( 337 )
Present: Dalton and Lyall Grant JJ.
GOONETILEKE v. GOVERNMENT AGENT,
217—D. C. Galle, 1U.
Registration of old deeds—Cause for non-registration—Beyondthe
control of the person producing it—Ordinance No. 6 of 1866, s. 7.
Where a person seeks to produce in evidence' a document whichhas not been registered in accordance with the provisions ofOrdinance No. 6 of 1866, he is bound to prove satisfactory thecause for non-registration within the time limited, and that such causewas beyond his control.
Where a Government Agent, who was the defendant in the case,called for the record and the Court complied with the request.
Held, that the action of the Government Agent was irregular andthat his application should not have been allowed.
PPEAL from a judgment of the District Judge of Galle. Thefacts appear from the judgment.
Plaintifi, appellant, in person.
J. E. M. Obeyesekere, G. G., for Crown, respondent.
February 6, 1928. Dalton J.—
This appeal arises out of a reference to the District Court, Galle,under the provisions of section 5 of Ordinance No. 1 of 1897 (forest,chena, waste, and unoccupied lands),, relating to numerous lots ofland in the village of Rekadahena in the Wellaboda pattu of theGalle District. The appellants are the claimants to the land(husband and wife), and the special officer, not admitting the claim,referred it to the Court for adjudication. The claimants made theGovernment Agent defendant to the proceedings in their claim,notice thereof being given by the Court to the Government Agent,who appeared at the hearing without objection, the DeputySolicitor-General appearing on his behalf. It is impossible, however,to pass over without adverse comment the attitude and action ofthe defendant on his receiving the first notice from the Court servedupon him formally and asking him to admit or deny the avermentsin the claim to which our attention has been called. He replies bymemorandum, returning' the notice sent, points out an unimportantdefect in it that the case has no number, says this is the first intima-tion that he has 'had that he is defendant, and then requests the•Judge to forward the case book for his reference, a most undesirable
( 8UB )
precedent to set for other litigants to follow. The Judge actuallyappears to have complied with this request, from one who was aparty to the proceedings, be it noted, and entitled as such to no moreand to no less than any other litigant before the Court. Thedefendant returns it after examining the record and states he isno party to the proceedings, but then accepts the notice and appearsas defendant. If he thought he was wrongly joined he had hisremedy, but he had no right whatsoever to act as he did here, anact which shows a failure to appreciate, as a party to the proceedings,what was due by him to the Court and also what was due by theCourt to parties appearing before it. If there was the least reasonto think the claimants had been actually prejudiced or might beprejudiced by this act, it would in my opinion be ground for settingaside the proceedings and directing that the reference be heardafresh before another Judge. The fact that they have not beenin the circumstances prejudiced is of course no justification what-soever for the act. As has been said before, it is of fundamentalimportance, not only that justice be done, but be manifestly andundoubtedly seen to be done. Nothing is to be done which so muchas creates a suspicion that there has been an improper interferencewith the course of justice. In the circumstances, however, as -itwould not help the claimants, and the question arising for decisionbeing one of law only, it does not seem necessary to make such anorder here or to do more than condemn the action of the defendantin making the request for the case book, and the action of theDistrict Judge in complying with this request. If that question oflaw is answered, as I have come to the conclusion it must beanswered, against the claimants, there is an end to the claim.
In support of the claim the claimants produce to the Court asannas or royal grant alleged to have been issued to their ancestorsby Sri Prakrama Bahu of Jayawardanapura in' the year 1415.This sannas had not been registered under the provisions of Ordi-nance No. 6 of 1866, but it was urged for the claimants that it hadalready been accepted in evidence by the Government Agent at thepreliminary inquiry on the claim, and that in any event the 1stclaimant was the producer of the sannas to the Court, and it wasutterly beyond his control to have it registered under that Ordinanceprior to January 1, 1868, as he was not born at the time. He stateshe received it from his mother-in-law in 1895, that she is now dead,and that he does not know w'hy she failed to have it registered.When his wife, the 2nd claimant, was born is not stated.
The defendant filed no answer, there apparently being no require-ment upon him to Ao so (see Settlement Officer v. Fernando1), but theprincipal defences to the claim, so far as this appeal is concerned,were that the sannas was inadmissible for want of registration and1 4 Times of Ceylon L. R. 117.
( $3d )
if admissible it was not genuine. I agree with the learned Judgeon his conclusion that the sannas had not already been admitted inevidence, and this conclusion was not seriously contested.
The principal question arising on this appeal is whether the 1stclaimant has brought himself within the terms of the promo tosection 7 of the Ordinance. Has it been established to the satisfac-tion of the Court that the sannas was not registered owing to acause which was utterly beyond the control of the 1st claimant,who is the person producing it in evidence? The trial Judge wasnot satisfied, but it is obvious that he was proceeding upon thebasis that January 1, 1868, was the hjsfc day for registration underthe Ordinance, and that claimant was not alive then. Further, thelearned Judge does not seem to me to have addressed himself to thelast or third part of the proviso under which the claimant seeksto come. The time limited for registration was extended fromtime to time by proclamation until February 1, 1875, and 1stclaimant having been bora in 1870 was alive at that time, althoughonly a few years old. His position at the hearing of the referencewas that so far as he is aware the sannas has never been registered,that it was utterly beyond his control to get it registered within thetime limited because he was not then born, and that he is thereforerelieved from the necessity of registration. He was not bom atthe last date for registration as set out in the Ordinance, but I thinkhis argument would not essentially be altered by the mistakemade both by kirn and the trial Judge as to the last date for.registration. It is therefore necessary to consider whether, substi-tuting the fact that he was only about four years old at the last datefor his allegation that he was not then bom, he has shown that thenon-registration was due to a cause utterly beyond his control.The construction of this third part of the proviso has given mesome little difficulty but on analysis it seems to me to require thattwo things must be proved to the satisfaction of the Court: first, thecause for non-registration within the time limited, and secondly,that that cause was utterly beyond the control of the personproducing the document. It seems to me that, having regard towhat I conceive to be the ordinary meaning of the words “ providedit shall be established …. that the same was notregistered from other causes utterly beyond the control of theperson producing it in evidence, the cause itself for non-registrationmust be established, and it is not sufficient for the person producingit to say, “ I do not know what the cause was, but whatever it wasit was beyond my control because I was only four years old atthe time. ” I think the legislature required the cause for non-registration to be satisfactorily proved. The fact that the claimantwas only four years old obviously in this case was not the cause fornon-registration, for he was not a person who held the sannas
( B40 )
at the time nor was he, at any time within the time limited, a personwhom the Ordinance required to register or whose claim to registerat that time would have been recognized. If he had been theholder under disability he would of course come within the secondpart of the proviso. It is true that in Siriman v. AbeyagunawardenalBurnside G.J. says it would seem that in those cases in which theparty claiming under the deed was not in existence or had acquiredno estate, the non-registration must be said to have been fromcauses utterly beyond his control, but the headnote is clearlywrong in saying that Dias J. concurred in this opinion, whilstClarence J. expresses strong doubts as to its correctness. I havearrived at this conclusion as to the meaning to be put upon thesewords, having in mind that words in a statute must not be construedso as to have the effect of taking away rights which existed beforethe statute was passed by mere implication, but that the intentionof the legislature to do so must be indicated by clear words to thateffect. (Re Cnno.2) It is obvious that non-registration of a deedrequired to be registered by this Ordinance may result in a personbeing deprived of rights in property which, but for the Ordinance,would not be imperilled. This is what seems to have weighed withBrow’ne J. in his dissenting judgment in Attorney-General v. Kiriya.*The legislature in the Ordinance was seeking to compel the registra-tion of old deeds and other instruments of title, and to prevent theproduction in Courts of law of false deeds and sannas purporting, tobear old dates. I have come to the conclusion that there is nothingrepugnant to the purview of the Ordinance in this proviso, thelegislature merely seeking therein to safeguard the rights of theholder of a deed who might at the time be oversea or under legaldisability, or the rights of a person who sought subsequently toproduce a non-registered deed in evidence, if he could show satis-factorily that the cause of non-registration was a cause over whichhe had no control. I agree, therefore, with the view expressedby Lawrie A.C.J. in Attorney-General v, Kiriya (supra) that theshowing of the cause or causes for non-registration is a conditionprecedent to a person producing the document being allowed tohave it admitted in evidence. That cause having been shown, theclaimant then has to proceed further and show that it was oneover which he.had no control. If the person producing the documentcan satisfactorily show what was the cause for non-registration,it may as a general rule, I take it, follow that he will satisfy theCourt that that cause was utterly beyond his control if he thengoes on to show he was not alive when that cause was given effect to.But it is not sufficient for him, in my opinion, under the provisoto say that, whether there be any cause or not, it was beyond his
1 9 S.C. C. 102.* 43 Ch. D. 12,
*$N.L. R. 81.
( 341 )
control to effect registration because of bis non-existence. That isnot the case the proviso was enacted to meet, and it is not, in myopinion, a reasonable construction to place upon the words. The1st claimant here, having failed to show any cause for non-registration, is not entitled to the benefits of the proviso.
He has asked this Court, if it is against him on this point, toconsider a further matter, the question of costs. A Court is alwaysreluctant to interfere with the exercise by a lower Court of itsdiscretion in this matter. In dismissing the claim the learnedJudge has apparently added an order as to the payment of costs bythe claimant as a matter of course. There are, however, circum-stances in this case which justify this Court in considering theclaimant’s request that he be not ordered to pay the defendant’scosts. I have already referred to the attitude taken up by thedefendant at the outset. It seems to me also that the correspondenceof the claimants with the defendant, which has been put in, shows asomewhat unnecessarily antagonistic attitude on the part of thelatter to the claim, which no doubt resulted in the claimants makingcharges, quite unjustifiable in the result, that records which mighthelp them had been destroyed or were being hidden away, and thatdefendant was sheltering himself behind official orders. No doubttrouble, and considerable trouble, may be given on occasion byclaims which an officer may think are quite unjustifiable or evenfalse, but in this case it seems to me that the official attitude helpedto increase rather than diminish suspicion in the mind of theclaimants that they had a better claim than information in theirpossession showed. Under all the circumstances I think theproper order would have been to dismiss the claim without costs.The learned Judge’s order will be varied to that extent.
As the appeal is dismissed but the order as to costs in the lowerCourt is varied, I would make no order as to the costs of appeal.
Lyall Grant J.—
I have had the advantage of perusing the judgment of my brotherDalton, with which I entirely agree and I have nothing to add.
Appeal dismissed. Order as to costs varied.