023-NLR-NLR-V-17-JAMES-et-al-v.-CAROLIS-et-al.pdf
( 76 )
1914.
[Fuuls Bench.]
Present: Lascellee C.J., Pereira JM and De Sampayo A.J.JAMES et aL v. CABQLIS et ah
365—If. C. Negombo, 8,896.
Registration—Deed from intestate—Subsequent deed from heir—Priority.
A conveyed his land to B. Alter A’s death* C, who was A*sintestate heir, conveyed the same land to 1>. The deed in favourof J> was registered before the deed in favour of B.
Held, that the deed in favour of B was void as against* thesubsequent deed in favour of D by reason of prior registration, asthe two .conveyances proceeded from the same source.
T
HIS case was reserved for agreement before a Bench of ThreeJudges by Wood Renton A.C.J. and De Sampayo A.J. The
facts are set out in the judgment.‘
W. Jayewardene., for plaintiffs, respondents. [At the hearingbefore the Full Bench, counsel for respondents was heard first.]—The decision in Punchtrala v. Appuhamy 1 is a direct authority onthe point. The fact that the deed was executed in that case by theadministrator does not make any difference, as an heir has a rightto alienate his share even before administration (Silva v. Silva 2). Ifthere is any difference, the difference is in favour of an heir. Theheir has the same position whether the estate is over Rs. 1,000 orunder Rs. 1,000. Title does not vest in an administrator exceptfor a limited purpose.
[De Sampayo A.J.—There must be an estate for the heir to sell.]The effect of the Registration Ordinance is that a man has title, inspite of .the fact that he has sold a property, so as to give title to asubsequent purchaser who registers his deed first. Warburton v.Loveland 3 is an English authority which is binding on this Court.
Counsel also cited Kanapathipillai v. Mohamadutamby Levai et el.t 4Fonseka v. Fernando, 3 Hogg18 Deeds and Registration in Australia121, DesaVs Indian Registration 113, Gander v. Diseanayaka*Silva v. Gomis. 7
Bawa, K.C. (with him Zoysa), for the defendants, appellants.—Anheir does not succeed to every right of the deceased. If the heir
i (1900) 1 N. L. R. 102.8(1912) IS N. L. R. 177.
* (1907) 10 N. L. R. 234.8(1912) 15 N. L. R. 492.
» (JS31) 2 Dow <fc Clark 481.84 Bal. 122.
7 (1909) 1 Cur. L. R. 96.
X 77 ')
inherits, he can sell, but he did not inherit here. An adminia-.trator is more than an heir; he carries on the personality of thedeceased, which the heir does not.
[Pereira J.—Nothing that does not pass to the heir passes to theadministrator.] The law makes him legal representative of thedeceased.
Punckirala v. Appuhamy 1 is not an authority in the present case,as the deeds which come into competition here are the deeds fromthe deceased and from an heir (and not frpm an administrator).The deeds from the heir and from the deceased are not deedscoming from the same source.
Cur, ads. vult.
February 4, .1914. Lascelles C.J.—
This appeal has been reserved for the opinion of the CollectiveCourt on one only of the several points involved, namely, therespective priority of the plaintiffs' deed P 1 and the deed ofdonation D 8 in favour of the fourth defendant and Nonnohamy.For this purpose the facts of the case will be sufficiently statedas follows. Sanchi Appu and his wife Ungobamy were the originalowners of the disputed property. They were married in community.Sanchi Appu predeceased his wife, who died about twelve yearsago, leaving four children. Sirimalhamy, one of these children, bydeed P 1 dated January 18, 1912, and registered January 22, 1912,conveyed her one-fourth share to the plaintiffs.
The plaintiffs’ title to one-eighth, namely, the one-eighth whichdevolved on Sirimalhamy from her mother, is disputed on theground that the latter by deed D 8 dated November 28, 1898, andregistered April 7, 1912, had conveyed her half of the estate to thefourth defendant and Nonnohamy. It-is not disputed that ordinarilythe deed P 1 would be preferred on the ground of priority ofregistration. But it has been doubted whether P 1 and D 8 can beregarded as two conflicting deeds derived from the same source.It has been argued that Sirimalhamy, as an heiress of Ungohamy,did not fully represent her mother so as to carry on an unbrokenline of title.
Counsel for the plaintiffs-respondents referred us to an elaborateexposition of the general principles underlying the Irish RegistryAct ' (6 Anne ch. 2) in Warburton v. Loveland.3 Making dueallowance for the difference between the two systems as regards theeffect or notice of the prior unregistered deed, these pinciples aregenerally applicable to the Ceylon Registration Ordinance. TheIrish Act has for its principal aim and object the protection of thepurchaser for valuable ionsideration. The scope and object of theCeylon Ordinance is the same.
1 {1900) 7 N. L. B. 102.* {1831) 2 Dow <9 Clark 481.
1914.
Jamer v.CaMU
( 78 )
1914.. If an intending purchaser finds on the register no adverse deed
T.ianw.TM affecting the" property, he is placed in the- same position, as regards
JT* his title to the* land, as if no such deed in fact existed. On theJamea t>. ofa®* hand, the grantee under the prior unregistered deed isOatoliapenalized for his failure to put his deed on the register. He is
taken to have given out to the world at large that his. deed did notexist, and is prohibited from setting it up against the registereddeed of the subsequent purchaser for valuable consideration.
It was contended by the defendants-appellants* counsel, thoughI do not think that He placed much reliance on the point, thatSirimalhamy cannot be regarded as the heiress of her. mother, asthe latter by deed D 8 had alienated her share in the estate. Butthe fallacy of this reasoning is obvious. It assumes the validityof the deed D 8, which section 14 of the Land Registration Ordinance,No. 14 of 1891, declares shall be deemed invalid as against theplaintiffs* deed.
I confess to some difficulty in appreciating the argument, thatbecause the plaintiffs purchased from an heir of the proposoti, then-title is not derived from the proposoti.. It is said that the heir doesnot fully represent the intestate, and that descent from an heirconstitutes a break in the chain of title. If there were any questionas to the competence of an heir to alienate immovable propertywithout the assent or concurrence of the administrator, therewould have been some ground for the contention. But all questionson this point have been set at rest by the decision of a Full Benchof this Court in Silva v. Silva. 1
If, as is unquestionably the case, a deed by an heir to a purchasertransmits to the purchaser the title which the .heir derived fromhis intestate, it fallows that the deed is a sound link in the chainof the title. It is not less effective for the purpose of transmittingtitle than a deed from one purchaser to another purchaser. InPunahirala v. Appuhamy 2 this Court over-ruled the contention that,where there is a conveyance from an intestate and a subsequentconveyance from his administrator, these two conveyances do notproceed from the same source, and that therefore the RegistrationOrdinance. does not apply. It was there held that an administratorrepresents, and his estate is in law identical with that of his intestate.
Now that it is settled that the heir can pass title without theconcurrence of the administrator. I think it follows that the estateof the heir must be regarded as that of his intestate.
Fofr the above reasons, I am of opinion that the plaintiffs’ deedP 1 is entitled to priority over the defendants' 'deed D 8.
I understand that the members of the Court which originally heardthe appeal were agreed that appeal No. 365 a should be dismissed.
As the decision of appeal No. 365b turns on the point discussedin this judgment, I would dismiss both appeals with costs.
1 [1907) 10 N. L. B.234. -* (1900) 7 N. L. R. 10Z.
( TO )• Pbreiba J.—
In this case two questions arose lor decision: (1) Whether thethird and fourth defendants had had prescriptive possession of theparcels of land numbered'2, 5, and 6 in the plaint; and (2) whethertie deed P 1 in favour of the plaintiffs prevailed over deed D 8 infavour of the fourth defendant and the wife of the third defendantbj reason of prior registration. It is only the second question thatwe are now concerned with. The parcels of land dealt with by thetwo deeds referred to above are those numbered 1, 8, and 4 in theplaint.
These lands belonged to Sanchi Appu and his wife Ungo. AfterSanchi Appu’s death, Ungo, by deed D 8 dated November 25, 1898,conveyedahalfshare ofthe lands tothe fourth defendantand
the wifeofthethird defendant, and,after the death of Ungo,
Sirinjal, one of the four children of Sanchi Appu and Ungo, conveyedby deed P 1 dated January 18, 1912, a fourth share of the lands tothe plaintiffs. Deed P 1 was registered on January 22, 1912, whiledeed D 8 was registered on August 7, 1912. It has been arguedthat D 8 couldnot takepriority overP 1, because as acon-sequenceoftheexecutionof D 8 byUngo her share di^.not
devolve on her heirs, and Siriznal had therefore nothing to convey;but this argument, if sound, would nullify altogether the operationof the Registration Ordinance. The policy and effect of our law1 of registration are such that the mere fact that a person who hasconveyed property had no title to it is insufficient to deprive theconveyance of priority by reason of prior registration. Of course,the ordinary illustration is in the case of a person who, having alreadyconveyed to one person certain property, purports to convey thesame property by means of another deed to another person; buta more apposite illustration may be stated as follows. A conveysa parcel of land to B, and then executes a deed purporting to conveythe same land to C. C, who at this stage has no title whatever tothe land, executes a conveyance of it in favour of D. The deed infavour of D, surely, by registration, would have priority over thatin favour of B. Sirimal in the present case was exactly in the sameposition as C in the above illustration. But for the.deed by Ungohe would have had title to the property in claim, just as much as Cwould have had title to the property referred to in the illustration,but for the deed executed by A in favour of B ; and if a conveyanceby C could by prior registration gain priority over the conveyanceby A in favour of B, I see no reason why a conveyance by Sirimal,who, but for the conveyance by Ungo, would have become entitled.to the property, should not similarly by prior registration havepriority over the deed by Ungo. The case, appears to be coveredby authority. In the case of Punchiralu v. Appuhamy 1 Lawrie J.observed : " If a person by a subsequent deed duly registered
* (1900) 7 N. L. R. 102, 106.
1914.
James e.OarcHe
( 80 )
1814.
Ph&bxba J,
James v.Carolis
could defeat a prior unregistered deed granted by himself, 6urelyhis heirs oh administrators could defeat a prior deed executed bythe deceased. ” It was not contested that it was well-settled lawthat an administrator’s conveyance might by reason of priorregistration defeat a conveyance by the intestate. Now, thj>administrator is only the intermediary to convey the property ofthe intestate to his heirs. It is only such property as is heritablethat vests in him, and it is therefore reasonable to suppose thatan heir might deal with &uch property, subject, of course, to theexigencies of administration, in any manner that the administratormight deal with it, especially as with us it is now accepted assettled law that a conveyance of property by the heirs of a deceasedperson without; the concurrence or assent of the administrator isvalid, subject to. the right of the administrator to deal with theproperty for purposes o,f administration (see Silva v. Silva *). Theprinciples enunciated in the case of Warburton v. Loveland 2 citedby the appellants’ counsel appear, to me to support the view I'haveexpressed above. In my opinion deed P 1 has priority over deed D 8.
De Sampayo A.J.—
i
There are two appeals in this case. The appeal numbered 365ais taken by the plaintiffs in respect of the lands Nos. 2, 5, . and6, with regard to which the District Judge has ■ held that thethird and fourth defendants have become entitled by prescriptivepossession to the exclusion of their co-heir Sirimalhamy, who soldone-fourth share to the plaintiffs. The District Judge, so far asthe question of prescription is concerned, is clearly right, and 1think that the appeal No. 365a should be dismissed with costs. .
The other appeal, No. 365b, is taken by the third defendantCarolis and his wife Nonnohamy with regard to the lauds Nos. 1.3, and 4, of which the District Judge has declared the plaintiffs tobe entitled to a -one-fourth share. The contention between theparties to that appeal arises under the following circumstances.Sanchi Appu and his wife Ungohamy were, in community of property• entitled to the said lands. They died intestate leaving four children,viz., first defendant, third defendant, fourth defendant, and oneSirimalhamy. The plaintiffs purchased from Sirimalhamy upondeed dated January 18, 1912, and registered on January 22, 1912,a fourth share of the said lands as belonging to her by right of. inheritance from her parents. But Ungohamy had, after the deathof her husband, gifted her half share to the fourth defendant andNonnohamy, wife of the third defendant, by deed dated November25, 1898, but registered only on August 7, 1912, and these defendantsaccordingly claim that half share by virtue of the deed of gift,thus allowing to the plaintiffs by right of purchase from Sirimalhamyonly an eighth share, and not a" fourth share as claimed by them. 1
1 (1907) 10 N. L. 12. 234.* (1831) 2 Dots <St Clark 480.
( 81 )
The District Judge upheld the claim of the plaintiffs on the ground 1014*of prior registration of their deed. The appeal having come before DbWood Benton A.C.J. and myself, the question as to the effect of AJ.prior registration of the deed from Sirimalhamy was referred to abench of three Judges. There is no question that under the law Caroli* *relating to registration the competing deeds must proceed from thesame source, nor, on the other hand, is there any question that theyneed not be granted by the same person. The only point on whichI entertained a doubt was whether, when the owner has disposedof his entire interest in a land during his lifetime, a purchaser froman heir asdistinguished from anadministrator-orexecutor can
create anytitle by the process ofregistration.Anadministrator
or executoris for this purpose thesame personasthe deceased.
But, in thecase put, is a so-calledheir in the same position? A
person is an heir only in respect of the property left by the deceasedat his death, and is not his representative to any larger extent. Itwas sought at the argument of this appeal to meet the point bythe suggestion that a person who disposes of his property has stilla right or power, which would descend to his heirs, to create a newtitle by a subsequent deed duly registered. The truth is that suchtitle is created, not because any right or power is still left in theprevious owner, but because the law intervenes and protects aninnocent purchaser who has paid consideration. Then the questionis whether, just as the owner who has ceased to be owner mayenable an innocent purchaser to maintain his position against aclaimant upon an unregistered deed, an heir may do the same,though he has not inherited the particular land. As I have alreadystated, the difficulty I felt was not as to the heir having no titleto convey, but as to his being an heir at all in respect of propertywhich has been alienated by his ancestor. It is not' necessary forme to examine all the authorities on the subject of registration,
The scope and object of all registration laws are well known, andare practically the same in all countries. It is sufficient to say that,so far as I know, in all the cases in which an heir’s deed has beenallowed to prevail, the disposal by- the ancestor has been, not of hisfull ownership, but of some limited interest, such as a. mortgage ora lease, so that in these cases the heir did in fact inherit in respectof the particular land. But I think the real answer to the questioninvolved is to be. found in the view suggested by the House of Lordsin Warbiaion v. Loveland 1 cited to us; that is to say, in the matterof registration, the transfer of what would have been the rightand title of the person granting the second conveyance but for theprior unregistered deed prevails. In that case there, was an un-registered settlement by which a wife had settled upon her childrenher life interest in a certain term for years. But for this settlementthe life interest would have vested in the husband by matrimonial i
i (1831) 2 DowClark 480.
11-
( 82 )
1914.right. The husband subsequently soldthis life interest to a third.
Db SahfatoPa1*?' who registeredhis conveyance.The House of Lords, after
A.J. pointing out the nature and meaning of the kind of right conveyedJames v^y a secon(^ deed asabove indicated,dealt with the point thus:
Carolis“It has been furtherargued that the effect of the marriage settle-
ment was to prevent the husband from having any right to grantthe lease of 1800 at the time it was made, for that the wife's rightwas effectually conveyed as between her husband and herself bythe deed of 1779; that she had no interest in her at the time she.married;, that she could therefore pass no interest to her husbandby the marriage; that the husband consequently never had anyright, and therefore could convey none to the lessee. Now, it mayT)e admitted, that as against the husband, who was party to thedeed of 1779, that deed was valid; it may be admitted also that. he could not of right exercise any power over the property inconsis-tent with that deed; but as by the non-registration of that deedthe grantees, suffered him, as to the world at large, to have theappearance of right, neither they, nor any claiming under them,are at liberty to set up the deed in opposition to the persons whohave been deluded by the appearance of right in the husband.This argument therefore, which would be good against the husbandhimself, cannot be heard from the parties claiming under thesettlement against his grantee for a valuable consideration."
Looking at the case of an heir from the point of view suggestedin the above decision, it is not necessary for us to consider theargument that, in the case of a small estate such as this, the heirsare in all respects in the same position as an administrator, foraccording to that view the heirs would be acting, not as represen-tatives of the deceased at all, but in their own right, and would beselling what would in fact have come to them but for the deceased^unregistered deed, of which the person dealing with them has nonotice. Accordingly, I agree that in this case the conveyance bySirimalhamy to the plaintiffs prevails over the deed of. gift byUngohamy in favour of the appellants. The appeal No. -365 Btherefore also fails, and should be dismissed with costs.
Appeal dismissed.