T. S. FERNANDO, J.—Diyes Singho v. Heralh
1962Present:T. S. Fernando, J., and Abeyesundere, J.
E. A. DIYES SINGHO, Aj^pcllant, and E. A. HERATH, Respondent
S. C. 508—D. C. Gampaha, 5400(L
Registration of deeds—Prior registration—Cross-reference to a different folio—Burdenof proof then—Proof of valuable consideration in respect of subsequent deed—Registration of Documents Ordinance (Cap. 117), ss. 7, 14—Notaries Ordinance(Cap. 107), s. 31 (20) (c).
When considering, under section 7 (1) of the Registration of DocumentsOrdinance, Whether an unregistered instrument is void against a subsequentregistered instrument, the question whether the later instrument has been duly-registered as required by the Ordinance is a mixed questioxt of law and fact.
The folio in which the subsequent instrument of the plaintiff was registeredcontained a cross-reference to folio C. 234/19, which, in turn, indicated that itwas itself “ brought forward from folio C. 175/35 There’ was however noattempt to show what folio C. 175/35 represented.
Held, that, under section 14 (1) of the Registration of Documents Ordinance,the burden was on the plaintiff to have led evidence as to whether C. 175/35was the folio in which the first registered instrument affecting the land wasregistered or was a continuation of that folio.
Held further, that although no issue was raised by either party in respect ofthe passing of valuable consideration for the subsequent instrument,, the absenceof such an issue could not have the effect of absolving the plaintiff from provingthat valuable consideration was given. Proof of the existenco’of a statement in’the deed by the notary that consideration was paid is not sufficient to establishthe truth of the payment of such consideration.
.A.PPEAL from a judgment of the District Court, Gampaha.
H. W. Jayewardene, Q.C., with D. S. Wijewardene, for the defendant-appellant.
S. W. Walpita, with D. R. P. Goonetilleke, for the plaintiff-respondent.
Cur. adv. vult.
June 21, 1962. T. S. Fernando, J.—
The plaintiff-respondent sued the defendant-appellant for a declarationof title to and ejectment from and damages in respect of a small allotmentof land, 1 rood and 22 perches in extent, valued at Rs. 400, and depictedas Lot H in plan No. 1537 dated 18th August 1941 made by D. E. Ediri-. singhe, licensed surveyor. It is common ground that one Eusinahamyby virtue of final decree entered in District Court of Colombo CaseNo. 1666/P was entitled to this piece of land. At the time of’ the institu-tion of the suit with which we are concerned on this appeal, viz. 1stFebruary 1956, the defendant was in possession of this land. He claimedto be owner thereof by virtue of a purchase by him from Eusinahamyeffected on 30th April 1952 by transfer deed No. 28859 (Document D. 2 )
T. S. FERNANDO, J.—Diyes Singho v. Herath493
, Eusinahamy died without leaving an estate of administrable value,leaving as her heirs her husband and two children, and these three personspurported to convey this same piece of land on 13th June 1955 to theplaintiff upon deed of transfer No. 379 (Document P. 4). Although D. 2is some three years prior to P. 4 in point of time of execution, the plaintiffclaimed in this suit that the deed to him was duly registered within themeaning of the Registration of Documents Ordinance (Cap. 117), while
2 has not been so registered, thus ensuring for him the benefit of dueand prior registration. Section 7 of this Ordinance renders void aninstrument affecting land which is not duly registered as required by itas against all parties claiming an adverse interest in that same land onvaluable consideration by virtue of any subsequent instrument which isduly registered.
Even if, as appears to be the case, deed D. 2 has not been duly registeredas required by the Ordinance .the plaintiff to succeed in the suit had to■establish (a) that his later deed P. 4. was duly registered and (b) thatthere was valuable consideration for the transfer to him. At the trialthe learned District Judge held that P. 4 prevailed over D. 2 by virtueof due and prior registration. He has not recorded any finding in respectof valuable consideration passing upon the execution of D. 2, apparentlyfor the reason that this question was lost sight of not only by him, butalso by the plaintiff who made no attempt at the trial to establish it..
Itiwas argued before us first, that the learned District Judge was wrongin reaching a finding on the material before him that P. 4 has been dulyregistered as required by the Ordinance, and secondly, that the plaintiffmust in any event fail in his suit for want of proof of valuable considerationpassing in respect- of P. 4.
Though both parties claim through Eusinahamy, the failure on the partof the defendant to establish due registration of the deed on which herelies connot affect him adversely in this suit as against the plaintiff ashe is admittedly in possession of the land unless the plaintiff succeeds in■establishing that his deed is duly registered.
Section 14 of the Ordinance which requires instruments affecting landto be registered in the proper folio enacts in sub-section (1) that “ everyinstrument presented for registration shall be registered in the bookallotted to the division in which the land affected by the instrument issituated and in, or in continuation of, the folio in which the first registeredinstrument affecting the same land is registered. ” The folio (DocumentP. 2) in which plaintiff’s deed P. 4 is registered contains a cross-referenceto the foilio C. 234/19 in which the partition action is registered, butthe point taken is that there is no compliance with the requirement ofsection 14 (1) reproduced above in the sense that the court was left withoutproof as to the folio in which the first registered instrument affecting the.land-is registered. Folio C. 234/19 (Document P. 1) indicates that it hasitself been “ brought forward from folio C. 175/35 ”, but no attemptwas made bv the plaintiff to show what this latter folio represents.
• T. S. FERNANDO, J.—Diyes Singho v. Herath
It was pointed out to us that in the judgment the learned District Judge
observes that “ It. is not disputed that the partition action is registered
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in the correct folio and I shall therefore* presume that the registrationof the partition action in P. 1 is duly and correctly done. ” The accuracyof-this observation was challenged on behalf of the defendant and is notborne put by .the note of the argument had before the District Judge,' and
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initialled by the latter himself. The. question whether an instrumenthas been duly registered as required by the Ordinance is a mixed questionof law and fact. No evidence was called by either party at the; trial*.
Counsel for the parties agreed to mark certain documents and, after doing,so, addressed the Court on their respective cases. The result was jthatthe Court was left without proof as to whether C. 175/35 is the: folio in-which the first registered instrument affecting the land is registered oris a continuation of the said folio. The jjlaintiff has, in my opinion,,therefore failed to discharge the burden that lay upon him, and, thefirst point taken on behalf of the appellant is entitled to succeed, "r ' '•
■ t ,
Learned counsel for the plaintiff alleged that due registration of the-partition action was admitted in the District Court. If this, allegation.,is correct it is certainly unfortunate that the admission is not reflectedin the record, made at the time of argument. It is pertinent in thisconnection to repeat the observations made by the Chief Justice in Zahirv. David Silva1, after referring to section 58 of the Evidence Ordinance^that “ the whole purpose of admitting facts in a legal proceeding is to-avoid having to prove them and that judges should therefore record themwith the utmost care because the admissions take the place of proof.4” ,
■•'t -; '
In regard to the second point taken on behalf of the appellant, learnedcounsel for the plaintiff, while conceding that the plaintiff was required to-establish that valuable consideration passed on the. execution of P. 4,argued that the agreement by the parties to mark documents at thetrial involved an admission .that there was in fact valuable considerationfor P. 4. He relies on the circumstance that in deed P. 4 is embodieda statement by the attesting notary that the consideration of Rs. 400-was. paid in cash in my presence and. cited section 31 of the NotariesOrdinance (Cap. 107).in his aid. Section 31 enacts that “ it is and shallbe the duty of every notary strictly to observe and act in conformitywith "certain specified rules, one of which is (see section 31 (2) (e)) thathe shall in the attestation of every deed or instrument state whether anymoney was paid or not in his presence as the consideration of the deed orinstrument/ I am unable to agree that proof of the existence of abate-ment in the deed or instrument by the notary that consideration was paid
1 (1959) 61 N. L. R. at 359.
Somawathit v. Covroy
is sufficient to establish the truth of the payment of such consideration.Counsel argued that agreement to mark the document was an acknowledg-ment of the truth of all statements contained therein. I find myselfagain unable to agree. It is correct that no issue was raised by eitherparty in respect of the passing of valuable consideration for deed P. 4,but the. absence of such an issue cannot have the effect of absolving theplaintiff from proving a fact necessary to obtain priority for his later deedover the earlier one of the defendant. It is not without significance inthis connection that the petition of appeal of the defendant preferred theday after the delivery of judgment by the District Judge contains thesubmission that the plaintiff’s deed connot prevail in the absence of proofthat plaintiff paid consideration for it. The defendant is entitled, inmy opinion, to have the second point taken by him also upheld.
In the result the judgment and decree in favour of the plaintiff have tobe set aside, and I would direct that the plaintiff’s action be dismissedwith costs in both courts.
Abeyesueeere, J.—I agree.
E. A. DIYES SINGHO, Appellant, and E. A. HERATH, Respondent