043-NLR-NLR-V-11-DANCHIYA-v.-DISSANCHI.pdf
( 165 )
Present: Mr. Justice Wood Benton and Mr. Justice Grenier.DANCHIYA v. DISSANCHI.
G., GaUe, 3,970.
Deed—Non-registration—Non-admissibilityinevidence—Consentof parties—
Excuses for Turn-registration—Ordinance No. 6 of 1866, s. 7.
The provision in section 7 of Ordinance No. 6 of 1866, that an.unregistered deed bearing date before February 1,1840, shall not
be received in evidence, bars its admission, even although bothparties rely on it.
Grounds for non-registration of old deeds discussed.
A
PPEAL from a judgment of the District Court. The factssufficiently appear in the judgment.
H. J. C. Pereira, for the plaintiff, appellant.
Cur. adv. vuIt.
June 4, 1908, Wood Benton J.—
The appellant instituted this action as trustee of Tharawitta templeat Naramvelpitiya, and claims a divided portion of a certain land aspart of the property of the temple. At the trial three issues wereframed: (1) Was the land Sangika property? (2) If it was so, wouldthirty years’ prescription avail against Sangika property? And (3)Who had been in possession for the last thirty years? In support of15-
1908.June 4.
1908.June 4.
WoodRbnton J.
I 166 )
an affirmative answer to the first of these questions, the appellantproduced a deed of October 14, 1839, by which the land in questionhad been sold'to Dharmarama Terunnanse, then incumbent of thetemple, and “ his descending heirs. ” By a deed of October 15, 1871,in which the deed of 1839 is expressly recited, the same land was soldby Rewata Terunnanse, a pupil of Dharmarama Terunnanse, to thehusband of the respondent, and the respondent’s contention wasthat, on the basis of that deed, she had acquired a prescriptive titleto the property. The learned Commissioner of Requests refused toadmit the deed of 1839 in evidence, on the ground .that it had not beenregistered under Ordinance No. 6 of 1866, section 7. He treated thecase, therefore, as one in whioh the only issue between the partieswas that of prescriptive possession; and, on the facts, he gavejudgment in favour of the respondent. If he is right in his view ofthe law, I am not prepared to disturb his finding on the facts. Mr.Pereira contended, however, that the deed of 1839, on which theproof that the land in question was Sangika property would seem todepend, ought to have been admitted in evidence, on the ground (1)that it was relied upon by the respondent, equally with the appellant,as a foundation of title; (2) that there was.no privity of estatebetween the appellant and Dharmarama Terunnanse, inasmuch as theappellant had only been trustee of the temple for a few months underthe Buddhist Temporalities Ordinance; and (3) that, in any event,the non-registration of the deed was a matter utterly beyond hiscontrol, and for which, in virtue of the first proviso to section 7 of theOrdinance No. 6 of 1866, he ought not to be held responsible. In myopinion, the first and second of these grounds are clearly untenable.The provision in section 7 of the Ordinance of 1866, that an un-registered deed bearing date before February 1, 1840, shall not bereceived in evidence, bars its admission, even although both partiesrely on it. It must be pointed out, moreover, that in the presentcase the respondent uses the deed of 1839 only as the starting pointfor. prescriptive possession. It appears to me also .that there is nowa statutory privity, if not of estate, at least in representation,between the appellant and Dharmarama Terunnanse. Mr; Pereira’sthird point, however, requires more careful consideration. Thefirst proviso .to section 7 of the Ordinance of 1866 enables anunregistered deed to be received in evidence, if it iB established tothe satisfaction of the Court that the non-registration was owingto ‘ ‘ the absence from the Island of the holder thereof, ”' or to" his being under some legal disability, ” or to “ other causes utterlybeyond the control ” of the person producing it in evidence.
The decisions bearing directly on the construction of this provisowere cited to me in the argument. In Siriman v. Abeygunewardana,lthe defendant, in order to prove that certain land was burdened witha fidei commissTim, produced an unregistered deed dated 1833, where-
1 (1890) 9 S. C. C. 102.
( 167 )
by the land was gifted to his father, subject to a fidei commie sum, infavour of the donee's heirs. The donee, who had the deed in hispossession, died in 1881, leaving the defendant and other children ashis heirs. The defendant then got possession of the deed, and shortlyafter attained his majority. The District Judge held that the deedwas inadmissible. The case came up on appeal before the FullCourt. According to the headnote it was held by both BurnsideC.J. and Dias J. that the failure to register the deed was fromcauses utterly beyond the plaintiff’s control, and that it ought tohave been admitted in evidence. It will appear, however, onreference to the judgments themselves that the headnote goes too far.It was Burnside C.J. alone who held in terms that the deed ought tohave been admitted. Mr. Justice Dias merely said that perhaps thedefendant might be able to prove that he was entitled to the benefitof the proviso in section 7- The order made was to send the case forfurther hearing from that point of view; and Clarence J. dissentedfrom the judgment. Moreover, the ratio decidendi was explained byLawrie J. in the second of the two cases which I have referred toabove—A.-G. v. Kiriya1—in the following terms: “ The personproducing the deed ’’ (t.e., the defendant) “ showed that it was forthe interest of the holder between 1866 and 1875 to withhold the
deed from registration; if he had registered it, his right would havebeen plainly a limited right under a fidei commissum; whereas hepretended to be absolute owner, and as such he executed the mort-gage which was the subject of that action. That, then, was a goodcause why the deed was not registered; and the defendant’s minoritywas a good reason why he did not force the registration by theprocedure of the 6th section of Ordinance No. 6 of 1866.”
■In A-G- v• Kiriya1, however, where the defendants sought toaccount for the non-registration of a sannas produced by them inevidence by proof that one Hapuwa, who, before his death, was veryold, infirm, and blind for many years, kept secret the fact that hehad the sannas in his possession until a few days before his death, itwas held by Lawrie J. and Withers J. (Browne J. dissenting) that thecause shown for non-registration was insufficient. I distinguish thepresent case from Siriman v. Abeygunewardana on the grounds thathere there is a real privity in representation between the appellantand Dharmarama Terunnanse, and no question of the existence ofany legal disability arises. I think, further, that the case before meis a stronger one than. A.~G. v. Kiriya,1 inasmuch as here no cause ofany kind for the original non-registration of the deed is shown. Toadmit it in evidence would be to reduce the provisions of section 7of Ordinance No. 6 of 1866 in a very large number of cases to anabsolute nullity.
I dismiss the appeal with costs.
Appeal dismissed.
1 (1897) 3 N. L.' R. 81.
1908.June 4,
WoodRenton J.