( 107 )
KUMARA HENEYA v. KIRI BANDA.
C. B., Kegalla, 6,508.
Registration of deeds—Ordinance _ No. 14 of 1891, s. 18—Priority in .actualregistration—Priority in delivery at the office for registration—Officerales as to acceptance' of deeds in Registrar’s office—Test of priorregistration—Ordinance No. 14 of 1891, s. 17.
Where a vendor professed' to sell at different dates the same land to twodistinct vendees, and the first vendee delivered the deed of sale earlierthan the second to the head clerk at the office of the Registrar of Lands forregistration .in compliance with the terms of section 16 of OrdinanceNo. 14 of 1891, and where, owing to an office rule, which precluded theday-book clerk from accepting “ any deeds from any member of thedepartment, " the registration of the first vendee's title was delayed,und the second vendee's deed was first actually registered,—
Held, in an action brought by the first vendee against the second forejectment, that, inasmuch as the first vendee was the first to deliver hisdeeds at the office for registration, and both deeds have been registered on(he same day the first vendee was not to be prejudiced by an officerule which precluded his deed from being actually first registered, andwas not to have his deed declared void as against the second vendee onthat account.
N this case the plaintiff sued the defendant in ejectment onthe strength of a deed of sale bearing No. 5,394, dated 4th
April, 1904, granted by one Baba Appu, and claimed the benefit ofits registration dated 3rd May, 1904. The defendant, on the otherhand, rested his .right to the property on a deed bearing No. 40,455and dated 2nd May, 1904, and alleged he had bought the land forvaluable consideration, and that his deed had been registeredprior to the plaintiff’s deed, upon which priority he claimed theland in terms of section 17 of Ordinance No. 14 of 1891.
On the case coming bn for trial the following issue inter alia .. was framed:—“ Which deed should prevail in regard to priority:No. 5,394, dated 4th April, 1904, and registered on 3rd May, 1904,or deed No. 40,455, dated, 2nd May, 1904, and registered on 3rdMay, 1904 ? ”
The learned Commissioner, Mr. Allan Beven, found. for theplaintiff, because in his opinion there had bden on the part ofthe defendant both fraud in obtaining the deed and collusion insecuring prior registration.
The defendant appealed.
The case came up for argument on 20th January, 1905.
Dornhorst, II. C., for defendant, appellant.
Jay award ene, for plaintiff, respondent.
Cur. adv. vuIt.
( 108 )
7th February, 1905. Layabp, C.J.—
There does not appear to me to be any necessity for decidingthe point raised by the appellant as- to whether-the Commissionerwas right in holding that his deed was executed and registeredfraudulently.
The Commissioner finds as a fact that the plaintiff’s deedreached the registrar first, and he handed it to the chief clerk ofthe registration department before the defendant’s deed wasbrought to the office. The chief clerk says he refused to acceptthe plaintiff’s deed ’’ because the rule of this department is thatthe day book clerk cannot accept any deeds from any member ofthe department. ”,
. That may be a very salutary rule as regards the members of thedepartment. I do not see, however, how, it can affect the rights ofoutsiders..
Both the plaintiff’s and defendant’s deed reached the registrar’soffice on the same day. The plaintiff’s deed was received firstby the registrar of lands. It is true that the .defendant’s deedowing to a departmental rule was .entered first in the day book,but both deeds were entered on the same day in that book. Thedepartmental rule cannot be treated as rendering void the plain-tiff’s deed, which was received at the registrar’s office earlier thanthe defendant’s deed. I cannot see my way to interfere with somuch of the judgment of the learned Commissioner as ■- givespreference to the plaintiff’s deed. The Commissioner has, how-ever given judgment for the plaintiff for Es. 20 damages perannum; there is no evidence as to plaintiff’s having sustained anydamage, and that portion of the decree which awards plaintiffdamages must be set aside. Subject to the above amendmentthe decree of the Commissioner is left standing. The appellanthaving partly succeeded in appeal, each side will bear their owncosts in this Court.
KUMARA HENEYA v. KIRI BANDA