason of its not having been registered under the Ordinance No.. 6of 1866. It appears that in 1862 the other cultivator, Daniel,asserting right under the deed in question, brought the actionNo. 20,810 of the District Court of Galle against Henderick andGirigoris and two others in consequence of an ouster from a portionof the field which, apparently by some arrangement between himand Aberan, he had cultivated. His rights were upheld by theSupreme Court in appeal, which decided that the lessees wereentitled to possession provided they fulfilled the conditions of thelease, and dissented from the opinion of the lower Court that theycould only sue Henderick Silva for damages for breach of contract.The District Judge in this case admitted the document in evidenceon two grounds: (1) because* he considered that it was not a documentcreating “ title ” within the meaning of section 2 of the OrdinanceNo. 6 of 1866, and (2) because the document having been filed in theaction No. 20,810, and having since remained these, the defendantsmight claim the benefit of the proviso of section 7 of the Ordinance.As regards the first point, I do not think the District Judge is right.
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In my opinion the Woiri. “title” is not used in the sense of dominium,but in the larger signification of “ right ” or “ interest ” in land.This is more clearly seen by reference to section 6, which speakB ofpersons claiming “ interest under any such deed/’ &c. The otherreason given for the reception of the deed is more substantial. Inthe Kitulpe Sannas case (D. C. Katnapura, 1,111 1), where a similarquestion was raised with reference to a sannas which had beenproduced in an action No. 2,618 prior to the enactment of theOrdinance of 1866, it was pointed out that the document could notbe brought within the proviso . to section 7, because, since theperson claiming under it might have taken steps under section 6to have the document registered, notwithstanding the fact of itsbeing in the custody of. the Court, it could not be said that thefailure to register was due to a cause utterly beyond the controlof that person. The District Judge’s second ground for receivingthe deed of 1836 in evidence in this case, therefore, does not seemto be tenable. But in the Kitulpe Sannas case the instrument wasadmitted in evidence by this Court for another reason, which wasstated by Wendt J. as follows: “ I agree with the contention ofthe plaintiff’s counsel that the Ordinance does not apply to thissannas. Before it was enacted,the genuineness of the sannas became• the subject of a judicial trial, and the instrument was made partof the evidence and therefore part of the record. The decreepronounced it genuine. It ceased to be a document in privatehands. The Ordinance, as pointed out by Lawrie A.C.J. in thecase last cited (i.e., Attorney-General v. Kiriya a), applies only tosuch documents. It does not affect public records, thombus, &c.,the public archives, nor the decrees of Court and the like.. Thereis no provision for the registration of decrees. The decree incase No. 2,618 is, therefore, admissible in evidence. How is theCourt to ascertain what sannas was upheld by that decree unlessthe instrument is produced? For these reasons I think that thesecond sannas ought to have been received in evidence.” Thisruling might apply to the present case but for two facts, viz., thatthe inquiry and decision in the old action No. 20,810 were not as tothe genuineness of the document, and that what was there producedwas not the document itself but a certified copy of it. The KitulpeSannas case was itself commented upon by Wood Kenton J. inKalu v. Aruma* and the case under appeal was distinguished fromit on the ground that, in the old case depended on for the purposeof admitting the ” sittu ” there in question, the evidence had noreference to the document, and the judgment, which in so manywords dismissed the plaintiff’s case, could not be regarded ashaving affirmed the genuineness of the document. The judgmentof Wendt J. in the Kitulpe Sannas case was no doubt influenced byi S. C. Min., Noe. 11, 190B.* (1897) 8 N. L. JZ. 81.
See p. 484.
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the consideration that the Ordinance No. . 6 of 1886 was enacted forthe purpose of excluding false documents, and that the genuinenessof the saunas being the very point of decision in the case, the objectof the Ordinance was attained once for all. In the case No. 20,810,however, the genuineness of the deed of 1886 was not in question—it was in fact admitted—and the decree was only concerned with theconstruction of it. In this state of facts I am not prepared to holdthat the deed was properly admitted in evidence. But it would behard to deprive the defendants of their rights under the deed uponthis highly technical ground if they could establish those rights insome other way. The interest created by the deed is one in thenature of emphyteusis.and such an .interest may,I think,be acquiredby prescription. I agree that the case should be sent back for thedetermination of the issue formulated in the judgment of mybrother Ennis.
——= Sent buck.
KAIiU v. ARUMA.
November 27, 1911. Wood Renton J.—
It is quite dear, and it was admitted at tbe argument before me by Mr.Tambyah, tbe plaintiff-appellant's counsel, that the contest between tbeparties in the present case is one that depends on paper title, and on thatalone. The plaintiff-appellant cannot succeed unless he is in a position torely on the ** sittu " of 1815, which is specially referred to both in his plaintand in his replication to the defendant-respondent's answer. The " sittu,"being a document executed before February 1, 1840, was inadmissible asevidence at the trim in the present case, unless it was registered in conformitywith the provisions of section 2 of Ordinance No. 6 of -1866, or is exemptedfrom such registration. It was admittedly not so registered, and the onlypoint that Mr. Tambyah was able to make in support of his contention thatit could now be taken account of by the Commissioner of Requests at all wasthat it had been set out in the pleadings and relied upon by a predecessor in. title of hia client in an action (D. C. Kandy, No. 32,985) brought against himby a predecessor in title of the defendant-respondent, which had been disposedof before January 1, 1868, the date at which, by section 7 of Ordinance No. 6of 1866, it was necessary that all old deeds of the class to which it belongsshould be registered. In support of that contention Mr. Tambyah referredme to 305—D. C. Ratnapura, No. 1,111 (8. C. Min., Nov. 12, 1903), in which-Wendt J., whose judgment was concurred in by Grenier J., held that a sannas,which would otherwise have been void under section 7 of Ordinance No. 6 of1866, but whose genuineness had been upheld by a judicial decree before the.enactment of Ordinance No. 6 of 1866, was admissible in evidence. “ The■decree," said Wendt J., " pronounced it genuine. It ceased to be a document-in private hands." It may be noted that an application made to the Court,subsequent to the trial, by tbe parties who produced the sannas that it should1be returned to them was refused. I do not consider it necessary to considerfurther the grounds of the decision in 305—D. C. Ratnapura, No. 1,111, for, inmy opinion, they cannot be made applicable to what took place in D. C. Kandy,No. 32,985: I have called for and examined tbe record. In that case Kirie,daughter of Tiltiri Tamana, one of the sons of Aroma Dnraya, through whom'
' the defendant-respondent claims, sued Unga Dnraya, a predecessor in title ofthe plaintiff-appellant, claiming a' declaration of title to certain lands, notincluding the land in suit in the present action. Unga Dnraya relied by wayof defence (1) on the " sittu " from Ella Dnraya, whom the appellant alleges
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to Have bean the original owner of the land, and (2) on prescription. The“ sittu ” and a certified translation of it were filed with the answer. Kirie dieddorihg the pendency of the suit, and her daughter was substituted as plaintiff.The plaintiff’s counsel examined the defendant, and then called several otherwitnesses. The evidence dealt with possession alone. I find in it no referenceto the “ sittu " and the judgment—which was as follows: " Plaintiff's casefinally dismissed with costs "—cannot be regarded as having affirmed itsgenuineness. But D. C. Sandy, No. 32,985, differs in yet another pointfrom the facts in 305—1). C. Batnapura, No. 1,111, in that it appears from thejournal entry in the former case under date August 19, 1867, that the Courtallowed the " sittu " itself to be removed from the record. The “ sittu ”then passed again into the bands of the appellant's predecessor in title andcould have been registered still. It was not so registered* nor was it subse-quently registered, though the time limited for registration was extended toFebruary 1, 1876 (see noite, 9 8, <7. G. 103).
Mr. Tambyah asked that, in any event, he might still be allowed an oppor-tunity of bringing the appellant within the proviso to section 7 of OrdinanceNo. 6 of 1866, which enables unregistered old deeds to be received in evidenceon proof that the non-registration was due to causes " utterly beyond thecontrol ” of the persons producing them. I cannot now accede to thisapplication. It appears from the judgment of the Commissioned of Bequests,notwithstanding the words 11 deeds admitted ” in the record, that thereception in evidence of the “ sittu " was objected to at the trial on theground of non-registration.. That was the proper time for Mr. Tambyah'spresent application to me made. It .was not made. The point is not taken inthe petition of appeal. Nor does the appellant now say that he is in possessionof evidence to satisfy .the proviso ini question.
The appeal must be dismissed with costs.
DANIEL et al v. SILVA et al