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Present: Mr. Justice Grenier.
KANAPATHIPILLAI v. KANNACHI et al.
C. R.,Batticaloa, 15,096.
Prior registration—Fraud,—Ordinance No. 14 of 1891, s. 17—Deed of gift—Revocation without judicial proceedings.
A person who has actual notice of the existence of an instrumentcannot get priority over it through the medium of the RegistrationOrdinance, inasmuch as such an attempt to get priority amounts tofraud within the meaning of the proviso to section 17 of OrdinanceNo. 14 of 1891.
fJiHE facts material to this report are set out in the judgment.
Femon Grenier, for appellants.—A deed of gift is by nature irre-vocable, and, unless a power of revocation be reserved, can only beset aside by proper judicial proceedings (Voet 39, 5, 24-26; Sansoritv. Foenander; 1 Government Agent, Western Province v. PalaniappaChetty J). The deed of revocation is therefore inoperative and con-veyed no interest capable of registration. Marikar v. Fernando 3 andKadiravel v. Pina 4 lay down the principle that prior registrationcannot avail in such cases. The second defendant cannot, iu viewof his having been a witness to the original deed of donation, beregarded as an innocent purchaser. He is presumed to know thelaw i.e., .that only the Court could have set aside the deed of gift.Salgado v. Salgado 3 lays it down that such notice of a prior deedprevents prior registration availing a party. See also English caseson the Doctrine of Notice referred to in Jayewardene’s Law ofMortgage 84.
No appearance for respondent.
Cur. adv. vuIt.
May 30, 1910. Grenier J.—
The first defendant donated to the plaintiffs, who are the appel-lants, the garden described in the second paragraph of the plaint.The deed is dated November 5, 1904. It was not registered. OnOctober 29, 1906, the first defendant purported to revoke the deedof gift by deed dated October 29, 1906, and by deed dated January18, 1908, conveyed the garden to the second defendant. Thisaction has been brought by the plaintiffs to have the conveyance ofJanuary 18, 1908, in favour of the second defendant cancelled, andfor a declaration of title in their favour.
> (1872) Ram. 323 (1909) 4 Bal. 128.
3 (1908) 4. A.C.R.4.* (1889) 9 S. C. C. 36.
* (1907) 1 A. C. R. 137.
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The defendants impeached the validity of the deed of gift, relied May 30,1910-. on by the plaintiffs on .the ground that it was not accepted, and theyj
Also alleged that the deed of .transfer in favour of the second defend-
Ant, by reason of prior registration, should prevail over the deed of
gift in favour of .the plaintiffs. Several issues were framed by the Katmaehi
Commissioner, which were agreed to by the parties, but we are
concerned only with the 6th issue on this appeal. The Commissioner
held that the deed of donation was duly accepted, and that it could
not be revoked without the intervention of the Court. The 6th
issue was whether the deed in favour of the second defendant had
priority over the deed in favour of the plaintiffs.. The Commissioner
was of opinion that it had, and dismissed the plaintiffs’ actions Two
points were sought to be made in support of the appeal" by the
plaintiffs. The first was that there could not be any conflict of
registration between the deed of gift and the subsequent deed of
conveyance, because it. could not be said that the defendants had
any adverse interest within the meaning of section 17 of Ordinance
No. 14 of 1891. So long as .the deed of gift remained in force without
any cancellation of it by a Court of competent jurisdiction, the tact
of its not having been registered did not make it void nor render it
less operative as a deed of gift. The first' defendant, therefore, had
no right to execute a deed of revocation, and the deed itself must be
regarded as a piece of waste paper. The question, .therefore, is as
regards the effect on the deed of gift of the deed of conveyance which
was registered whilst the deed of gift remained unregistered. It
seems to me that the first defendant had no right, so long as the
deed of gift was in force, to have either executed a deed of revocation,
or following upon that, a deed of conveyance. Could any adverse
interest in these circumstances have been conveyed to the second
defendant so as to enable him to set up his deed in opposition to the
deed of gift? No authorities have been cited to me, nor am I aware
of any where there has been a conflict of registration in circumstances
similar to those present in .this case, but the inclination of my own
opinion is that the registration of what I consider a useless document
by the second defendant gave him no priority over the deed of gift
so long as that deed remained unrevoked by a decree of Court. I
would .therefore hold on the first point that the Commissioner was
wrong in deciding .the question qf registration in .the way he did.
The second point taken on the appeal was that, inasmuch as thesecond defendant was an attesting witness to the deed of gift infavour of the plaintiffs, and the transfer deed in favour of the seconddefendant recited that the deed of revocation formed a link in .thechain of .title, the element of fraud entered into the transaction, andsection 17 of Ordinance No. 14 of 1891 operated to defeat it as a deedof conveyance. The proviso to .that section is as follows: “ Provided,however, that fraud or collusion in obtaining such last-mentioneddeed, judgment, order, or other instrument, or in securing such15-
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May 30,1910 prior registration, shall defeat the priority of the person claimingGrenier J. thereunder/' I was referred to the case of Gtowley v. Bergtheil, in-— . which the Privy Council appears to have accepted the principle laiddown by Lord Hardwicke in the case of Le Neve v. he Neve. LordxKannachi Hardwicke held .that a person who having actual notice of theexistence of an instrument attempts to get priority over it throughthe medium of the registration act is guilty of dolus malus or fraud.Lord Hobhouse said in the case of Crowley v. Bergtheil “ TheirLordships cannot find there is much difference between the Roman-Dutch Law, which requires proof of dolus, to set aside a later com-pleted purchase in favour of an earlier contract, and the English Lawrelating .to similar questions in a locality where .the system of registra-tion prevails/' If there are differences they do not affect this case.In Le Neve v. Le Neve, Lord Hardwicke tests the case by the Romandefinition of dolus malus, and the Natal Court has .treated thejudgment in Le Neve v. Le Neve as applicable in Natal. The law ofNatal is very clearly and fully stated by Connor J. in the case ofRoss v. Van Buren K In my humble opinion the definition of dolusmalus given by Lord Hardwicke, and endorsed by Lord Hobhouse,is a perfectly sound one as affecting the question of registration now *before me. It does certainly seem a fraudulent thing .for a personwho knows of the existence of an instrument to attempt to getpriority over it through the medium of the Registration Ordinance.
The object of the Registration Ordinance was not to enablepersons under cover of it to perpetrate a fraud, but to prevent it,and in this view I think that the prior registration of the deed ofconveyance did not. in any way affect the operation of the deed ofgift. There are, however, several decisions of this Court which, do notharmonize with the ruling of the Privy Council in the case of Crowleyv. Bergtheil, but as the judgment of the Privy Council must beconsidered as of the highest authority, I am bound to follow it.
The judgment of .the Court below must be set aside, and this appealallowed, with costs in both Courts.
(1896) 17 Natal L. R. 251.
KANAPATHIPILLAI v. KANNACHI et al