PERIS v. PERERA et al

007-NLR-NLR-V-10-PERIS-v.-PERERA-et-al.pdf


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Present: The Hon. Mr. A. Gr. Lascelles, Acting Chief Justice, andMr. Justice Middleton.
PERIS v. PERERA et aX.
D. C., Colombo, 21,270.
Registration—Prior deeds—Chain of title—Registration ' of immediatetransfer—Ordinance No. 14 of 1891, s. 17.
A P, being owner of one-sixfch share of a land, conveyed it bydeed dated 8th April, 1867 (unregistered), to his sister, the twenty*sixth defendant. The twenty-sixth defendant soldthesaid one-
sixth share and a one forty-eighth share, which she inherited fromher father, to L P, by deed dated 19th November, – 1876. Inexecution against L P, these shares were sold by the Fiscal andpurchased by S P, who obtained transfer dated lath February,1889, and by- deed dated 2nd* December, 1890, conveyed themto P P, who by deed dated 4th June, 1891, and registered on16th July, 1891,sold them , tothetwenty-sixth defendant.
On a writ issued against A P, his one-sixth share was soldand purchased by S H, who obtained Fiscal's transfer dated24thOctober, 1889, and registered in1897,andsold it toP G,
whosold to the plaintiff. L P, bydeeddated25th June,1903,
andregistered on 25th July, 1903,soldoneforty-eighthshare
to the plaintiff.
In * a contest of title between the plaintiff and the twenty-sixthdefendant as to the one.sixth and one forty-eighth shares,—
Held, that the twenty-sixth' defendant had ^better title.
Held, also, that where a deed under which a person claims titleis registered, it isimmaterialthatcertainearlier deeds forming
links in the title have not been registered.
rr*HE facts are fully set out in the following judgment of the■** Additional District Judge (F. R. Dias, Esq.)*: —
“ The plaintiff started this action under the Partition Ordinanceagainst thirty-six defendants for the purpose of partitioning a smallgarden of some 3 acres and 30 perches called Delgahawatta, but asnearly all the parties have been in possession of divided shares formany years, and theextent oftheirinterests, is admitted, the
plaintiff has obtainedleave tostamp theproceedings, and to
confine his prayer to a declaration of title as regards a one-sixthand one forty-eighth share, which both he and thea ■ twenty-sixth defendant, Christian Perera, are claiming through a commonsource. 9
2-
F. X. A 90907 (8/50)
1906.
October 18.
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1906" The plaintiff is claiming altogether one-sixth plus bne forty-eighth
October la. pjus one-twelfth plus one forty-eighth, equal to seven twenty-fourths,and what we have to decide is whether his title to the first two sharesis to prevail over that of the twenty-sixth defendant. His title to thelast two shares (one-twelfth plus one forty-eighth) is not disputed.
“We need not go too far back into the very complicated titles ofall the co-owners to this land, as for our present purpose we areonly concerned with the title of one, N. Abraham Perera. Thisman was admittedly the owner of one-sixth of the whole land bypurchase in 1865, and in 1867 by the deed No; 7,377 (marked P 1,and not registered) he sold it to the twenty-sixth defendant, his ownsister. From their father, Carolis, they later on inherited oneforty-eighth each, and in 1876 by the deed marked P 2 the twenty-sixth defendant sold her inherited one forty-eighth plus her pur:chased one-sixth to one Don Louis Perera. This man was sold upby the Fiscal, who in 1889 by his transfer No. 3,964 (marked D 1)conveyed those one-sixth and one forty-eighth shares to one M.Suwaris Peris. He in 1890 by deed No. 12,318 (marked D 2) soldthe shares to one L. Paulis Perera, who by deed No. 5,161 dated 4thJune, 1891 (marked D 8), sold them to the twenty-sixth defendant.Neither P 3, P 2, D 1, or D 2 has been registered, but D 3 infavour of the twenty-sixth defendant has been registered in July,1891.
“ Don Louis Perera, notwithstanding the Fiscals sale of his one-sixth plus one forty-eighth in the year 1889, purported to* conveythose same shares to the plaintiff by deed No. 5,395 dated '25thJune, 1903 (marked P 3). This deed was registered in July, 1903,but the plaintiff does not depend on it for his title to the one-sixththat came down from Abraham Perera. For this he relies upon aFiscal's transfer, No. 4,291 of 1889 (P 5), registered in 1897, by whichunder a writ against Abraham Perera .the Fiscal ‘purported to selland convey to one Susanchy Hamy a one-sixth plus one-twelfthshare. On .the same day by another transfer, No. 4,290 (P 4), theFiscal sold to the same party another one-twelfth share belonging toAbraham Perera. This was a share he had acquired from anotherowner by purchase in 1871. That share is not in dispute now, sothat, if we regard Abraham Perera's deed P 1 ais non-existent orinvalid, he had only the one-sixth he bought in 1865 and the oneforty-eighth he inherited from his father which the Fiscal couldhave conveyed by P 5 to Susanchy Hamy, and not one-sixth plusone-twelfth.
<
“ Susanchy Hamy, professing to be entitled under her two Fiscal'stransfers to one-third (i.e., one-twelfth plus one-sixth plus
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one-twelfth), spld that extent in 1901 by her deed P 6 to one 33. P.GunatiUeke, who by deed P 7 dated April, 1903, sold it to theplaintiff. These deeds would only be good to the extent of one-twelfth plus one-sixth plus one forty-eighth, assuming of coursethat no valid title passed under P 1.
“ Thus it will be seen that P 5 is in competition with D 3 as regardsAbraham Perera’s one-sixth share, and P 3 is in competition withD 3 as regards the twenty-sixth defendant’s own inherited oneforty-eighth share. As I have pointed out above, the deed ~D 3,under which the twenty-sixth defendant claims, has- been registeredmany years before both P 5 and P 3, under which the plaintiff claims.It is true that the vendor in D 3 was Paulis Perera, and not Abrahamor the twenty-sixth defendant, but that makes no difference, as theinterests involved are identical with those claimed by plaintiff underP 5 and P 3.
“ Section 17 of Ordinance No. 14 of 1891 provides that everydeed, judgment, order, &c., unless registered, shall be deemedvoid as against all parties claiming an adverse interest thereto onvaluable consideration by virtue of any subsequent deed, judgment,order, &c., which shall have been duly registered. It is admittedthat all these deeds were for valuable consideration, and it is quiteclear to my mind that, the interests claimed by the two parties beingidentical, the registration of D 3 in 1891 had the effect of making thelater registered deeds P 5 and P 3 void as against the twenty-sixthdefendant and of giving her deed priority.
Hence the two shares in dispute must be awarded to the twenty-sixth defendant, and all that the plaintiff is entitled to is one-twelfthplus one forty-eighth, equal to five forty-eighths, under his deed P 7.Let decree be entered declaring the plaintiff -entitled to five forty-eighths of this land,. but he must pay the defendants their costsherein.”3
The plaintiff appealed.
Walter Pereira, K.O., S.-G., for the appellant.—The sinlple questionin this case is whether, when a parcel of land is sold by A to B andby B to G, and the same parcel is subsequently sold by A to D, compe-tition necessary to confer priority by registration is between the deedsin favour of D and C or those, from the common source, in favourof D and B. It is submitted that the latter is the case. To holdotherwise would be to imperil and unsettle a large number of titles.The case of Jack a. Armstrong [see Mill v. Hill (1)] is in point. Thefacts a$e slightly different, but the principle involved is exactly 1
(1) (1851) 3 H. L. 829.
1906.
October 18.
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1006.
October 18.
the some. There the sale to D was prior to the sale to B, but thedeeds in favour of D and B were unregistered, while the deed infavour of C was registered. The deed in favour of D, however, washeld to have priority over C’s deed, because the competition washeld to be between the deeds in favour of D and B and not those infavour of D and C. In the present case the sale.to B was prior tothat to D, but that made no difference, because it has been repeatedlyheld in Ceylon that, although a person has alienated his property,he has still a saleable interest in it, provided the first alienationremains unregistered and the second is duly registered. Here .D'sdeed is registered. Under the Ordinance all deeds under which aperson claims must be registered for purposes of priority. That, itis submitted, means deeds from which he derives his title imme-diately and mediately. There is no hardship in requiring theregistration of all such deeds. In the present case, when C registeredthe deed in his favour, he should have taken the precaution toregister the prior deeds as well. The omission of such precautionwould mislead third parties. On examining incumbrances theywould find merely the sale of an undivided share by B to C. Therewould be nothing to show that the undivided share of A had beenalienated.
W. jS. de Saram, for the twenty-sixth defendant, respondent.—The competition is between, the deeds of 1889 and 1891. As thatof 1891 was registered prior to that of 1889, the RegistrationOrdinance is effective to give the 1891 deed priority overthe 1889 deed. The respondent's chain of title from the 1867deed to the 1891 deed is complete, and a good title was con-veyed to the respondent in 1891 apart from the requirements ofthe Registration Ordinance. The title from one common sourcebeing complete, the provisions as to priority by registration wouldbecome operative, Kadirawelpulle v. Pina (1).( The registrationof the deed in Jack v. Armstrong was held to be unavailing to voida prior unregistered deed, on the ground that no title at all passedby the former which could gain priority by registration, becausethe estate purported to be conveyed had been obtained from theowner after he bad already himself parted with it under the priorunregistered deed. In any case the respondent, and not the appel-lant, was in the position of B in the case illustrated at page 728 ofSugden’s Vendors and Purchasers.
Walter Pereira, K.C., S.-G., in erply.*
Cur. ady. vult.
(1) (1889) 9 S. 0. C. 36.
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18th October, 1906. Lascbixes A.C.J.—
The matter in dispute between the appellant, who is the plaintiff,and the respondent, who is the twenty-sixth defendant, consists oftwo undivided shares—a one-sixth and one forty-eighth—of a gardenknown as Delgahawatta. In order to state the question of lawraised on the appeal, the title of the parties must be shortly set out.
The respondent’s title is as follows:—-
Abraham Per era, being the owner of a one-sixth share, by deedP 1, dated 8th April, 1867, conveyed his share to his sister, therespondent.
The respondent, having inherited a one forty-eighth share fromher father, by deed P 2, dated 19th November, 1876, sold both theone-sixth and the one forty-eighth shares to Don Louis Perera.
The property of Don Louis Perera having been seized in execution,the two shares were conveyed by Fiscal’s transfer, D 1, dated 16thFebruary, 1889, to Suwaris Peris.
Suwaris Peris by deed D 2, dated 2nd December, 1890, conveyedthe shares to Paulis Perera, who by deed D 3, dated 4th June, 1891,and registered on the 16th July of the same year, conveyed theshares to the respondent.
Now all these deeds, with the exception of the last named, wereeither unregistered or registered at dates which render theirregistration immaterial.
The appellant bases his title to the one-sixth share upon a seriesof deeds beginning with a Fiscal’s transfer, P 5, under a writ againstAbraham Perera, dated 24th October, 1889, and registered in 1897,of the one-sixth share, and ending with a transfer, P 7, dated 23rdApril, 1903, to himself.
The appellant's title to the one forty-eighth share depends upona transfer, P 3, dated 25th June, 1903, and registered 25th July,J903, by Louis Perera of the one forty-eighth share. This con-veyance, of coprse, was long after this Louis Perera’s share hadbeeD sold by the Fiscal by deed D 1 in 1889.
The respondent's deed, D 3, is thus, both in point of time andregistration, long anterior to both the appellant’s deeds P 3 and P 7.
The appellant contends, with regard to the one-sixth share, thatthe question of priority is not between his deed P 7, and the respon-dent^ deed D 3, but between the Fiscal’s transfer P 5, of AbrahamPerera’s share (which is the base of the appellant’s title) and P 1»the transfer by Abraham Perera to the respondents in 1867. Onthis footing the appellant contends that, inasmuch a$ P 5 wasregistered in 1897 and P 1 was not registered at all, all the subsequentdeeds* including the respondent’s title’ deed, D 3, are invalid.
isos;
October 18.
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1906.
October 1.6.LaScelles
A.C.J.
The appellant’s argument with regard to the one forty-eighthshare involves the. same principle.
The appellant in effect says: “ True it is that the deed underwhich I hold is later in date and registration than the respondent's,hut I claim priority because my title depends upon a registeredtransfer of Abraham Perera's share, whilst the respondent’s isderived from an unregistered sale by that person.” In other words,the appellant seeks to apply the test of registration not to the deedunder which the respondent holds, but to an earlier deed forming alink in the respondent’s title.
The Solicitor-General relied on the Irish case of JacV v. Armstrong,which is commented on in Mill v. Hill (1). In that case it was heldthat where A had conveyed by unregistered deed to D, and thenconveyed by unregistered deed to B, who afterwards conveyedto C, the registration of the conveyance from B to C was not aregistration of the conveyance from A to B, and both were post-poned to the prior unregistered conveyance from A to D, becauseA, having granted to B, had nothing left in him to be grantedexcept by a registered deed to be executed by himself.
This case, even supposing it to be sound law and applicable topur Bfegistration Ordinance, does not seem to me to support theappellant’s contention. B, in the case, took no title by his con-veyance from A; the question was whether when C registered hisconveyance from B this defect was cured. Here the respondent’stitle, independently of the registration, is a perfectly good pne.
The principal cases under the Irish Registry Act are discussed inLord Trevor’s judgment in Mill v. Hill, but owing to the differencebetween the language of the two enactments, I doubt whether thesedecisions afford a safe guide to the construction .of our own Ordinance.The practical, question involved in the case is whether a purchaserunder a good title, who desires to protect himself by registration, isobliged to register not only his own deed, but also the deeds of hispredecessors in title.
Section 17 of Ordinance No. 14 of 1891 provides ” that every
deedunless so registered shall be deemed void as against alL
parties claiming an adverse interest theretoby virtue of any
deed which has'been duly registered.”
This section contemplates on the one side a deed under whichone party claims an interest, and on the other, side anoth^l deed4 under which another party claims an adverse interest. The deedunder which the respondent claims an interest in these shares isthe final conveyance, D 3, in his favour, and not any one or more
a) (1851) 3 H. L. 829.
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of the deeds which gave title to his predecessors. To hold that aplaintiff is entitled to upset a registered title prior to his own bysetting his own deed against an earlier deed from which the defen-dant derives title would be to compel every prudent purchaser ormortgagee to register not only his own deed, but all the deeds fromwhich his title is traced. But the Ordinance does not require, orindeed enable, this to be done. Section 18 (1) enables a party*' gaining an .interest under any deed '' to produce the deed forregistration. The deed under which the interest is gained, and thatalone, is required to be registered. The object of the Ordinance isto afford to intending mortgagees or purchasers the means of dis-covering incumbrances if registered, or of protecting them againstunregistered and therefore secret incumbrances or conveyances.So fully was this principle recognized in the case of the RegistryActs in' force in the countries of Middlesex and Yorkshire and inIreland, that it was held that where the intending purcaser ormortgagee has actual notice of a prior unregistered incumbrance orconveyance, the principle of the Registry Acts became inapplicableand the subsequent purchaser with notice was not allowed inequity to avail himself of his title against the prior conveyance ormortgage.
Here the appellant, if he had made proper search when he pur-chased in. 1903, would have found the respondent's purchase in1891 duly registered. It is true that the appellant might havefound it difficult to identify the one-sixth and the one forty-eighthshares conveyed by the deed D 8 with the shares he intended to pur-chase, *but this is a difficulty which is inseparable from dealings inundivided shares. The respondent by registering his purchase in]891 has clearly "complied with the requirements of the Ordinance,and his deed, being prior both in date and registration to those ofthe appellant’s, must prevail.
The appeal must be dismissed with costs.
Middleton J.—
I have had the advantage of reading the Chief Justice's judgment,and it is not necessary to recapitulate the facts.
On the footing of the ruling in Jack v. Armstrong being applicablehere, the respondent in this case gets, by the priority of the saleP 1 in 1867 of the one-sixth over P 5 of October 1889, and of D 1 of15th February, 1889, of one forty-eighth over the sale of 1903, abetter title than the appellant independent of the registration. Inother w#ords, Abraham Perera became divested of the one-sixth andLouis Terera of the one forty-eighth in the respondent's chain of
1906.
October i'8.L.A8GBU.ES
AtC.J.
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1906.
October 18.
Muwketox
J.
title before either of the appellant’s chains of title began fromthose persons. The respondent in fact is represented by B • in theexample given at page 728 in Sugden’s Vendors and Purchasersquoting the case of Jack v. Armstrong; and on the principle laiddown in that case Abraham Perera, having conveyed one-sixth torespondent bv P 1 in 1867, had no such fraction left to be conveyed
in 1889 by P 6, and Don Louis Perera, having been divested of theone forty-eighth by the Fiscal's transfer in February, 1889, had nosuch share in him to be conveyed by P 3 in June, 1903.
In October, 1889, as against Abraham Perera the Fiscal purportedto sell the one-sixth to Susanehy Hamy by P 5; but, independentlyof registration, that one-sixth had already passed out of AbrahamPerera, and had passed by good title to Suwaris Peris in February,1889, and thereafter by purchase under D 3 in June, 1891, becamethe property, of the 'respondent, who registered her purchase inJuly, 1891.
The appellant then registered his purchase of October, 1889, inNovember, 1897, so that an adverse interest arose in October, 1889,by P 5; but before the deed purporting to convey that interest wasregistered, the respondent had registered her perfectly good title in1891.
We have thus D 3, registered in 1891, in. competition with P 5,registered in 1897, and in my opinion the priority of registration ofa deed conveying a perfectly good title must prevail over a deedwhich could only have force, and effect by registration under theOrdinance if the good title had not been registered, the same obser-vations applying to the priority which I hold prevails in the case ofD 3 over P 3.
The appeal must be dismissed with costs.
Appeal dismissed.