PUNCHIRALA v. APPUHAMY

022-NLR-NLR-V-07-PUNCHIRALA-v.-APPUHAMY.pdf


( 102 )
1900.
PUNCHIRALA v. APPUHAMY.
‘ecember 6,and1901.
tbruary 14.
D. C., Kandy, 11,584.
Registration of deeds—Unregistered mortgage bond of intestate—Registered deedof sale by administrator—Priority—Registration Ordinance No. 14 of1891—-Civil Procedure Code, s. 547—Proof, of title to property throughintestate.
The registration of letters of administration or of grant of probatedoes not avoid an unregistered mortgage or sale by the intestate; but ifafter taking out letters of probate, the administrator or executor sells ormortgages any property dealt with by ^he intestate and gets the deedregistered prior to that given by the intestate, the former defed wouldtake priority over the latter.
If a person desires, to prove*title to property through an intestate, heHnust prove eithfcr that administration has been taken out to the intestateand that the administrator has conveyed the intestate’s estate .to him orto his predecessor in title; or that the intestate’s estate was of less valuethan Be. 1,000, so fiiat administration was not necessary.
T
HE principal issue in this case was' whether plaintiff’s titlewas superior to that of the. defendant. The transfers under
which the plaintiff claimed were registered, while the deed on
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which the defendant relied was not registered. The facts, as . 190i».found by the District Judge were as follows: One Sumangala Dtce^^r 6‘Unnanse granted a usufructuary mortgage on the 6th March, ]goi.1870. in favour of one Punchirala and died in 1879. On the 28th February 14..Mar. 1895. Punchirala assigned the mortgage bond, which wasnot registered, to the defendants. On the 10th and 20th January,
1896. certain persons claiming to be the heirs of Sumangalatransferred the lands to one Piyadassi Unnanse, who transferredthem to the plaiutiff on the 29th January, 1896. These transferswere registered. The plaintiff instituted this action to obtain a•declaration of title and to eject the defendants.
On the plaintiff's death, the administrator of this estate wassubstituted plaintiff.
The District Judge. Mr. J. H. de Saram. gave judgment in favourof the substituted plaintiff, declaring him entitled to the landsin question, but the Court, disallowed his prayer for ejectment,because there was no offer on his part to redeem the mortgage'.
The plaintiff appealed.*
The case was argued on the 6th December. 1900. before Bonser,
C-.tl.. and Lawrie. J.
Wendt, for appellants.
Van Liuti/cuberg. for respondents.
. Cur. adv. milt.
14th February. 1901. Lawrie. .T.—
The lands in question belonged to Sumangala Unnanse. Hemortgaged them in. 1870 tothe defendants,withpossession in
lieu of interest.
He died twenty-five yearsago, and for atleast17years his
nephews and nieces, who were his next of kin. did not take steps toadminister his estate, nor to clothe themselves with title to
redeem the mortgage.
These next of kin sold the land in -1896.andin1897 the
purchaser brought this actionagainst the mortgageeinpossession
for declaration of title and iter ejectment.
The learned District Judge held that the plaintiff was the
owner of Viie land, hut that the» defendants were entitled to
retain possession until the mortgage-debt was discharged. *■*
*
'Phis vas an equitable decision in which, I think, the plaintiffshould have acquiesced, but he appealed on ,Jhe ground that themortgage of 1870 was not registered and was unavailing and voidas against the subsequent transfers duly registered.
Before the plaintiff could avai? himsfelf of, strict law. he had toshow that he. in strict law, had a good title, and in that he has
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1900.. failed. The transfers to his predecessor in title and to himself
December 6, and this action by him were in 1896 and 1897, some years after1901the passing of the Civil Procedure Codes. This action cannot be
February 14. maintained; it falls under the 547th section.
Lawbie, J. Tjjjg is not a case where the heirs entered on an inheritanceand became the owners by succession and by possession, for herethey have not been in possession since their ancestor’s death.The action was clearly for the recovery of the property of thedeceased Sumangala, not for recovery of property of the vendorto the plaintiff. The action is not maintainable, and it must bedismissed. By trying to get too much the plaintiff has lost every-thing.
If I had been of the opinion that the plaintiffs had title, I wouldnot have been able to agree with the law as stated by the learnedDistrict Judge, who held that because the transfer and the •mortgage were not from the same person they did not c.onvey andCjeate adverse interests. He relied on a decision of this Court inD. C.,. Kandy, 746 (30th August, 1889). I do not think thatdecision is in point. There the purchaser from the adminis-trator was held to have got nothing first—because the land had notpassed to the administrator, it having been already transferred toothers; and second, because the sale by the administrator wasfraudulent.
Here the competition is between a mortgage by a land ownerand a sale by his heirs. The question what are adverse interestswas considered by the Collective Court in D. C., Galle, No. 994(2 C. L. R. 158). Burnside, C.J., dissented from the majority,being of the opinion that the decisions established this only, thata deed prior in registration voids a deed prior in date by thesame party and of the same estate, they being both deeds whichit is said embrace the identical estate, and consequently deal withadverse interests. He considered adverse interests to be interestswhich cannot exist together, where one would be a fraud on theother.
But that view was not taken by the rest of the Court. ‘ I willnot quote my own judgment; Mr. Justice Withers said:“ The
instrument first registered, thdugh last in date, which purports todispose of the rjght, title, and interest of the party affected, shall,if for value and without taint of fraud, prevail- over ‘all priorunregistered instruments effecting the same immovable property,whether they purport to dispose of the same interests or carve asmall estate out of a fee simple, and shall, -like Aaron’s rod,swallow them up with^ all their charges, encumbrances, leases, andinterests whatsoever affecting the property. I understand that
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to be a correct statement of our law. There remains "the question,—ig0Q
must these adverse interests be created by the same person? December 6,I see no reason why they must. The deeds creating adverseinterests must, of course, be executed by persons who have title. February 14.The purchaser from a man’s administrators or executors cannot Tj
be in a worse position than a purchaser from the man himself.
If he, by a subsequent deed duly registered, could defeat a priorunregistered deed granted by himself, surely his heirs or adminis-trators could defeat a prior deed executed by the deceased. Inthe latter case the suspicion of fraud would not exist—a manmust know that he had already sold or mortgaged and should notexecute a Subsequent deed giving an adverse 'interest withoutreserving the rights of the prior purchaser or mortgagee, butadministrators may be ignorant of what their predecessors haddone, and may in good faith give a deed creating an adverseinterest.
The objection was taken that administrators do not acquire titleon valuable consideration; that is true, and I think the registra-tion of letters of administration or pf a grant of probate wouldnot void an unregistered mortgage or sale by the intestate. Buthaving taken letters the administrator may sell or mortgage, andif the sale or mortgage by him be registered prior to that givenby the intestate, it seems to me that the priority given by theRegistration Ordinance to registered deeds must be given.
I would dismiss the action with costs.
Bonses, C.J.—
I agree, but will add a few words first as to the effect of sec-' tion 547 of the Civil Procedure Code, which appears to me notto have received the attention of the Courts or of the professiongenerally which its importance demands.
It seems to me that if a person desires to prove title to property,and finds it necessary to deduce a title to that property, eitherfrom or through a former owner who ha's died intestate, he mustprove one of two things: either that administration has been takenout to the intestate, and that the administrator has conveyed theintestate’s estate to him or to his predecessor in title; or tfyat theintestate’s estate was of less value than Rs. 1,000, sq that adminis-tration was unnecessary. In the present case I agree that it isclear that the plaintiff cannot make outt a title to his propertywithout proving a descent of the property from SumangalaUnnanse, who died intestate. It is clear that Sumangala Un-nanse’s estate was wo^th more athan »Rs. 1,000, and that noadministration was ever taken out to that estate.
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Then, as regards the question of registration. I entirely agreeecember 6. with my learned brother as to the effect of the Registration Ordi-
nance, and I dissent from the opinion expressed in the case,brunru 14. which the learned District Judge of Kandy referred to in his-jnser c.J. judgment, which was the opinion of one only of the two Judgeswho decided that case, namely, the opinion that where you havea conveyance from an intestate and a subsequent conveyancefrom liis administrator, those two conveyances do not proceedfrom the same source, and that therefore the Registration Ordi-nance does not apply. It seems to me that so to hold wouldreduce the registration to a mere trap for purchasers, and renderit impossible for anyone safely to take a title from an adminis-trator. A purchaser from an administrator would go to theRegistration Office and would search against the intestate, andwould find no deed by the intestate affecting the property by the •administrator registered. He would then complete his purchase.The effect of the opinion I have referred to would be that, ifafter taking all these precautions, a deed were produced whichhad been executed by the intestate but not registered, it wouldtake priority over a registered conveyance by the administrator.It seems to me that there is no ground whatever for the view thatthe intestate and his administrator are not the same source oftitle. The administrator represents, and his estate is in lawidentical with that of, his intestate. It seems to me that there isno question as to the applicability of the Registration Ordinanceto a case of this kind.