001-NLR-NLR-V-27-PUNCHIHAMY-v.-PREMARATNE-HAMINE.pdf
THE
NEW LAW REPOETS OF CEYLONVOLUME XXVII.Present: De Sampayo and Schneider JJ.PUNCHIHAMY v. PREMARATNE HAMINB.
330—D. C. Kurunegala, 8,224,
Registration—Mortgage of share of land with other lands by the samebond—Lease—Action by purchaser in execution—Correct folio—Consolidation for purpose of registration.
Where the owner of the undivided share of a land mortgagedit with other lands by the same bond and registered it in a certainfolio,
Held that the said folio was not the proper one for the registra-tion of subsequent deeds dealing with the undivided share of land,and that there had been no consolidation xof the lands for thepurpose of registration.
Fernando v. Per era1 followed.
A CTION by the plaintiff to be declared entitled as owner to thepossession of a share of a land called Makuluduwela as againstthe second defendant who claimed on a lease for a term of fifteenyears. Both derived their right from the same source, the firstdefendant, who mortgaged the said share with the plaintiff uponthree bonds, the last of which was dated after, but registered beforethe lease in favour of the defendant.
The plaintiff put the bonds in suit and purchased the share of theland in question in execution. The decision turned on the effectof the registration of the deeds relied upon by either party, the factsregarding which are stated in the argument. The learned DistrictJudge held in favour of the plaintiff.
i {1917) 20 N, L, R, 119,
1925.
12(61)29
( 2 )
1925. Drieberg, K.C. (with him H. V. Perera and Ranawake), for thePunchihamy defendants, appellants—The mortgage bonds on which plaintiffv. Pr&ma- obtained the decree are four in number. Of these, only three relateHamine to the present land, and the fourth to a wholly different land. Ofthe three bonds only one was of date subsequent to the lease, butregistered prior. The decree being in respect of all four bonds, it isnot, therefore, clear how it could be said that the sale to plaintiff wasby virtue of the mortgage on bond subsequent in date to the lease.Other lands than the land in dispute have also been sold thereunder.Hence the decision in Mutturamen v. Massilamany1 will not applyto a case such as this.
If plaintiff is to be given priority by registration, he ought toregister in the proper folio. There is, undoubtedly, a registration ofthis very same land in 1882 in A 37/155. The question then to bedecided is whether this registration is good. Plaintiff’s registrationis in A 61 /169. So that if the registration of 1882 is a good and validregistration, defendant is entitled to succeed as plaintiff will losehis priority by registration.
The registration of 1882 is the earliest in point of time, it refersto the land in dispute, and though no other entry has been madethereunder, A 37/155 must be considered the proper folio.
There is also the question whether the defendants are bound bythe mortgage decree. No addresses have been registered by theplaintiff, nor have the lessees been made parties.
Samarawiclcreme, K.C. (with him Croos Da Brera), for plaintiff,respondent.—The registration A 61/169 goes as far back as 1891and since then all dealings have been connected up with A 61/169.The extent in A 37/155 is larger. There is no proof that at anytime the land was consolidated. Hence A 61/169 must be takerto be the correct folio, and the plaintiff’s deed is, therefore, dulyregistered.
With regard to the decree all that need be said is that if one bonaprevails over the lease, then the decree and the writ thereunderprevails over the lease, and the plaintiff is entitled to possession.
The question of non-registration of address was never seriouslypressed in the Court below, and it is not pressed here in appeal.
In any event the plaintiff is entitled to be compensated.
Drieberg, K.C. (in reply). The difficulty has not been met..There is some registration of this same land in 1882. There is noconnection between plaintiff's registration and the early registrationof 1882. Hence plaintiff cannot claim priority.
A decree cannot be separated. So that if some of the mortgagebonds do not prevail over defendant’s leases, then the decree andthe rights accruing thereunder cannot prevail.
1 (1913) 16 N. L. R. 289.
( 3 )
July 10,1925. Schneider J.—
The contest in this action relates to the possession of a share in aland. The plaintiff claims possession as being the owner and thesecond defendant as a lessee for a term of fifteen years. Both derivetheir right from the same source, viz., the first defendant. The firstdefendant does not dispute the claim of either party. The added-defendant seeks to warrant and defend the right of possession underthe lease which he assigned to the second defendant, and which fightthe second defendant asserts as against the plaintiff. The interestclaimed by the plaintiff is adverse to the interest claimed by thesecond defendant. The decision of the dispute turns solely upon theeffect of the registration of the deeds relied upon by either party.Each party contends that his deeds are registered in the right book,and that his opponents’ are not so registered.1 The learned DistrictJudge held in favour of the plaintiff. This appeal is by the seconddefendant and added-defendant.
On appeal the argument was confined to this question of registra-tion. The series of registrations relied on by the plaintiff, andwhich are Connected together by appropriate references, starts withthe registration of a deed in July, 1891, in Division A, Vol. 61,folio 169. The deed is a transfer of an undivided half share of aland called “Makuluduwela and its adjoining pillewa ” of 3 amunamsof paddy sowing extent and 5 lahas of kurakkan sowing extent,respectively, and bounded as follows :—
“ East by limit of Kahapitiambekumbura and limit of Kaduru-kumburawatta.
“ South by village limit of Pilessa.
“ West by limit of the field of Kirihamy Korale Arachchi.
“ North by village limit of Pilessa and property of MaralandeWalauwa.”
• It is this description of the land which the plaintiff has given in hisplaint, and it is the description which is to be found in all the deedsrelied on by him. The correctness of this description has not beenquestioned by the contesting defendants. I must, therefore, regardit as having been accepted by them.
In this series of registrations which runs from July, 1891, to April,1920, the following deeds should be noticed :—
Deed No. 18,90? registered on July 13, 1891, being a transfer
of an undivided half share of the land by Tikiri Banda toMudalihamy.
Deed No. 18,034 registered in January, 1914, being a transfer
of that share by Mudalihamy to Kiri Banda, the firstdefendant.
Bond No. 18,044 dated November, 1913, -and registered in
January, 1914.*
* Section l$t The Land Registration Ordinance, No. 14 of 1891.
192S.
Punchihamyv. Prtstna.
ratna
Hamine
1925.
( 4 )
Schneider
J.
Punchihamyv. Prema-ratneHamine
Bond No. 19,227 dated June, 1914, and registered in July,
1914.
Bond No. 22,598 dated May, 1916, and registered in May, 1916.
Deed No. 30,075 dated March, 1920, and registered in April,
1920.
By all the three bonds mentioned above, the first defendantmortgaged the share in question with the plaintiff. In November,1918, the plaintiff instituted action No. 7,194 in the District Courtof Kurunegala against the first defendant alone Upon those threebonds and another bond and obtained a hypothecary decree for alump sum due upon all the bonds sued upon, and declaring all thelands mortgaged bound and executable for the recovery of that sum.In execution of this decree the share in question was sold in January,1920, and was purchased by the plaintiff to whom it was transferredby the said deed No. 30,075.
The lease relied upon by the second defendant is dated April,1915, and was registered in October, 1916.
Upon this statement of the facts, it is apparent that the twoearlier bonds in favour of the plaintiff are prior in date to the lease,both as regards execution and also registration, and that the otherbond is prior as regards the date of registration. If the registrationsrelied on by the plaintiff are in the right book, and even if theregistrations relied on by the second defendant are also in the rightbook, nevertheless the plaintiff would be entitled to claim preferenceover the lease for the two bonds of prior date, and also that the leaseshould "be deemed void" as against him as regards his rightsunder the bond subsequent in date to the lease but prior in date asregards registration.1
According to Mutturamen v. Massilamany (supra), a decision of abench of three Judges, the lease relied pn by the second defendantis void as against the plaintiff, the purchaser, under the mortgag »decree upon a bond in date subsequent to the lease but register©*^prior to the lease, as the competition is between the lease and themortgage and not between the lease and the transfer in favour Ofthe plaintiff.
To escape from this situation Mr. Drieberg for the defendants,appellants, addressed three arguments to us. He argued that asthe decree was obtained upon four bonds, and one of them wasunconnected with the land in dispute and other lands than the onein dispute were also sold under the same decree, that it was not clearthat the sale to the plaintiff was under the mortgage created by the 1bond subsequent in date to the lease. This argument is not sound.The decree was for a lump sum which included the sum due on thatbond. Accordingly, the sale of the share in dispute under the decreemust be deemed to have been upon the mortgage created by thatbond.
1 Section 17, Ordinance No. 14 of 1891.
I 5)
His next argument has to be carefully considered. He arguedthat the proper book for the registration of deeds relating to the land Schneiderin dispute is not that in which the registration of the plaintiff’s deeds»
. started, but the book in which is to be found the registration of a Punchihamydeed in 1882. It is a book marked Division A, Vol. 37, foiio 155. v*
The deed is a bond granted by one Tenne “ B. M.” and his wife in Haminefavour of two Chetties mortgaging an undivided half share of fiveallotments of land called (1) Kannassewela, 2 pelas in extent; (2)Kahatagahaweliwela, in extent also 2 pelas ; (3) Dingiriyakumbura,again 2 pelas in extent; (4) Boralankadahena, in extent 5 amunams;and (5) Makurundewela, in extent 3 amunams. They are describedas “ all forming one propertyand bounded on tbe—
“ North by property of Pilessa villagers and of e MaralandeWalauwe.’
“ East by limit of Kahapittiye-ambe.
“ South by the limit of the village * Pilessa.’
“ West by Kirihamy Korale Arachchi’s field.”
The only deed registered in this book and in that folio is the deed of1882. There is no reference to the registration of any other deeds.
The defendant’s deeds are not registered in that book, nor are theregistrations relied on by the plaintiff connected with that book.
Mr. Drieberg argued on appeal, as it had been argued in the lowerCourt, that the fifth land registered there was a portion of the landin dispute. I will accept that statement to be correct, although itshould be noticed that the land is called Makurundewela, and theextent is given as 3 amunams in A 37/155, the book and folio reliedupon by Mr. Drieberg, while in A 61/169, the book and folio reliedupon by the plaintiff, it is called Makuluduwela of 3 amunams andits adjoining pillewa of 5 lahas kurakkan. There is also a differencein the eastern and northern boundaries.
Mr. Drieberg’s contention, assuming his facts to be correct, there-fore amounts to this, that as a deed dealing with a portion of the landin dispute was registered with four other lands in A 61/169 that isthe right place for the registration of all subsequent deeds connectedwith the land in dispute. This contention must fail if the decisionin Fernando v. Perera (supra) is applicable to this case. I am unableto differentiate the facts of that case from the facts of this case.
Here, as in that case, the several lands registered as one propertycannot be regarded as having been consolidated for the purpose ofregistration. Here, as in that case, the owner of an undivided shareof a land had no right to consolidate that land with other lands forthe purpose of registration. All the reasoning given by my brotherDe Sampayo in that case apply with equal force in the decision ofthis case. I would, therefore, hold that Mr. Drieberg’s second con-tention also fails even assuming the facts to be as alleged by him
1925.
'f
Schneider
J.
Punchihamyv. Prema-ratneHamine
The decision of-this contention renders it unnecessary to considerhis third contention that his deeds are those .which are registered inthe right book and folio.
I would add that it is not at all clear from the documents uponwhich alone-this case has been decided that the first defendantderived title to the undivided half share claimed by the plaintiff inthis action from the same source from which he derived title to theland leased by him and others to the second defendant’s predecessor.
I would, therefore, uphold the judgment of the learned DistrictJudge and dismiss the appeal of the second defendant and added-defendant, with costs.
De Sampayo J.—I agree.
Appeal dismissed-