031-NLR-NLR-V-77-R.-P.-HEENAPPUHAMY-Appellant-and-W.-CHARLES-and-3-others-Respondents.pdf
H. N. G. FERNANDO, C.J.—Beenappuhamy v. Charles
169
1973 Present: H. N. G. Fernando, C.J., and Deheragoda, J.
R. P. HEENAPPUHAMY, Appellant, and W. CHARLES and3 others, Respondents
S. C. 208/69 (Inty.)—D. C. Tangalle, 1198/P.
Registration of Documents Ordinance (.Cap. 117)—Sections 7, 14—Deedrelating to part only of a land—Proper folio for its registration.
Where a part only of a land is conveyed by X, the owner of thatpart, to A and the same portion is subsequently conveyed by Xto B, the proper folio for the registration by B of the subsequentdeed for the purposes of securing priority of title over the earlierdeed to A is still the original folio relating to the larger land or anew continuation folio properly connected to the original folio asrequired by section 14 of the Registration of Documents Ordinance.
A.PPEAL from an order of the District Court, Tangalle.
W. D. Gunasekera, for the plaintiff-appellant.
C. Chakradaran, for the 1st and 4th defendants-respondents.
Cur. adv. vult.
November 15, 1973. H. N. G. Fernando, C.J.—
The only dispute which was the subject of argument in thisappeal concerned a question of prior registration. By the deedP2 of 1st April 1965, one Nikulas sold to the plaintiff an undivi-ded 3/32 share of Lot A of a land called Siyambalagahawatte.Four days later by deed 1D4 of 4th April 1965, Nikulas sold thesame interests to the 1st defendant.
1D4 was registered on 5th April 1965 in the registration folioNo. A 459/78 which has been marked as 1D3. The plaintiff’s deedP2 was also registered in this folio on 6th April 1965. The 1stdefendant was accordingly the victor in the race for registration,and 1D4 must prevail over P2 if—
there was no fraud or collusion in obtaining the prior
registration of 1D4, and
1EX4 was registered in the correct folio.
As to the first condition, the learned District Judge found thatthere was no fraud or collusion, and the 1st defendant is entitledto the benefit of that finding.
The Proctor for the plaintiff argued that the folio 1D3 was notthe correct folio for the purpose of the registration either of theplaintiff’s deed or of the defendant’s deed. There was producedlxxvh-8
!•—A 08001—2,80$ <74/07)
170
IT. X. O. FrJRXAKDO, C.J. Hr.enappuhamy v. Charles
a folio numbered A. 68/366 marked P7, and it was commonground between the parties that the land registered in the folioP7 was a larger land of which Siyambalagahawatte Lot A(which is the subject of the present action) had earlier formeda part. Prima facie then the correct folio for the registrationof the deeds F2 and 1D4 was the folio P7 or a folio maintainedin continuation of P7 and duly connected with P7. The folio P7however contains no reference to any continuation folio,although there are incidental references to other folios. Further-more the folio 1D3 relied on by the 1st defendant contains noreference either to P7 or to any of the folios incidentally men-tioned in P7. It is accordingly clear neither the plaintiff’s deedP2 nor the defendant’s deed 1D4 was duly registered in theearliest folio relating to this land or in a folio properly connectedto the earliest folio.
The plaintiff has however been deprived of the benefit flowingfrom this situation on grounds which cannot be supported.
The parties in this case agreed that the larger land Siyambala-gahawatte had been partitioned about 70 years ago in a Partitioncase. There was produced, at the trial an order of the DistrictCourt of Tangalle for partition of Siyambalagahawatte accordingto the shares specified in the order and for the issue of a com-mission for a partition of the land. There was also produced thereturn to that commission together with a plan and schedule ofallotments dividing the land into Lots A to G and allotting theseLots to specified defendants. The learned District Judge in thepresent case however has assumed that this scheme of partitionhad net been acted upon, because there was not produced anyfinal judgment cr decree in the earlier partition case. He thoughtthat what had actually happened was that the parties hadentered into possession of the respective Lots shown in thePartition Plan and had not proceeded to the stage of obtaining adecree for the partition. For this reason he held that the titleto the land cannot now be traced back to a partition decree. Theview of the District Judge apparently is that the earliest folioP7 would have continued to be the correct folio, only if a parti-tion decree had been registered in that folio, and that becausethe co-owners amicably entered into possession of definedportions and acquired prescriptive title, further deeds for thedefined portions can be duly registered in new and unconnectedfolios. Cne passage in the judgment which reflects this opinionis as follows :—-
“ Taking for example that there was a land of 40 acreswhich is registered in some foiir and a person enters intopossession of one acre of that land writes a deed for that
H. N. G. FERXA2SXIO, C.J.—Heenarpvhomy v. Chari’s
171
1 acre and registers it without any reference to the largerland, such registration would create, in my view a new landand such a land is not a land that had been partitioned bycourt or by consent of parties and deeds prepared. Such
possession would be (illegible) and not a partition of
consent where deeds would have to be exchanged betweenthe parties. In the circumstances when in this case after theorder of partition, when various parties entered into posses-sion of various parts of this land they in my view creatednew lands for which fresh registration folios had beenstarted. The new land has no reference whatsoever to thelarger land and could not be connected to the larger landas the partition cannot be recognised in law. In the circum-stances I am of the view that the registration of this land inthe folio ID3 and the preceding subsequent folio is thecorrect folio and as such registration in such folio wouldgive any party the benefit of prior registration. ”
With respect I must observe that this opinion reveals a seriousmisunderstanding of the purpose and scope of the law relatingto the Registration of Deeds. The principle cf the common lawis that if A transfers a land to B by a Deed, and again transfersthe same land to C by a subsequent Deed, the earlier Deed to Bmust prevail, for the simple reason that A loses title upon theexecution of the first deed and has no title to convey when heexecutes the second deed. This priority of the earlier deedrecognised by the common law is however liable to be lost byreason of the operation of the statute law of registration.If a deed is not registered, and a subsequent deed is duly regis-tered, then the subsequent deed can prevail (s. 7 of the Registra-tion of Documents Ordinance, Cap. 117). But the subsequentdeed can enjoy this priority only if it is duly registered, and theprovision which governs the matter of due registration is con-tained in s. 14 of the Ordinance. If a deed relating to a particularland has been registered, then any subsequent deed relating tothe same land is duly registered only if it is registered in the samefolio as the first deed or in a folio maintained in continuation ofthe earlier folio ; and the new folio is the proper folio only ifcross references in both such folios clearly establish that thelater folio is a continuation of the earlier one. There is no excep-tion to this rule for a case in which a part only of a land is dealtwith by a subsequent deed. The proper folio for the entry of suchsubsequent deed is still the original folio or a new continuationfolio properly connected to the original.
In the instant case the defendant’s deed was registered in anew folio, but the new folio was not connected as required by
172
Pananwala Basnayake Nilame v. Diaeanayake
s. 14 with the original folio 17 in which a deed affecting thelarger land Siyambalagahawatte was first registered.
For these reasons we allowed this appeal after hearing theargument of counsel, and made order for the amendment of theInterlocutory Decree to give effect to our order.
Deheragoda, J.—I agree.
Appeal allowed.