109-NLR-NLR-V-65-KARUNANAYAKE-and-others-Appellants-and-GUNASEKARA-and-others-Respondents.pdf
KaruruznayaJie v. Gunasekara
529
1982
Present: Basnayake, C.J., and Herat, J.KAHUyrATTATAKF, and others, Appellants, and GTOTASEKABA
Registration of deeds—Priority of registration as between two competing deeds—Meaningof expression "folios ”—Circumstances when a new folio may be opened—Registration of Documents Ordinance, as. 7, 12, 13, 14 (J)—Registrationof Documents Regulations, 12, 13, 14.
There is a difference between a continuation folio under section 14 (1) of theRegistration of Documents Ordinance and a new folio opened under the provisoto that section. The discretionary power conferred on the Registrar by theproviso must be exercised only in a case where registration according to the rulelaid down in the main section is not feasible, or in a case in which the entry in anew folio is proper in the special circumstances of a case, e.g., when registering afinal decree of partition, or in a case where Regulation 13 (3) of the Registrationof Documents Regulations is applicable.
The folio in which the first registered instrument affecting a land was regis-tered was B49, folio 5. That registration was continued in B71, folio 6, andB90, folio 106. Deed 27D14, which was alleged to relate to the same land,was not registered in a continuation of B49, folio 5, but it was registered inB82, folio 217, which had a remark to the following effect:—“See B100/79.Entire land registered in B71/6 ”. There were no facts or circumstances whichnecessitated the commencement of a new folio for registering deed 27D14.
Held (on an issue of priority of registration as between deed 27D14 and acompeting deed), that deed 27D14 was registered in the wrong folio. Further,the cross reference in that folio was not made in the prescribed manner.
B. WihramanayaJce, Q.O., with H. E. P. Gooray, for 24th Defendant-Appellant.
Ranganathan, with M. Shanmugalingam, for 27th and 28thDefendants-Appellants.
H. W. Jay&wardene, Q.G., with jR. Dheeraratne, for 22nd and32nd Defendants-Respondent3.
H. Deheragoda, Crown Counsel, for Attorney- General, who is the23rd Defendant-Respondent.
lxv—23
2B 16557—1,855 <.2/64)
and others, Respondents
S. C. 105(60—D. G. Matara, 207l-3(P
Appeal
from a judgment of the District Court, Matara.
630 tBASNAYAKE, O.J.—Kamnonaffake v. ffunaaekcra
October 25, 1962. Bashayaeb, C.J.—
This is an action for paartrapa of a land called jSAtbegeheaaairagee bonneted
on the North by Dranbakellekumbura, East by Nayidekankanamage-watte, South by road and West by Rukgahadeniya, In extent 6 acres.It is common ground that—
(а)this land is depicted in Plan No. 873 (marked X) and described
as a land of 6 acres. 2 roods, 04'11 perches,
(б)the land was possessed in three koratuwas, Western, Eastern and
Southern, each of equal extent,
(c) Aron de Silva Qunasekera and other members of his family possessedthe Southern l/3rd and enjoyed the produce thereof.
The main dispute is in regard to that Southern 1 /3rd. The contestis between the 22nd defendant on the one hand and the 27th and 28thdefendants on the other. The 22nd defendant claimed fth of the Southernl/3rd less the extent of 22'75 perches donated by him to the Directorof Education. He also relied on deed No. 27702 dated 8th September1937 (22D4) from B. M. Wijarama. In their joint answer the 21th,27th and 28th defendants claimed the benefit of prior registration fortheir deed No. 4816 of 21st October 1940 (27D14) as against the deedon which the 22nd defendant claimed his title. After the institutionof their action the 27th and 28th defendants Ramasamy Chettiar andVairawan Chettiar sold to the 24th defendant by deed No. 6526 of othOctober 1950 (27D13) “ All that right, title, interest and claim of us andthe Lot or Lots that may be allotted to us in D. C. Matara Case No. 20713or the proportionate share of money that may be allotted to us in theevent of a sale being ordered in the said case.”
The present appeal is by the 24th, 27th and 28th defendants. Thequestion tor decision is whether deed No. 27D14 on which the 27th and28th defendants rely or deed Nos. 22D3 and 22D4 on which the 22nddefendant relies have prority. It is contended on behalf of the 27thand 2Sth defendants that the deed No. 2-2D4 (27702 of Sth September1937) is void as it has not been registered under Chapter 3 of the Registra-tion of Documents Ordinance as against deed No. 27D14 which the 24th,27th and 2Sth defendants contend is duly registered. The learned DistrictJudge held that 27D14 prevails over 22D3 and 22D4 by virtue of priorregistration, but he held against them on the question of prescriptionand upheld the claim of the 22nd defendant to a decree in his favouron the ground of possession. Learned counsel for the 22nd defendant-respondent contends that 27D14 is not duly registered. We shalltherefore examine this question first.
The provisions of law that call for consideration in a discussion ofthe question are sections 12,13 and 14 of the Registration of DocumentsOrdinance and regulations 12,13 and 14 of the Registration of DocumentsRegulations all of which are reproduced at the end of this judgment.Under section 14 (1) every instrument presented for registration must
BASITAY AKk, C. J.—Karunanayrilse«?. Gtcnaaelcam
531
be registered in the book allotted to the division in which the land affectedby the instrument is situated and in or in continuation of the folio inwhich the first registered instrument affecting the same land is registered.The expression " folio ” is not defined in the Ordinance. Black’s Law-Dictionary defines it thus :
“ A leaf. • In the ancient law books it was the custom to number theleaves, instead of the pages ; hence a folio would include both, sides ofthe leaf; or two pages. The references to these books are made bythe number of the folio, the letters ‘ a ’ and ‘ b ’ being added to showwhich of the two pages is intended ; thus ‘ Bracton, fol. 100a. ’
A large size of book, the page being obtained by tolding the sheet ofv paper once only in the binding. Many of the ancient law books arefolios.
When used in connection with legal documents, it means a certainnumber of words vaxying from 72 to 100. ”
In the Registration of Documents Ordinance the word is used in the senseof a leaf of a folio size 20 x 15. The Ordinance contemplates the com-mencement of the registration on a folio and when the commencing foliois full the continuation of the registration on another folio which is thecontinuation of the folio in which the first registration was made and itshould be so stated and should not be numbered as a new folio but des-cribed as “ continuation of folio ISTo. —”, the number of the original folioshould be stated as the number. A new folio bears a new number. Inthe case of any entry in a new folio under the proviso to section 14 (1) theprescribed cross references should be made. The prescribed cross referenceis “ See Yol. — fol. — for a similar property ”. In the case of a con-tinuation no cross references are needed. The necessary information iscontained in the words “ continuation of folio Ho. — ” with the numberoi the original folio.
It would appear from the registration entries produced in the instantcase that the practice of the Registrar-General is not in strict conformitywith the Ordinance and that there is at present little difference between acontinuation folio under section 14 (1) and a new folio opened under theproviso. If the requirements of the Ordinance had been adhered tostrictly the confusion that appears to have been arisen on account of thedifferent registration entries might have been avoided. Tbe folio in whichthe first registered instrument affecting the land which is the subject-matter of this action was registered is B49, folio 5. It would appear fromthe documents produced in this case that B71, folio 6, and B90 folio 106are a continuation of that registration. Deed 27D14 is not registered in acontinuation of B49, folio 5, but it is registered in B82, folio 217 which has aremark to the following effect:—“ See B. 100/79. Entire land registeredinB. 71/6. ”
The registration B82, folio 217 has been continued in B183 folio 134.It is not denied by learned counsel for the 27th and 28th defendants thatB1S3 folio 134 is not a continuation of the folio B49 folio 5 in which the
532
BAS2TATAKB, 0, J.—Kartmumagah* v. (hmatekoro
first registered instrument affecting this land is registered. Deed 22D4 isalso registered in B211/276. it contains no remarks inviting referenceto any other registration. 22D4 conveys—
“ AH those undivided three-fourth (3 /4) part of the praveni fruit tree3and of soil (save and except lire planter's share of 3 plantations standingthereon) and the planter’s share of the 1 & 2 plantations standingthereon of the land called Dakumkellegehena (Southern portion ofKellegehena) situated at Talalla in Wells boda Pattu of Matara District,Southern Province and bounded on the North by the Northern Portionof Kellegehena where Jeewathhamy resided, East by Naidakankana-magewatta and Siyambalawahenewatta, South by the Road, West byRuggahadeniya and containing in extent about four acres. ”
The competing deed 27D14 describes the land thus—
:t An undivided three-fourth (3/4th) part or share of all the paravenitrees and soil of the southern portion in extent two acres of the landcalled Kellegehena and of the planter’s hall share of the trees and theentirety of the fifteen cubits tiled house and all other buildings and every-thing else appertaining thereto and standing thereon situated at Talallain the Wellaboda Pattu of the District of Matara, Southern Province ofthe Island of Ceylon and bounded on the North by the Northernportion of the same land belonging to Seilawaduge Don Aberan andothers, East by Naide Kankanangewatte and Sivambalawehenewatteon the South by Polwattedeniya, Paluwatte and old road and on the Westby Liyanagahakumbuxa and Rukgahadeniya and registered in theMatara District Land Registry under title 13183/134 being propertyand premises held and possessed by the said Vendor under and by virtueof the deed of transfer bearing No. 22 dated the 9th day of April 1921and attested by Mr. G. E. Ernst of Matara, Proctor and Notary. ”
22D4 and 27D14, in our opinion, do not convey divided interests althoughmention is made of a specific extent of land as if the land conveyedwere a divided allotment. The opening words of the description are—“ An undivided 3/4th part or share
Learned counsel for the 27th and 2Sth defendants-appellants soughtto shelter himself under the proviso to section 14 (1). He submitted thatunder that, proviso an instrument might, if the Registrar thinks fit, beentered in a new folio, cross references being entered in the prescribedmanner so as to connect the registration with any previous registrationaffecting the same land or any part thereof. As the value attached toprior registration of any instrument in the proper folio is so great(section 7) the power conferred by the proviso to section 14 (I) cannot beconstrued as enabling the Registrar to raider nugatory the requirementthat an instrument affecting a land should be registered in or in continuationof the folio in which the first registered instrument affecting the same landis registered. That provision does not vest in the Registrar an arbitrarypower to enter in a new folio an instrument which can aa<^ should
BASNTAYAKE, C.J.—Karunanaya]:e v. ChinaseJcara
533
be entered in the folio in which the first registered instrument affectingthe same land was registered or in a continuation thereof. The words“ thinks fit ” confer a discretionary power which must be exercised in acase where registration according to the rule laid down in sub-section (1) ofsection 14 is, having regard to the facts and circumstances of the casebefore him, not feasible, or in a case in which the entry in a new folio isproper in the special circumstances of the case before him. A situationsuch as that contemplated in the proviso can arise in the registration of afinal decree of partition. Regulation 13 (3) of the Registration of Docu-ments Regulations (Yol. 1 Subsidiary Legislation, p. 547) in prescribinghow the Registrar should proceed when registering a deed affecting landstates that when the Registrar is doubtful as to the identity of the land hemust register the later instrument on a new folio and connect the twofolios by cross references thus : “ See vol.—folio—for a similar property. ”
Learned counsel for the appellant is unable to refer us to any facts andcircumstances which necessitated the commencement of a new folio forregistering 27D14. Not only is 27D14 in the wrong folio but the crossreferences in that folio are not made in the prescribed manner. He alsoconcedes that the folio in which the first registered instrument affectingthe same land was registered is the proper folio for the registration ofdocuments affecting that land. It is not contended that 22D4 is registeredin the wrong folio. Under the circumstances 22D4 is not rendered voidby the prior registration of a subsequent instrument affecting the sameland. Therefore the decision of the learned District Judge has to bereversed on that point. This decision goes to the root of the case andit is not necessary to go into the other matters.
We reverse the judgment of the learned District Judge and hold that22D4 which is a prior deed is duly registered and is not rendered void by27D14 which is not duly registered. Subject to that decision in otherrespects the judgment of the learned District Judge is affirmed. The casewill now go back for further proceedings.
The 24th, 27th and 28th defendants will pay the costs of appeal of the22nd defendant.
Herat, J.—I agree.
Case sent back for further proceedings.
REGISTRATION OP DOCUMENTS ORDINANCE
(i) Every Registrar shall prepare and keep the prescribed books for theregistration of instruments, allotting to each book (which may be in as manyvolumes ax necessary) a defined division of his province or district.
The books for the registration of instruments established under the LandRegistration Ordinance, 1S91, 0 or any enactment repealed by that. Ordinanceshall continue to be used, and shall be deemed to be kept under this Chapter.
(1) Every instrument (except a will) presented for registration shallcontain embodied therein, or in a. schedule annexed thereto, an accurate and cleardescription of the land affected thereby, its boundaries, extent, and situation
2°TL>6557 ( 3/64)
554BASNAYAKE, C. J.—Kanmana^akt«. Stmcttkam
specifying the district and the village, patrfcu, korade, or other division of thedistrict in which the load is situated; and in case the land is situated in any town,the name, if any, of the street in which it is situated.
If the land consists of a divided portion of a land or allotment, such portionshall be clearly and accurately defined by its particular boundaries and extent.
If the land consists of an undivided share in a land, the proportion whichthe share bears to the entire land shall be stated, and a description of the entireand shall be given as required by sub-section (1).
A person desiring to register a will ahall give to the Registrar a writtendescription of the land affected thereby which shall comply with the provisions ofsub-eections (1) to (3) of this section.
No instrument, other than a will, which does not state the particularsrequired by tbe foregoing provisions of this section shall be registered except withthe sanction of the Registrar-General, who shall give his sanction, if it is shownto his satisfaction—
(o) that- the description is sufficient to enable the land to be identified withreasonable certainty; or
(b) that it was impracticable to insert the required particulars in the instrument.
Any person aggrieved by a decision of the Registrar-General under this sub-section may, within thirty days from the date of such decision being communica-ted to him, institute in any District Court having jurisdiction a suit against theRegistrar-General praying for the variation or reversal of such decision.
Where the description of the land affected by an instrument executed ormade after the commencement of this Ordinance is not contained in a scheduleto the instrument, a fee of five rupees shall be payable for the registration inaddition to any other fee which may be payable :
Provided that nothing in this sub-section shall be construed so as to apply to oraffect any grant ot lease of Crown land made or executed after the commence-ment of this Ordinance.
There shall be typewritten or written in ink at the head of every instrument(except a will) presented for registration a reference to the volume and folio in whichsome earlier instrument relating to the same land is registered if such reference isknown to the notary who prepared the instrument, or, if the instrument was notprepared by a notary, if such reference is known to the person presenting theinstrument for registration.
(1) Every instrument presented for registration shall be registered in the book
allotted to the division in which the land affected by the instrument is situated andin, or in continuation of, the folio in which the first registered instrument affectingthe same land is registered :
Provided that—
an instrument may, if the Registrar thinks fit, be entered in a new folio, cross
references being entered in the prescribed manner so as to connect the regis-tration with any previous registration affecting the same land or any partthereof; and
where no instrument affecting the same land hae been previously registered,
the instrument shall be registered in a new folio to be allotted by theRegistrar.
An instrument, whether registered before or after the commencement of thisOrdinance, shall not be deemed to be duly registered under this Chapter unless it isregistered in accordance with the foregoing provisions of this section.
Every order made after the commencement of this Ordinance under section 4of Ordinance No. 1 of 1897* entitled ** An Ordinance relating to claims to Forest,Chena, Waste, and Unoccupied Lands ” and embodying therein on agreement
BASNAYAKE, C.J.—Karunanayake. v. Gunaeeliara
535
between the Government Agent or Assistant Government Agent or the special officerappointed under section 28 of that Ordinance and the claimant shall be registeredin a new folio to be allotted by the Registrar, and an instrument affecting land dealtwith by the agreement and registered after registration of the order shall notbe deemed to be duly registered under this Chapter unless it is registered in orin continuation of the folio in which the order is registered.
THE REGISTRATION OF DOCUMENTS REGULATIONS
Each Registrar shall keep in Ins office a series of books in Form B to be calledthe Land Registers, for the registration of instruments affecting land situated withinhis registration district. Each registration district shall, with the approval of theRegistrar-General, be divided into defined divisions of convenient size, to be calledregistration divisions, and there shall be assigned to each such division a separateregister or set of registers to be designated by a separate letter of the alphabet.
(1) Registration of an instrument affecting land shall be effected by enteringthe particulars required in Form B in the proper folio of the register kept underregulation 12 for the registration division in which the land is situated. The registrarshall sign the entry in the register and shall also endorse on the instrument thevolume and folio in which registration has teen effected and the place and date ofregistration, thus:
Registered A 5~130
Colombo, January 16, 1923.
(Signed) A.B.,
Registrar.
(N.B.—A 5 is the volume reference, and 130 the folio reference.)
(2) When two or more lands are affected by the same instrument, the volume andfolio references required by paragraph (1) of this regulation shall be—
(а)endorsed on the instrument in the order in which the lands appear in the
instrumentand
(б)entered in the margin of the instrument against the descriptions of the several
lands affected.
(3) If, at the time of registration of an instrument affecting land, the Registrarfinds that the description of the land affected thereby differs in any respect from thedescription of the same land appearing in the register by reason of the prior registra-tion of another instrument affecting the same land, he shall, if he is satisfied as tothe identity of the land, enter the later instrument in the same folio as the earlierinstrument, and shall make a note of the differences in the remarks column of the entryrelating to the later instrument: Provided that if he is doubtful as to the identityof the land he shall register the later instrument on a new folio, but shall connectthe two folios by cross references, thus :—
“ See Volfol.for a similar property.”
When an instrument affecting land relates to a divided portion of an areaof land and an earlier instrument affecting that area has been already registered,the registrar shall register the instrument relating to the divided portion in a separatafolio connecting it with the entry relating to the whole area by cross references,thus :
41 Instruments relating to a portion of this property are registered in Vol
fol” (for the earlier instrument).
“ Instruments relating to the property of which this property is a portion areregistered in Volfol” (for the later instrument).
* Repealed by Ordinance No. 20 of 1931.