H. N. LOGUS, Appellant, and P. H. LAWRENCE, Respondent

076-NLR-NLR-V-63-H.-N.-LOGUS-Appellant-and-P.-H.-LAWRENCE-Respondent.pdf


TAMBIAH, J.—Logu* v. Lawrence
377
1961Present: Sansoni, J., and Tambiab, J.
H. N. LOGUS, Appellant, and P. H. LAWRENCE, RespondentaS'. C. 253/59—.D. C. Colombo, 8391/L
Deed relating to land—Registration in a new folio—Cross-references—Prescribed fortnmust be strictly followed—Negligence of Registrar—Effect on priority ofregistration—Registration of Documents Ordinance (A'o. 14 of 19-16). sh. 7 (1),16 (1), 16, 49—Registration of Documents Regulations ( Vol. 1 of SubsidiaryLegislation, p. 647). s. 13 (3).
Where a new folio was opened for the purpose of registering a deed in respectof land the boundaries of which were exactly the same as those described in aregistration in the previous folio, but the extent was stated differently—•
Held, that when the Registrar opens a new folio for registering an instrumentin toims of section 15(1) of the Registration of .Documents Ordinance road withsection 13 (3) of the Registration of Documents Regulations, the cross-referencesmade by him connecting the new folio with the earlier one must conform strictlyto the prescribed form.
Held further, that where a deed is registered in the wrong folio on account ofthe negligence of either the Registrar or one of the purties. tho document isdeprived of the priority conferred on it by section 7 of the Registration ofDocuments Ordinance.
-A. PPEAL from a judgment of the District Court, Colombo.
S. W. Jayasuriya, with N. R. D. Abeysinghe, for the 1stDefendant -Appellant
A. Abeywardene, with G. P. S. de Silva, for the Plaintiff-Respondent.
Cur. adv. vult.
April 26, 1961. Tambiah, J.—
This is an action by the plaintiff-respondent for a declaration of titleto 5/6 share of Lot G in Plan X. He claimed title to the land by deedP 2, dated 1. 6. 54. By this deed, five of the vendors transferredto the plaintiff the shares that would be allotted to them in the finalpartition decree in case No. D.C. 6459/P. The first defendant alsoclaimed title to this land from the same source by deeds 1D1 and 1D2,dated 17. 7. 55. The only point of contest between the partieswas whether the deeds 1D1 and 1D2 prevailed pver the deed P2 byvirtue of prior registration.
At the trial, it was common ground that the earliest deed relating tothis land called Kadurugahawatte was registered in folio 12/61, markedP3. This folio has been connected by a series of cross-references tofolios P3a to P3A. At the end of P3A, there is no entry to show that it is
378
TAMBIAU, J.—Logos v. Lawrence,
continued or carried on any further. In 1920, a new folio, Volume 131,folio 106, marked P5, has been opened foi the same land with theregistration of a deed No. 6753 of 6th August 1920, which set out exactlythe same boundaiies of the land which is the subject-matter of thisaction, but the extent of which is stated differently. The plaintiff’sdeed, P2, is registered in folio P5a which is a continuation of folio P5.There is no connection between P5a and P3h (278/156). Thus, it isclear that the plaintiff’s deed, P2, is not duly registered.
In 1930, another folio, Volume 289, P 147 (P4), has been opened forthis land with the boundaries and extent exactly as in P5 but with noconnection to the latter. The 1st defendant’s deed is registered infolio P 4.
In P 4 (C 289/147), an endorsement has been made by the Registrar on
6. 50, as follows :—
“ Notary quotes the land registered in 278/156 as the entire land ofthis. ”
In P3h (278/156), there is a similar endorsement made on the sameday which reads thus :—
“ Notary quotes this as the entire land of this land in C 289/147. ”
It was submitted on the appellant’s behalf that these endorsementsare sufficient cross-references as required by the Registration of DocumentsOrdinance, (No. 14 of 1936), and that, therefore, the defendant’s deedswere duly registered. It is the contention of the counsel for therespondents that the proper form of registration has not been followed,and therefore, the defendant’s deed has not been duly registered.
In order to decide this matter, it is necessary to consider the relevantsections of the Registration of Documents Ordinance, and the regulationsmade thereunder. Section 7 (1) of the Ordinance states that “ aninstrument shall, unless it is duly registered under this Chapter (i.e.,Chapter III), be void as against all parties claiming an adverse interestthereto on valuable consideration by virtue of any subsequent instrumentwhich is duly registered under this Chapter.”
Section 15 (1) of the Ordinance enacts as follows :—
Every instrument presented for registration shall be registered in thebook allotted to the division in which the land affected by the instru-ment is situated and in, or in continuation of, the folio in which thefirst registered instrument affecting the same land is registered ;Provided that—
(a) an instrument may, if the Registrar thinks fit, be entered in a newfolio, cross-references being entered in the prescribed mannerso as to connect the registration with any previous registrationaffecting the same land or any part thereof.
TAMBIAH, J.—Logtta v. Lawrence.,
379
By virtue of the powers conferred by Section 49 of the Registration ofDocuments Ordinance, regulations have been framed by the Legislatureproviding the form to be used when cross-references are made. Section13 (3) of the Registration of Documents Regulations (vide SubsidiaryLegislation of Ceylon Volume 1, page 547} states as follows :—
If, at the time of registration of an instrument affecting land, theregistrar finds that the description of the land affected thereby differsin any respect from the description of the same land appearing in theregister by reason of the prior registration of another instrumentaffecting the same land, he shall, if he is satisfied as to the identity of theland, enter the later instrument in the same folio as the earlierinstrument, and shall make a note of the differences in the remarkscolumn of the entry relating to the later instrument :Provided that if
he is doubtful as to the identity of the land he shall register the laterinstrument on a new folio, but shall connect the two folios by cross-references, thus :—
“ See Volfolfor a similar property”.
The Legislature, by using the words “ shall register ” has, in unmistak-able language, required the Registrar to use only a particular form.These salutary provisions were enacted in order to remove all uncer-tainties resulting from persons functioning as registering officersusing any expression of their cho'ce. It is of the utmost importancethat a person who searches the Regfster should be in a position to referto the earlier and later folios of a particular folio which he is examining.Any laxity in the use of language by Registrars may mislead those whoexamine title and may cause them irreparable loss.
In order to avoid these difficulties the Legislature has speci-fically laid down the manner in which the Registrar should enter cross-references. When a statute prescribes that an act shall be done in aparticular manner, the prescribed method should be strictly followed(cf. per Basnayake, J. in Sivagurunatkan v. Doresamy1).
In the instant case, the Registrar has failed to follow the form set outabove, and has not even made an entry in his own woids. He merelyrecites what the Notary is alleged to have written to him. The entryreferred to is not an act of registration. It may be that a person whoexamined this folio may have formed the impression that this was onlyan observation by the Notary who had sent the particulars and theRegistrar has not made any cross-entry within the meaning of section15 (1) of the Registration of Documents Ordinance.
It was also urged by the counsel for the appellant that, in view of theabove references, one would not have been misled. I have already dealtwith this matter. The counsel for the appellant further contendedthat the appellant should not suffer for the Registrar’s negligence.Although the Registration of Documents Ordi ance provides for relief
1 (1951) 52 N. L. R. 207 at 210.
Kannusamy v. The Minister of Defence and External Affaire
380
where there is fraud or collusion in obtaining the subsequent instrument(vide Section 7 (2) of the Registration of Documents Ordinance), neverthe-less no statutory provision has been made, granting any relief, where thedeed is registered in the wrong folio due to the negligence of the Registrar.The judgment of Wood Renton, A.C.J., in the case of Cornellsv. Abeysinghe1, cited by the counsel for the appellant, has noapplication to the facts of this case. This judgment was given beforesections 15 and 16 of the Ordinance were enacted (see per Howard, C.J.in De Silva v. Weerappa Cheltiar)2. It is however now clear that where adeed is registered in the wrong folio, due to negligence (see Punchiappu-hamy v. Pelis Appu) 3 whether of the Registrar (see De Silva v. WeerappaCheitiar).4 or of one of the parties (see Mohammadu Sali v. Isa Natchiaet al.)5, the document is deprived of the priority conferred on it bysection 7 of the Ordinance.
In this case, it is a matter of regret that the Registrar to whom thecorrect information has been sent by the Notary who executed the deeds1D1 and 1D2, has not registered them in the correct folio. I am ofopinion that the learned District Judge was correct in his finding that thedeeds 1D1 and 1D2 have not been duly registered.
Accordingly, I dismiss the appeal with costs in both Courts.
Sansoni, J.—I agree.
Appeal dismissed.