118-NLR-NLR-V-14-ASERAPPU-v.-WEERATUNGA-et-al.pdf
( 417 )
[Full Bench.]
Present: Lascelles C.J., Middleton J., and Wood Renton J.
ASERAPPA v. WEERATUNGA et at.
174—D. C. Colombo, 31,102.
Registration—Priority—Two competing Fiscal's conveyances—Priorregistration of prior deed—Does section 17 of the RegistrationOrdinance apply ?—Fraud—Knowledge of a previous deed.
Plaintiff and added defendant claimed the land in dispute undertwo competing Fiscal’s conveyances. Plaintiff’s conveyance wasprior in point both of date of execution and registration ; but as.regards date of seizure and sale, the priority was with the addeddefendant.
Held, that the added defendant had a superior title.
Mere notice of a previous deed is not enough to deprive a personwho has registered his deed of the benefit of registration.
rPHE facts are set out in the judgment of Middleton J. asJ- follows :—
“ This was an action rei. vindicatio for a house and premisesin Pickering’s road called ‘ Floral Cottage,’ or ‘ Ratna Villa,’ bythe plaintiff, who based his title on a Fiscal’s conveyance datedApril 16, 1908, and registered on April 22, 1908. The defendantwas the lessee under one Muttu Carpen, who was added as a partyto the action. The added defendant based his title on a Fiscal’sconveyance dated May 26, 1908, and registered on June 13, 1908.It was admitted that it was the life interest of one Sophia Ratnaikein the property in question which was the subject of the action, andthat the life interest was seized on writ in D. C. Colombo, 23,669,issued by the added defendant on February 12, 1907, the seizurebeing registered on February 18, 1907, and was sold on June 10,1907, and purchased by the added defendant for Rs. 600 ; thatthis sale was confirmed on August 16, 1907, and a Fiscal’s transferissued on May 25, 1908, registered on June 13, 1908. It was alsoadmitted that the plaintiff issued writ against Sophia Ratnaike in
R. Colombo,. 3,576, on January 24, 1907, and seized the lifeinterest on September 19, 1907, and that he made a second seizureon December 16,1907, registered on December 18, 1907, and that itwas sold on February 5,1908. That the plaintiff himself purchasedthe life interest for Rs. 10, and that a Fiscal’s conveyance was issuedto him'on April 16. 1908, and registered on April 22, 1908.”
Vot. XIV.1*
July 26,1911
32J. N. A 98348 (U/40>
( 418 )
July 2$, 1911 The learned District Judge (E. W. Jayewardene, Esq.) Found thatAserappa v. the plaintiff was aware at the time of the purchase that the addedWeeratunga defendant had previously purchased the premises, and held thatthe plaintiff was precluded by notice of the previous purchasefrom obtaining priority through the medium of the RegistrationOrdinance.
The plaintiff appealed.
A. St. V. Jayewardene . (with him Tisseveresinghe), for theappellant.—The mere fact that the plaintiff was aware at the timeof the purchase that the added defendant had previously purchasedthe premises is not enough to deprive the plaintiff of the benefitof prior registration. Counsel cited Ramanathan (1877), 198 ;Siripana v. Tikiria ;1 Sennaiya Chetty v. Appuhamy ;3 19—C. R.Jaffna, 4,230 A ;3 Kirihamy v. Kiri Banda ;4 Silva v. Sarah HamyIn Crowley v. Bergtheil6 it was proved that the document onwhich the claim of priority was based were obtained by mis-representation and fraud.
Bawa, for added defendant, respondent.—The judgment cannot besupported on the authorities relied on by the District Judge. Butthe question of priority by registration does not arise here. Thedeed of the plaintiff was earlier in point of date of execution andregistration. Counsel referred to Silva v. Tissera ;7 Saravanamuttuv. Maruthappa?
Jayewardene, in reply.—The added defendant must take eitherdate of sale or conveyance as the crucial date. If our conveyancewas first, we get a good title, and no question of registration comesin ; if the date of sale be taken as the crucial date, we gain priorityby registration. Saravanamuttu v. Maruthappa8 was decided with-out reference to section 238, Civil Procedure Code, and Silva \Tissera1 was a decision before the Civil Procedure Code came intooperation. It is submitted that those decisions are incorrect.
The case was reserved for a Full Bench.
A. St. V. Jayewardene, for the plaintiff, appellant.—The addeddefendant's deed must be deemed to be a prior deed by virtue ofsection 289 of the Civil Procedure Code ; the conveyance relatesback to the date of the sale. The Registration Ordinance does,therefore, apply to this case. Counsel referred to Silva v. Gomes9and Trowell v. Pate,10 Law v. Mitter.11 There is nothing to preventthe Fiscal selling a land twice over under two decrees. See Lawv. Mitter.u
1 {1878) 1 S. C. C. 84.
1 (jm) 7 S. C. C. Ill.
* S. C. Min., April 11, 1905.
4 {1911) 14 N. L. B. 284.
»(/MS) Wendt 888.
” (JS88j 15
{1S99) A. C. 899.
7 {1890) 9 S. C. C. 92.
{1899) 4 N. L. R. 27.
,J (1909) 1 Our. L. R. 96.
10 (1911) 5 Leader L. R. 40.202.
( 419 )
Silva v. Tissera1 was decided before the Civil Procedure Code. July 2t}'1911SaravanumitUu v. Maruthappu – does not refer to the provisions of A«eraj>pa v.section 238 of the Civil Procedure Code.Weerotunga
If added defendant’s deed is not to be deemed a prior deed indate, then the appellant’s deed being earlier in date must prevail.
Otherwise a subsequent purchaser of a land previously sold by theFiscal would never gel a good title, however vigilant he may be, forif the first purchaser obtains his deed at any time after the executionof the second deed he would wipe out the rights of the secondpurchaser, unless the latter has acquired a title by prescription.
Bawa, for the added defendant, respondent.—The.only case thathas been cited against the respondent is Trowell v. Pate,' whichis a single-judge case. This case does not refer to Silva v. Tissera 1or Kadirawelpulle v. Pina.' It proceeds on Silva v. Gomes5 andPeris v. Per era," where the facts are different.
Section 289 of the Civil Procedure Code does not confer anypriority of date to the deed ; it only vests the title on the purchaserfrom the date of sale. Plaintiff’s deed is a subsequent prior deed,and cannot gain any benefit by prior registration. The plaintiffbought only the right, title, and interest of the judgment-debtor ;this right was defeasible on the execution of the conveyance infavour of the first purchaser, the added defendant.
Counsel referred to Silva v. Hemlric Appu,' Silva v. Silva*
A. St. V. Jayewardene, in reply.—Section 238 refers only to privatesales, and not to alienations by the Fiscal. Counsel referred toKuda Banda v. Dingiri Amma,9 Silva v. Gimarah.l#
t
Cur. adv. vult.
July 26, 1911. Lascelles C.J.—
It is not necessary to recapitulate the facts of this case, which areset out in the judgment of my brother Wood Renton, which I havehad the advantage of seeing.
The contest is between two Fiscal’s conveyances, of which theplaintiff’s is prior in point both of date and registration ; butas regards date of seizure and sale, the priority is with the addeddefendant. The learned District Judge disposed of the question ofregistration on the ground of notice. He found that the plaintiffwas aware at the time of the purchase that the added defendanthad previously purchased the premises, and held that the plaintiff. was precluded by notice of the previous purchase from obtainingpriority through the medium of the Registration Ordinance. It wasadmitted in argument that this ruling could not be supported, and
*(1890) 9 S. C. C. 92.
(1899) 4 N. L. R. 27.
(1911) 3 Leader L. It. 40.
(1889) 9 S. C. C. 3o.
(1909) 1 Cur. L, R. 90.
(1906) 10 N. L. R. 33.
7 (18.93) 1 N. L. R. 13.
(1895) 1 N. L. R. 28.
(1911) 14 N. L. R. 145.10 (1903) 7 N. L. R. 135.
( 420 )
July 26,1011
Lasoblles
C.J.
Aserappa v.Weeraunnga
I onJy refer to the point because it may be useful to state that Iregard the principle that mere notice of a previous deed is notenough to deprive a person who has registered his deed of the benefitof registration to be as well settled as it is possible for any principleof law to be established by judicial decision. From D. C. Kandy,67,29s,1 decided in 1877, down to D. C. Kurunegala, 3,971,2 decidedin 1911, the current of judicial decision is almost unbroken. It hasbeen deliberately decided after the fullest consideration that theequitable principles laid down in Le Neve v: Le Neve3 are not ap-plicable to the construction of section 17 of the Land RegistrationOrdinance of 1891. The crucial point in the case is whether, apartfrom any question of notice, the plaintiff’s deed is entitled tothe benefit of registration. Section 17 of the Land RegistrationOrdinance enacts that, subject to certain limitations, an earlierunregistered instrument shall be deemed void as against asubsequent registered instrument.
The added defendant contends that the plaintiff’s deed can obtainno advantage from registration, inasmuch as it is not a “ subsequentdeed,” but is prior to the plaintiff’s deed both as regards dateof execution and registration. To this the plaintiff replies thatas the added defendant, by virtue of section 289, is deemed tohave been vested with the legal estate from the time of the sale, theadded defendant’s deed, as regards its operative effect, is prior tohis own, and that the plaintiff’s deed is therefore a subsequent deed,which has gained priority by means of registration. The questionthus is, whether the benefit of registration under section 17 of “ TheLand Registration Ordinance, 1891,” extends to deeds which arenot “ subsequent deeds ” as regards date of execution, but are ina similar position to a subsequent deed owing to the operation ofsection 289 of the Civil Procedure Code on the competing deed.
In the argument we were referred to numerous authorities.There is, 1 think, no case in which the question now under discussionhas been formulated, but the general result of the authorities is infavour of the view that the expression “ subsequent deed ” insection 17 of “The Land Registration Ordinance, 1891,” means adeed which is subsequent as regards date of execution. I have cometo the conclusion that this is the correct view, and that the benefit ofregistration cannot be extended to deeds which are prior in date tothe competing deed, but are placed in an inferior position by theoperation of section 289 of the Civil Procedure Code. Section 289of the Civil Procedure Code provides, as a matter of civil procedure,that a grantee under a Fiscal’s conveyance, when the sale is con-firmed and the conveyance has been executed, shall be deemed tohave been vested with the legal estate from the time of the sale, butthe provision cannot, I think, affect the construction of section 17 of
! Ramanalhan (1877) 398.2 (1911) 14 N. L. R. 984
* 2 Amb. m.
( 421 )
“The Land Registration Ordinance, 1891.” The result is that the JvlyMhiQllplaintifTs deed has obtained no advantage by registration, and the Lasceixesadded defendant, by virtue of section 289 of the Civil Procedure C<J>Code, has the superior title.Axerappav.
The appeal must therefore be dismissed with costs.Wccratunga
Middleton J.—
His Lordship set out the facts, and continued :—
It will thus be seen that the plaintiff’s Fiscal’s conveyancebearing date April 16, 1908, and registered April 22, 1908, wasprior, not subsequent, to the added defendant’s Fiscal’s conveyancebearing date May 25, 1908, and registered June 13, 1908. It wascontended, however, for the plaintiff that under section 289 of theCivil Procedure Code his conveyance related back to the date of thesale on February 5, 1908, and so was subsequent to the addeddefendant’s conveyance, which related back to the sale to him onJune 10, 1907.
This doctrine of relating back under that section seems to me,however, to apply to the question of the vesting of the legal estateupon a sale in execution, and would not affect the date of a deed thepriority of which it was sought to establish under the terms of section17 of Ordinance No. 14 of 1891. The right, title, and interest of thejudgment-debtor is not deemed to pass under section 289 until theconfirmation of the sale and the Fiscal’s conveyance is executed,when immediately the purchaser is vested with the right, title, andinterest from the date of the sale. Under section 17 of the Regis-tration Ordinance, No. 14 of 1891, it is the registered deed subsequentin date to the unregistered deed of a prior date which obtains thepreferential priority in effect. Section 289 gives no priority of dateto the deed, but an antecedent effect to the title conveyed by thedeed. If, then, the Registration Ordinance is to be applied to thisquestion, the plaintiff’s deed, being on April 16, is prior, and notsubsequent, in date to the defendant’s, on May 26, 1908, and hecannot claim that his registration of it will avoid the added defend-ant’s deed of conveyance. In the case of Silva v. Sarah Homy1 theRegistration Ordinance was held to prevail, the conveyance to theplaintiff being subsequent in date and registered as against thedefendant’s prior and unregistered conveyance. The conversecontemplated by Clarence J. is the case here. When the Fiscalpurported to sell the life interest in question here to the plaintiff, ithad already been sold to the added defendant, and his conveyance,though subsequent in date to that of the plaintiff, under section 289 *relates back to the sale, and gives him a title as and from that date.
The sale to the added defendant here was a good sale, and effectiveunder the Procedure Code, but no deed for it was issued until afterthe sale to the plaintiff, and there could therefore be no conflict of
J {1883) Wendt 383.
t 422 )
July 26,1911 deeds. Section 17 of the Registration Ordinance could not applyMioiAfwoK unt*l a^ter *e *ssue the Fiscal's conveyance to the added defend-J* ant, when, again, the section did not apply, because the deed ofAs^pa w. the plaintiff from which he claims priority was prior to and not'Weeratomga subsequent to the added defendant’s deed.
1 think that there is no doubt that a Fiscal’s transfer is a deedwhich is affected by section 16, and that section 17 of OrdinanceNo. 14 of 1891 itself shows it was intended as an arbitrary enact*ment to give an artificial priority by registration under the exactcircumstances detailed in the section to deeds affecting land, but notin any other way to affect existing law. I am also of opinion thatit is established law in Ceylon that mere notice of the prior deed isnot sufficient to deprive the subsequent deed of its predominanceacquired by registration. See D. C. Kandy, 67,29s,1 and D. C.Kurunegala, 3,971.2
I would dismiss the appeal with costs.
Wood Renton J.—
This is an action rei vindication and the material facts are these.One Sophia Ratnaike had a life interest in. the property in suit.That life interest was seized on writ in D. C. Colombo, 23*669, issuedby the added defendant-respondent on February 12, 1907. Theseizure was registered on February 18, 1907, and the life interestwas’sold on June 10, 1907, and purchased by the added defendantfor Rs. 600. The sale was confirmed on August 16, 1907, Fiscal’stransfer issued on May 25, 1908, and the transfer was registered onJune 13, 1908. The plaintiff-appellant issued writ against SophiaRatnaike in C. R. Colombo, 3,576, on January 24, 1907, seized thelife interest on September 19, 1907, and sold it on February 5, 1908,
• himself purchasing the life interest at the sale for Rs. 10. Theappellant obtained his Fiscal’s conveyance on April 16, 1908, andthe Fiscal’s conveyance was registered on April 22, 1908. Theappellant has, therefore, in his favour priority both in the date ofthe execution and in the date of the registration of his conveyance.He claims the benefit of the provisions of section 17 of the Registra-tion Ordinance, No. 14 of 1891. That section is in these terms :—
Every deed, judgment-., order, or other instrument as aforesaid,unless so registered, shall be deemed void as against all parties claimingan adverse interest- thereto on valuable consideration, by virtue of anysubsequent deed, judgment, order, or other instrument which shallhave been duly registered as aforesaid. Provided, however, that fraudor collusion in obtaining such last-ment ioned deed, judgment, order, orother instrument, or in securing such prior registration, shall defeat thepriority of the person claiming thereunder; and that nothing heroincontained shall be deemed to give any greater effect or different con-struction to any deed, judgment, order, or other instrument registeredin pursuance* hereof, save the priority hereby conferred on it.
1 Ramamthan [1867) 198.* [1911) 14 N. L. R 284.
( 423 )
I do not think that in view of the language of section 17 it canfairly be argued that a Fiscal’s transfer does not fall within thepurview of Ordinance No. 14 of 1891, and I am clearly, of opinion,for the reasons which I gave in 133—D. C. Kurunegala, 3,971,* ajudgment concurred in by Grenier J., that the mere fact that theappellant at the date of the registration of his conveyance hadnotice of the respondent’s conveyance is not sufficient to establisha case of fraud within the meaning of the first proviso to section 17of Ordinance No. 14 of 1891. But by the terms of section 17 itselfthe appellant is not entitled to the benefit of that section, unless his■ deed was of subsequent date to that of the deed over which priority isclaimed. Now, the appellant’s deed, as I have already pointed out,is prior in point'of time to that of the respondent, but his counselcontends that the effect of section 289 of the Civil Procedure Codeis to antedate the respondent’s deed to the date of the sale when-ever the sale has been confirmed by the Court, and the Fiscal’sconveyance is executed in pursuance of it.
In my opinion section 289 will not bear that construction. Allthat it says is that on the confirmation of the sale and the executionof the Fiscal’s transfer “ the grantee in the conveyance is deemedto have been vested with the legal estate from the time of the sale.”The section, I think, merely provides in effect that, on theconfirmation of the sale and execution of the conveyance, thejudgment-debtor is divested of his title to the property. Thereis nothing in the section that would justify us in holding thatit operates to antedate the conveyance for the, purposes of anotherand entirely independent enactment such as Ordinance No. 14 of1891. Section 289, has, however, an application to the facts ofthe present case. By virtue of that section Sophia Ratnaike wasdivested of her life interest in the property as from June 10, 1907,and the appellant could derive no right to it through his purchasein execution against her on February 5, 1908.
I have not thought it necessary to go through the cases cited to usin detail, since we are sitting as a Bench of three Judges for thevery purpose of interpreting the law after full, argument. If it .hadbeen necessary to decide the point, I should have held against thecontention of Mr. Bawa, the respondent’s counsel, that an executionpurchaser, although he no doubt takes only the right and title of thejudgment-debtor, can be said to be a person holding under him orderiving title through him, within the meaning of section 289.of. theCivil Procedure Code.
For the reasons above given, I think that this appeal should bedismissed with costs.
Appeal dismissed.
July 2G, mi
Vooi>Kentton *J.
Ascrappa t>.Wceratnnga
! (1911) 14 A L. R 284.