( 495 )
Present: Viscount Haldane, Lord Moulton, and Lord Parmoor.
BAJAPAKSE v. FERNANDO.
Sale by a person who has no title—Subsequent acquisition of title by
vendor—Registration in wrong folio.
Where a grantor has purported to grant an interest in landwhich he didnotat the time possess,batsubsequentlyacquires,,
the benefit ofhissubsequent acquisitiongoesautomaticallytothe
benefit of the earlier grantee.
C, when he had notitle(in 1909), soldthelandsin question to
defendant's predecessor in title by a deed which was registered infolio F 81/866 in the same year.
C obtained a Crown grant in 1912, and the property was soldin execution againsthimand purchasedin1916by plaintiff’s
predecessor intitle.The Crown grant . was registered in1914in
a different folio, F 120/125.
Held, that defendanthadsuperior title,andthatthe registration
of the Crowngrantwas not valid. "Inthepresent case,C, .who
held * the Governmentgrant and must havebeenparty to the
registration, was fully aware of the earlier conveyance, and theinfringement of the regulation in section 24 of the Land Begis-tration Ordinance, 1891, must have been intentional on his part.Their Lordships are not prepared to hold that the registrationof the Crown grant was, under these circumstances, valid. ”
fji HE judgment of the Supreme Court is reported in 20 N. L. R. 30.
May 14, 1920. Delivered by Lord Moulton:—
In this case the appellant, who was plaintiff in the action, broughtan action of ejectment against the defendant in respect of certainlands described in a grant by the Crown to one Thomas Garry 1
1 (1918) 20 N. L. R. 338.
( 496 )
dated February 22, 1912, and registered in the Land. Begistry ofthe district in folio F 120/125. The lands are therein described asin the village of Ihalamedagoda. The date of the registration isOctober 16, 1914. This grant is the foundation of the title of theappellant, but it is not necessary to set forth the various steps bywhich the appellant traces his title from the said Crown grant, as noobjection iB raised to them.
The respondent’s case is that the lands in question were conveyedby the said Thomas Carry to his predecessors in title by a deeddated December 11,' 1909, registered on December 15, 1909,in folio F 81/366. As that date was prior to the date of the regis-tration of the Crown grant to Thomas Carry, the appellant contendsthat the latter was improperly registered by being placed in adifferent folio, and that, further, the said Thomas Carry was incapableof giving a title to the lands in question to any one other than therespondent’s predecessors in title, inasmuch as the title acquiredby the said Thomas Carry under the Crown grant went automatic-ally by operation of law to complete the title purporting! to havebeen granted by the said Thomas Carry by the transfer of December11, 1909, above referred to.
The relevant facts are as follows. Prior to the events referredto above Thomas Carry had purported to purchase the lands inquestion from various native occupiers. He formed an estate,which he termed the Medagoda estate out of them, and it was thatestate which by the deed of December 11, 1909, he purported toconvey to the respondent’s predecessors in title. The variousconveyances from the native occupiers were duly registered, but itis not necessary to refer to them, more particularly as it is admittedthat the occupiers had no further title than was given to them bytheir being in possession of the lands, and that the real title was inthe Crown.
Thomas Carry, therefore, in conveying the lands in question tothe predecessors in title of the respondent by the deed of December11, 1909, was conveying that to which he himself had no valid title.But on October 8, 1908, be purchased these lands from Government.The grant made to him by the Government on February 22, 1912,was for the purpose of carrying into effect this sale.
Both the Courts below have found that the lands in questionwere covered by the conveyance from Thomas Carry to the re-spondent’s predecessor in title, which (as has already been stated)was dated December 11, 1909, and registered on December 15,1909, in folio F 81/366, and their Lordships see no reason to doubtthe correctness of this conclusion, apart from the fact that thereare two concurrent findings of fact to this effect in the judgmentsin the Courts below.
It is clear, therefore, that the registration of the Crown grantshould have been in the same folio as the registration of the
( 497 )
conveyance of December 11, 1909. In any case, under seotion 24 ofthe Land Begistration Ordinance, 1891, the later registration muststate the volume and folio of the register in which such, propertyhas been previously registered. The language of the section makesthis imperative, and it is obvious that observance of this provisionis vital to the effectiveness of a system of registration. In thepresent case Thomas Carry, who held the Government grant andmust have been party to the registration, was fully aware of theearlier conveyance, and the infringement of the regulation insection 24 must have been intentional on his part. Their Lordshipsare not prepared to hold that the registration of the Crown grantwas under these circumstances valid, or that it had any effect at law.
But it is not necessary to discuss the effect of this upon theappellant’s title, because their Lordships are of opinion that bythe Boman-Dutch law as existing in Ceylon the English doctrineapplies that where a grantor has purported to grant an interest inland which he did not at the time possess, but subsequently acquires,the benefit of his subsequent acquisition goes automatically to thebenefit of the earlier grantee, or, as it is usually expressed, “ feedsthe estoppel.” When, therefore, on February 22, 1912, ThomasCarry acquired from the Government the title to the lands whichhe had conveyed by the deed of December 11, 1909, the benefitof that title accrued to the grantees under that deed, i.e., therespondent’s predecessors in title. It is possible that the existenceof a compulsory scheme of registration might, under certain circum-stances, bring about modifications of the application of that doctrineto land in Ceylon, but in the present case no such difficulties arise,because the earlier conveyance was duly registered and Was the onlydeed relating to the lands in question, which was registered or evenexisting at the time.
A great part of the argument on behalf of the appellant was basedon the fact that in the register of the sale of the land by Governmentto Thomas Carry, it is spoken of as the Ihalamedagoda estate, andin the registration of the deeds relating to the title of the appellant,it is registered as being in the village of Ihalamedagoda; whereasin the deeds relating to the respondent’s title it is spoken of asbeing in the village of Medagoda. But the provisions of section 24of the Ordinance turn on the identity of the lands, and not upon theidentity of the nomenclature by which they are described, and theirLordships have no doubt that the change in name did not connoteany change in identity, and was not understood so to do by-any opeconcerned.
Their Lordships are, therefore, of opinion that the decisions in theCourts below were right, and will humbly advise His Majesty thatthis appeal should be dismissed, with costs.
RAJAPAKSE v. FERNANDO