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1W7.Present : Wood Benton C.J. and Shaw J.
JUAN APPU v. WEERASENA.70—D. 0. Galle, 14,868.
Writ against administratrix — Fiscal's sale of intestate's property —
Subsequent sale by administratrix of same property with order of
Court—Prior registration of conveyance from administratrix.
On a writ against an administratrix certain property – of’ theintestate – Was sold by the Fiscal on November 15, 1915, and boughtby the plaintiff, who obtained the Fiscal’s transfer on January 7,1916, and registered it on the same day.
On November 1, -1915, the administratrix obtained an order ofCourt in the administration proceedings to sell the same property,and on December 3, 1915, a , conveyance of the property in favourof the defendant was executed by the administratrix, and it wasregistered on December 6, 1915.
Held, that plaintiff had a superior title.
Aserappa v. Weeratunga1 and. Tikiri Banda v. Loku Banda9followed.
rj'HE facts are set out in the judgment.
Bawa, K.G. (with him M. W. H. de Silva), for appellant.
H. J. C. Pereira, for respondent.
Cur. adv. vult.
May 29, 1917. Shaw J.—
The plaintiff, a creditor of one Odris de Silva Weerasena, whodied in June, 1914, obtained judgment against the administratrixm case D. C. Galle, No. 13,320, and issued execution on his judgment.
Certain property which formed part of the intestate's estate, andwhich is now in dispute in the present action, was seized by theFiscal and sold under the writ on November 16, 1915, the plaintiffhimself becoming the purchaser. The sale was confirmed by theCourt on January 4, 1916, and on January 7, 1916, the plaintiffobtained a Fiscal's transfer for the property, and registered it on thesame day in the Land Registry.
Prior to this transfer and registration the administratrix hadon November 1, 1915, obtained an order of the Court in theadministration proceedings to sell the same property, and onNovember 27, 1915, the property was sold under the order and
1 (1911) 14 N. L. R. 417.
9 (1911) IS N.L.R. 63.
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was bought by the defendant. This sale having been confirmed by,the Court on December 8, 1915, a conveyance of the property wasexecuted in favour of the defendant by the administratrix on thesame day, and registered by him on December 6, 1915.
The.present action is brought to decide the rival claims of theplaintiff and defendant to the property, and the District Judgehas decided in favour of the plaintiff. From this decision thedefendant appeals.
The position is that the actual sale by the. Fiscal to the plaintiff isprior in date to the sale to the defendant, but the conveyance to thedefendant is prior to the Fiscal's transfer to the'plaintiff, and wasregistered before it.
By reason of the provisions of section 289 of the Civil ProcedureCode the plaintiff, upon obtaining the confirmation of the sale andthe Fiscal’s transfer, must be deemed to have been vested with thelegal estate from the date of the sale, namely, November 16, 1915,and the administratrix divested of title upon the same date. Apart,therefore, from any question of registration under the RegistrationOrdinance, the plaintiff would have the better title, the administra-trix having had no title on November 27, the date of his conveyanceto the defendant.
I agree with the Judge that the Full Court decision in the case ofAserappa v. Weeratunga et al.1 is conclusive in favour of the plaintiff.In that case there was a conflict between the purchasers at twoFiscal’s sales; the defendant’s sale was prior in date to that to theplaintiff, but the plaintiff’s transfer and registration were prior indate to those of the defendant. The Court held that the defendant’stitle prevailed. The reason for the decision was that section 17of the Registration Ordinance only applies to give priority to asubsequent deed which has obtained prior registration, and that theplaintiff’s transfer being prior to the defendant’s, he gained nobenefit from the provisions of the section. It was contended inthat case that the rival transfers, by reason of the provisions ofsection 289 of the Civil Procedure Code, related back to the datesof sale, and that, therefore, the plaintiff’s transfer was subsequentto the defendant’s, although executed at a later date. The Court,however, negatived this contention, holding that the doctrine ofrelation back under that section applied to the question of thevesting of the legal estate upon a sale in execution, and did notaffect the date of a deed the priority of which it was soughtto establish under section 17 of the Registration Ordinance.
A similar decision was given in the subsequent case of TxkiriBanda v. Loku Banda,2 where the competition was between a Fiscal’sconveyance and a deed executed by the judgment-debtor andregistered prior to the Fiscal’s transfer but subsequent to theFiscal’s sale.
Juan Appuv. Wurasena
1 (JMl) 14 N. L. JR. 417.
%(19U) 15 N. L.R.63.
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The facts of the present case are indistinguishable from those ofthe cases I have referred to, the defendant’s deed and registrationboth being prior in date to the plaintiff’s Fiscal’s transfer. Thepoint being, in my opinion, absolutely concluded by the Full Courtdecision, I do not think it necessary to refer to the other cases onthe point cited at the hearing.
The further objection to the plaintiff’s title was taken on theappeal by counsel for the appellant, based on the case of Hendrickv. Beenthat then is no proof that the Fiscal’s seizure was registeredunder section 237 of the Civil Procedure Code. Whether this is thecase or not I do not know, but no objection was taken to theplaintiff’s title on this ground, either in the answer, during theargument in the Court below, or in the petition of appeal itself,and it is too late for the defendant to take any such point now.
With regard to the other point taken by the defendant, namely,that the sale by the administratrix, being a sale by order of theCourt, takes priority over the Fiscal’s sale, I agree with the findingof the Judge that, although the order for sale by the Court mayprevent the administratrix from transferring title without theauthority of the Court, it can have no effect as against a sale madeadversely to her in the creditor’s action.
I would dismiss the appeal, with costs.
Wood Kenton C.J.—I agree.
M1916) SC. W. R. 204.
JUAN APPU v. WEERASENA