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PresentFisher C. J. and Garvin J.DE SUVA el al. v. WAGAPADIGEDEJtA.272—D. C. Kandy, 33,761.
Registration—Fideicommissary gift unregistered^—Sale by fiduciaryheir—Registration of deed of sale—Priority.
Where a deed of gift creating a fidei commissum was unregistered •and the fiduciary who was also the intestate heir of the donor soldthe property to the defendant who' registered his deed,—
Held, that the defendant’s title was superior to that of the_ fideicommissary heirs.
James v. Carolis' followed.
PPEAL from a judgment of the District Judge of Kandy.
Loku Mudianse by an unregistered deed of 1868 (PI) gifted hisrights in the land which was the subject-matter of this action to hiswife subject to a fidei commissum, extending to the full period, infavour of his grandchildren Bandara Menika and Muttu Menika.Bandara Menika gifted her rights free of the fidei commissum to herson William by a registered deed of 1902, and William sold to thedefendant-respondent by D1 of 1914, registered on January 14,1914.On the death of William, his widow and children brought thisaction against the defendant for a declaration of title'to BandaraMenika’s rights. In a previous appeal the Supreme Court held that
117 N. L. R. 76.
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1989. – on an interpretation of PI the plaintiffs were entitled to these rights,jje gum v. but at the. subsequent hearing the defendant taking advantage ofWagapadi- the fact that Bandara Menika was the intestate heir of Lokugedera Mudianse claimed better title on the ground of prior registration.The District Judge upheld the contention.
H. V. Pererd (with him Rajapakse), for plaintiffs, appellants.—The two claims of title go back to Bandara Menika—that is thecommon source. .The defendant is bound by the recitals in hisdeeds. He must have had knowledge of PI.
A person who enters on property on a certain footing holds theprpperty on the footing of that document. He and all those claimingthrough him cannot be allowed to plead a different title (Board v.Board1).
An attempt was made, but unsuccessfully, to limit this doctrineto wills (Dalton v. Fitz Gerald1).
Keuneman (with him N. E. Weerasooria and Navaratnam), fordefendant, respondent.—The learned District Judge was right ingiving Dl priority over PI. We get back to Loku Mudianse viaBandara Menika by treating her as an intestate heir.
[Garvin J.—Can you give a single case where a son who receiveda deed of gift from his father has been allowed to say that he is theintestate heir ?-
Ellapata v. Fernando8 is very similar to this case. James v.Caroliir1 is directly in point and is binding. Vide also 2 Dow <SsClarke’s R. 480.
[Garvin J.—Can you extend the principle of James v. Carolisany further?]
’You must disregard all unregistered deeds if you can trace titlethrough any other channel.
As regards the question of estoppel you cannot have an estoppel.against the Statute law of the land.
The English cases are all based on an interpretation of the EnglishStatute of limitations.
Painel). Jones? is a case in which estoppel was not allowed.
The English law of estoppel by recitals in deeds is not in force in ‘Ceylon (GhmatUehe v. Fernando6).
Mere knowledge will not do (Aserajypa v. Weeratunge et al.7).Section 17 of the Registration Ordinance does not bring in any formof notice.
(1813) L. R. 9 Q. B. 48.* 17 N. L. R. 76.
1 (1897) 8 Ch. 86.5 18 Equity Case 320.
24 R.c. R. 175.* 22 N. L. R. 385.
’ 14 N. L. R. 417.
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H. V. Perera, in reply.—Cases cited by the other side can be 1929.distinguished. Paine v. Jones (supra) has been distinguished in £)e~Silva v.Dalton v. Fits Gerald (supra).Wagapadi’
We can rely on estoppels to prevent the defendant from going ff6<Jeroback to Loku Mudianse. The question of estoppel was not raisedin Ellapata v. Fernando (supra) and could not have been raised inthe 2 Dow <fe Clarke’s case.
March 8, 1929. Fishbb C.J.—
In this case one Mudianse by deed of gift PI dated December 4,
1868, created a fidei commissum over the property which is thesubject-matter of the action. This Court has already held that underthe provisions of that deed his daughter Bandara Menika was afiduciary and in the events which have happened the plaintiffs andan infant who is not a party to the action are, so far as the con-struction of the deed is concerned, entitled to the property. BandaraMenika entered into possession under the deed, but it was neverregistered. By P3 dated June 10, 1902, Bandara Menika gave theproperty to her son William, who by D1 dated January 9, 1914,registered on January 14,1914, sold it to the defendant for Rs. 2,000.
The defendant is and has been for several years, though not longenough to establish A title by prescription, in possession of theproperty, and the question for decision is whether the plaintiffehave proved, and the onus is on them, that they have a title whichprevails over that of the defendant.
The case set Up for the plaintiffs involves a consideration ofsection 17 of the Land Registration'Ordinance. No. 14 of 1891. InJames v. Carolis1 Lascelles C.J. said that the scope and object of theOrdinance is the protection of the purchaser for valuable considera-tion and there can be no doubt .there where a question as to the effectof that action arises in its simplest form, namely, between twopersons who have obtained transfers for valuable consideration fromthe same person, their respective rights will be decided, apart, ofcourse, from any question of fraud and collusion, according to priorityof registration. To construe the second proviso to the section tomean that the later in date of two ;transfers of the same land cannotbe taken to have transferred property already dealt with by theformer transfer would be to nullify the first paragraph of the sectionunder which a previous dealing with property by a deed which isnot registered is void as against a subsequent dealing by a deedwhich is registered.
In the present case there was no question of fraud or collusion,and the title of the plaintiffs entirely depends on the deed of gift PI.
It must be taken that Bandara was the intestate heir of Mudiansebut it is clear that apart from the effect of section 17 she had on
111 N. L. R. 76.
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1929. interest in the property other than her life interest as fiduciary,Fmher C. j. an(i it 4s equally clear that under the provisions of that section PI—,— is void as against the defendants. The case, in my opinion, is coveredWagltpadi- ^ the decision in Jantes v. Curolis (supra). In that case A conveyedgedera a land to B and died. C, who was the intestate heir of A, conveyedto D, who registered his deed before B. Clearly C had in law no title,as A did not die possessed of the property. Nevertheless, the Court(three Judges) held that D’s title prevailed. We need not thereforeconsider the question from the point of view that Bandara dealtwith a register interest than to which she was entitled. But itwas urged that notwithstanding the provisions of the section thedefendant is estopped from disputing the rights of the plaintiffsunder PI. 1 In my opinion that is not so. Nothing which does notamount to fraud and collusion is sufficient to stop the operation ofthe section in favour of a party claiming under a duly registereddeed. In the result the plaintiffs have nothing to rely upon toprove their title, but a deed which is void as against the defendantand their claim must fail.
As regards costs, the hearing in the Court below was due to theraising by the defendant of an entirely new defence which, had itbeen raised in the first instance, might have obviated the necessityfor deciding any other question. I think the judgment in his favourin the Court below should be without costs, but he is entitled to thecosts of the appeal.
Gabvin J.—I agree.Appeal dismissed.