Where several allotments are. registered in a fresh folio asa distinct corpus with appropriate references to previousregistration,—
Held, that the proper folio for a subsequent registration of a lothaving no registration prior to that of the consolidated property,was the folio in which the consolidated whole was registered.
N ti Crown giant dated March 14. 1910, two persons obtainedtitle to a land named Pahalawela. Their interest in Pahala-
wela was acquired by F in 1916. The same year F mortgaged withP six contiguous allotments, includiiig Pahalawela, under the nameof Muclugomuwa estate—a distinct cor/tu*. The bond was registeredon -.lime 12, 1916, in folio H 73/881', with appropriate references
1 (1921) 23 X. L. B. 194.
( 27 )
to previous registration of only five of the six lots. On this dateneither the Crown grant relating to Pnhalawelu, nor the conveyanceto F had been registered. V put his bond in suit in 1920 and, inexecution of the decree in his .favour, became .the purchaser ofMudugomuwa on a Fiscal's transfer which was registered on May 24.1922, in folio H 73/831. In 1923 the added defendant obtainedtitle to Mudugomuwu on a duly registered deed from P.
The Crown grant relating to Paholawela and the deed of transferin favour of F were registered on June 28, 1916, and June 24, 1916.respectively, in folio H 73/358. On September 17, 1920, F executedu deed conveying Pahalawela to the plaintiff _ and the defendantjointly. This deed was registered in Folio H 73/358. On theinstitution of the action by plaintiff for the partition of Pahalawelathe added defendant intervened, and his title was held to prevail,in appeal this judgment was affirmed.
H. 1". Perera (with Weeranooriya), for plaintiff, appellant.
Dricbery. hC. (with llajaiM/.*««), for added defendant, respondent.
May 5, 1926. Garvin J.—
It is common ground between the parties to this appeal thatthe land Pahalawela, which is the subject- of the contest, originallybelonged to the Crown. By its grant No. 49,670 of March 14,3910, the Crown conveyed the land to two persons, Baba Singhoand Daniel Fernando, who by their deed No. 17,257 of May 24.3916, sold and transferred it to Enid Fernando. The land Pahala-wela is in extent 33 acres 0 roods and 8 perches. At the date ofhen* purchase Enid Fernando was the owner of five other allotmentsof land, which she had consolidated and was 'holding as one estateof about 188 acres in extent. Pahalawela was immediately in-corporated in that estate, and the whole extent of 221 acres 3 roods.and 38 perches, known as Mudugomuwa estate, was by bond No. 3f>of June 8, 1916, mortgaged by Enid Fernando and her husband toArthur Pate.
At the date of this mortgage neither the Crown grant nor anyof the other deeds hereinbefore referred to, and under which EnidFernando claimed title, had been registered. Arthur Pate sub-mitted the bond in his favour for registration. As required bythe Registration Ordinance, there was set out on the face of thebond the reference, to the volume and folio in which each of the five other lots, which with Pahalawela went to make up Mudagamaestate, and with reference to Pahalawela the bond showed thatthere was no previous ^registration. It will be seen that theapplicant for registration gave the fullest possible information to
Brampt/Sinno r.Booth
( 28 )
Garvin J.
Sr amp ifJSinno v.Booth
the registering authorities. The bond was registered on June 12,1910, and the manner in which registration was effected was asfollows: —
The bond was registered in folio H 73/331, a new folio opened inrespect of the consolidated land Mudugomuwa estate, andAppropriate entries were made in the folio relating to thefive allotments in respect of which previous registrationhad been effected, which sufficiently showed that they hadbeen included in Mudugomuwa estate register'd in folioH 73/331.
On June 28, 1916, the Crown grant in favour of Baba Singhoand Daniel Fernando and their transfer to Enid Fernando wereboth registered; they were registered in folio H 73/358. ArthurPate put his bond in suit towards the end of the year 1920, andin September of that year Enid Fernando and her husband soldand transferred their interests in Pahalawela by deed No. 216 ofSeptember 12, 1920, to the plaintiff and the defendant. Thatdeed was registered in the folio H 73/358.
Arthur Pate obtained judgment, and in execution Muditgommvaestate was sold and purchased by him. The decree in that actionas well as the transfer in his. favour dated May 17, 1922, wereregistered in folio H 73/331. In the following year, by deed No. 406of May 7, 1923, registered in folio H 73/331, Arthur Pate conveyedall his interest to the added defendant, who is the respondent tothis appeal.
The plaintiff claims the benefit of the registration of the Crownerrant and the deed in favour of Enid Fernando, and contendsthat deed No. 216 of September 12, 1920, in his favour which wasregistered in the same folio takes priority over the mortgage bond infavour of Arthur Pate. The competition is between, deed No. 216of September 12, 1920, registered in folio H 73/358 and the mortgagebond No. 15 of June 8, 1916, registered in folio H 73/331.
The mortgage bond is prior in date, and prior also in date ofregistration to deed No. 216 of September 12, 1920, and prioralso in respect of registration of the earlier deeds under whichEnid Fernando obtained title.
It is urged on behalf of the plaintiff that his deed is entitledto priority because it is registered in the right folio. The rightfolio is the folio in which the first deed dealing with the land isregistered (see Silva v. Appu 1). There can be no question that themortgage bond No. 15 of June 8, 1916, created a valid mortgageover Pahalawela, and that it is included within the limits assignedto Mudugomuwa estate in the bond and in the land register. If,therefore, the rule in Silva v. Appu {supra) is to be the only test, theright folio is the folio H 73/331, in which that bond was registered.
1 4 BaJ. Notes of Cases, 2S.
( 29 )
But Counsel's main contention is that this mortgage bond has notbeen “ so registered ” within the meaning of section 17 so far asit relates to Pahalawela, in that there is no entry in the registerclearly referring to Pahalawela. The argument is that Pahala-wela before it was incorporated in Mudugomuwa estate was what is.referred to as a separate land, and that every such land is requiredby law to be the subject of a separate registration entry. Theunderlying fallacy is that an allotment of land held at any time-as a separate entity must be deemed to retain that character everafterwards, even though it may have been consolidated with otherlands and merged into one large holding, or on the other hand splitup into several smaller lots each separately held. I am awareof no "such rule. The Begistration Ordinance provides for theregistration of documents relating to land. It is not a register oflands but of documents which is contemplated by that Ordinance,for it is only concerned with lands or allotments of land in so faras they are the subjects dealt with, in and by registered, documents.
When a document relating to a land, in respect of which nodocument had been previously registered, is registered, that pieceof land is impressed with a special character, for the law requiresthat thereafter all subsequent dealings relating to it shall beregistered in the same folio; it is immaterial that the land is theresult of the consolidation of several smaller allotments so long asthose allotments were not the subject of previous registration.Where all or any of the parts of a land referred to in a deed whichit is sought to register had been the subject of* previously registereddeeds, the law requires that appropriate entries' should be madein each of the foliosin which any'ofsuch parts-had beenregistered
calling attention tothe registrationofthe consolidatedland. It’
Counsel’s contention is to prevail, then, whenever it is desired toregister a deed relating to land which at some time in the pastconsisted of two or more^separately held lands in respect of whichno deed or document had been registered, the applicant forregistration must first cause an. entry to be made in the registerin respect of each of these several allotments, and in each of thefolios thus brought into being an entry referring to the registrationof the deed dealing with the land thus consolidated. There isnothing in the Ordinance to support this contention. Indeed^ itmay often be impossible to conform to it if such a rule ofregistration did in fact exist. It often is the case that there is nodeed* for a portion of a large holding, and no title except prescription.In such a case it isquite impossibletocause a separateentry to
be made in respectof that portioninthe register, forno such
entry is possible without a deed.
The mortgagee has done all that the law of registration in theColony requires. His bond has been duly registered, and it isadmitted and proved that it is a good and sufficient mortgage
Gabvin J
BrampySinno vBooth
( 30 )
BrampyS-fnno r.Booth
oi the whole of Mudugomuwa estate, which includes what once wanknown us Pahalaweln. It is duly registered, is prior both in dateof execution and in date of registration, and the title which passedthereunder is entitled to prevail.
The appeal is dismissed, with costs.
Dai.tox J.—
This appeal raises aquestionunder theLandKegistration
Ordinance, No. 14 of 1891.
In the action for the partition of a land called Pahalawela theplaintiff claimed half the land, allotting the remaining half to thedefendant. The addeddefendantintervenedandclaimed the
whole of the land for the Salvation Army, the trial Judge decidingin favour of the latter claim.
The plaintiff’s case was that the Crown granted Pahalawela,:*J2 acres in extent, in 1910 (P2) to one Don Baba Singho and DanielFernando. This grant was registered on June 28, 1916, folioFt 73/358. By deed P8dated May 24, 1916,theyconveyed the
land to Enid Fernando,wife ofone JosephGregory Fernando.
This deed P8 was registered in the same folio as the foregoing one.but on June 24, 1916. This was the first registration of the landPahalawela. By deed P4 Enid Fernando conveyed the land tothe plaintiff and the defendant on September 17, 1920, the deedbeing registered in the same folio on October 7, 1920.
The added defendant, the respondent in the appeal, sets up thatPahalawela forms part of an estate called Mudugomuwa, containing'221 acres. Both Mudugomuwa and Pahalawela existed as separatelands prior to 1916, Pahalaweln Ueing one of several contiguousallotments going to make up the Mudugomuwa estate. It appears,that in 1916 by deed D2 Enid Fernando and her husband mortgagedMudugomuwa estate to one Arthur Pate. This deed was registeredon June 12, 1916, in folio H 73/331, a new folio being started as thiswas the first registration of Mudugomuwa; the deed sets out inthe schedule six contiguous allotments of land which it is statedgo to make up Mudugomuwa estate. The second allotmentmentioned is the land Pahalawela. The bond was put in suit bythe mortgagee in 1920; he obtained a decree thereon, and purchased,the mortgaged property himself at the resulting sale. The decreewas registered on September 14, 1921, Fiscal's transfer obtainedin May, 1922, and registered on May 24, 1922 (folio H 73/331).In May, 1923, Pate by duly registered deed donated the landMudugomuwa to the Salvation Army.
The ground of appeal upon which appellant relies is that theregistration of Mudugomuwa estate incorporating Pahalaweladoes not comply with the requirements for registration, for theregistration of the deed D2 is not the regstration of any dealing
( 31 )
with Pahaiaweia, the Ordinance requiring every land to be separately 132ft.registered, z.e., the foi'malities in respect of registration to be carried DAJ/roN r
out in respect of each separate land mentioned in the deed, and
that the omission to register the mortgage of Pahaiaweia separately sinno*vresulted in a total defect in respondent's title, the RegistrationBooth
of D2 being no registration within the meaning of the Ordinance.
It should be noted that Mr. Perera expressly stated he cfculd raiseno ground for appeal based upon any registration in a wrozlg folio.
The question to be answered in this case is whether or not theregistration of D2 (the mortgage of Mudugomuwa) is a registration ofa mortgage of Pahaiaweia. I am unable to see how it can he saidto be anything but the registration of a deed affecting the wholeestate mentioned therein comprising the six allotments set out.
As it is the registration of a deled respecting the whole, so it is aregistration of a deed respecting each part of the whole. Nothingthat has been adduced in argument satisfies me that the requirementsof section 16 of the Ordinance have not been complied with. Theregistration has been duly endorsed on the document, and inaddition the deed contains a statement in conformity with theprovisions of section 24 of the number and folio of the registerin which eadi allotment which goes to make up Mudugomuwalias been previously registered.Thesecondallotment, Pahaia-
weia, had not been previously registered as a sepurate entity, andlienee there was nothing to be done as regards this particular landunder the provisions of section 24. It is expressly stated on thedeed, and correctly stated, that when D2 was registered Pahaia-weia was unregistered. It* is allowable to an owner to consolidateseveral lands and constituteoutofthem adistinct cor putt, as
pointed out by De SampayoJ.in Fernandov. Pererabut in
such a case the decision in Mariku v. Fernando 2 applies. InSenaratna v. Peris 3 Wood Renton C.J. says: —
**' It was held by this Court in Mariku v. Fernando (sUpra) thatwhere two lands previously registered are consolidatedand registered in a different folio without referehce to theprevious registrationoftheseparate lands the regis-
tration was made in the wrong folio. The present caseconies directly within the ratio decidendi in Mariku r.
Fernando (.supra), that where a property has once beenregistered all subsequent dealings with it must, in orderto satisfy the requirements of section 24 of the LandRegistration Ordinance, 1891, be entered in the same,folio as that of the original registration."
It is apparent on th*e facts that these two authorities are of noassistance to the appellant here. It is urged for him, however,that if one has regard to the general intention of the Ordinance
1 SO N. L, R. 119.2 17 X. L. R. 481.
" 4 C. W. R. OS.
( *2 )
Dalton J.
SrampySinno t>.Booth
the deed D2 should have been registered, not only under the nameof Mudugomuwa, but also in separate folios under the names ofeach of the six separate allotments also, to make the registration,complete. I am unable to read that requirement into the Ordinance.Section 15 requires the keeping of books, “ so that every deedrelating to lands …. may be registered therein so as to facili-tate reference to all existing alienations or incumbrances affectingthe same lands.*’ -Folio 331 contains a cross reference to all theregistrations of the separate allotments. Under the rules dealingwith the index to the register it is true that it is laid down that ifa land has more than one name it must be indexed under eachname. That,however, is aduty placedupon theRegistrar. It
might be pointed out that a personal index is kept as well as alocal index. If that rule can be applied to the circumstances ofthis case, and if there has been any failure here to comply withthat rule (and I am not satisfied that it has been shown that therehas been anysuch failure),it still seems to me that the person
registering D2has done all that the lawrequires ofhim to effect
registration. As Wood Renton C.J. points out in CorncluAbiasinghe 3:“it is quitereasonablethat they(grantees of
deeds) should be required to see that their deeds are registered inaccordance with the requirements of the law so as to facilitatereference in the language of section 15 (1) of the Ordinance itself.”He is referring to cases which deal with the meaning of the words“ unless so registered ” in section 17, and he adds “ the decisionsin question have turned on the presence of negligence of somekind or other on the part of the applicant for registration. TheSupreme Court has not yet, I think, held that an applicant forregistration would be deprived of his priority by the sole andgratuitous fault or mistake of the registering officer.” 'That wasthe position in 3913 when that case was decided, and it is theposition I understand to-day.
For the above reasons I would hold that the decision of thetrial Judge was correct, and that this appeal should be dismissed,with costs.
.4 ppcal dismissed.
3 5 Bal. Notes of Gases 30.