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Present: Lascelles C.J. and Grenier J.
PAARIS et al. v. PERERA.
213—D. C. Negombo, 8,222.
Registration in wrong folio—Priority—Ordinance No. 14 of 1897, ts. 18.
16 and 17.
A deed which has been registered in the wrong folio is void a*against parties claiming an adverse interest on valuable considera-tion by virtue of a subsequent deed.which has been duly registered.
rpHE facts are set out in the judgment of Grenier J'.
Samarawicl'reme. for the first defendant, appellant.
H. A. Jayewardene, for the plaintiffs, respondents.
Cur. adv. vult.
February 15, 1912. Lascelles C.J.—
I entirely concur in the judgment of my brother Grenier. Thequestion of law involved in the appeal is whether a deed whichhas been registered in the wrong folio is void as against, partiesclaiming an adverse interest on valuable consideration by virtue ofa subsequent deed which has been duly registered.
On the construction of the Ordinance, it is clear that the privilegewhich section 17 of Ordinance No. 14 of 1891 attaches to registereddeeds applies only to deeds which have been registered in accordance '
1 (1910) 13 N. L. R. 87.
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with the preceding sections of the Ordinance. The words of section17 are every deed, &c., unless “ so registered ” shall be deemedvoid, &c- Section 15 expressly provides that the registrar shallprepare and keep- books for the registration of deeds, “ allotting toeach book some defined division of the province or district, so thatevery deed relating to lands situated therein may be registeredtherein in such manner as to facilitate reference to all existingalienations or encumbrances affecting the same lands. ”
It is clear that a deed which is not registered in the proper placeis not “ so registered ” for the purpose of section 17. From anotherpoint of view the decision embodied in' the judgment, of my brotherGrenier is the only one which would satisfy the equity of the case.I do not desire to say anything here on the ultimate responsibilityof the registrar for mistakes such as that which has occurred here;but it is apparent that an error of this nature may involve the personor persons interested, either in the erroneously registered deed, or inthe subsequent duly registered deed, in serious loss. As betweenthese two classes of persons, it is equitable that 'the loss, if any,should fall on the former class. For it is possible for .the person whoregisters a deed to see that it is registered in accordance with the-Ordinance, whilst a subsequent purchaser or mortgagee is powerlesswith regard to the proper registration of previous deeds. Theimmediate loss, if any, should therefore fall on those interested in.the deed which has been improperly registered.
This is a partition action. The contest is between the firstdefendant, who is the appellant, and the plaintiffs, who are the'respondents, the share in dispute being an undivided one-eighth ofthe land sought to be partitioned- It was admitted that Marthinawas the owner of this share. The plaintiffs' case was that Marthinaand Sardial, her husband, transferred the share to Pelis Paaris bydeed No. 10,566 dated February 16, 1906, and marked P 1, and’that the transferee by deed No. 2,023 dated May 2], 1909, andmarked P 2, conveyed to the first plaintiff, the wife of the secondplaintiff. Both P 1 and P 2 are duly registered.«
The'first' defendant's contention was that before the sale to the'first plaintiff the share in question was sold in execution againstMarthina and purchased by Siadoris Appu, who sold it to AlvinuAppu, who conveyed it to Migel Perera, the third defendant. The'purchase by Siadoris was on August 26, 1894, and the. purchase byAlvinu was on June 1, 1904. It would appear that the first defend-ant brought an action No. 17,442 in the District Court of Negombo-against Alvinu and seized in execution the one-eighth share whenthe plaintiff claimed it. After the. seizure it was that Alvinuconveyed to the third defendant. It will thus be seen that thefirst defendant has absolutely no right whatever to the share in
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question, nor as far as I can see has he any kind of interest in it.tfhe third defendant disclaims all title to the share, and this beinga partition action, the first, defendant has no status in it, unless hecan show that he is entitled to a share in the land whic'h is the subjectof partition. In this state of the facts the plaintiffs were bound tosucceed, but there was a question of registration raised, which Ithink must be decided in favour of the plaintiffs. Both PI and P2,to which I have already referred, were duly registered. The Fiscal’sconveyance in favour of Siadoris, who purchased on August 26, 1894,bears no evidence on the face of it of any registration, but it wasapparently conceded in the Court below that the deed was registered,but in another folio. The District Judge found that no registrationof the Fiscal’s conveyance in favour of Siadoris appeared in thelist of incumbrances, and that the boundaries were different fromthe boundaries given in the other deeds. In the Land RegistrationOrdinance, No. 14 of 1891, express provision is made for the regis-tration of deeds in a set of books kept for that purpose, to eachbook being allotted some defined portion of the district or districtsor part thereof in manner provided by section 15 (1), which declaresthe object in the following terms:—“ So that every deed relating tolands situate therein may be registered so as to facilitate referenceto all existing alienations or incumbrances affecting the same lands.”
Now, section 17 enacts that every deed unless so registered shallbe deemed void as against all parties claiming an adverse interestthereto on valuable consideration by virtue of any subsequent deedwhich shall have been duly registered as aforesaid- There arecertain provisos to section 17 with which we are not concerned inthis case. In view, therefore, of the express provisions of sections15 (1), 16, and 17, it is clear that as the Fiscal’s conveyance in favourof Siadoris dated August 26, 1894, was registered in the wrong folio,it must be considered void as against the conveyance by Marthinato Pelis Paaris dated February 16, 1906 (P 1), which was dulyregistered in the right folio, and the conveyance by Pelis Paaris ofMay 21, 1909, which was also duly registered in the right folio. Ttis unquestionable that the interest that the plaintiff claims is anadverse interest within the meaning of section 17.
In Mohammadu Sali v. Isa Natcha,1 which was decided by myBrother Wood Renton and myself, we construed sections 15 (1), 16,and 17 of Ordinance No. 14 of 1891 in the same way as I haveconstrued them here. It does not seem possible to place any otherconstruction on those sections.
I would dismiss the' appeal of the first defendant with costs inboth Courts.
> (1911) 15 N. L. R. 157.
Note.—This case was followed in 46—D. C. Colombo. 32,260 (S. G. Min..April 18, 1912). Lascelles C.J. and Grenier J. declined to reserve the pointfor a Full Bench.
PAARIS et al. v. PERERA