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SILVA v. REGISTRAR-GENERAL.D. C., Colombo, 237.1003.May 19.
'The Land Registration Ordinance, No. 14 of 1891, s. 18—Application of intendingpurchaserof aland to inspectbook of registrationinwhichthe deeds
relating ‘to that land are registered—Facts necessary to be stated to theRegistrar-General—Duty of that officer.
Apersonwhoclaims tcbethe intending purchaserof aland and
applies to the Begistrar-General, under section IS of the OrdinanceNo.14 of1891,to inspectthebook of registrationinwhichthe deeds
relating to such land are registered, is bound to furnish to that officerreasonable informationwhich satisfieshim of thegenuineness of hisclaim
thathe has aninterest in theentries' in question;but theBegistrar-
General has no .rightto require theapplicant toproduce from theowner
his written authorityor consent toinspect theentries, for thatwould
be making the owner the arbiter on the-point.
NDER the provisions of section 32 of the Ordinance' No. 14of 1891, the applicant moved for and obtained a rule on the
Registrar-General to show cause why the applicant should not bepermitted to search for incumbrances affecting the property whichhe alleged he was in treaty with its owner to buy.
On cause showln, the District Judge of Colombo (Mr. D. F.Browne) discharged the rule.
The applicant appealed.
Walter Pereira, for appellant.—The appellant, having arrangedwith the owners of a property in Colombo to buy the same, requiredthe respondent to allow his proctor, in terms of section 15- of theOrdinance No. 14 of 1891, to inspect the books in which the deedsrelating to that property are registered. The respondent declinedaccess to the books until the appellant produced a written authorityfrom the owner of the land authorizing such inspection. Section15 empowered all parties claiming to be interested therein or theirproctors to inspect the books. “ Therein ” -refers to the books ofregistration, and not the lands, as held by the District Judge, whohas held! in effect that an intending purchaser was not a partyinterested in the books. So long as a person claims to be interestedin the 'books, it is not competent to the Registrar-General to go behind6uch person’s application and inquire whether or not such claimis well founded. An intending purchaser is a person claimingto- be interested. It has been decided in Suppramanian v.Gunawardana (3 N. L. R. 278) that any one who’ chooses to do somay ascertain from the registry the existence of any deed•touching any particular land. An intending . purchaser has
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1902. a fortiori such a right. If the right were not conceded except withMay 19. ^he owner’s consent, what is an intending purchaser at a. Fiscal's-sale to do? He may not know the execution-debtor at all, or thelatter may refuse' to give him his consent. Registration is noticeto the- public, and therefore it would be obviously dangerous to amintending purchaser to be without access to the books of regis-tration. “ Interested ” means, according to Webster, liable to beaffected.*
Rdmandthan, S.-G., for respondent.—“ Interest, ” as used in theOrdinance, is something more than the interest of one human beingin the affairs of another human being. Where the Legislature hasused the expression “ party interested ” or “ person interested, ”it has been always understood to mean a specific interest. Forexample, a bankrupt is not a party interested under sections 39and 40 of the Solicitors’ Act (6 and 7 Viet. c. 73), re Leadbitter,10 Ch. Div. 38. Nor is any one who is not a- shareholder in aCompany which has a contract, a person interested in that -contract(Dewes v. Canal Company, 3 H. L. C. 757). The trustees of afriendly society are not “ persons, interested ” in the matter of anapplication for altering the rules of a friendly society made-within section 41 of 18 and 19 Viet. c. 63 (Hall v. Macfarlane,27 L. J. C. P. 41). So here, the meaning of the expression“ claiming to be interested ” must be gathered not from section 15of the Ordinance only, but from the general context. The Ordi-nance No. 14 of 1891 is intimately connected with the OrdinanceNo. o of 1877, which refers to'the registration of titles to land.Qriginally the Ordinance No. 8 of 1863 provided for the registra-tion of titles to land and of deeds affecting land. This wasrepealed by the Ordinance No. 14 of 1891, but many of the oldsections were re-enacted in it. The expression “ claiming to beinterested ” occurs in the Ordinance of 1863 and 1877, as also inthe Ordinance of 1891, and1 seems to mean an interest claimed byvirtue of a legal right. See section 8 of the Ordinance No. 5 of1877 and section 17 of the Ordinance No. 14 of 1891. To accepta claim fha-t does not rest upon such a foundation would leadto the absurdity of enabling an idler or mischief-maker to pryinto the muniments of title of innocent holders, which the lawholds sacred. No notary public would' throw open his protocols toa stranger without the consent of the parties to the deed. TheRegistrar-General holds the deeds attested by all the notaries inthe country, and he must not disclose to idlers and mischief-makers the deed's held in privacy by the notaries, unless the lawallows him to do so. It is only when a person has a legal or validinterest in the deed he seeks to examine, that he should be allowed
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access to it. The appellant speaks of himself as an intendingpurchaser of a property, and the Registrar-Genera 1 has a right tocall upon him to show that he was really an intending purchaser.It was stated by the appellant that he had entered into a treatywith the house owner to buy the land. The Registrar-Generalthereupon asked the appellant to produce a letter from the ownerto that effect. In the circumstances of the case, that request wasneither unreasonable nor difficult to comply with.
Walter Pereira replied.
Cur. adv. vult.
19th May, 1902. Moncreiff, A.C.J.-t-
On the. 2nd February, 1902, the appellant arranged with twopersons to buy from them certain immovable property situated inColombo. He obtained the title deeds of the property and sentthem to his proctors for inspection and report. The property wasregistered1 in the books of the Registrar-General undercertain titles. On the 5th February the appellant wrote to theRegistrar-General to the effect that he had arranged to purchasethe property in question, and requested him to be good enough toallow his proctors to search for incumbrances affecting it. TheRegistrar-General said, in reply, that he would grant permissionupon the production of a written authority from the owners. Theappellant replied that, in accordance with the provisions of Ordi-nance No. 14 of 1891, no such written authority was required. TheRegistrar-General, however maintained his position, and1 said thathe could not permit inspection of the books without the consentof the owners. Thereupon the appellant obtained a rule in theDistrict Court of Colombo calling' on the Registrar-General £oshow cause why the appellant, or his proctors or agent, should notbe permitted to search for incumbrances affecting the propertydescribed in the annexed affidavit. After argument the rule wasdischarged. The appellant has appealed.
The incident is covered' by section 15 of. Ordinance No. 14 of 1891,which was enacted, according to the preamble, because it was“ expedient to consolidate and amend the laws relating to the“ Registration of Titles to Land, and of all deeds affecting lands” in this Colony. ” It is cited as “ The Land's Registration Ordi-" nance, 1891..” The first part of section 15 (1) relates to t/he bookskept by the Registrar-General, and the object of the registrationof deeds is therein described to be ” to facilitate reference to all” existing alienations or incumbrances affecting, the same lands.
In the latter part of the first sub-section, it is provided that thebooks " shall at all reasonable hours, upon a written application
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“ in that behalf, be open to the inspection and perusal of all“ parties claiming to be interested therein, or to their proctors or“ agents duly authorized thereto in writing, with liberty to demand“ and receive copies or extracts therefrom. ”
The words which concern us. are “ all parties claiming to beinterested therein.” The. Registrar-General thought that “ therein 'rreferred to the lands; the appellant says that they ifefer to theentries in the books. I cannot admit that there is any doubt onthe subject. Even if the policy of the Ordinance had been suchas to favour the respondent’s contention,' I should have thought itwholly impossible, in view of the grammatical construction of thesentence, to.hold that the word “ therein ” refers to anything butthe books. As a matter of fact, I think that not only has theLegislature saidthat the books shouldbe open tothose- claiming
to be interestedin them, but that itintended tosay so.That
is a view which is in accordance with the tendency of modernlegislation. It does not seem to me to be consistent with theprinciples of fair dealing that a person who is about to sell aproperty shouldbe able to concealfrom hispurchaserthe
incumbrances attached to it. .In any case, although we mayhave power to construe legislative enactments, we have nopower to alter them, and in my opinion we should be alteringwhat the Legislature has said if we acceded to the view of the.respondent, If any confirmation of this view were required, Ithink it is to be found in section 1.4, where again it, is providedthat “ duplicates and indtexes shall be open to the inspection and” perusal of allparties claiming to be interestedtherein.”The
construction of that sentence is even more simple than that of thesentence in section 15. Of course, if the Registrar-General had beenright upon this point, there would have been considerableplausibility in his argument, because it might be said that aperson claiming to be interested in the land was' one w-ho claimedto have an interest in the land, and that an intending purchaser■was not a person who had'-an interest in the land.
There remains a further question—Who is a person " claiming“to be interested^? ”
In my opinion it-could hardly be meant that he is any personwho chooses to go to the Registrar-General and say, “ Show me"such and such a deed. I am interested in it. ”Otherwise it
would not have been necessary to say more than " all parties" applying therefor. ” I think the Registrar-General is entitled tohave from the applicant reasonable information which satisfieshim that the applicant honestly and genuinely claims to beinterested in the entries, or at least information which will
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enable him to satisfy himself upon that point.—Now, the view of 1902*.the Registrar-General was not that he was entitled to have from May 19.the owners of the property confirmation of the applicant's state- Moncreif*ment, because it is not questioned by him that the appellant's A.C.J.statement was true; but he required that the appellant shouldprocure from the owners their. written authority or consent; thatis to say, he made the owners the arbiters on the point. Heconsidered that he stood in the position formerly occupied by thenotary. I can see no words in the section,- nor can I see anyargument arising from the legislation on the – subject, whichsupports that view ff the Registrar-General had been right, itmight have resulted that when the appellant went to the ownersand asked for authority, the owners, who might possibly beunwilling vendors, would have said “ No; that is the affair of the“ Registrar-General; we have nothing to do with it ". In the endno doubt the purchaser would have lost his purchase, and theowners their purchaser; and the Registrar-General would haverefused inspection to a person who not only claimed to be butwas interested in the entries in the books, and had done • every-thing in his power to meet the Registrar-General’s requirements.
Taking the view 1 do, T think that this .appeal should be-allowed, that the order discharging the rule should be set aside,and the rule made absolute.
The question upon this appeal is whether the Registrar-Generalwas right in refusing to permit the appellant by his proctor tosearch the Register of Lands kept under section 15 of “ The LandRegistration Ordinance, 1891 ”, for incumbrances affecting a certaintenement in Colombo described as bearing assessment No. 4,Kanatta road. In other words, the question is whether theappellant is a ” party claiming to be interested ” within themeaning of section 15.
The appellant baged' his written application to the Registrar^-General on the fact that he had arranged with the owners, twonamed persons, for the purchase of the property, and he mentionedthe volumes and folios of the registration books in which thedeeds relating to that property were registered. In his answer tothe application, the Registrar-General required the appellant tofurnish him with a written authority from the owners of theproperty, and on the appellant’s proctor pointing out that underthe Ordinance no written authority from the owners was neces-sary to enable a person claiming to be interested in any property.
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1902. to search for incumbrances affecting such property, the RegiBtrar-MaylS. General replied, that the appellant’s application could not beWendt, J. allowed without the consent of the owners of the land to which itrelated. The. present application was then presented to theDistrict Court in pursuance of the provisions of section 32.
Section 15, which we have to construe, is by no means clearlyworded, but I think that its grammatical construction* makes thismuch certain, viz., that the relative “ therein ” in the phrase•“ claiming to be interested therein ” refers to the book constitutingthe register, and not to the lands mentioned earlier in the section.The “ party ” applying for inspection must therefore be oneclaiming to be interested in the register, and not necessarily in thelands mentioned therein. This view disposes of the contentionput forward on behalf of the Registrar-General that the “ interest ”must be an interest in the land—what I may term a conveyancinginterest, something carved out of the dominium.
While I hold with the appellant that the interest required need,,not be'an interest in the land, I am against him in the contentionthat it was sufficient for him to have “ claimed ” an interest toentitle him to inspection; that no further question could be putto him by the Registrar-General by way of ascertaining whetherhe really, possessed the qualification which he . claimed. Toadopt the appellant's construction would be to hold that thewords “ partly claiming to be interested ” amounted to no morethan the term “ any person ”, Which occurs in relation to the in-spection of a statutory register in “ The Carriers’ Ordinance, 1865 ”,section 15, and “ The Patents Ordinance, 1892 ”, section 12; or theterm ” every person ” (” The Joint Stock Companies’ Ordinance,1861 ”, section 4 (5)); or the term “ all persons ” (“ The Births and'Deaths Registration Ordinance, 1895 ”, section 45, and “ The Marri-age Registration Ordinance, 1895 ”, section 48); or the term “ thepublic ” (“ The Trade Marks Ordinance, 1888 ”, section 26).
The words “ claiming to be interested ” are clearly inserted asa limitation of the term “ all parties ”, and as defining the qualifi-cation which an applicant for inspection must possess.
It is instructive that in all cases of statutory registers relatingto land a similar qualification is insisted upon. See “ The TempleLands Registration Ordinance, 1856,” section 23 (“ any personinterested therein”); “The Service Tenures Ordinance, 1870,'”section 11 (“ party interested in such inquiry ”);“ The Land
Registration Ordinance, 1877,” section 27 (“ all persons claiming tobe interested in any of the lands therein registered ”).
When, therefore, a public officer is required to afford to a personpossessing a particular qualification inspection of a register, which
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he is bound as part of his official duty to keep, and which is notmade “ a public document ” or “ open to the inspection of thepublic,” as in the Trade Marks Ordinance or in the Pateuts Ordi-nance, it is obvious to my mind that he is entitled to be satisfiedby an applicant for inspection that he possesses the necessaryqualification.
The evidence before us shows that the Registrar-General did not,in’ the present instance, question the possession by the applicantof the interest which he claimed to possess, as constituting hisqualification, namely that he had arranged with the owners topurchase from them the premises described. The position theRegistrar-General took up was that, assuming such arrangement,the applicant could not be permitted access to the register withoutthe express consent of the owners. We have to consider whetherthat position was justified by the Ordinance.
In my opinion, the object of providing a system of registrationof titles to land and of deeds affecting lands—such as was firstestablished by Ordinance No. 8 of 1863—was not merely to benefitpersons already owning the dominium or some lesser right inlands, but also to aid those who are about to acquire such aninterest, to enable them to ascertain in whom such interest wasvested, and to what incumbrances or other qualifications it wassubject. And so the preamble to the Ordinance of 1863 recitesthat the want of a proper system of registration of titles to land,and of deeds affecting lands, is found to be productive of muchinjury to the. owners of such lands, ” and to others interestedtherein.” Considering how large a proportion of the sales ©flands in Ceylon are effected in invitum through the agency of theFiscal, acting on writs of execution, to hold that the register couldonly be inspected with the express consent of the owners (theexecution-debtors) would be to completely. defeat the object ofregistration in the case of purchasers at such sales, who mightdiscover, when too late, that the land was subject to a long lease, ormortgaged above its full value. The reason of the thing wouldseem to require that in such cases the Fiscal at least, who seizesand advertises the land for sale, should be entitled to inspect the-register of deeds.
Taking this view of the object and scope of the RegistrationOrdinances, I think the appellant has made out his right toinspect the register, inasmuch as he claimed—aud the claim wasnot questioned—to have arranged, with the owners for thepurchase of the premises described. The appellant’s affidavitindeed discloses a matter which the Solicitor-General admittedwould, if it had been brought to the Registrar-General's notice,.
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1802. have induced him at once to grant the appellant's request. IMan 19' refer to thq fact that the owners had entrusted the appellant withWundt, J. the title deeds of the property for the purpose of the purchaseThis, the Solicitor-General said, would have been evidence that theowners consented to the appellant’s application. But as this fact;was not stated to the Registrar-General, I of course decide theappeal without reference to it. I hold that the appellant establishedhis possession of an interest in the register relating to thetenement No. 4.
I would advert to the contention for the respondent that theRegistrar-General was in the position occupied by a notary beforethe Registration Ordinances came into force, and must thereforerefuse (as a notary would refuse) to disclose to any and everyinquirer any information relating to deeds in his possession orexecuted before him. Assuming that a notary would have beenobliged to refuse such information to a person in the appellant’sposition, it is sufficient to say that, unlike a notary, the Registrar-General is an officer of the State, whose-duties are defined by the•statute creating his office, and those duties are to be ascertainedfor the present purpose by construing section 15 of the Ordinance,which regulates the keeping and inspection of the register.
For the foregoing reasons I concur with the Chief Justice.
The order appealed against will be set- aside, and it will beordered that the respondent (the Registrar-General) do,- upon theappellant appearing before him in person or by his proctor Mr.
J.A. Perera, at a reasonable hour, permit him to inspect and perusethe register relating to the property in the appellant’s affidavitmentioned, with liberty to demand and receive copies of, orextracts from, such register.
The appellant will have his costs in both Courts.
SILVA v. REGISTRAR-GENERAL