SOERTSZ J.—Nugawela v. Municipal Council, Kandy.
1938Present: Soertsz and Hearne 33.
NUGAWELA v. MUNICIPAL COUNCIL, KANDY.
169—D. C. Kandy, 47,824.
Municipal Council Ordinance, No. 6 oj 1910, s. 164—Sale of property for non-payment of rates—Property subject to services—Purchase by Munici-pality—No liability to. services.
Where property, subject to services to a Dewala, is sold for non-payment of rates and is purchased by. the Municipal Council in terms ofsection 146 of the Municipal Council Ordinance, the property vests inthe Council free from any liability for services.
PPEAL from a judgment of the District Judge of Kandy.
N. E. Weerasooria (with him E. B. Wikramanayake), for plaintiff,appellant.
H. V. Perera, K.C. (with him VanGeyzel), for defendant, respondent.
Cur. adv. vult.
February 8, 1938. Soertsz J.—
The paraveni nilakarayas of the lands described in schedule A of theplaint were liable to perform the services enumerated in schedule B.
They failed to pay the Municipal rates due on the premises and theChairman of the Council took action under section L37 of the Ordinance
SOERTSZ 3.—Nugawela v. Municipal Council, Kandy.
No. 6 of 1910, had the premises seized and sold, and availing himself ofthe right given to him by section 144, purchased them for and on behalfof the Council.
The plaintiff who is a Basnayake Nilame of Pattini Dewale which isthe Dewala entitled to exact the services referred to in schedule B, bringsithis action to have it declared that the purchase by the Council is of noavail against the Dewala, or, in the alternative that the Council assuccessor to the title of the nilakarayas, is liable to pay a sum of Rs. 56in lieu of services. The first point was not taken on appeal. In regardto the alternative claim, the Council denies this liability and states thatthe properties in question, have vested in it free from any obligation toperform or commute these services.
Whether the plaintiff’s claim or the defendant’s denial should prevaildepends upon what the correct interpretation of section 146 is. Thatsection as amended by Ordinance No. 32 of 1930 is as follows:—“.Wheneverland or other immovable property is purchased by the Council under theprovisions of section 144, a certificate substantially in the form containedin schedule H, signed by the Chairman shall vest the property soldabsolutely in the Council free from all encumbrances”. In this instancethere are three such certificates, D 1, D 2, D 3 and the sole question fordetermination is what is meant by the words ‘ vest absolutely and freefrom all encumbrances ’.
For the appellant it is contended that there is no special significance in,the word " absolutely ” in this context, that it is pure tautology, and that'the words mean free from encumbrances, and nothing more. It is alsocontended that “ encumbrances ’’ means nothing more than mortgages.
This latter contention is based on the case of Sivacolundu v. Noormaliya In that case Bertram C.J. in construing section 143 of Ordinance No. 6of 1910 observed as follows :—“ The word ‘ encumbrances ’ indeed, mayhave a very wide significance, but it may also have a limited one. Whenwe look at the'scheme of this Ordinance and in particular to the provisoto section. 143, I am very much inclined to suspect that what was really inthe mind of the Draftsman when he used the word ‘ encumbrances ’ wassimply mortgages. ” This observation was made obiter and it is a viewI cannot share, for it is not at all clear to me why if the Draftsman had inmind mortgages and nothing else, he should have avoided so familiar aword, and employed the word “ encumbrances ”, with its wider connotation.But Bertram C.J. goes on to say that even if the word mortgages is notsubstituted for the word “ encumbrances ”, the latter word is hardlyappropriate for the purpose of describing a limitation of title at its veryinception. He says: “when one speaks of encumbrances upon a title,one does not think of a limitation which is an essential element of thattitle, but of something independent imposed upon the title ”, Counsel forthe appellant pressed this view too upon our attention. I do not quiteappreciate the distinction. But even if I assume that a limitation ofthis kind is not an “ encumbrance ”, it seems quite clear that a land subjectto such a limitation cannot be said to vest “ absolutely ” in the Council. So
* 22 .V. L. 11. 121.
SOERTSZ J.—Nugawela v. Municipal Council, Kandy.
long as the title is subject to a limitation or a condition, it is not absolute,and section 146 provides ior the property vesting absolutely. I cannot atall agree that the word “ absolutely ” should be regarded as redundant.I therefore think that the trial Judge reached a correct conclusion. Imust not, however, be understood to subscribe to all the reasons given byhim for reaching that, conclusion.
I dismiss the appeal with costs.
Hearne J.—I agree.
NUGAWELA v. MUNICIPAL COUNCIL, KANDY