KANAPATHIPILLAI v. MOHAMADUTAMBY LEVAI et al

046-NLR-NLR-V-15-KANAPATHIPILLAI-v.-MOHAMADUTAMBY-LEVAI-et-al.pdf


( 177 )
[Full Bench.]
Present : Lascelles C.J. and Middleton, Wood Benton, and
Grenier JJ.
KANAPATHIPILLAI v. MOHAMADUTAMBY LEVAI et al.139—D. C. Batticaloa, 3,388.
Registration—Priority—Registration Ordinance of 1891, s. 17.
P, by deed of December 26,1809, registered on November 28,
1910, donated the land in dispute to S, who, by deed of December7, 1910. registered on December. IS, 1910, sold it to plaintiff. Inthe meantime, by deed of November 14,1906, P conveyed the
same land to K, who re-conveyed the property to P on the sameday. P thereafter, by deed of November 80,1909, registered on
December 20, 1909, conveyed the land to the defendants.
Held, that defendants' title was superior to that of the plaintiff.
T
HE foots are fully stated in the judgment of Wood Benton J.
loe case was first argued before Wood Benton J. and
Grenier J., who reserved it for a Full Bench.
Tissevera8inghe, for the appellants.—The deed of ParemecuttySastry in favour of Sinnepillai, though dated December, 1899, wasregistered only in 1910. Plaintiff claims title through Sinnepillai.The deed in favour of the appellants was executed and registeredin 1909. The appellants’ title is clearly superior. See Kirihamy v.Kiribanda,1 Aserappa v. Weeratunga et al.,* Silva v. Sarah Hamy,*
B. Galle, 151,4 Canavadipillai v. V elupillai,5 Hamidu v. Natchia.*The judgment in Kanapathipillai v. Kannachi,7 on which thelearned District Judge relies, has been explained in Kirihamy v.Kiribanda1 and in Aserappa v• Weeratunga et al.2
Sinnepillai got by her deed a title that was defeasible by priorregistration of a subsequent deed from Paremecutty Sastry.
H. A. Jayewardene (with him J. W. de Silva and Cooray), for therespondent.—Wheu Paremecutty Sastry conveyed to defendantshe had no title to convey, as he had previously donated the landto Sinnepillai. The defendants, therefore, gained nothing by theconveyance in their favour. Registration cannot create title wherethere was none.
> (2911) 14 N. L. R. 284.« (1873)2Grenier 6.
* (2911) 14 N. L. R. 417.* (2887)8S. G. C. 111.
(1883) Wendt 383.« (1899)2C. L. R. 33.
7 (1910) 13 N. L. R. 16$.
1912.
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Paremecutty Sastry transferred the land to one Kadaramatamby inKanapaihi- 1806. On the same day he got a re-transfer from Kadaramatamby.pillai v. Paremecutty Sastry thereby extinguished his original title, andby the deed of re-transfer he started- a new title, beginning fromKadaramatamby. It is this title that was conveyed to appellants..The contest then is between the title derived from Kadaramatambyby the appellants, and the title acquired by the respondents fromParemecutty Sastry through Sinnepillai. Priority by registration;could not be gained by appellants under the circumstances, as thecompetition is not between two titles from the same source.
The deeds in favour of Kadaramatamby and Kadaramatamby'adeed in favour of Sastry were not registered!
The following cases were cited: Silva v. Gomes,1 Kadravelu v.Per era,2 and Peris v. Per era.3
Cur. adv. vult.
March 14, 1912. Lascelles C.J.—
This appeal has been referred to a Full Bench for decision.
The land which is the subject-matter of this action belonged to>one Paremecutty Sastry, who, by deed P 2 dated December 26, 1899,and registered on November 28, 19l0, donated the land to oneSinnepillai, who, by deed P 1 dated December 7, 1910, and registered,on the 15th of the same month, sold it to the plaintiff. Meanwhile,Sastry, by a deed of December 1, 1905, purported to revoke thedonation in favour of Sinnepillai, but it is conceded that that deed,was inoperative for that purpose.
Sastry, by deed P 3 dated November 14, 1906, conveyed the landto Kadaramatamby, who, by deed P 4, also dated November 14,1906, re-conveyed the property to Sastry, who, by deed D 1 datedNovember 30, 1909, and registered on December 20 of that year,conveyed to the second and third defendants, who are the presentappellants.
The question referred to us is that formulated by .the first issuein the following terms: —
“ (1) Whether deed No. 730 of November 30, 1909, in favourof second' and third defendants has priority over deedNo. 2,103 of December 26, 1899, in favour of Sinnepillaiby reason of registration.”
In view of the terms of section 17 of ” The Land ^RegistrationOrdinance, 1891,” and the numerous decisions of this Court thereon,I confess that the point reserved for consideration does not presentany particular difficulty to me.
The competing deeds, as stated in the first issue, are on the oneside the appellants’ deed D 1 dated November 30, 1909, and regis-tered on December 20, 1909, and on the other side the donation:
» [1909) 1 Cur. L. R. 96.* (1889) 9 S. C. C. 381.
* (1906) 10 W. L. R. 38..
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P 2 to Sinnepillai dated December 26, 1899, and registered on Novem-ber 28, 1910. Of these, the former deed, though later in date, isprior in registration; it is a deed for valuable consideration, and thereis no question of fraud or collusion. It follows, therefore, that thecompeting deed P 2 must be deemed void as against the appellants,who claim an adverse interest under the deed D 1. Mr. HectorJayewardene, who argued the case for the respondent with muchingenuity, advanced an argument which is frequently put forwardwith some appearance of plausibility in cases of this description.Sastry, he contended, when he conveyed to the defendants, hadpreviously divested himself of title by his donation to Sinnepillai,so that nothing passed by his conveyance to the defendants.
The Begistration Ordinance, it was urged, was not intended to,and does not, convert into valid conveyances instruments which areper se inoperative. But this is precisely what the Ordinance doesin the majority of cases where the competition is between two deedsderived from the same source of title. The prior unregistereddeed is deemed void as against the parties claiming an adverseinterest under a subsequent registered deed for valuable considera-tion. The natural and inevitable consequence of this process is thatinstruments which would otherwise have been inoperative to passtitle are clothed with validity. The principle can hardly be betterput than by Mr. Justice Clarence in Silva v. Sarah Hamy): —
“ When an owner of land conveys it to A for value, and subse-quently executes another conveyance of the same land infavour of B,,also for value, it is true at the date of thesecond conveyance the owner has nothing left fn himto convey, but by the operation of the Ordinance B'sconveyance over-rides A’s if registered before it. Unlessthe Ordinance has this effect it has none at all, and thisseems the actual construction of the enactment.”
This point is also clearly dealt with by Creasy C.J. as far back as1873, in C. E. Galle, 151.2
Mr. Jayewardene also contended that the true competition wasnot between the deeds D 1 and P 2, but between the conveyance toKadaramatamby and the latter deed. With regard to this conten-tion, it is to be observed, in the first place, that it is outside the issueon which the parties went to trial, which was as regards the relativepriority of deeds D 1 and P 2. But the contention, in my opinion,is not sound. The adverse interest which' the appellants claim isobviously in virtue of their own deed D 1, and they are. entitled bythe terms of section 17 to have the benefit of the prior registrationof the deed. The non-registration of the conveyance* by Sastry toKadaramatamby is not material for in Peris v. Perera3 it was held
1 (1883) Wenkt 383, 384.a (1373) 2 Grenier 6.
3 (1306) 10 N. L. R. 33.
1912.
IjASOBLLBS
C.J.
Kanapaihi-piUai v.Mohamadu-tamby Leva*
17-
( 180 )
1912.
LaSOELLES
C.J.
Kanapathi-. pillai v.Hohamatlu-tamby Levai
that where a deed under which a person claimed title is registeredit is immaterial that earlier deeds forming links in the title have notbeen registered. Then it was urged that the appellants must betaken to have derived their title, not from Sastry, but from Kada-ramatamby, so that the competition is not between two deedsderived from the same source. This view is, in my opinion, quitefallacious. Kadaramatamby had no title save that which hederived from Sastry. It is true Sastry's deed to Kadaramatamby atthe time did not pass title; it was ineffective until the registrationof the appellants’ deed placed them in a position of priority over theclaimants under the donation to Sinnepillai. The case of Kana-pathipillai v. Kannachi1 was relied on by the learned District Judgeas an authority for his ruling that the prior registration of thedefendants’ deeds did not give them priority of title. But this casereally turned upon the question of notice, and on that point it mustbe read in connection with the subsequent judgment of this Court-in Aserappa v. Weeratunya et al
In my opinion the appeal should be allowed, and the actiondismissed with costs here and in the Court below. –
Middleton J.—
In my opinion the point in this case is covered by authority, andI do not think it necessary to add anything to the judgment of myLord, which I have had the privilege of perusing, and with which Ientirely concur.
Wood Renton J.—
This case was argued before my brother Grenier and myself onOctober 9, 1911. At the close of the argument we sent it back tothe District Court for further evidence, and any expression of opinionthat the learned District Judge desired to offer on the originaland further evidence as to whether or not the plaintiff-respondenthad established title by prescription. The District Judge hasrecorded the further evidence placed before him by the parties, andhas expressed his. opinion that the plaintiff-respondent has notestablished title by prescription. The appeal was argued again onFebruary 28, and now comes before the Full Court for final adjudi-cation. The appellants’ counsel is, of course, quite satisfied withthe view taken by the District Judge on the issue as to prescription.The respondent’s counsel did not challenge it, and I see no reasonto think that it is wrong.
The case, as presented by Mr. Cooray to my brother Grenier andmyself at the recent argument, had to be decided on the followingsimple facts. The action is one brought by the respondent agafnst theappellants and others for a partition of a land called Kalladykandam.Of this land the respondent claims an undivided three acresunder the following title. These three acres originally belonged» (1910) 13 N. L. R. 166.2 (1911) 11 N. L. R. 117.
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to Paremecutty Sastry. By donation deed (P 2) dated December 26,1912.
1899, and registered on November 28, 1910, by the respondent,^OOD
Paremecutty Sastry donated the acres in question to a woman, Benton J.SinnepiUai, who sold them to the respondent by deed (P 1) dated xonojTathi*December 7, and registered on Dectember 15, 1910. Paremecutty pfflai v.Sastry had purported to revoke the donation in favour of Sinnepillaiby deed No. 184 dated December 1, 1905. It was held, however,by the District Judge—and his finding on this point has not beencontested—on the authority of the case of Kanapathipillai v.
Kdnnachi,l that that deed of revocation, not having been effectedthrough the Court, was void. Paremecutty Sastry, however, subse-quently to the date of revocation, namely, by deed (D 1) datedNovember 80, and registered on December 20, 1909, sold the threeacres in dispute to the second and third defendants-appellants. Atthe date of that sale he. had divested himself of his title to theproperty in question. But the appellants* deed is prior in the dateof its registration to both the donation deed in favour of Sinne-pillai and her transfer deed in favour of the respondent. Thequestion that we bad to decide was whether, in spite of the factthat, at the date of his deed of transfer to the appellants, Pareme-cutty Sastry had no title to the property disposed of by that deed,it acquired priority by virtue of its prior registration over the deedof donation to Sinnepillai and her deed of transfer to the respondent.
It appears to me that on the authorities we are bound to answerthis question in the affirmative. We are not called upon here toinquire what the legal position would be if the subsequent purchaserhad derived his title from a Fiscal's conveyance, which, in terms,passes only the right, title, and interest of the judgment-debtor.
We are in presence of a conveyance purporting to pass a clean titleto purchasers for value and without notice. The cases of C. R.
Galle, 151,3 Silva v. Sarah Hamy* and the language of Dias J. andClarence J. in GanavadipiUai v. VeluptUai* a decision of the FullBench as then constituted, seem to me to be binding authorities infavour of this view, and I think that they are sound in principle.
At the argument before the Full Court Mr. Hector Jayewardeneraised, and argued with very great ability, a fresh point on thefollowing additional evidence. After the revocation of the deed ofdonation Paremecutty Sastry transferred the land in suit to oneKadaramatamby by deed No. 467 dated November 14, 1906. Onthe same day he took a retransfer of the land by deed No. 468.
In his transfer to the appellants he recited this deed of retransfer.
Neither of these intermediate deeds was registered. Mr. Jayewardeneargued that, by his transfer to Kadaramatamby, ParemecuttySastry extinguished his original title; that by the deed of retransfer*
i {1910) 13 N. L. R. 166.* (2873) 2 Grenier 6.
3 (2883) Wendt 383 , 384.* (2887) 8 S. C, C. 111.
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1912. he started a new title in himself, of which Kadaramatamby was theWood source; that this was the title which he conveyed to the appellants;Benton J. that it was not adverse to the interest acquired by the respondentJCanapathi- fr°m Sinnepillai; and that consequently it could not acquire bypiUtU v. registration priority over the respondent’s deed from Sinnepillai.
must be observed that ip his deed in favour of the appellantsParemecutty Sastry does not convey solely on his deed from Kada-ramatamby. He sets out his original title, and mentions the deedof retransfer merely as a link in that title. I am unable to acceptthe view that any break in the chain of title was effected by theintermediate unregistered deeds. Paremecutty Sastry conveyed notitle to Kadaramatamby. Kadaramatamby reconveyed no title.The source of the appellants’ title was Paremecutty Sastry himself.The intermediate deeds were mere links in the chain of title fromhim. That being so, by virtue of section 17 of Ordinance No. 14 of1891 (and see Peris v. Perera1) the prior registration of the appellants’deed wiped out the intermediate unregistered deeds, and the titlederived bv the respondent from Sinuepillai on a deed of laterregistration, and clothed with legal force, as against the respondent,Paremecutty Sastry’s deed in favour of the appellants, although atthe date of the execution of that deed Paremecutty Sastry had notitle to convey. Unless section 17 of Ordinance No. 14 of 1891 isinterpreted in this way, I do not see how effect can be given to itslanguage and intention at all.
would set aside' the decree under appeal, and direct that theplaintiff-respondent’s action should be dismissed with all costs ofthe action and of the appeal.
Grenier J.—
agree with the rest of the Court, but I should like to add a fewwords in regard to my judgment in the case of Kanapathipillai v.Kannachi,* which the learned District Judge proposed to follow indeciding the present case. The question there that I discussed wasas to the effect of notice, and I expressed my opinion that a personwho has actual notice of the existence of an instrument cannot getpriority over it through the medium of the Registration Ordinance,as the attempt to obtain such priority amounted to fraud under theproviso to section 17 of Ordinance No. 14 of 1891. In saying soI followed the judgment of the Privy Council in Crowby v. Bergtheil(see Jayewardene's Law of Mortgage 84). I expressed no decidedopinion on the question of registration, nor did I hold anythingdefinitely on the point, although I held in effect that theCommissioner was wrong in deciding the question of registrationin the way he did on the materials before him.
Appeal allowed.
‘ (1906) 10 N. L. R. 33.
» (1910) 13 N. R. 166.