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1928.Present: Dalton and Drieberg JJ.
DYSON v. KADIRASAN CHETTY.198—D. C. (Inly.) Kalutara, 308.
Land acquisition—Title of claimant—Date of reference—Title perfectedafter reference to Court.
In proceedings under the Land Acquisition Ordinance it is opento a claimant to perfect his title after the reference to Court.
PPEAL from an order of the District Judge of Kalutara in areference under the Land Acquisition Ordinance. The first
and third defendants each claimed the amount of compensationunder the circumstances set out in the judgment.
Keuneman, for appellant.
H. V. Perera (with Soerlsz), for respondent,
June 24,1928. Dalton J.—
This case arises out of a reference under the Land AcquisitionOrdinance of 1876. The dispute is between the first and thirddefendants, who each claim the whole of the amount (Ra. 7,935) ofcompensation as against each other. The trial Judge found thefirst defendant was entitled to the whole sum, and from thatdecision the third defendant appeals.
Each trace their title hack to a common owner, hut for the purposeof understanding and deciding the questions that arise on this appealit will be sufficient to set out the first defendant’s title. Thejudgment of the Court below sets out all the other facts.
The property was seized on May 17, 1921, in District Court,Colombo, No. 204. This seizure was registered on the same day.Sale followed on July 9, 1921, to one D. A. Perera, but he neverobtained a transfer of the property sold, probably owing to the factthat he died on September 22,1921. His widow, Letitia Dissanaike,-obtained letters of administration (3 D 5) of his estate in DistrictCourt, Colombo, No. 574, on June 5, 1922. Thereafter one.Mrs. Withams tobk out a writ in an action she had against theadministratrix for the deficiency of an=amount due to her from theestate under a mortgage decree. "This land was seized and sold andpurchased by Mrs. Withams, who obtained a Fiscal’s transfer (1 D 3)of March 11, 1926. She sold and conveyed the property to oneS. H. Fernando by deed 1 D 4 of May 24, 1926. He sold andconveyed it to the first defendant by deed 1 D 7 of June 4,1926.
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It will be observed here that no transfer was obtained after thesale to D. A. Perera. He died in September, 1921. A transfer washowever obtained from the Fiscal on October 8,1926 (1 D 5). Thispurports to be a conveyance to D. A. Perera himself. It was thenpointed out to the District Judge that the conveyance should havebeen to the administratrix and he allowed what is called in thecorrespondence “ a deed of rectification ” to be prepared. TheFiscal then by deed 1 D 6 of October 10,1927, after setting out whathe had purported to do by deed 1 D 5, conveyed the property inquestion to the administratrix of the estate of the deceased pur-chaser. It may be added here that the first defendant himself alsoon November 19, 1927, by deed 1 D 8, got a conveyance of thisproperty from the administratrix, apparently as a matter ofabundant caution. This deed is attacked by the third defendant onthe ground that the administratrix could not sell without specialleave of the Court, but it is conceded that if deed 1 D 6 is good, thequestions arising in respect of 1 D 8 need not be considered. Thedate of reference in the acquisition is September 1,1927.
It is urged for the appellant that the first defendant cannotperfect his position after the action has commenced, a claimant inthese proceedings being in the position of a plaintiff, and furtherthat the deeds 1 D 5 and 1 D 6 were obtained by a person who wasnot in any way authorized to obtain them.
With regard to the deed 1 D 6, whatever it may be termed, I agreewith the trial Judge that it is in effect a conveyance out and out bythe Fiscal of the land purchased by D. A. Perera to the adminis-tratrix of his estate and not merely a rectification of an otherwisegood and valid deed. In executing this conveyance it is also clearfrom the evidence that the Fiscal had the order of the Court to doas he did. Mr. Keuneman has questioned the right of a purchaserfrom a Fiscal’s transferee approaching the Court for an order on theFiscal to obtain a Fiscal s transfer in the name of his vendor so asto perfect his own title. He has cited no authority in support of hiscontention, and until some such authority is produced I am notprepared to disagree with the conclusion of the trial Judge on thispoint.. On the facts as proved in this case I can see nothing objec-tionable on the part of the first defendant in this respect. Thiscase differs from Leelawathie v. Dingiri Banda1 relied upon in thecourse of the argument in this respect, namely, that there theappellant was seeking to obtain a conveyance in his own name. Itwas held he had no status to make such an application. On thispoint it must be noted that the*petition and its supporting affidavitwere deficient in several essential particulars, although we do not■ know what the deficiencies were. It is clear, however, from thejudgment that the Court was satisfied that section 282 and the
1 29 N. L. B. 193.
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following sections of the Civil Procedure Code have not been inter-preted so-narrowly as Mr. Keuneman urges, otherwise it would seemthat under the Code, if a purchaser dies after his purchase but beforehe could have any time or opportunity of getting a deed completedin his favour, the transaction could never be completed at all. Anexamination of the actual documents before the Court when thedeed 1 D 6 was authorized further shows that the application wasactually made to the Court by the Deputy Fiscal. It is true hewas moved to do so by D. A. Perera, but the journal entry ofOctober 4, 1926, is not strictly correct. Whether or not, if anyobjection had been raised on that date that D. A. Perera had nolocus standi in the matter before the Court, he could have shown hewas the agent of the administratrix does not appear. The Courtmust presumably have been satisfied with the right of the applicant,whether it be the Deputy Fiscal or D. A. Perera, to make theapplication. It is quite clear that the administratrix herself playedan active part in the matter in seeking to perfect the first defendant’stitle, as is subsequently disclosed by the deed IDS. It is notquestioned now, in spite of the silence of the Code on the matter,that the legal representative of a deceased purchaser is entitled toask for a conveyance from the Fiscal.
The further question raised is as to the right of the claimant toseek to perfect his position after the action was begun. It has beenpresumed in the lower Court, and in the argument before us, thatthe land acquired vested in the Crown on some date antecedent tothe filimr of the libel of reference or on that date, September 1,1927.The deed 1 D 6 is not dated until October 10, 1927. It is cleartherefore that, in respect of this argument, the date of vesting in theCrown is of paramount importance. It is difficult therefore tounderstand why that date was not definitely ascertained in thelower Court. It was therefore agreed that this date should bedefinitely ascertained for our information. We have now before usthe certificate of acquisition issued under section 12 of the Ordinance.That certificate is dated October 28, 1927. It is from that datethat the property vests in the Crown. The presumption of the trialJudge therefore that the rights of the parties vested in the Crown atany time before October 28, 1927, has no foundation in fact. Whenthe certificate was signed, the administratrix had already obtaineda conveyance from the Fiscal in respect of the rights of the pur-chaser. No question arises therefore of the deed 1 D 6 purportingto convey interests which had already vc .ted in the Crown. It isnot therefore necessary for us to consider what the position would behad title vested in the Crown prior to the deed 1 D 6 being granted,or whether the Judge’s conclusion on that particular point is corrector not. Inasmuch, however, as 1 D 6 was obtained after the dateof the libel of reference, one has to consider whether first defendant
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was entitled to do as he did, namely, to seek to regularize his positionthen in view of the argument that at that the paper title was inthe third defendant. It was urged on the authority of Silva v.Fernando1 that the rights of the parties to an action have to beascertained at the commencement of the action.
In making his reference to the Court under the Ordinance theGovernment Agent is required to give particulars of the land, thenames of the claimants or others whom he may think interested inthe land, and the amount of compensation. It is possible that atthat point of time there may be no claimants, in which case machin-ery is provided calling for claims and for further proceedings. Itis further enacted that proceedings under this Ordinance shall beanalogous to those in an ordinary civil action. The date of thereference, it is urged, is the date of the commencement of the action.The Government Agent is the plaintiff and the claimants are namedas the defendants. The inquiry is however not restricted to thosepersons who are named in the libel of reference, intervenients beingentitled to come in and be joined as parties in the regular way(Government Agent, Sabaragamuwa v. Asirwathan2). It is true thatthe contesting parties here put forward a claim to the GovernmentAgent, but the first defendant did not in fact file his claim in theaction until February 9, 1928. I am unable to agree that the casecited (Silva v. Fernando (supra)) is any authority in these proceed-ings whereby to limit the claimants in the way that has beensuggested in this case.
For the reasons set out it seems to me that the deed 1 D 6 is agood and valid deed. It was obtained by the administratrix of thepurchaser at the Fiscal’s sale, and its benefit enured to the firstdefendant, who had acquired the purchaser’s interests. Thesubsequent deed 1 D 8 was in the circumstances quite unnecessaryto vest title in the first defendant, and its validity need not thereforebe considered.
The appeal must therefore be dismissed with costs.
Driebeeg J.—I agree.
1 IS N. L. R. 499.
2 29 X. I.. R. 367.
DYSON v. KADIRASAN CHETTY