024-NLR-NLR-V-20-FERNANDO-v.-PERERA.pdf
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Present : Wood Benton G.J. and De Sampayo J.FEENANDO v. PEEEEA.
133—D. fi. Negombo. 11.808.
Lurid RegistrationOrdinance, Wo.14of 1891—Separatelandsleased,
together with one set of boundaries—Registered as one block—1$registration valid t
Under the RegistrationOrdinance, .1891, eachlandmust be dealt
with as a distinct corpus; the owner may, however, consolidateseveral contiguous landsand constituteout ofthese elements such
a corpus, but in such a case it is necessary that reference should bemade to theprevious registrationof the separatelands.Where,,
therefore, G, whowas entitled to ahalfshare ofone lotof8
acres 2 roods and 20perches, leasedalongwithhis mother an
extent of 10 acres, including his. lot, describing the whole hy oneset of boundaries,and the whole extent was registered as one
corpus—
Held, that theregistration df theleasedid notamountto&
registration of adeed relating tooraffectingthis particular
land.
“ Though G described all the landsleasedby himby onesetof
boundaries, hedid not makeanysuch consolidation;nor,,indeed,
could he do so, seeingthat he wasat thattimeentitled to an
undivided halfshare only oftheland in question(of 8 acres
2 roods and 20 perches).'1
ThE facts are set out in the judgment.
BawOj K.G, (with him Ganaheratne), for the appellant.
Drieberg, for defendant, respondent.
Cur. adv, vult*
RatanUd's Unreported Grim, Cases 492,
RalarddFs Unreported Grim, Oases 688,
1917.
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1917.
Fernando v.Perera
July 31, 1917. De Sampayo J.—
The two contiguous allotments of land called Kongahawatta andMakullagahawatta, 3 acres 2 roods and 20 perches in extent, andforming one land, originally belonged to Paulu de Silva and his wifeCatherina, and were gifted by them to their children, Gabriel andMaria, on deed No. 2,395 dated August 6, 1870. This deed of giftwas registered on August 13, 1897, in folio B 51/378, in which twoleases granted by Gabriel and Maria for their respective half sharesin July, 1897, had been registered on July 21, 1897. A subsequentlease granted by Gabriel for his half share in May, 1899, was alsoregistered on June 23, 1899, in the same folio. By deed No. 305dated January 8, 1915, and duly registered, Maria gifted her halfshare to her son, the plaintiff. In the action No. 10,444, D. G.Negombo, the land was partitioned, and by decree dated November23, 1915, lot A was allotted to the plaintiff j and lot B, which is thesubject of the present action, was allotted to Gabriel. The lots Aand B were then registered in new folios, with appropriate reference-to the old folio, in terms of section 27 of the Land RegistrationOrdinance, No. 14 of 1891. Under writ of execution against Gabriellot B was sold,by the Fiscal and purchased by the plaintiff, and theFiscal’s transfer was registered on January 27, 1917, in the newfolio appropriated to lot B.
So far as the above series .of deeds is concerned, the right fohofor the purposes of registration was the original folio B 51/378,inasmuch as it was the folio which the Registrar had opened forregistering deeds relating to this particular land, and in which thefirst of such deeds was registered. (See Silva v. Appu1 and FernandoV: Pedro Pulle.2) But the defendant wishes to can^ the registrationto a still earlier date, and relies on a different folio as the right folio.
It appears that by deed of lease No. 3,173 dated January 9, 1893,Gabriel and his mother Catherina, to whom a life interest had beenreserved by the deed of gift, leased to the defendant a block of land10 acres in extent, comprising several allotments, of which the landpresently in question was one, describing the whole by one set ofboundaries. This deed of lease was registered on April 17, 1894,in the folio B 40/300; and again on September 27, 1894, and August18, 1902, Gabriel himself. leased this large block of land to thedefendant by two deeds of lease, which were registered in the samefolio, or with appropriate references thereto. The last of jfcheseleases was for fifteen years, commencing from January 9, 1906,and the defendant contends that this folio B 40/300, with its .continuation, is the right folio, and that as plaintiff's Fiscalstransfer is not registered in that folio, the plaintiff's title to lot Bcannot prevail by virtue of registration over his right to possessionas lessee.
1 {1914) 4 Bed. Notes of Cases 28.* (1916) 2 C. W. R. 75.
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In Bernard v. Fernando 1 I ventured to express an opinion thatas a partition decree created a new and absolutely good title, noquestion of registration could arise so as to effect the title basedthereon by the production of any deed registered prior to the decree.I am still of that opinion, and I think that the rights of the partiesto this action should be. determined independently of any regis-tration. However that may be, as the parties fought out the caseon the question of registration, the point for consideration iswhether the defendant’s lease of 1902 can be said to have beenregistered in the right folio. What was registered'in folio B 40/300was not a lease of the land which was the subject of the donationand of the partition decree, but a lease of a large block includingit and other lands. It was admitted at the trial, on behalf of thedefendant, that the land partitioned was a separate land from thoseother lands included in the defendant’s lease. Now, section 15 ofthe Ordinance provides for the keeping of books for registeringdeeds relating to lands “ in such manner as to facilitate referenceto all existing alienations or encumbrances affecting the samelands. ” Section 16 provides for the registration of every deed orother instrument for the sale, &c., “ of any land or other immovableproperty, ” or for establishing any interest or encumbrance “ affectingsuch land or property. ” The policy of the whole Ordinance is tofacilitate reference to existing alienations and encumbrances, andin order to carry it out effectually, section 23 further provides thatevery deed shall contain an accurate description of the propertywhich is affected thereby, its boundaries, extent, and situation, andthat if such property consists of a portion only of one.land or allot-ment, such portion shall be clearly and accurately defined by itsparticular boundaries and extent. It appears to me that theOrdinance intends, and in view of its policy must intend, that eachland shall be dealt with by itself as a distinct corpus. Otherwisereference to existing alienations and encumbrances, so far from-,being facilitated, will be rendered difficult, if not impossible. It is,,of course, for this purpose allowable for the owner to consolidate-several lands and constitute out of these elements a distinct-.corpus; but in such a case it is still necessary, as held in Marikuv. Fernando,2 that reference should be inade an any previous-registration of the separate lands. In my view, however, thoughGabriel described all the lands leased by him by one set of boiindaries-(probably for the sake of convenience, and likewise following thedescription of the old lease in 1893, which did not describe the landsseparately, because Catherina was apparently entitled herself to leaseall the lands as a whole), he did not make any such consolidation,nor, indeed, could he do so, seeing that he was at that time entitledto an undivided half share only of the land in question. As amatter of fact, even after the first two leases for the whole block of
1917.
Dxs SAHVAyoJ*
Fernando v.Peren
1 (1913) 16 N. L. B. 438.
* (1914) 17 N. L. R. 481.
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1917.
De SampayoJ.
Fernando v.Perera
10 acres in 1893 and 1894, Gabriel, as stated above, leased in 1897,and 1899 his interest in this land alone as a separate and distinctland. Moreover, the hypothesis of a consolidation cannot bemaintained in the face of the admission made at the trial that thisland was a separate land from the other lands included in thedefendant's lease. 1 therefore think that the registration of thelease did not amount to registration of a deed relating to or affect-ing this particular land within the meaning and intention of tileRegistration Ordinance, and that the plaintiff’s Fiscal’s transferis superior in title so far as registration is concerned. This beingso, it is unnecessary to discuss the further question argued before us,whether the defendant’s lease of 1902 is conserved by the operationof section 13 of the Partition Ordinance and attaches to lot B indispute, even though the defendant was not- a party to the partitionaction No. 10,444.
I would set aside the decree under appeal, and direct judgmentto be entered in favour of the plaintiff for lot B and for possessionthereof, with damages at the rate of Rs. 10 per month as agreed inthe District Court, and with costs of this appeal and of the action.
Wood Renton C.J.—
The delay that has taken place in the delivery of our judgmentsin this case has been due partly to the absence of my Brotherde Sampayo on circuit, but chiefly to its intrinsic difficulty. Ientertain considerable doubts on the subject, but, on the whole,I am not prepared to differ on the facts from the opinion of myBrother on the question of registration. There is no need to sayanything as to the construction of section 13 of the PartitionOrdinance, 1863.1
I agree to the order .which my Brother has proposed.
Set aside.
iNo. io of ms.