115-NLR-NLR-V-16-BERNARD-v.-FERNANDO-et-al.pdf
( 488 )
1918.
Present: Pereira J. and Be Sampayo A.J.
BERNARD v. FERNANDO et al.
134—D. G. Negombo, 9,003.
Partition decree—Sale of an undivided share by party who was allotteddivided lots by decree—Subsequent sate to another of lots allottedunder decree—Prior registration.
Partition decrees are conclusive by their own inherent virtue,and do not depend for their final validity upon anything which theparties may or may not afterwards do. They are not, like otherdecrees affecting land, merely declaratory of the existing rights ofthe parties inter se : they ereate,a new title in the parties absolutelygood against all other persons whomsoever.
Under a partition decree dated 1905, A was allotted two dividedlots in lieu of his undivided share. In 1907 and 1909 he transferredhis undivided share of the entire land to B, who was a party to thepartition action. In 1912 A sold his divided lots to C. The deedsin favour of B were registered in 1907 and 1909; the partitiondecree was not registered till after the deeds in favour of C.
Held, that C’s title was superior, and that the prior registrationof B’s deeds did not give B a title to an undivided share of theentire land.
'J'HE facts appear from the judgment.
A. St. V. Jayewardene, for the defendants, appellants.—Thedefendants get an undivided one-fifth share by deed executedand registered before the partition decree was registered) Asagainst the plaintiff, who claims under the partition decree, the Aeedsin favour of the defendants must prevail by prior registration.[De Sampayo A.J.—Between what deeds is the competition?]Between the partition decree and the deeds in favour of defendantsfrom Maximiano and Graciano. [De Sampayo A.J.—What is thevalue of registration in a case like this, as the partition decree wipesout all previous titles?] Every decree has to be registered underOrdinance No. 14 of 1891.
H. A. Jayewardene, for the plaintiff, respondent.—By the parti-tion. decree Maximiano and Graciano lost all their undividedrights, and they had no right after the decree to sell undivided lots.
It is not necessary to register a partition decree, as all previoustitles are wiped out by the decree. The Registration Ordinancecannot over-ride the Partition Ordinance, and take away the'binding effect which the Ordinance gives to final decrees in parti-tion cases.
A. St. V. Jayewardene, in reply.
Cur. adv. vult.
I 439 .)
June 16,1913. Dx Sampayo A. J.—
This is a contest relating to two lots of land marked A and D inthe plan referred to in the ease. These lots were part of a largerland, which was the subject of a previous partition action, and wereallotted by the decree in that action to Maximiano Costa andGraciano aUds Martino Costa in respect of an undivided one-fifthshare to which they were entitled in the entire land. The plaintiff,upon deeds dated April 22 and 23, 1912, purchased these lots fromMaximiano and Graciano, and now sues the defendants in ejectment.The partition decree was dated January 80, 1905. The firstdefendant in this case was plaintiff in the partition action, and hadother portions allotted to him in the partition, and thus he wasquite aware that Maximiano and Graciano had, since the partition,only title to the divided portions A and D, but for some inexplicablereason the defendants, upon deeds dated December 6, 1907, andMarch 17, 1909, purchased from Maximiano and Graciano anundivided one-fifth share of the entire land described as the shareto which the vendors were entitled by inheritance. In their answer,"however, they plead the partition decree and their vendors' rightthereunder to the lots A and D, and claim these lots by virtue ofthe deeds in their favour. It is, of course, obvious that, havingpurchased an undivided share in the entirety, they cannot establishtitle to the divided lots A and D, and so far as that is concerned,the judgment of the District Judge in favour of the plaintiff is right.But it is contended in appeal that they are entitled as against theplaintiff to an undivided one-fifth share in the entirety of the originalland. This argument is based on a matter of registration: Thedefendants* deeds were registered on December 9, 1907, and March23, 1909, respectively, and the partition decree allotting A and D toMaximiano and Graciano was not registered till April 25, 1912. Itis argued on behalf of the defendants that by reason of the provisionsof the Registration Ordinance the decree is null and void as againstthe deeds in their favour. I do not think that sections 16 and 17of the Registration Ordinance apply to partition decrees to the sameextent as to other judgments or orders of Court. Partition decreesare conclusive by their own inherent virtue, and do not depend fortheir final validity upon anything which the parties may or maynot afterwards do. They are not, like other decrees affecting land,merely declaratory of the existing rights of the parties inter $e.They create a new title in the parties absolutely good against allother persons whomsoever. But if the argument in this case issound, they may be wholly nullified, immediately after they areentered, by means of the Registration Ordinance. For if the.parties to the action are for any reason dissatisfied' with the decree,they have only simply to ignore it and dispose of their originalundivided shares in the entire land to third persons and have thetransfers registered. It cannot be supposed that the Registration
1918.
Bernard e.Feman&o
( 440 )
1913.
Da SampayoA.J.
Bernard v.Fernando
Ordinance was intended thus to defeat the whole object of legislation,with- regard to partitioning of lands. Moreover, a judgment ororder unless registered is, by section 17 of the Registration Ordi-nance, declared to be void only against persons claiming “ anadverse interest.” Now, as the result of the partition decree, allprevious titles were wholly extinguished by operation of law, andthe only foundation for Maximiano and Graciano’s title to anyinterest in the land thereafter was the decree itself. This being so,I do not see that these men could, by any process, create an interestadverse to themselves. The defendants’ derivative title, would,according to the argument, be adverse to its own origin, which is not.possible. The truth, I think, is that the expression “ adverse,interest ” refers only to cases where two persons claim intereststraceable to the same origin. In this connection I may add thatthe defendants lastly claimed to be entitled to an undivided one-fifth share in the lots A and D. If registration applied in this caseat all, the documents that might have come into competition withregard to this restricted claim would have been the defendants’deeds and the plaintiff’s deeds. As a matter of fact, however, noquestion of registration arises as regards such one-fifth shares, becausethe defendants’* deeds are prior in date both of execution andregistration. Is is therefore unnecessary to deal with anotherquestion of registration arises as regars such one-fifth share, becausedeed were registered, in the proper folio. It seems to me the onlyquestion is whether the defendants’ deeds,which are for an undividedshare of the whole original land, are sufficient to give them a similarundivided share in the divided lots A and D, to which alone theirvendors were at that date entitled, and I think they are. In my.opinion the judgment appealed from should be varied by declaringthe plaintiff entitled only to an undivided four-fifths share of thelots A and D and putting him in possession thereof. The judgmentis otherwise affirmed. As the* appellants have only partiallysucceeded, I think there should be no order as to costs of appeal.
Pereira J.—I agree.
Varied.