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JAYAWARDANE v. NIKULAS et al.D. C., Galle, 2,479.
Competing claims to land under same owner—Rights of purchaser atFiscal’s sale and of purchaser at private sale—Delay of purchaserat Fiscal’s sale in getting conveyance and possession—Preferentialright of subsequent purchaser, on equitable grounds.
A, being owner of a land, mortgaged it to O in 1882, in ignorance ofwhich K bought the land at a Fiscal’s sale in 1889, but failed toobtain conveyance or possession until 1893. In the meanwhile, inAugust, 1890, O assigned A’s mortgage to D who, having obtainedjudgment thereon, assigned it to S in December, 1890. S thenbought the land from A, had both the deed of assignment and deedof sale in his favour registered in December, 1890, and leased theland to N in October, 1892. K obtained a conveyance from theFiscal in March, 1893, had it registered in the same month and year,and thereafter sold the land to J.
Held, in an action brought by J against S and N, that as J’svendor (K) neglected to obtain conveyance or possession from theFiscal in due time, but allowed the owner A to remain in possessiontill 1893, and as S had paid oif a subsisting mortgage and becamepurchaser for value without notice of K’s claims, S was entitled,on equitable grounds, to keep what he had purchased.
CTION in ejectment and for declaration of title in favour ofplaintiff in respect of a field.
Abeyagunawardane was its original owner. Periya KaruppanChetty obtained judgment against him and caused the field to besold in execution on March 18, 1889. He bought it, but did notobtain a conveyance from the Fiscal till 2nd March, 1893. Thedeed in his favour was registered on 20th March, 1893. BetweenMarch, 1889, and 5th September, 1893, Abeygunawardauecontinued to be in possession, and on the latter date PeriyaKaruppan was put in possession by order of Court. On 10thOctober, 1893, Periya Karuppan sold it to the plaintiff, and thisdeed of sale was registered on 16th October, 1893. Plaintiffalleged forcible possession on the part of the defendants and prayedfor ejectment and possession.
Defendants claimed the field, also under Abeygunawardane.They alleged that he mortgage it to the Oriental Bank Corporationby deed dated 26th July, 1882 ; that the mortgage was assignedto Dias by deed dated 28th April, 1890 ; that Dias obtained judg-ment against Abeyagunawardane in case No. 55,872 on 11thAugust, 1890 ; that Dias ceded and assigned to the second defend-ant the said action and judgment by deed dated- 16th December,1890 ; that on the same day Abeyagunawardane, with the consentof Dias, sold the field to the second defendant for Rs. 2,500 “ infull discharge and redemption of the said judgment;” that both
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these deeds of even date were registered on 17th December, 1890 ;and that second defendant leased the field to the first defendantby deed of 3rd October, 1892.
The issues settled were, (1) Did Periya Karuppan purchasethe field on 18th March, 1889 ? (2) Was the execution-debtorAbeyagunawardane then seized and possessed of it ? (3) Is theplaintiff entitled to it under Periya Karuppan’s deed of 10thOctober, 1883 ?
The District Judge found the issues in favour of defendants anddismissed plaintiff’s case.
On appeal Jayawardene (with De Saram), for appellant.
Wendt, for respondent.
Cur. adv. vult.
18th October, 1894. Lawbie, A.C.J.—
The right, title, and interest of Abeyagunawardane’s in the fieldwas sold by the Fiscal on 18th March, 1889, .and was purchased bythe execution-creditor, Periya Karuppan Chetty. Notwithstandingthe sale, Abeyagunawardane remained in possession, and on 16thDecember, 1890, he executed a conveyance. The purchaser wasSendo (second defendant), who had paid off a mortgage on the landand held an assignment of a mortgage decree. The transfer toSendo was registered on 17th December, 1890. Four years afterthe sale in execution Periya Karuppan Chetty got credit for theprice and got a conveyance from the Fiscal dated 2nd March,1893, which he registered on 20th March, 1893.
It was argued in appeal that the conveyance by the Fiscalrelated back to the date of the sale. I do not see how that could doPeriya Karuppan Chetty any good. The transfer might by a legalfiction relate back, but what fiction could make the registrationbear any other than its real date, the 20th March 1893 ? Theresult of the relating back the conveyance to the date of the sale,18th March, 1889, would be that the deed would be void by theprior registration of a subsequent deed, viz., that of the defend-ant’s predecessor Sendo, whose transfer, although later than therelating back date of Periya Karuppan Chetty’s purchase, wasregistered earlier.
The doctrine or fiction of relation back may be applied when itdoes no one any harm, but when interests have been created orhave arisen in the interval from the time to which relation backis desired, these interests cannot be hurt by a legal fiction.
The question whether Abeyagunawardane had any right ortitle left on him after the seizure and sale by the Fiscal of hisright, title, and interest,—whether he had anything which he could
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validly convey to Sendo,—whether, in other words, Sendo gotanything by the transfer,—is a question of difficulty.
I think it may be safely said that, prior to the passing of theRegistration Ordinance in 1863, a Fiscal's sale, when confirmed bythe Court, and when the full price has been paid, entirely divestedthe debtor of all right, and that a conveyance thereafter by himwas a conveyance of nothing, because made by a man who hadnothing to convey. This invalidity of the execution-debtor’sconveyance did not necessarily involve the proposition that thepurchaser had a title to the land from the moment that the h»,mimrfell and he was declared the purchaser. My opinion is that,as the Fiscal could transfer a debtor’s property only if hestrictly conformed to the provision of the Ordinance No. 4 of1867, the purchaser got, because the Fiscal could give, nothingexcept by written conveyance in the terms laid down in the scheduleto the Ordinance.
Since the passing of the Registration Ordinance many, verymany, decisions have been pronounced, which imply, nay decide,that a sale by a Fiscal does not divest a debtor of his right; thathe is divested only and when, and not until, the Fiscal’s conveyanceis registered. Until then, the debtor may lease, he may mortgage,he may sell; and if the lessee, the mortgagee, or the purchaser getshis deed registered before the Fiscal’s conveyance is registered,then the prior registration makes the prior deed void.
But the difficulty here is that no question arises under theRegistration Ordinance. The registration of Sendo’s deed didnot make any other deed void, because there was then no otherdeed in existence. The registration of Sendo’s transfer cannotmake the Fiscal’s sale void. At least, the Ordinance does not sayso, and we may not stretch the 39th section beyond its plain words.If registration cannot avail the defendant, what has he to opposeto the sale of all Abeyagunawardane’s right before the transferredto the defendant’s predecessor, Sendo ?
I feel great difficulty. I only support this judgment, whichdismisses the action, on the ground that the plaintiff is estoppedfrom disputing Abeyagunawardane’s right to sell to Sendoin consequence of Periya Karuppan Chetty having acted in sucha manner as to induce in the minds of all that he claimedno right by virtue of anything which had taken place at the Fiscal’ssale.
He left the debtor in possession ; he did not ask for nor get anorder of credit; the sale was treated as a ceremony by which aright to demand a transfer had been gained ; but perhaps becausethe property was encumbered, perhaps from some other unknown
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cause, the purchaser for a time so acted: as to induce the beliefthat he waived the right to get a transfer or to get possession.He is estopped from changing his mind after other interestshave been created, on the footing -that he had withdrawn anyclaim he had.
I am not completely satisfied with this ground of judgment. Itis just in this particular case. But hard cases make bad law,and I confess it is with some hesitation that I give effect to .atransfer by a debtor after a sale in execution of his interest, whereno advantage can be claimed under the Registration Ordinance.
I concur in affirming the judgment of the Court below,though very sensible of the difficulties in the case. The casesin 9 S. C. C. 32 and 92, so much pressed on us by Mr.Jayawardane, are to my mind destructive of his claim. TheFiscal’s transfer and the Registrar’s certificate of registration aretwo very different things. If the former relates back to thejudicial auction, it cannot carry the date of registration back withit. Priority is from the date of registration. But between PeriyaKaruppan Chetty’s purchase and the Fiscal’s deed Sendo came inand registered his act of conveyance of what, from decisions ofof this Court, might be regarded as an adverse title. Sendo’s priorregistration would render the Fiscal’s transfer to Periya KaruppanChetiy void. The plaintiff allowed his judgment-debtor toremain in occupation and enjoyment, and to deal with it as if itwere his own. Sendo was a purchaser for value without notice ofthe premises, a subsisting mortgage on which he paid off at thetime of purchase. He is entitled on equitable grounds to keepwhat he has so purchased, and what he has been in legalpossession of since his purchase.
JAYAWARDANE v. NIKULAS et al