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Present: Bertram G.J. and Schneider J.NAFIA UMMA et at. v. ABDUL AZIZ etal.
178—D. C, Colombo, 9,369.
Municipal Councils Ordinance—Purchase of land by Council—Certificateof title—Conclusive evidence—Ordinance No, 6 of 1910, s. 146.
When land is purchased by the Municipal Council, a certificateissued under section 149 of the Municipal Councils Ordinance isconclusive evid^oe of the title of the Council to the property.
Such a certificate cannot be impugned on the ground of a funda-mental infirmity attaching to it.
PPEAL from a judgment of the District Judge of Colombo.The facts appear from the Judgment. .
L. M. de Silva (with him R. C. Fonseka), for the appellants.
Samarawickreme (with him Croos Da Brer a), for the respondents.
February 12, 1925. Bertram C.J.—
This is a case which arises under section 146 of the MunicipalCouncils Ordinance, No. 6 of 1910. It raises in another form thequestion that was dealt with in Sivacolundu v. Noormaliya.1 By thatcase it was decided that it was an essential and imperative featureof all sales under the Ordinance for the enforcement of rates thatthe provisions of the Ordinance, which require that any movablesavailable should be sold before any immovables arc put up for sale,should be strictly complied with. It was held with reference tosection 143 that, where the section said/* If land or other immovableproperty be sold under the warrant/’ while no doubt it was to bepresumed that all things required by the Ordinance had beenproperly done, yet it was open to a person affected by the certificateto prove that the property had not been duly sold under the warrant,inasmuch as a fundamental condition had not been complied with.That was a decision under section 143.
The present case arises under section 146, and it is quite obviousthat whether efficaciously or not the legislature set itself tostrengthen the provisions of that section as compared with those ofsection 143. In the first place, instead of saying that the certifi-cate should be sufficient to vest the property, it declared that thecertificate should actually vest it. In the second place, it declared
1 (1921) 22 N. L. R. 427.
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that that vesting should be an absolute vesting ; and in the thirdplace, it added an entirely new provision that the certificate in theprescribed form should be received in Courts of justice in the Colony,as conclusive evidence of the title of the Council. It could hardlybe made more clear that the legislature intended to put the Councilitself, when purchasing at a sale under a warrant, in a strongerposition than an ordinary purchaser. The only question for us iswhether this intention has been effectively carried out.
If Mr. de Silva, who argued this case very ably on behalf of theappellant, is right, this subsequent and independent provision isabsolute surplusage. I should be very reluctant to come to such a. conclusion. No doubt it is the case that both under section 143 andunder section 146, apart from this new supplementary provision, itis possible for a person affected by the certificate to impugn it bygiving evidence to show that the property is not really vested in thepurchaser, but is vested under another title in himself. But thisis the. precise point at which the new provision comes in. Theexpression “ conclusive evidence ” is an expression of recognizedforce. There is an equivalent expression in section 4 of theEvidence Ordinance the expression “ conclusive proof.” It is thereenacted with reference to the use of that expression in the EvidenceOrdinance itself that, where that expression is used, the Court shallnot allow evidence to be given for the purpose of disproving thefact on which the evidence is conclusive. A similar* principle isenacted in Taylor on Evidence. Enactments of this sort are in thenature of statutory conclusive presumptions, and with regard to theconclusive presumption it is laid down in Taylor, chap. F., para-graph 71, that where they ariseall corroborative evidence is dispensedwith, and all opposing evidence is forbidden. This must be, I think,the intention in the present case.
Section 146 declares that a certificate in the prescribed form shallbe conclusive evidence of the title, and shall exclude all evidencesetting up another title, either directly or through impugning thecertificate on the ground of a fundamental infirmity. Mr. de Silvaargued that though, no doubt, he would not be allowed to give directevidence of a counter title, yet he could impugn the certificate as an. invalid certificate and one that ought never to have been issued,because the proceedings to which it related had not been duly carriedout. I think that to interpret the section in this way would be togo counter to the intention of the legislature. What was reallyintended was that when a certificate was produced substantiallyin the prescribed form, that certificate should have a decisiveeffect.
Mr. de Silva drew attention to section 9 of the PartitionOrdinance, pointed out that it had been held in'a previous decisionof this Court that, where a partition decree was entered of consentwithout any preliminary investigation of title, such a decree could
Nafia Urnmav. AbdulAziz
Nafia XJtnmav. 4MAziz
not have conclusive effect as a decree under the Ordinance, inas-much as it was fundamentally in violation of the provisions of theOrdinance. This was so, notwithstanding the fact that undersection 9 of the Partition Ordinance such a decree was declared tohave a conclusive effect. One must, however, observe in thatOrdinance in the section referred to the very important words,“ given as hereinbefore provided.’* It is there made an expresscondition of the conclusiveness of the decree that it should be givenin the manner provided by the Ordinance, and here the terms of theenactment are very different. Taking this view of the case it is notnecessary for us to consider the other points dealt with by theDistrict Judge.
I would dismiss the appeal with costs.
Schneider J.—I agree..
NAFIA UMMA et al. v. ABDUL AZIZ et al