067-NLR-NLR-V-21-GUNATILLEKE-v.-RAMASAMYPILLAI.pdf
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Present: Loos A.J.
GUNATILLEKE v. RAMASAMYPILLAI.
1919.
353—C. B. Negombo, 26,336.
“ Assurance ”—Does the term include a conveyance >—Ordinance No. 21of 1871, s. 1—Deed conveying movable and immovable property—Registration of deed after fourteen days—Is conveyance of movableproperty valid?
Where a person conveyed to another immovable property alongwith movable property, and where the deed was registered afterfourteen days,—
Held, that the conveyance of movable property was iTot invalid.
The word “ assurance ” in section 1 of the Ordinance No. 21 of 1871cannot be restricted to a hypothecation; it includes a conveyance.
''J''HE facts appear from the judgment.
Canaheratna, for appellant.—By deed No. 8,065 Ratnasinghetransferred certain immovable property and the movable propertyin question; this deed was duly registered. The judgment of theCommissioner is wrong. Ordinance No. 21 of 1871 provides that a
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1919.
QunaMleke
v.
Bamasamy-
ptilai
bale of any movable property by a deed is good, although the deedis not registered within fourteen days if the sale is “ effected byinstrument, which also contains'' any mortgage or assurance.. . ”
Assurance means a transfer. It cannot be restricted to a mortgageonly.
See definition of bill of sale in the. principal Ordinance No. 8 of1871; re Bay, 65 L. J. I Ch. 320; re Roberts, 57 L. T. 79.
Croos Dabrera, for respondent—Assurance means mortgage.The appellant ought not to be allowed costs.
April 9, 1919. Loos A.J.—
The defendant, as plaintiff in D. C. Negombo, No. 12,395, havingobtained- judgment against one S. P. Batnasinghe, caused certainmovable property to be seized under his writ. The present plaintiffclaimed the property under deed No. 8,065 of October 8, 1917,executed in his favour by S. P. Batnasinghe, and the claim havingbeen disallowed, he has instituted this action to have the propertydeclared as his, and as such not executable against the judgment-debtor in the District Court case referred to above.
Several issues were framed, and the learned Commissioner dealtwith the first two issues in the first instance. They are as follows:—
Is the deed relied on by the plaintiff invalid to transfer titleto movable property by reason of non-registration' withinfourteen days after execution?
Is the decision on that issue in the claim inquiry res judicatabetween the parties?
The plaintiff’s deed No. 8,065 conveyed to him certain immovableproperty, together with the movable prpperty in question, and was.duly registered, and the Commissioner held that the plaintiff cannot-succeed in his claim to the movables, the bill of sale of the movablesnot having been registered within fourteen days after its execution;and that section of the Ordinance No. 21 of 1871 (which providesthat no pledge or bill of sale of any movable property shall bedeemed to be invalid for want of registration within fourteen days,if such pledge or bill of sale shall be effected by any instrumentwBich also contains any mortgage Or assurance shall have been dulyregistered) does not apply in this case, for the plaintiff’s deed isneither a mortgage nor an assurance «f immovable property. Hewas of opinion that the word “ assurance ” in that section means ahypothecation, and not a transfer.
I think he is mistaken in his interpretation, for the word“ assurance ” has been held to mean something which operates asa transfer of property (re Ray1), and it has also been, held that adocument of title can properly be called an “ assurance ” (re RobertsEvans v. Thomas *).
» 65 L. J. 1 Oh. 320.
* 57 L. T. 79.'
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Then, too, in Ordinance No. 8 of 18711 the words “ bill of sale "are defined as including “ bills /d^.sale, assignments, transfers,declarations of trust without transfer, and other assurances ofmovable property.” So that it seems to be clear that the meaningof the word “ assurance ” in section 1 of Ordinance No. 21 of 1871cannot properly be restricted to a hypothecation and nothing else.
The learned Commissioner’s finding on the first issue mustaccordingly be set aside, and the case sent back for further trial,if necessary, on the other issues framed. The respondent’s counseldesired that the costs of this appeal should be allowed to abide thefinal result, but 1 see no sufficient reason for depriving the appellantof the costs of this appeal in which he has- succeeded. Therespondent will accordingly pay the appellant’s costs of this appeal.
1M9.
Loos A. J.
OtmatiUake' v.
Bamasamy-
ptitai
Set aside.