132-NLR-NLR-V-18-RAMASAMY-CHETTY-v.-MARIKAR.pdf
( 608 )
Present: Wood Benton C.J. and De Sampayo J.RAMASAMT CHETTY t>. MABIKAB.416—D. C. Colombo.,-40,801.
. Registration—Properfolio—Partitionoftend—Registrationin new
folio—Sate of tend for default of payment of twees to Municipal, Council.
A, by a deed of 1909, sold the land in question to B. Plaintiffwas B's ■ successor in title. These conveyances. were registered isa . folio to which the registration had been earned forward from theoriginal folio.
Prior to the sale to. B (in 1898), A divided the. land into two,and. gifte$ the lots to the defendants. These conveyances wereregistered in 18&, in fresh pages, in which reference was made tothe old folio in which the original registration was made. But theold folio did not contain & reference to the hew folios where thedivided lots were registered.
Held, that defendants had superior title.
The term “ partition '* in section 27 of the Registration _ Ordinanceof 1891 is not restricted to partition by decree of Court. i
i (1907)10 N. L, £. 804.
1816.
( 504 )
The premiees in question wAe sold for Sues due to the Municipal.Council, and were purchased by the Municipal Council, ' re-transferred the ( same to the defendants in coosiderattoa of ‘ the>:qjayment of toe amount of taxes due at the date of the sale.
Held, that the conveyance vested title in the defendants.
HE facts are set out in the judgment.
Bawa, K.C. (with him F. M. de Saram), for defendants, appellants.
A. St. F. Jayewardene (with him Loos), for plaintiff, respondent.'
Cur. ode. unit.
December 16, 1915. Db Sampayo J.—
This case raises two points, either of which, if decided against theplaintiff, would necessarily involve the dismissal of his case. Mr.A. ISt, V. Jayewardene, for the plaintiff, in the course of his argument,felt that he could not resist an adverse decision on one at least of thepoints. We accordingly delivered a formal order allowing theappeal, and dismissing the plaintiff’s action, and intimated that We•would put our reasons in writing*
The action relates to certain premises situated in Colombo, whichat one time belonged to one Alima Umma. The proper folios in theregistrar’s book for the registration of the deeds of the propertywere A 38/207 and A 38/211. Alima Umma, by deed dated July 4,1909, sold the premises to Ahamado Lebbe Marikar, under whom,through certain mesne conveyances, the plaintiff now claims title.These conveyances were registered in a folio to which the registra-tion had been carried forward, and which therefore was for this-purpose the proper folio. But Alima Umma had, prior to her saleto Ahamado Lebbe Marikar, divided the premises into two halves,one of which she, by deed dated May 5, 1898, gifted to Kadija Umma,wife of the second defendant in this case, and the other of which she,by deed dated September 21, 1898, gifted to. Zainoth Umma, wifeof the first defendant. These deeds of gift were registered in May,1898, and October, 1898, and were thus prior both in date and inregistration to the deed of sale in favour of Ahamado Lebbe Marikar.But the District Judge has decided, and it is also argued before us,t^at the deed of sale in favour of Ahamado Lebbe Marikar mustnevertheless prevail oyer the deeds of gift, inasmuch as the. latterwere not registered in the proper folios.. These deeds were certainlynot registered in the same folio as the series of deeds upon which theplaintiff claims title, but it does not follow that, as regards the effectof registration, they did not satisfy the requirements of the LandRegistration Ordinance. The explanation of the difference in foliolies in the fact that, as stated above, the premises were divided intotwo portions, and were separately gifted by Alima Umma, and thatthe deeds of gifts thus got into a different folio in the registrar’s
( SOS )
■books. Now, section 27 oi tiie Land Begistration Ordinance, No. 141W8.
bf 1891, provides as follow^:—“ On the partition of any Ifad slkeAro‘registered as one allotment tiie registrar shall, upon a wrfften J.application in that behalf, register the new Alotmentg on sqantt Bamatmmyand fresh pages of the book, with such reference Ab may be necessary Ofojfr *to identify them with the original registration.” When Ae deedsof gifi were accordingly roistered in .fresh pages o» folios of thebook,' tiie registrar made references to the old folio in whichthe original registration was contained, and it seems to me thatin these circumstances the deeds of gift were duly registered. It is,however, argued that the “ partition ” referred to in the above-section is partition by a decree of Court under' the Partition Ordi-nance. In my opinion there is no reason for so restricting th&meaning of the word. The provision oithe section, I think, appliesto division of land however effected. Then, it is said that therequirements of the Ordinance were not satisfied, inasmuch as,
.though the new folios have references back to the old folio, there areno references forward in the latter to the former. The section does•not expressly require this further reference, and I think the Court•cannot insist on anything more than the actual references, which-appear from the evidence of the official witness in this case to havebeen in accordance with the system of business observed in theregistrar's department.
The next point, which counsel for the plaintiff admits to be■decisive, arises in this way. It appears that the premises were,for the purposes of the taxes due to the Municipal Council, assessedin the name of Kadija Umma and Zainath Umma, and for defaultof payment of the taxes the premises were sold on August 22, 1910,and were purchased by the Municipal Council themselves, in whomthe property became absolutely vested under seetion 146 of theMunicipal Councils Ordinance, No. 6 of 1910, by virtue of a certificateof sale issued as provided by the Ordinance. Thereafter, by deeddated October 24, 1913, the Municipal Council, in consideration ofBs. 50, which was practically the amount of arrears of taxes, soldthe property to the first and second defendants and their respectivewives. The District Judge has refused to. give effect to this con-veyance, because he thinks it is not a real transfer of title, but onlyamounts to handing back of the property on receipt of the amountof taxes due. This view cannot at all be supported. It maybe that the consideration was in fact determined by what hadbeen due to the Municipal Council as taxes; but tire conveyancenevertheless constitutes a real transfer of the title, which hadbeen vested in the Council by operation of the Ordinance. Evenif the view of the District Judge be correct, it would not help theplaintiff, because on that hypothesis the title would still be in theMunicipal Council, and the plaintiff’s action at all events mustcertainly fad-
19*6. The judgment- appealed from must bef set aside and plaintiff'sX)E Bpssaxo «^ion .dismissed, with costs in both Courts. The reslut^ Wlil not,J> however, prejudice .the rights, il any! of the added defendants, whoJtnmwtamu intervened and claimed adversely to both parties by prescription.
' Okeitif
Marika? %Vood ^eotok C.J.— I agree.
Set aside.