MOHAMAD ALI v. WEERASURIYA

134-NLR-NLR-V-17-MOHAMAD-ALI-v.-WEERASURIYA.pdf


( 417 )
[Full Bknoh.]1914.
Present: Lascelles C.J. and Pereira and Ennis JJ.
MOHAMAD ALI v. WEEEASUBIYA.
21—D. C. Kurunegala, 4,801.
Begietration—Decree— ” Affecting land."
By a decree in D. C. Kurunegala, 8,204, E and Or were eachdeclared entitled t6 an undivided half share of certain lands. Thedecree was not registered. Plaintiff was successor in title to E.and defendant purchased the whole land from Q-. Defendant’sdeed was registered.
Held (per Lascelles C.J. and Ennis J.), that defendant was boundby the decree in D. C. Kurunegala, 8,204, though the decree was notregistered.
(Pebmba J. diasentiente.)—A decree entered up in an actionembodying adjudication on claims to land is a decree " affectingland," and unless it is registered by the party in whose favour it isentered it would, under section 17 of Ordinance No. 14 of 1891, bevoid as against a conveyance, duly registered, of the land executedby the opposite party.
HE facts are fully set out in the judgment.
Samarawickreme (with him R. L. Pereira), for .the defendant,appellant.—The decree in D. C. Kurunegala, 3,204, was notregistered. It is a registrable instrument under section 16 of Ordi-nance No. 14 of 1891, as it is a “ judgment affecting land. ” Thenon-registration of the judgment makes it void as against the con-veyance. in favour of the defendant, who has bought it for valuableconsideration. It is therefore open to the defendant to call, inquestion plaintiff’s, predecessor’s title. As the decree in D. C. Kuru-negala, 3,204, was not registered, it cannot be set up to support theplea of res judicata.
Counsel cited 2 Irish Appeals 487.
[Lascelles C.J.—Judgments do not gome within .the scope of theIrish Registration Act.]
[Ennis J.—The judgment in D. C. Kurunegala, 3,204, only declarespre-existing title to land. It is not a judgment affecting land.].
There are judgments which do not declare pre-existing title—forinstance, a judgment is obtained by default of appearance by oneparty. It is clear from the context that decrees relating to landwere intended to be registered. To interpret the words “ affecting
7. N. B 18828 (7/62)
(418)
1914-land ” in any other way would be to leave a good many deeds
Mohamad unregistered. This will leave title to lands in a very unsettled state.
AHv. Counsel cited Madar Lebbe v. Nagamma.1Weerasuriya
[Lascelles C.J.—Is not the question of title res judicata betweenthe parties to the case and those deriving title from them ?]But sections 16 and 17 would enable the successor in title of oneparty to re-open the question of title if the decree was not registered.
The object of these sections is to prevent an innocent purchaserfrom being defrauded. There will be no protection unless thebooks at the Registrar's office show wha.t judgments have beenobtained as to the land in question.
Bmva K.C., for the respondent.—The interests of the plaintiff anddefendant are not “ adverse ” in the sense in which that term isused in the Registration Ordinance, as they are not derived fromthe same source. Neither party relies on the judgment as thesource of title.
A judgment which merely declares title to land does not “ affectland, ” and section 16 would not apply to such a judgment.
A mortgage decree is a decree “ affecting land, ** and should beregistered. There are other judgments which affect land.
Counsel cited Casey v. Amott, 2 Bernard v. Fernando. 3
Under section 207 of the Civil Procedure Code the question oftitle between the . parties to case No. 3,204 is res judicata.. Theparties to this case are privies, and they cannot • re-open thatjudgment.
Samarawiclcreme, in reply.
Cur. adv. vult.
May 29, 1914. Pereira J.—
In this case I regret that I am obliged to differ from the rest othe Court. The subject-matter of the action is a half share of acertain parcel of land. In case No. 3,204 of the District Court ofKurunegala a decree was entered up, of consent of parties, declaringone Elapata (the plaintiff in the case) entitled to a half share of theparcel of land referred to above, and ordering that he be “ put, placed,and quieted in possession " thereof, and, similarly, declaring oneGrigoris (the defendant) entitled to the other half share, and orderingthat he be “ put, placed, and quieted in possession " thereof. Howit was intended to execute that part of the decree which directs thateach party be put, placed, and quieted in possession of his halfshare it is difficult to say. However, Elapata did not register thedecree in his favour, with .the result that Grigoris sold the wholeland to the defendant in the present case, who admittedly wasan innocent purchaser for value. The conveyance in favour of
1 (1902) 6 N. L. jR, 21.8 (1876) 2 Common Pleas 24.
3 (1913) 16 N. L. R. 438.)
( 419 )
the defendant was duly registered. The plaintiff derives his title 1914.from Elapata. The question is whether, in terms of section 17 of r T
Ordinance No. 14 of 1891, the decree in favour of Elapata in .
case No. 3,204 is not void, for lack of registration, aB against thedefendant. Section 16 of the Ordinance enacts that every judgment Wemuwiyfaffecting any land should be registered, and section 17 providesthat any judgment, unless it is registered, should be deemed void asagainst parties claiming an adverse interest thereto on valuableconsideration by virtue of any subsequent deed duly registered.
Now, it is contended that the judgment (or decree) in case No. 3,204is not a judgment affecting land, and that Grigoris’s conveyance infavour of the defendant is not a deed conveying an adverse interest.
It is conceivable that a contrary view would tell with some hardshipon those who fail to register judgments in their favour, but at thesame time it is equally conceivable that should it be held thatjudgments like that entered up in case No. 3,204 needed no registra-tion, the door would be opened to the perpetration of an immenseamount of fraud on the public by the sale, as has happened in thiscase, of land by parties against whom judgments have been enteredby concealing that fact to innocent purchasers. I think, therefore,that this is eminently a case in which we should be careful toadminister the law as we find it, leaving it to the Legislature totake action to amend it if so advised.
The direct question for decision in the case is whether a decreewhich is an embodiment of an adjudication on claims made to anyland by the parties to an action is not a decree affecting land. Ido not think that we can derive much help from cases decided inEngland in construing the expression “ judgments affecting land.
There is certainly no case quite in point, and the expression as usedin certain English statutes has reference to the peculiar effect, asregards land, of judgments of Courts in England. Under the-Statute of Westminster (13 Edw., 1st st., 1. c. 18), a judgment inEngland, that is to say, a judgment for a mere debt, such as wouldbe called a money decree in Ceylon, gave the creditor a generalcharge on the debtor’s lands. The Judgments Act, 1838 (1 & 2Viet., c. 110); converted .this general charge into a specific lien. Thencame the Judgments Act, 1864 (27 & 28 Viet., c. 112), whichenacted that no judgment should affect any land until the landhad been actually delivered in execution by virtue of a writ ofelegit or other lawful authority. The use of the expression “ affectany land " here cannot help us to interpret the same expression inour Registration Ordinance, because it- is used with reference to ajudgment which ex facie had nothing to do with land, and theprovision, in effect, is that such a judgment should not be allowedto affect any land of the judgment-debtor except in certain circum-stances. But the judgment that we are now dealing with directlyaffected claims to land, and clearly in our Registration. Ordinance
(420)
1914, the expression “ judgment affecting land ” is used in the sense ofa judgment affecting any title, right, or claim to land, and it is—manifest that the mischief that the Ordinance was intended to
■*2^^ provide against was exactly such as has occurred in the presentWwraauriya case. It is wejl illustrated by the present case.
Then, can it be said that the defendant in the present case claimsan interest adverse to that of the plaintiff ? It has been said thatinterests are not adverse unless they are derived from the samesource. In the. present case it so happens that the decree in caseNo. 3,204 was what might be called a consent decree. So thatthe right of Elapata really emanated from Grigoris as a result ofthe consent given by him, and the deed on which the presentdefendant relies is also fron^, that same source. But suppose thiswere a case in which the decree was pronounced by the Courts notof consent but. on the merits of the case, the question is, what wasthe right really gained thereby by Elapata. He obtained no titleto the land in claim, because that he already had. The right gainedby him was a right to prevent Grigoris from advancing a claim tothe land in question. A claim by Grigoris was therefore adverseto that right, and it is no more than such claim that the presentdefendant now sets up on the strength of the conveyance by Grigoris.
It is said that if the words “ Judgment affecting land ” in theBegistration Ordinance are given the meaning that I have mentioned,the provision would conflict with section 207 of the Civil ProcedureCode. I do not think that can be so. Section 207 speaks ofdecrees of all kinds. As regards a particular class, namely, decreesaffecting land, the Registration Ordinance provides that unless theyare registered they should be void as against subsequent adverseclaims. There is no conflict here with section 207 of the CivilProcedure Code. That section enacts that all decrees shall be Analbetween the parties. The Begistration Ordinance provides that a*decree affecting land should be registered, and that unless it isregistered it should be void as against an innocent purchaser forvalue from one of the parties on a registered conveyance. I fail tosee the conflict.
For these reasons I think that the appellant is entitled to succeed,and I would allow the appeal with costs.
Lascelles C.J.—
The question of law reserved for consideration by the Full Benchis, as far as I am aware, a new one.
The plaintiff and the defendant each claim iitle to the whole ofthe land in dispute from a separate source. The plaintiff claimsthrough one Elapata from one Kiriya, and the defendant throughone Grigoris Fernando from one Ukubanda. In 1908 Elapata(through whom the plaintiff claims) sued Grigoris Fernando (throughwhom the defendant claims) in D. C. Kurunegala, No. 3,204, with
( 421 )
respect to the land now in dispute, and by consent half of the landwas decreed to Elapata and half to Grigoris Fernando. Afterthis decree, Grigoris Fernando, although entitled to half only ofthe land, conveyed the whole to the defendant, who bought forvaluable consideration and without notice of the decree. Thedefendant registered his conveyance. In these circumstances, thequestion arises whether the present action is not res judioata byreason of the decree in the previous action, inasmuch as bothplaintiff and defendant derive title through the parties to that decree.The learned District Judge has decided this question in the affirmative,and the defendant now appeals.
His argument may be stated as follows. The decree in D. C.Kurunegala, No. 3,204, was a “ judgment affecting …. land ”within the meaning of section 16 of the Land Begistration Ordinance,No., 14 of 1891, and as such is< a registrable instrument. But thisdecree, not having been registered, must be deemed void undersection 17 as against the defendant’s subsequent conveyance forvaluable consideration. The defendant's title, therefore, must beconsidered as though the previous judgment had no existence, sothat the plaintiff is precluded from claiming that the matter indispute in this action is res judicata in virtue of the previousjudgment.
The question raised is of far-reaching importance. It has notbeen the practice to register decrees in land cases, and if it is heldthat such decrees can be re-opened in the manner in which thedecree under consideration is now sought to be re-ophned, a vastnumber of titles which sure now believed to be secure will be put inquestion, and it is difficult to see where litigation would-stop.
I have come to the conclusion that the appellant’s argument isfallacious. •
At first sight it may appear paradoxical that a judgment declaring'the rights of litigants to land is not a “ judgment'affecting land.”But I am satisfied that the expression refers to an entirely differentclass of judgments. In construing our Begistration Ordinance, itmust be remembered that the phraseology of these' enactments islargely borrowed from that of English Acts of Parliament, and thgtan examination of these Aets often explains what is obscure in theseOrdinances. If reference be made to English Acts of Parliamentdealing with similar matters, many illustrations will be found ofthe sense in which judgments are referred, to as “ affecting land.”
Speaking quite generally, a judgment-creditor, in England isregarded as having an actual charge or specific incumbrance onthe land of the judgment-debtor for the amount of his debt. Theprecise nature of this right and the conditions subject to which it isenforceable are defined by a long series of statutes, which affordnumerous illustrations as to what is meant by judgments ” affectingland.”
1914.
ItABOWT.MM
C.J.
Mohamad/ Ali v.Weerasuriya
1914.
Lasohu.es
C.J.
MohamadAH p,WeeraauHy'a
( 422 )
Thus, by 23 & 24 Viet., c. 38, s. 1, it is enacted that nojudgment/*' shall affect any land ” as to a bona fide purchaser forvaluable consideration unless writ shall have been first issued. Thesame term is used in 27 & 28 Viet., c. 112, s. 1; no judgment“ shall affect any land ” until the land has actually been deliveredin execution. Similarly, by 4 & 5 Will and Mary, c. 20, s. 30,and amending ‘statutes, it is enacted that no judgment not docketedand entered'in the books mentioned in the Acts shall “ affect anylands or tenements.”
The expression ** affecting land ” is used in the same sense ofcreating a charge or incumbrance in 112 Viet., c. 110, s. 19, in2 Viet., c. 11, .s. 5 (where the words are " bind or affect any lands,”<fec.), and in 3 & 4 Viet., c. 82, s. 2.
When we ‘turn to the statutes dealing with registration, we findthe same expression used in the sajne sense. Under the Middlesexand Yorkshire Act’s no judgment ” shall affect or bind any heredita-ments ” before entry of the memorandum.
The statute 8 .Geo. 2, c. 6, s. 1, though it does not referto judgments.as “ affecting land,” is nevertheless instructive. Judg-ments, &cM are void against subsequent purchasers for value unlessregistered before the memorial of conveyance under which thepurchaser claims, but if the judgment is registered within twentydays after the-signing thereof, the lands of the defendant shall be“ bound thereby.”
It is clear that the judgments which are declared to be void asagainst purchasers are judgments which would otherwise have“ bound ” the land of the defendant in the sense of charging theland with the payment of a debt.
I think-the .examination of these. English statutes, which are moreor less in pari materia with our Begistration Ordinances, goes toshow that , a judgment affecting land ” means a judgment whichby its own operation creates some right in the land, or imposessomething in the nature of a charge or burden; and that the termis not. there used with reference to judgments which are merelydeclaratory of the titles or interest of the parties, which are derived,not from the judgment itself, but depend upon previously acquiredrights.
I am therefore of opinion that a judgment ” affecting land,”for the purposes of this Ordinance, must be understood to be ajudgment which, by its own operation, invests a person with aninterest in the land, such, for example, as a partition decree, or ajudgment which imposes or creates some charge, interest, or liability.
But however this may be, I think the appellant’s case fails onanother point.
Section 17 has always been held tp be applicable to cases wherethere is. a competition between two or more instruments of titleproceeding from the same source. But the appellant seeks to use
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the Eection for an altogether different purpose. He wishes to getrid of a disability imposed upon him by the law of evidence, and tobe allowed to prove in .this section what he would otherwise havebeen precluded by the law of estoppel from proving. This, I think,is what his contention really amounts to. It is true .that the lawof estoppel by? matter of record is not enacted as part of our EvidenceOrdinance, and that it is formulated in a very incomplete shape insection 207 of the Civil Procedure Code. But the law of estoppelby matter of record is none the less a branch of the law of evidence.
Even assuming the judgment in question to be a registrableinstrument, it would be straining the language of section 17 to holdthat the defendant is relieved of the bar created by the judgment,merely because his deed is registered and the judgment Is unregistered.The language of the section will not admit of such a construction.The plaintiff does not claim “ an adverse interest ” to the defendantin virtue of the judgment. He claims no interest at all under thejudgment. He, in effect, says to tire plaintiff:" The matter now
in question was judicially determined in an action to which yourvendor was a party. I claim the benefit of the rule of law whichforbids you from again putting this matter in question.” Section17 does not enable the defendant to meet this objection. Thedefendant would have us construe the section to mean that anunregistered judgment shall not be pleaded as res judicata, asagainst a party claiming under a subsequent registered instrument.But the language of the section will not bear such a construction.
For the above reasons I think that the judgment of the Courtbelow is right, and I would dismiss the appeal with costs.
1914.
Lascekles
C.J.
MohamadAli v. 'Weor>t4uriya
Ennis J.—
In this case, by a decree dated August 25, 1908, two persons,Charles Elapata and Grigoris Fernando, were declared each entitled-to an undivided half share of certain lands. The decree was notregistered.
The plaintiff is by a seriesi of deeds the successor in title toCharles Elapata.
The defendant is a purchaser from Grigors Fernando, who soldthe entire land without disclosing the decree of 1908.
The preliminary issue were tried first: —
Is the decree res judicata, and is the defendant estopped
from denying the plaintiff ’s title?
Is it void as aganst defendant's title by reason of its riot
having been registered?
The learned District Judge found in favour of the plaintiff.
It was argued in appeal th~t the decree was an order of the Courtaffecting land, and as such should have been registered as requiredby section 16 of the Land Begistration Ordinance, No. 14 of 1891.
1814.
Emus J.
Mohamad
Alia.
Weeraeuriya
( 424 )
That not having been registered it was. void under seotion 17 ofthat Ordinance against one who claimed an adverse interest in theland by virtue :of a subsequent registered deed. It was concededthat, the Land Registration Ordinance could not operate to createtitle, and' that the defendant could not obtain a greater title thanLis vendor had; but it was urged that the decree being void theparties were free to litigate over again the matters settled by thedecree.
On the first point, I am not convinced that a decree mere1,/declaring title.to land is an order of the Court “ affecting ” l.'vidas contemplated by the Land Registration Ordinance. It will beobserved that the other documents, the registration of which iscompulsory under seotion 16, are all documents affecting thedevolution of land by transfer, transmission, or charge. They, allaffect the title to.land; but how can a decree which merely declarestitle affect the title? The title existed presumably before theaction in< which the decree was had, and the decree declaring titleis the expression of the finding of the Court as to the true state ofthe existing title. It must be presumed to be a right finding, andnot one which affects the title, but one which merely, settles it.
Assuming, however, for argument, that a decree declaring titleto land is 'a document which must be registered under section 16,what would be the effect of registration? Section 17 provides thatan unregistered instrument is to be deemed void as against personsclaiming an adverse interest thereto on valuable consideration byvirtue of a subsequent registered deed, but there is a proviso thatthis 6hall not be deemed to give any greater effect to the registeredinstrument than the priority conferred by the section. This section,in my opinion, means that the unregistered instrument is to bedeemed void only for the purpose of establishing priority in theregistered deed, and for no other purpose. In this case no questionof priority arises, because, in my opinion, the principle of priorityapplies only between parties deriving title from the same source,for the Land Registration Ordinance does not establish rights' toland, by registration: it affects only the devolution of rights, andleaves an unregistered instrument unaffected for all purposes otherthan the establishment of a prior claim to one and the same thing.The effect of an unregistered instrument as evidence to establish anindependent original right is not, in my opinion, altered by theOrdinance.
A somewhat similar conclusion was arrived at in Bernard v.Fernando, L where two persons owned an undivided one-fifth of aland, but were subsequently by a partition decree allotted twoseparate .lots. After the passing of the decree, but before itwas registered, they sold an undivided one-fifth of the entire land.In that, case it was remarked, ‘ ‘ It cannot be supposed that the
1 (1913) 16 N. L. R. 438.
( 425 )
Registration Ordinance was intended to defeat >the whole 1914*
object of legislation with regard to partitioning of lands, The e^~j
truth, I think, is that the expression * adverse interest ' refers only
to oases where two persons claim interests traceable to the same Mohamadorigin." The partition decree in that case was held good to establish wewiwuWyatitle to the two separate lots ; so in this case, in my opinion, thedecree of August 25, 1908, is good to bar claims between the sameparties and their successors in title at variance with the decree. Inmy opinion sections 16 and 17 of the Registration Ordinance werenever intended to affect title in any other way than by givingpriority in cases of alienation and incumbrances/ matters whichaffect property in interests derivable from the same source,, but donbt affect the validity of separate titles. So far as the RegistrationOrdinances do not establish title by registration, and merely dealwith the registration of documents of title, the effect of the Ordi-nances on the validity of title by priority of registration mustnecessarily be limited to devolutions of property from the samesource by conflicting deeds.
In my opinion the defendant is estopped by the decree of August25, 1908, and I would dismiss the appeal.
Appeal, dismissed.