DE SILVA v. LAPAYA et al

039-NLR-NLR-V-29-DE-SILVA-v.-LAPAYA-et-al.pdf


( 177 )
Present: Schneider J., Lyall Grant J., and Maartensz A.J.
1927.
DE SILVA v. LAPAYA et al.
136—D. C. Kandy, 31,975.
Registration—MisdescriptionofviUage—Rightfolio—Priority—La nd
Registration Ordinance, No. 14 of 1891, s. 24.
Where, owing to a- misdescription of the village in which a landis situate, a deed affecting the land is registered in a folio differentfrom that in which it would have been registered, had the correctvillage been given,—
Held, that the deed was not duly registered in accordance withthe provisions of the Land Registration Ordinance, and would nothave the benefit of priority conferred by the Ordinance.
Rajapakse v. Fernando 1 distinguished.
T
HIS was an action for declaration of title to a land calledEdandekwnbura, which belonged to one Ganitha, who sold
it to his sister Eanee by deed No. 16,119 (PI). On the death ofEanee without issue, Ganitha re-acquired the land by inheritanceand sold an undivided half share to Charles Silva by deed No. Ill(P2) dated July 20, 1923, registered on July 21, 1923. Charles Silvasold it to the plaintiff by deed No. 156 (P3) dated March. 17, 1924,and registered on March 18, 1924. Deeds PI, P2, P3 wereregistered in Diyision D, Volume 57, folios 257 and 258. The landwas described in these as situated in the village Hapugaspitiya.
The first defendant-appellant bought the land at a sale inexecution of a writ and obtained Fiscal's transfer No. 20,223 datedJanuary 18, 1923 (Dl). It was registered in 1923 in Division D,
Volume 91, folio 74. The Fiscal's transfer describes the land asbeing situated in village Eatmalkaduwa. The question raised inthe case was whether the misdescription with regard to the village
1 21 N. L. R. 495.
( 178 )
1987* in PI and the other deeds in plaintiff's chain of title deprivesthem of the right of priority over the defendant's Fiscal's transferLapaya as not being registered in the right folio.
if. V. Perera, for defendant, appellant.—The question to bedecided is whether the land was properly registered.
In PI, P2, P8, P4 it is registered as a land situate in Hapugas-pitiya.
D1 describes the land as being in Batmalkaduwa.
Hapuga6pitiya and Batmalkaduwa are two distinct villages. Theland is, in point of fact, in Batmalkaduwa.
Under section 28 of the Ordinance No. 14 of 1891, the descriptionto be given when a deed is produced for registration includes thename of correct village. The Village Index would refer to a numberof folios in the book. According to the Ordinance there should be aseparate book for each village. The practice of the BegistrationDepartment may not be in compliance with the provisions of theOrdinance.
The Village Index should be regarded as fulfilling the requirementsof the Ordinance, for it is the index which gives the necessary inform-ation in relation to a land, and to which a person seeking informationin practice always refers. Buies by Governor made on August 3,1928.
Section 17 does not define what registration is. The village mustbe mentioned carefully. Failure to name the village is fatal to thevalidity of registration.
Keuneman (with Navaratnam), for plaintiff, respondent.—TheBegistrar has to facilitate the obtaining of information. He keepsa Village Index as a matter of convenience. Two points to be keptin view are (1) Correct division (section 15). Section 16 says thatevery deed shall be registered in the branch division of thedistrict. Bee also section 17. The registration must be in thebook assigned for the division—no book assigned for the village.(2) The appointed page of the book for a particular land alsois necessary. See section 18. Section 28 requires an accuratedescription of the boundaries of the property, including village or•other division. Village is not absolutely necessary. Section 24.
[Schneider J.—But see the form of the Registrar-General andthe Notaries Ordinance, sectipn 29, sub-section 15 (a), at page 724.
The requirements of the Begistration Ordinance and the NotariesOrdinance are not identical. The position as regards the twovillages is as follows:—In 1870 no village is mentioned. Pi,P2, P3, Hapugaspitiya mentioned. In 1st defendant's Fiscal’stransfer, Batmalkaduwa is mentioned ; (1922) D5, Batmalkaduwamentioned. 4 Bal. Notes 28 as to right and wrong folios;Fernando v Pulle1; Singho v. Wijesitoghe.-
> 2 C. H JR. 76.
* 22 X. L. R. 14$.
( 179 )
The name of the village is immaterial, just as in the above case 19271it was held to be immaterial. The plaintiff-respondent registered jOelwvain the earliest folio. Bajapakse v. Fernando.1 The personal index Lapcyacould have helped the first defendant in the case.
October 26, 1927, Schneider J.—
This appeal was first argued before my brother Maartensz andmyself. We thought it desirable to refer it to a Bench of threeJudges regarding the question raised by it concerning the regis-tration of certain deeds. It was next argued before a Bench whichconsisted of my brothers Garvin, Lyall Grant, and myself, as mybrother Maartensz was not available at the time. At the close ofthe argument we felt that it would assist us if we had evidence asto the system upon which instruments were actually registeredunder the provisions of the Ordinance. The Registrar-Generalof Lands kindly sent Mr. de Silva, an officer of his Department,who gave evidence before us in the presence of the Counsel whoappeared for the parties. After this evidence had been taken mybrothers Garvin and Lyall Grant desired to hear Counsel once again.
The appeal was accordingly listed and fully argued before this Bench.
This time my brother Garvin was not available. The argumentwas not confined to the abstract question of law, but embraced thefacts upon which that question had been decided in the lower Court.
The evidence given by Mr. de Silva has been of much assistance.
I have had the record of his evidence corrected and signed by him.
It is filed in the Registry in connection with this appeal.
I shall first discuss the question of law, which is, whether thedefendant's deed D 1 is entitled to priority over the plaintiff's deedP2 by reason of its having been 44 duly registered " within themeaning of section 17 of the Land Registration Ordinance, 1891.2The defendant's title is based upon D1 alone. It was registeredin 1923. Li date it is subsequent in regard to its execution butprior in regard to its registration to the plaintiff's deed P2. Theplaintiff's title is based upon a chain of deeds, all of which areregistered in connected folios, the earliest of them having beenregistered in 1909. The. precise question for decision is whetherthe folio in which the defendant's deed D1 is registered is the*■ right folio.
The identity of the land described in the competing deeds wasadmitted. In both, the land is called by the same name, Edande-kumbiura, is described by boundaries recognizable as being thesame, and as being situated in the 44 Gangapahala korale of theUdapalata in the District of Kandy." The only material differenceis that in D1 it is stated to be situated in the village Ratmalkaduwa1 20 N. L. B. 301.* No. 14 of 1891.
( 180 )
1927.
^CHNKIDER
J.
Z>e Silva v.Lapaya
and in P2 in Hapugaspitiya. It is this difference in the descriptionwhich has resulted in the plaintiff's deeds being registered in a set offolios different to the folio in which defendant's deed is registered.
It was admitted at the trial that the villages are “ two separatevillages included in the wasama of the Batmalkaduwa Arachchi.Their being within the. territorial jurisdiction of the same Arachchior that he is called the Arachchi of Ratmalkaduwa is of no signi-ficance, because ordinarily an Arachchi exercises jurisdiction over agroup of villages or hamlets.
The question for decision eventually resolves itself into this:Should the defendant’s deed D1 have been registered in one ofthe folios connected with the registrations of the plaintiff’s deedsalthough the name of the village is wrongly stated in the plaintiff'sdeeds. Before the law can be applied it will have to be ascertainedin what village the land is actually situated—that question of factwill have to be tried, when the case goes'back to the lower Courtfor trial, as the District Judge has not tried that question
The precise question of law to be decided on this appeal has notbeen considered in any of the decisions cited on the several occasionson which the appeal was argued. The cases cited were the following:Silva v. Appu,1 Marikku v. Fernando,2 Fernando v. Pedru Pullc3Senaratne v.Piem,4 Rajapakse tj.Fernando,* and Singho v.Wijesinglic*The four first named cases might be regarded as forming oue group.With reference to the provision in section 24 of the Ordinance theylaid down the law to be that when once an instrument dealing withthe land has been registered, all other instruments dealing withthat land must, in order to satisfy the requirements of section 24,be entered in the same or a connected folio. They held that thefolio in which the first registration was effected was the ** right ”and any other the “ wrong ” folio for the registration of instrumentsdealing with or effecting the land. It will appear that the regis-tration in different folios in ail those cases was attributable eitherto the fact that the deeds relating to more than one land were firstregistered, and thereafter a deed relating to the same lands whenconsolidated, or to the fact that a deed relating to an entire landwas first registered and deeds relating to portions of it weresubsequently registered. It was held that the same principleapplied, although the one case in which the lands were consolidatedis the converse of the other in which the land was “ partitioned ’*(section 27) or divided, as it was held the word should be regarded
as meaning.
The element of a misdescription of the land did not enter intoany of those cases. But the remaining two cases, the fifth and sixth,
1 (1914) 4 Bal. N. C. 28.
(1914) 11N. L. B. 481.
(1916) Z C. W. R. 75.
(1917) 4. C. Wj R. 65.
* (1917) 20 N. L. R. 301 ;(1920) 21 N. L. R. 495.
« (1920) 22 N. L. R. 146.
( 181 )
*re concerned with a misdescription of the land. Into the same groupwith these two cases would fall the cases of Mohamad Sali v. IsaMatchia1 and Paaris et al v. Perera2 (which, although they were not■explicitly cited before us, are mentioned in the cases which were•cited. In Mohamad Sali v. Isa Natchia (supra), the earliest casein this group, Wood Renton and Grenier JJ. held in 1911 that theregistration of a deed in a different folio to that in which it wouldhave been registered if the correct name, extent, and boundarieswere given was a registration in ** a wrong folio ” and did not conferthe benefit of priority created by the Ordinance. In Paaris et al v.Perera (supra) Lascelles C.J. and Grenier J. held to the same effectin 1912—the misdescription in this instance being confined to theboundaries alone. Both cases turned upon the^ interpretation placedon the words " so registered ” in section 17. In neither was theprovision in section 24 considered. In Rajapakse v. Fernando (supra)it was the judgment of the Privy Council which was cited to us. Asto what precisely was the holding in that case upon the questionof registration there was much argument. It was contendedfor the plaintiff that the effect of the holding in that case wasthat if a deed relating to a land describing it as situated in a differentvillage to that in which it is actually situated be registered thefolio in which that deed is registered must be deemed to be theright folio and all subsequent registrations of deeds connected withthe same land must be connected with that folio. If this contentionis right we are concluded by the authority'of that case and must-hold that the plaintiff’s deed cannot be regarded as void as againstthe defendant’s deed, although the land is actually situated inRat-malkaduwa and not in Hapugaspitiya. To ascertain thesoundness of this argument- it is necessary to refer to the facts ofthe case which are to be found in the judgment of Ennis J. in thereport of the case at page 301 of Volume XX of the New LawReports. In 1897 Carry purchased a land called Medagodamuka-lana from the Crown and added to it twenty other allotments ofland which Jie purchased from the villagers from time to time.He described Medagodamukalana and those allotments as“ adjoining each other and forming one property ” (section 23) calledMedagoda estate, and the deed of sale of this estate in 1909 byCarry was registered with appropriate cross references to previousregistrations. It is stated that the extract of encumbrances whichwas an exhibit in the case gave a very full description of the propertyregistered and that had the register been searched at the time of tbssubsequent registration of deeds the fact that a deed relating tothe lands had actually been registered would have been discovered.In 1912 Cany purchased from the Crown the same allotments whichbe had previously purchased from the villagers. The grant from» (1911) IS N. L. R. 187.2 (1912) IS N. L. R. 148.
1927.
Schneider
J.
De Silva v.LajHti/a
( 182 )
1*27.
Bohnbxdjbr
J.
De Silva v.Lapaya
the Crown was registered in 1914 in u different folio to that in whichthe deed for Medagoda estate was registered. The lands were'described in that grant as Ihalamedagoda estate, and as being in.the Tillage Ihalamedagoda, whereas the description of, those very*lands together with the mukalana in the deed of earlier date was.Medagoda estate situated in Medagoda. It was held by the Privy1Council that the Crown grant of 1912 was not rightly registered.It was argued before us that their Lordships of the Privy Councilhad stated in their judgment that a misdiscviption as regards thevillage in which a land was situated did not matter. Althoughthere is much to be said for this view I am unable to accept it. Thatis not the conclusion I come to upon a careful consideration of the*whole of their Lordship’s judgment. Immediately after referringto the facts the holding is stated that the Crown grant should have-been registered in the same folio as the older deed and there followsthe reason which I regard as the only pne on which that holding isbased, that under section 24 of the Ordinance the " later regis-tration must state the volume and folio of the register in which suchproperty has been previously registered. In the present case-Thomas Carry, who held the Government grant and must have beenparty to the registration, was fully aware of the earlier conveyance,and the infringement of the regulation in section 24 must have beenintentional on his part. Their Lordships are not prepared to holdthat the registration of the Crown grant was under these circum-stances valid or that it had any effect at law. *' It should be notedhere that Carry’s interests under the Crown grant were sold againsthim only in 1916, whereas the registering of the grant was effectedin 1914. Having disposed of the question regarding registrationin those words, their Lordships next proceed to dispose of anotherquestion of law, and at the close of their judgment referring to anargument addressed to them, say : “A great part of the argumenton behalf of the appellant was based on the fact that in the registerof the sale of the land by Government to Thomas Carry it is spokenof as the Ihalamedagoda estate, and in the registration of the deedsrelating to the title of the appellant it is registered as being in the-village of Ihalamedagoda, whereas in the deeds relating to the-respondent’s title it is spoken of as being fn the village of Medagoda..But the provisions of section 24 of the Ordinance turn on the identityof the lands, and not upon the identity of the nomenclature bywhich they are described, and their Lordships have no doubt thatthe change in name did not connote any change in identity, andwas not understood so to do by any one concerned ” (page 497).It appears to me that when their Lordships speak of the “ identityof the nomenclature M they refer to the name of the estate and notto the name of the village, for in the same connection they speak ofthe '"change in name, ” an expression which appears inappropriate
(183)
if the latter words were intended to refer to the misdescriptionas regards the name of the village, for the villages did not chaagetheir name, but it was the name of the'estate only which was changed.They say that it is on the identity of a land that the provisions ofsection 24 turn. Now, how is the identity of a land ascertainedbut by reference to several particulars, such as the name, extent,boundaries, and situation of the land. Of these particulars the nameand the extent are undoubtedly of less value than the boundariesand situation, which are of material importance. From the reportsof the cases to be found in the New Law Reports it does not appearthat there was any evidence where in fact the lands conveyed bythe Crown grant of 1912 were situated. Their Lordships did notconsider that question of fact nor whether the respondent’s deed,which was of earlier date, should have been registered in some folioother than that in which it was registered, but they decided thecompetition between the deeds by refusing to recognize the regis-tration of the appellant’s deed of later date, for which priority wasclaimed, because the person responsible for its registration hadinfringed a regulation by intentionally omitting to furnish theparticulars of the prior registration of which he had knowledge.If those particulars had been furnished it is probable that in theregistration of the Crown grant there would have been a crossreference to the registration of the earlier deed and a cross referenceentered in the registration of that deed to the registration of theCrown grant. Such cross references would have enabled any onesearching the registers to ascertain all the registrations which hadtaken place in the same manner as if those registrations had beenentered in the folio in which the first deed was registered or in folioswhich are continuations of it.
In Singho v. Wijesinghe {supra) de Sampayo J. interpreted riiejudgment of the Privy Council in Rajapakae v. Fernando {supra) asan authority for the proposition that identity of the names givento a land in its description is not an essential detail.
I therefore hold against the plaintiff’s contention that the questionraised by this appeal is concluded by the decision of Rajapakse v.Fernando {supra) by the Privy Council. That being so, it wouldbecome • apparent that the law laid down in Mohamad Sali v.Isa Natchia {supra) and Paaris et al v. Perera {supra) alreadyreferred to is not in conflict with the decision of Rajapalcse v.Fernando {supra). If the law laid down in those two casesis good law—that a registration with the wrong descriptionof the boundaries of a land is not a description which compliedwith the requirement of the Ordinance so as to confer priority,by a parity of reasoning a misdescription as regards thevillage will also likewise vitiate a registration. If I may say sowith all respect I am in entire accord with those decisions. The29/16
1987,
SCHNHIDES
J.
De Silva v.Lapayn
( 184 )
1927, contention for the plaintiff was that in the present ease bothSchneider villages were within the same defined division of the distriet of.
Kandy for which the book designated by the letter D has beemDe s&va t assigned by the Registrar and that deeds registered anywhere in I>Lapaya are rightly registered. Prom the document D2 it appears that theRegistrar of Lands regards Gangapahala korale as the name of thepattu and Udapalata as the name of the korale. According to-Mr. de Silva's evidence the division allotted to each book is not avillage but a korale or pattu. Hence, whether it was the koralecalled Udapalata or the pattu called Gangapahala to which wasassigned the book D, instruments connected with the dealings ofany land in Gangapahala korale will be registered in that book.We accordingly find that both the competing deeds have in fact-been registered in that book. The plaintiff submits that regis-tration in any part of that book satisfies the requirements of ,theOrdinance. That contention, I think, is not sound. The regis-tration must be not only in the “ book ” but on the appointedpage of the book (section 18).
Section 15 requires the Registrar to keep “ such books as shall berequired by the Rules and Regulations. ” The words “ Rules andRegulations ” occur in the earlier section 8, and convey the sugges-tion that the books referred to in section 15 are the same as the booksreferred to in the earlier section. There is evidence that the Governorhas made no rules under section 8. But nothing turns upon thatfact. The evidence proves that there are carefully drawn up rulesmade by Government prescribing the manner in which the regis-tration of deeds is to be effected. Those rules are given in extern®in Jayewardene s “ The Law of the Registration of Deeds ” in thechapter headed *' The Formalities of Registration Section 15further requires the Registrar to allot “ to each book a defineddivision of the Province or district, so that every deed relating to landsituated thereinthe division) may be registered therein in such
manner as to facilitate reference to all existing alienations or encum-brances affecting the same lands ”. Those words clearly indicatethat it is not merely the registration in the particular book whichis required but that the registration should be made in a manner soas to facilitate reference to existing registration. “ The object ofregistration is the protection of bona fide purchasers—it enablesthem by search to discover previous dealings with the property,and Hogg (Deeds of Registration) enunciates the consequent ruleas follows: “ The rule that a person searching the register hasnotice of what is on the register—in Lord Redesdale’s words inBushell v. Bushell ‘ if he searches he has notice, ’ seems to supplythe right principle on which to rest the further rule, that a personwho ought to search the register must be taken as having notice ofwhat he would find there if he did search. Facts and circumstances
( 185 )
that might thusbediscovered will thenbe the subjectof
constructive notice, and constructive notice, quite as much ascctual notice, may afford evidence of fraud or want of 6ona fides.”^Ennis J. in Rajopakse v. Fernando (supra).
Section 16 enacts what instruments must be registered, and that'they shall be registered “ in the books mentioned in the precedingsection.” Section17enacts that unless those instrumentsare
so registered ” they are to be deemed void as regards titles byvirtue of instruments “ which shall have been duly registered asAforesaid.” Are these latter words and the words “ so registered ”to be interpreted only by the light of the provisions to be found insections 15 and 16? I think not. They must be' interpreted in thelight of the provisions to be found in the Ordinance as a whole.■Sections 18, 19, 20, 21, 22, 28, 24, and 27 contain provisions whichhave a bearing, but for the purpose now under consideration I willrefer only to someofthose sections. Section18 provides thatthe
party concerned istoproduce the instrumentto the Begistrarand
upon payment of the stamp duty the Begistrar is forthwith to registerthe instrument ” on the appointed page of the book assigned forthe division, village, or district wherein the land thereby affected issituated.” The context makes it- clear that all the words following"‘Book ” refer to book and not to ” the appointed page.” Thesection therefore requires the registration to be not ouly in -the"“■Book ” but on “ the appointed page ” of the book. What is the■“ appointed page ” according to the system followed under the rulesby which .the provisions of the Ordinance are being actually carriedinto practice is made clear by the evidence given by Mr. de Silva?He says that the “ Book ” assigned to a division might consist ofone or several volumes, and a volume might consist of one “ folioor of several folios numbered consecutively not exceeding 400.He described a folio as being the whole side of a printed sheet of■paper bearing at its top the letter assigned to the division and thenumber of the volume. These printed sheets are those with whichwe are familiar from the extract from the registers which arefurnished to the public upon an application made to Begistrars ofLands for extracts. They give all the particulars regarding thedeed which is registered and all the particulars contained in the deedregarding the land. A folio, Mr. de Silva says, is assigned to eachland which is registered. Thus the “ appointed page ” in section18 means the folio assigned to each .land at the time when a deeddealing with the land is the first to be registered. The procedure isfor all deeds dealing with that land to be registered in that folio orin folios to which the registration is “ carried over ”, the referenceto such subsequent registration being facilitated by cross references.
Section 23 enacts that every instrument produced for registrationshall contain " an accurate description of the property, its boundaries,
1927.
Schneider
J.
De Silva v.
Laprvja
( 186 )
1927. extent, and situation with respect to the village, pattu, korale,8cmvra>EB or °^er division of the district.” It should be noted that the nameJ. of the land is not mentioned as among the requirements of an accurateDeSUvav. description. The Notaries Ordinance (No. 1 of 1907) in section 29
Lapaya (15) (a) requires of notaries that they shall state in deeds the sameparticulars as those mentioned in section 23, but it is added *' andalso the name and assessment number, if any.” The care with whichthe rules for the working of the Ordinance have been framed is shownin the fact that rule 6 (Jayewardene, page 42) requires identically thesame particulars to be furnished as those mentioned in section 23but adds that if the property is situated in a town the name of thestreet and assessment number, if any, should also be stated. Theprovision in section 23 prescribing the form of the endorsement tocertify .to a registration shows that the registration must be withreference, not only to the division of the district, but also to thevolume of the divisional register and the folio of the volume. Itherefore conclude that for registration to be effective it must beentered, not only in the proper book, but also in the appointed folio.The effectual working of this requirement is provided for by anumber of well conceived rules quoted in extenso by Jayewardene(page 50-59) containing provisions in great detail for .the keepingof indexes called local and personal, to facilitate reference to allexisting registrations. Mr. de Silva describes what is done when adeed is produced for registration which does not “ state the volumeand folio of the register ” in which the ” property has been previouslyregistered,” as required by section 24. Mr. de Silva says that theRegistrar will consult the local index and try to discover whetherany deeds affecting a land answering to the description given in thedeed produced and situated in the village mentioned in the deedhas been registered previously. If he does not find a registrationunder the village he will conclude that no deed has been registeredpreviously and act accordingly. His evidence is that the correctname of the village must be given in order to ascertain what deeds,if any, relating to the same land have been registered previously.Now, a person having no knowledge of his own regarding deedsdealing with a land which have been registered must depend on theresult of a search of the registers to fulfil the requirements in section24 that the deed produced shall state the particulars of the previousregistrations. Mr. de Silva’s evidence shows that unless ithe deedspreviously registered had given the name of the village in which theland is situated correctly the search would be useless. I thereforehold that if the land in dispute in the present action is situated in thevillage Ratmalkaduwa, and that village at the date of the regis-tration of the deed P2 was not called Hapugaspitiya, the plaintiff’s•deed has not been duly registered and the defendant’s deed D1has been so registered and should be given priority. Although no
( 187 )
cadastral survey of the whole land has been made, we do know that■the Surveyor-General has issued survey plans showing the divisions•of the whole Island into Provinces, districts, korales, pattus, and■villages for the purposes of revenue and administration, and thereis no difficulty in locating any village with reference to a pattu andMorale.
The parties were content to have the question of registration•decided upon the documentary evidence produced and the admissionsrmade at the trial, but as the case must be remitted for the trial ofother issues, whatever be the decision in regard to the question ofregistration, I will formally set aside the order of the District Court.giving judgment for the plaintiff and remit the case with libertyto the parties to call evidence, if they so desire, as to the actual-situation of the land or any other facts necessary to apply the[principle indicated in this judgment as to which deed is to beregarded as having been duly registered. In all the circumstances-the costs of the appeal should be costs in the cause.
Lyall Grant J.—
The question to be decided in this case is whether the registration•of a certain land was in the right folio.
The registration in question followed on a Fiscal’s conveyanceand was registered in a folio which contained no previous regis-tration of the land. In this register the land is described as situatedin a village called Batmalkaduwa. It was admitted, however, thatthe land was previously registered in another folio and describedas situated in Hapugaspitiya.
It is well-established law that there is a duty on the purchaserto state .the volume and folio of the register in which the propertypurchased had been previously registered. See section 24 of theLand Begistration Ordinance, No. 14 of 1891.
Emphasis has been laid, in various cases of this Court and inthe Privy Council case of Rajapakse v. Fernando,1 on the necessityof carrying out the provisions of section 24.
Evidence was led on behalf of the Begistrar of Lands as .to thesystem of registration. It appears that each korale or pattu is aseparate registration division, and that for each such division onebook is kept, which is denominated by a letter of the alphabet.Each particular land has a blank sheet opened for it, which is calleda folio, and all entries in regard to that land are made in that foliofill filled up, and thereafter there is a cross reference to anotherfolio.
The .term “ volume ” does not appear to be of importance, as avolume consists merely of a number of folios, taken in chronological,not geographical, order.
* (1917) 20 N. L. R. 201; 21 N. L. R. 49S.
1987.
SohtobidebJ. '
De Bilvav.Lapaya
( 188 )
1927. The registration is entered on a sheet which contains, in additionT.viT.r, to the name of the division, the name o£ the village and otherGrant J. subdivisions in which the land is situated, and each village has aDe Silva v. separate index which gives the names of all the registered land*Lapoya jn the village, their extent, the proprietor's name, and the volumeand folio in which the land is registered.
In the present case it seems important to know whether thevillages of Batmalkaduwa and Hapugaspitiya have separate indexes,and ako whether these villages are contiguous and whether theboundaries have at any time been so altered as to remove the landsin question from one village to the other.
I do not think that, if a land is entered in the folio as being in avillage in which it is not in fact situated, such a registration complieswith the terms of the Ordinance. There is in that case no accuratedescription, as required by section 23, of the boundaries andsituation of the property.
In fact, strictly speaking such a registration can hardly be saidto be a registration of the property at all. It is a registration ofsome piece of land which is stated to lie in the village of A, and sucha registration cannot possibly, to my mind, be held to apply to apiece of land which actually lies within the village of B, assumingthose villages to be quite separate and distinct.
In the present case no evidence has been led in regard to the issuewhich was raised, whether the land was correctly described as beingin Hapugaspitiya or Batmalkaduwa, and we do not know which,if any, of the deeds were correctly registered.
It seems to me essential that we should have evidence, not only-on this point, but also on the nature of the indexes kept in regardto these two villages, i.e.f whether separate indexes of these twovillages have been kept and whether these indexes have alwaysreferred to the same extent of land; in short, evidence toshow whether the land was or was not correctly registered inHapugaspitiya.
Maartensz A.J.—
The land which is .the subject of this action, called Edande-kumbura, belonging to one Ganitha, who by deed No. 16,119 (PI)sold it to his sister Ranee. Ganitha re-acquired the land by inherit-ance, on Ranee’s death without issue, and sold an undivided halfshare to Charles Silva by deed No. Ill dated July 20, 1923 (P2), whoin turn sold it to plaintiff by deed No. 156 dated March 17, 1924 (P3).
Deeds PI, P2, and P3 were registered on November 19, 1909,July 21, 1923, aud March 18, 1924, respectively, in Division D,Volume 57, folios 257 and 258. The land is described in thesedeeds as situated in the village of Hapugaspitiya in Gangapahalakorale of TJdapalata in the District of Kandy.
( 189 )
The first defendant appellant bought the land at a sale in execu-tion of a writ issued by .the Village Tribunal of Udapalata andobtained Fiscal's transfer No. 20,223 dated January 18, 1928 (Dl).
The Fiscal's transfer describes the land as situated in the villageof Batmalkaduwa in Gangapahala korale of Udapalata in thedistrict of Kandy. It was registered, in Division D, Volume 91,folio 74.
There is no definite finding on ithe point, but I shall assume forthe purpose of discussing and deciding the question raised by theappeal that the land is situated in the village of Batmalkaduwa.
PI is the first deed registered relating to Hdandekumbura, and thequestion raised by this appeal is whether the misdescription withregard to the village in that deed deprives it and the other deeds inplaintiff’s chain of title of the right of priority over first defendant'sFiscal's transfer as not being registered in .the right folio.
The folio in which the first deed was registered was held to bethe right folio in the case of Silva v. Appu,1 where De Sampayo J.said: —
" The words 1 right ’ and ‘ wrong ' are relative terms and havereference to a folio already determined. In my opinionthe folio so determined is the folio which .the Registraropened for registering deeds relating to the particularland and in which the first of such deeds is registered.Accordingly I hold that, for the purposes of this question,it is to .the folio in which K's deed of January 4, 1899,is registered that reference should be made."
The principle laid down in Silva v. Appu (supra) was followedin Marikku v. Fernando 2 and Fernando v. Pedru Pulle 2
In the latter case Wood Benton J. said: —
" This mortgage was registered in folio C 18/105. It was, so faras appears from the material at our disposal, the firstdealing with .the land, and therefore (see Silva v. Appu)the folio in which it was so registered was the rightfolio for the registration of subsequent dealings withthe land within the purview of section 24 of the LandRegistration Ordinance, 1891."
The effect of section 24 of the Land Registration Ordinance, 1891,was laid down more emphatically by the same Judge in Senaratnev. Pieris> He said: —
" The present case comes directly within the ratio decidendi inMarikku v. Fernando (supra), viz., that when a propertyhas once been registered, all subsequent dealings with itmust, in order to satisfy .the requirements of section 24
(1914) 4 Bal. N. C. 23.«2 C. W. R. 75.
(1914) 11 N. L. R. 431.« (1917) 4 C. W. R. 65
1927.
MaabtekscA. J,
Dc SUvaLapaya
( 190 )
1927.
MaabtenszA. J.
De Siiva v.Lapaya
of the Land Registration Ordinance, 1891, be entered inthe same folio as that of the original registration. Thisrule is equally applicable whether two lands separatelyregistered are subsequently consolidated or the subse-quent dealing consists in the acquisition of a separate /title to a land already owned, as part of another land,on unregistered deeds.”
In none of these cases was the effect of misdescription in thefirsA deed registered considered. If full effect is given to theconstruction placed on section 24 of the Ordinance no question ofmisdescription can arise. All subsequent deeds must state thevolume and folio in which the first deed has been registered, whetherthe property has been properly described in the first deed or not.
The principle laid down in Silva v. Appu {supra) and the con-struction placed on section 24 of the Ordinance was adopted by theirLordships of the Privy Council in the case of Rajapahse v. Fernando,lIn that case a question as to the situation of the land was raised atthe argument before the Privy Council, which I shall refer to later.
The appellant contended that the principle laid down in Silvav. Appu (.supra) only applied to the folio in which a deed containingan accurate description of the land was first registered, and thereforedid not apply to the folios in which PI was registered. We were alsoinvited to reconsider the construction placed on section 24 of theOrdinance. The decision of the Privy Council, it was contended,.turned on the particular facts of that case.
A corollary to the question raised by the appeal is whether anaccurate description of the village is essential to the registrationof a deed under the present system of registration. The consider-ation of this question involves an examination of certain sections ofthe Ordinance and the evidence given by Mr. de Silva, Chief Clerkof the Correspondence Branch of the Registrar-General's Office,before this Court.
According to Mr. de Silva's evidence no rules have been madeunder section 8 as to the manner in which the books renderedneeessary are to be kept, and the cadastral survey contemplatedby section 9 of the Ordinance has not been made of the villages anddistricts of the Central Province.
The system of registration observed is as follows: —The defineddivision of the Province allotted to each book kept under section15 of the Ordinance is a korale or pattu, each book being given adistinguishing letter of the alphabet. To facilitate reference toexisting alienations and encumbrances an index is kept; in thisindex a corresponding entry is made of every deed registered underthe name of the village in which the land is situated. When a deedis tendered for registration the index is examined to ascertain
1 {1917) 21 Ar. Z. i?. 495.
( 191 )
whether the laud described in the deed has been previously alienatedor encumbered. If the index shows that the land has been pre-viously registered the deed is registered in the same folio, or, ifthere is no room, in another folio with a cross reference. If no deedhas been previously registered the deed is registered in anotherfolio.
The index is the key to the volumes in which the deeds areregistered, and a misdescription in a deed with regard to the villagein which a land is situated renders reference to the index ineffecuaLFor if a land called Edahdekumbura situated in Batmalkaduwais described as situated in Hapugaspitiya it will be entered in theindex in the list of lands in the latter village, and a subsequent!deed in which» the land is properly described as situated in Bat-malkaduwa will be registered in another folio (which appears tobe exactly what has happened in this case), because there will beno entry in the index of the registration of a deed regarding Edande-kumbura under the head "Batmalkaduwa"; even if the nameEdandekumbura is noticed in the list of lands under the head"Hapugaspitiya" it will be presumed that it is a different land.
Accuracy of description is therefore essential and is required bythe Ordinance. Section 23 enacts that every deed tendered forregistration shall contain embodied therein or in a schedule annexedthereto an accurate description of the property which is affectedthereby, its boundaries, extent, and situation with respect to thevillage, pattu, or korale or other division of the district; and section18 enacts, with reference to a deed tendered for registration, thatthe Begistrar shall forthwith register the same on the appointedpage of the book assigned to the division, village, or district whereinthe land thereby affected is situated.
I am therefore of opinion that the rule laid down in Silva v.Appu (supra) is subject to the qualification contended for by theappellant, and that section 24 of the Ordinance only applies to thevolume and folio in which a deed containing an accurate descriptionof the land has been previously registered.
There remains the question whether we are bound by the decisionof the Privy Council in the case of Rajapahse v. Fernando (supra),in which the facts, shortly stated, are as follows:—Thomas Carry,when he had no title, sold the land in dispute to defendant's pre-decessor in title by a deed which was registered in 1909 in DivisionF, Volume 81, folio 36. Carry obtained title in 1912 by a grantfrom the Crown, and the property was sold in execution againsthim and purchased in 1916 by plaintiff's predecessor in title.
The plaintiff appealed to the Privy Council, from the judgmententered against him in Ceylon, Their Lordships dismissed theappeal and said with regard to section 24 "In any case, under
1927.
ICrnmns
AJ.
DeBUvav^
Lapaya
( 192 )
1927. section 24 of the Land Begistration Ordinance, 1891, the latterMaabtensz ragistration must state the volume and folio of the register in whichA.J. such property has been previously registered. The language ofVe Silva v. the section makes this imperative, and it is obvious that observanceLapoya Qf this provision is vital to the effectiveness of a system of regis-tration.,” Up to this point in the judgment there is no indicationthat the rule laid down applied whether the land had been correctlydescribed in the first registered deed or not.
The question of description was considered later. It arose thus:Carry, in the deed of 1909, described the land as Medagoda estatein Medagoda village. In the grant to him from the Crown it isdescribed as Ihalamedagoda estate in the village of Ihalamedagoda.Their Lordships, dealing with the argument based on this differenceof description, held that “the provisions of section 24 of the Ordi-nance turn on the identity of the lands, and not upon the identityof the nomenclature by which they are described " and added thatthey had no doubt that the change in name did not connote anychange in identity and was not understood so to do by anyoneconcerned._
The respondent contended that the effect of this holding wasto render a compliance with the provision of section 24 essentialwhere a deed has been registered whether the situation of the landwas correctly described in the deed or not. I am unable to acceptthe contention, for it appears to me that their-Lordship’s opinionreferred to the difference in the name of the land and not to thedifference in the description with regard to the village.
I accordingly hold that the decision of the Privy Council in thecase of Rajapdkse v. Fernando (supra) is not an authority for theproposition put forward by the respondent.
I agree to the order proposed by my brother Schneider.
Set aside; case remitted.