101-NLR-NLR-V-25-MEURLING-v.-GIMARAHAMY-et-al.pdf
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1922. Present: De Sampayo and Schneider JJ.
MEURLING v. GIMARAHAMY et al.
133—D. C. Matara, 9,845.
Sale under the Partition Ordinance—Mortgage of share by purchaser—•Sale of entirety—Registration—•Undivided shares registered indifferent folios before partition action—Subsequent mortgageand sale also registered in different folios—Right folio—Actionon mortgage bond against administrator before letters of adminis-tration were taken out.
The land in question was sold under the Partition Ordinanceand bought by B, who thereafter mortgaged a sharo to M. At thesale under tho mortgage decrco, plaintiff j)urehasod tlio share. 'B'sold the entirety of tho land to defondants, who rogisterod the doedin A 35/120. The mortgago bond and Fiscals’ transfer wereregistorod in A 80/394. Prior to tho partition doeroo, tho undividedshares woro rogistorod in tho two folios without cross reference.A 80 394 was tho folio in which any deed relating to tho land wasfirst registered.
Held, that tho transfor in favour of tho defendants was notregistorod in the right folio.
<: No doubt tho title croatod by the eortificato of salo cannot bedefeated by prior or other registration of deods affecting theoriginal undivided shares, but whon a question of competingregistrations arises with regard to transactions subsequent to thecertificate of sale and referable to it, tho former volumes andfolios ih the registrar’s book come into play.*’
Whoro a person who was appointed administrator by Court*but who had not takon out letters of administration was sued asadministrator, and the proportv was sold in execution, held, thatthe purchaser’s title was not affected by the fact that lotters hadnot been issued to the administrator.
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B. <7. G. Pereira, A.<7. (with him Cooray), for defendants, appel-lants.
Samaravnckreme (with him Kewneman and Ameraeekera)i forplaintiff, respondent. .
1922.
Meurling v.0’imarahamy
November 15, 1922. Db Samfayo J.—
The main question involved in this appeal has reference to theproper registration of deeds after a partition decree. It appearsthat the land called Nagahawatta was owned in common by severalpersons, one of whom was Don Bastian de Silva. This land wasthe subject of the partition action (D. C. Mat&ra, 1,966), in whichby decree of April 29, 1898, the land was ordered to be sold. Thesale took place on August 15, 1898, when Don Bastian de Silvabecame the purchaser, and the Court issued to him a certificate ofsale on September 30, 1898. Though he thus became the owner ofthe entire land, he by bond dated August 8,1912, mortgaged to MissFrances Meurling an undivided 263/360 shares, and in dischargeof this bond he again mortgaged the same share to Miss Meurlingby a bond dated October 1, 1913. This second bond was put insuit in D. C. Matara, 7,642, and in execution of the decree obtainedin that action the share mortgaged was sold, and was purchased bythe plaintiff, to whom the Fiscal issued .a transfer dated March 24,1920. His title being disputed by the defendants, he brought thisaction to vindicate it. The first, third, and fifth defendants aredaughters of Don Bastian de Silva, and they claim the entire landfor themselves and their sister Leisihamy on the strength of a deedexecuted in their favour by Don Bastian de Silva. This is the deedNo. 9,550 dated October 8, 1912, by which Don Bastian de Silvapurported to sell the land to his four daughters. There is room fordoubt whether this deed, notwithstanding its form, was a a deed forconsideration, but the point in this case must, I think, be decided onthe assumption that it was an actual deed of sale. The difficultyin the case arises from the fact that the deeds prior to the partitionaction No. 1,966 were registered in two different folios, some beingregistered in folio A 80/394 and others in folio A 35/120 without anycross references. But the folio in which any deed was first registeredis the folio A 80/394, which, therefore, was the right folio for purposesof registration. The mortgage bonds by Don Bastian de Silva infavour of Miss Meurling were registered in that folio, and so was theFiscal’s transfer obtained by the plaintiff. On the other hand, thecertificate of sale issued to Don Bastian de Silva was registered onOctober 1, 1898, in folio A 35/120, and Don Bastian de Silva’s deedof October 8, 1912, in favour of his daughters, was also registeredin that folio.
The plaintiff relies on the registration of his series of deeds infolio A 80/394 which I have above described as the right folio. ' It
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1922.
PB SAMPAYO
j.
Mzurling vGirnarahamy
is contended for the defendants, however, that all old registrationswere wiped out by the partition decree, just as all the old titles Wereso wiped out, that the question of right folio and wrong folio mustbe determined by the state of registration subsequent to the parti-tion decree, that the certificate of sale of Don Bastian de Silva beingregistered in folio A 35/120, the plaintiff's deeds were registered inthe wrong folio, and for the same reason Don Bastian de Silva's deedin favour of the defendants was registered in the right folio, and thatconsequently the defendants' title must prevail over that of theplaintiff on the ground of registration.
The defendants rely for their contention on my judgment inBernard v, Fernanda,1 but the point there decided is quite differentfrom that raised in this case. It is true that by reason of priorregistration of the old deeds of a party, the efficacy of a partitiondecree cannot be defeated, but the question here is, where and inwhat manner deeds relating to the title derived from the partitiondecree should be registered. For this purpose I do not think thatthe question of the folios in which the old deeds were registered canIje ignored. The Registration Ordinance itself appears to contem-plate the continuation of such folios. For section 27 provides thaton the partition of any land registered as one allotment, theregistrar shall, upon a written application in that behalf, registerthe new allotments on separate and fresh pages of the book, withsuch reference as may be necessary to identify them with the originalregistrationThe words italicized by me make the intention clear.It is now settled, I think, that the ** partition ” here referred to is apartition however" effected, whether by agreement between theparties or by decree of Court. If, then, in the case of an actualpartition of the land, the old pages in the register must be carriedforward by way of reference, I think the same principle is applicablein the case of a sale of the land under the decree in a partition action.For certain purposes the question of identity may be as importantin the one case as in the other. It is true that there is no expressprovision with regard to a sale of the. land by decree, but I thinkthat the language of section 24 of the Registration Ordinance is wideenough to include the case of a certificate of sale under the PartitionOrdinance, for it enacts that “ when any property which shall havebeen once registered shall be subsequently sold, encumbered, or. other-wise affected or dealt with, the deed or instrument purporting totransfer or otherwise deal with or affect such property shall state thevolume and folio of the register in which such property has been pre-viously registered.” No doubt the title created by the certificate ofsale cannot be defeated by prior or-other registration of deeds affectingthe original undivided shares, but I think that when a question ofcompeting registrations arises with regard to transactions subte-nant to the certificate of sal e and referable to it, the former volumes
1 (1013) 16 N. I. i?. 438.
503
and folios in the registrar's book come into play. For this reason,I think the deed of Don Bastian de Silva in favour of the first, third,and fifth defendants was not registered in the right folio, and cannot,therefore, gain priority over the mortgage bond in favour of MissMeurling or the Fiscal's transfer in favour of the plaintiff. Theshare so mortgaged was assumed in the course of the argument tohave been Don Bastian de Silva’s original share, but I find that thepartition decree declared him entitled to 3,356/4,320 shares. Inany case there was nothing to prevent Don Bastian de Silva, thoughhe had become owner of the entirety by the purchase at the partitionsale, from mortgaging a share, and that circumstance, therefore,makes no difference in the determination of the present question.
There was a subsidiary question as to the validity of the mortgagedecree. It appears that when Miss Meurling put the mortgage bondin suit, Don Bastian de Silva was dead, and in a separate proceedingan application was made to appoint his widow as administratrixof his estate, and the Court appointed her as administratrix. Thewidow, as administratrix, was made defendant to the mortgage action.Pending the action the widow also died, and the eldest son wasappointed administrator of Don Bastian de Silva’s estate, and in thatcapacity was substituted as defendant in the mortgage action. Butneither the widow nor the son actually took out letters of adminis-tration, and the contention is that in view of this circumstance thedecree was not obtained against a proper representative of DonBastian de Silva. On the face of the proceedings in the mortgageaction, however, Don Bastian de Silva’s estate was represented byan administrator, and I do not think that a purchaser at the Fiscal’ssale was bound to look beyond that fact. As against the plaintiffwho was the purchaser, the administrator’s failure to take out lettersmust, I think, be considered to be no more than an irregularity,and that it does not materially affect his title.
In my opinion the judgment appealed from is right, and I woulddismiss this appeal, with costs.
Schneider J,—I agree.
Appeal dismissed.
1922.
De Sampato
J.
Meurling v.Gimarahamy
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