088-NLR-NLR-V-11-MOHAMED-BHOY-et-al.-v.-MARIA-DIAS-et-al.pdf
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Present : Mr. Justice Wendt and Mr. Justice Wood Renton.MOHAMED BHOY et al. v. MARIA DIAS et al.
D. CColombo, 25,576
“ Bill of sale ”—Agreement to convey share allotted in a partition suit—Assignment of money that may be realised—" Chose in action"—“ Movable properly "—Registration—OrdinancesNos. 8 and
21 of 1871.
The defendants,who '-were partiesto a partitionsuit pending
in the DistrictCourt of Colombo, agreedwiththeplaintiffsb; a
notarial instrument, dated January27, 1906, and registered in
the LandBegistryOffice on .May22, 1906, toconveytothe plaintiffs,
within ten days of the final decree, the divided portion of the landthat mayhe allotted to them;andin theeventofa sale being
decreed, instead of a partition, the defendants assigned to theplaintiffs all sumsof moneywhich then, may become payable
to them fortheir shareof theproperty,and alsoall theirrights
in the decree.
The property was sold under the Partition Ordinance and themoney deposited inCourt,andthe' plaintifis applied todraw the
money which wasallocatedtothe defendants for theirshare of
the – property.The defendantsopposed this application;and
the parties werereferredtoa separate action. Theplaintiffs
accordingly instituted this action.
Held, that the instrumentdidnot deal with “ movableproperty,’*
and wasthereforenot a “ billofsale ” withinthemeaning. of
Ordinance No.8of 1871,and didnot require toberegisteredwithin
fourteen days of its date, as provided by the Ordinance; . and thatthe plaintiffs were entitled to succeed.
A
PPEAL by the plaintiffs from a dismissal of their action. Thefacts and arguments fully appear in the judgment of Wendt J.
Bawa, for the plaintiffs, appellants.
Elliott, for the defendants, respondents.
Cur. adv. vuIt.
1908.
September 9.
25-
1 S. C. Min., July U, 1908.
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1908. September 9, 1908. Wendt J.—
September 8.
The facts out of which this appeal arises are as follows. The first
defendant, who is the wife of the second defendant, was entitled toan undivided one-third share of house No. 38, Prince Street, Colombo,and on April 14, 1905, the defendant instituted an action to obtaina judicial partition or sale of the property. Pending that action,on January 27, 1906, the defendants entered into an agreement withthe plaintiffs, the effect of which we have upon the present appealto determine. That agreement, after reciting in detail the title ofthe first defendant and the pendency of the action, witnessed that,in consideration of the payment of a sum of Bs. 5,000 made at theexecution of the agreement and of a further sum of Bs. 5,000 to bepaid later, the defendants agreed to sell and the plaintiffs to purchase,within ten days from the date upon which final decree shall be entered. in the action, the divided one-third share, which might be. decreed tothe first defendant in the event of the said-final decree being one fora partition of the said premises; that in the event of the final decreebeing one for sale of the property and distribution of the proceeds,the defendants “ do hereby absolutely sell, cede, assign, transfer,and set over unto the plaintiffs all sums of money that may bebrought into Court or become payable to the first defendant as andfor her share of the proceeds sale of the said property under the saiddecree, and also the rights of the said defendants in the said action,and in, to, or under the said decree, and all benefit, profit, sum andsums of money, and advantage whatsoever that now can or shall ormay hereafter be obtained by reasoD or means of the same.”
This agreement was registered in the Land Registry Office onMay 22, 1906. The property was sold under decree of the Courtin the partition action and the proceeds paid into Court, out ofwhich a sum of.Rs; .1.2,938.97 was allocated to the first defendantas the equivalent' of her undivided one-third share of the property.The plaintiffs thereupon, alleging a due tender of the balance Bs. 5,000under the_ agreement, applied to have the Es. 12,938.97 paid out tothem. The defendants opposing the application, the Court refusedit, and referred the plaintiffs to a separate action. Hence the presentaction. During its pendency the first defendant was permitted tootake out of the Court a- sum of Bs. 5,000 out of the Es. 12,938.97as the equivalent of the balance consideration due by the plaintiffs.
A number of issues were framed at the trial, all of which, withthe exception of the 5th, were decided in plaintiff’s favour.Defendant’s counsel at first sought to support the decree in theirfavour by contending that some of those issues had been wronglydetermined by the District Court, but at the close of the argumenthe was constrained to abandon that contention and rely solely onthe- 5th issue. This issue raised the defence that the agreementsued upon was a ” bill of sale ” within the meaning of the Ordinance
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No. 8 of 1871, and therefore void by reason of its not having been 1908.registered within fourteen days of its date as required by that September 9.Ordinance. The learned District Judge upheld his defence and Wendt J.dismissed plaintiff's claim to the fund in Court, but decreed thedefendants to repay the price paid them by the plaintiffs.
The District Judge’s attention was apparently not called to theprovisions of section 1 of the amending Ordinance No. 21 of 1871,which, in my opinion, rendered it unnecessary to register theagreement within fourteen days. That section enacts that no con-ventional hypothecation or bill of sale of any movable property shallbe deemed to be invalid or in any respect ineffectual for want ofregistration under the provisions of the said Ordinance No. 8 of 1871,if such conventional hypothecation or bill of sale shall be effectedby any instrument which also contains any mortgage or assurance ofimmovable property, and if such mortgage or assurance of immov-able property shall be duly registered in pursuance of the LandBegistration Ordinances, Nos. 8 of 1863 and 3 of .1866, or either ofthese. The agreement in question is contained in an instrumentwhich deals , in the same way with immovable property, and as theLand Begistration Ordinances limit no period of time for the regis-tration of instruments affecting land, it must be taken to have beenduly registered under those Ordinances. As to the suggestion thatthe later Ordinance, while making a different form of registrationsufficient, intended to retain the limiting period of fourteen days,it is sufficient to point to the words in section. 1, “ registration underthe provisions of the said Ordinance No- 8 of 1871,” which includesthe provision for registration within fourteen days.
I .am further of opinion that the agreement in question was not a" bill of sale,” because the subject of it was not “ movable property,”and because it was not a power of attorney or licence to take posses-sion of personal property as security for a debt.
The contention that the parties intended to create only a securityfor the Bs. 5,000 paid in advance was, indeed, submitted, to us, butit was not put forward in the District Court, and we were clearly ofopinion that in view of the express terms of the instrument it was not.sustainable. It is therefore unnecessary to consider – whether thesubject of the agreement was ” personal property,” a term which isnot co-extensive with ” movable property.” Was it then movableproperty?
It was pointed out in Croos v. De Soysa 1 thpt movables regularlyconstituted both in the Boman and Boman-Dutch Laws a subdivisionof corporeal property, and that it was only for certain purposes thatincorporeal property and obligations were classed with movables.
If the fund here in question is to have attributed to it the characterof the property out of which it was realized, it would be immovableproperty. I think also that the analogy of the ratio decidendi in
i (1908) 7 N. L. R. 82.
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1908. Humble v. Mitchell,1 a case to which I referred in Croot v. De Soys a,*September 9. app]ie8. As under section 17 of the Statute of Frauds, so also underWhhdtJ. section 2 of the Ordinance we are construing, “delivery” is analternative to a written record as the condition precedent to thevalidity of the transaction, and that is a reason for holding that thekind of property contemplated was such as is capable of delivery.The property here dealt with was incapable of delivery, for, althoughit has been spoken of as a sum of money, that money was not any-where to be found in specie. In Dawson v. Van Qeyzel * the questionwas whether a share in the compensation still to be awarded forland taken up for public purposes was movable property under theOrdinance of 1871, and in deciding it was not, the Court (LawrieA.C.J. and Withers J.) expressed the opinion that the Ordinance waslimited to corporeal movables. I venture to agree in that opinion.In Arunasalam Chelty v. Appuhamy * the question was whether theassignment of a share of a sum of money lying in Court as theproceeds sale sold in a partition action was -obnoxious to theOrdinance of 1871, and Moncreiff J., Layard C.J. concurring, heldthat it was not an assignment of a “ chose in action,” as thelatter term was defined by Blackstone. Moncreiff J. said that theDistrict Court was trustee of the fund for, or agent of, the personto whom it had been adjudicated, and that it could not correctlybe said that the allottee had a mere right of action to recoverthe fund; after adjudication it was his, as the land had been hisbefore. That case is clearly distinguishable from the one nowbefore us, on the grounds that here the land had not yet been soldat the date of the transaction we are considering, and it could nottherefore be said, in the words of Blackstone, that the assignorhad the enjoyment of the fund, either actual or constructive; itwa^ not yet in being. But the term “ chose in action ” has under-gone much extension in England in modern times; and, besides,in Arunasalam Chetty v. Appuhamy * the Court was not asked todefine “ movable property ” as used in the Ordinance, and it doesnot follow that any particular property which is not a “ chose inaction ” is necessarily “ movable property.”
I think the subject of the assignment we have to do with was notmovable property within the meaning of the Ordinance, and theassignment therefore did not need registration.
I would allow the appeal, and give judgment for the plaintiffs asprayed for with costs in both Courts.
Wood Benton J.—J agree.
Appeal allowed.
^11 A. AS. m.
* (1903) 7 N. L. R. 32.
’ (1893) 3 C. L. R. 36.* (1908) 3 Bel. 168.