072-NLR-NLR-V-42-RANMENIKA-v.-APPUHAMY.pdf
Ranmenika v. Appuhamy.
299
1941Present: Hearae, Keuneman, and Wijeyewardene JJ.
RANMENIKA v. APPUHAMY5—D. C. Kegalla, 743.
Registration—Divided portion of larger land—Registration in separate folio andreference to old folio—Proper description of divided portion with refer-ence to boundaries—Registration of Documents Ordindnce (Cap. 101), s.15 (1) (b), Regulation 14.
A deed affecting the divided portion of a larger land must be registeredin a separate folio and the new folio must be connected by means of cross-references with the folio in which the larger land has been registered.
The registration of a deed dealing with the divided portion of a largerland should contain an accurate statement of the boundaries of suchdivided portion.
The sanction of the Registrar-General under section 14 (5) of theRegistration of Documents Ordinance could only have the effect ofmaking an instrument registrable which would otherwise have beennon-registrable. It does not affect the question whether the particularinstrument is duly registered.
A
PPEAL from a judgment of the District Judge of Kegalla. Theappeal was referred to a Bench of three Judges. The facts appear
from the argument and the judgment.
N. E. Weerasooria, K.C., (with him V. F. Gunaratne), for ninthdefendant, appellant.—In consequence of the partition action, the oldland ceased to be an entity and there came into-being two lands one ofwhich was lot 2. Lot 2, therefore, had to be registered in a new folio
300WIJEYEWARDENE J.—Ranwonika v. Appuhamy.
with a full description of its boundaries and extent. See sections 15 (1) (b),14 (1), 14 (2) of the Registration of Documents Ordinance (Cap. 101) andPerera v. Soysa'. Deed 10 D 1 being not properly registered, our deed(9 D 1) has priority by reason of correct registration.
L. A. Rajapakse (with him C. R. Gunaratne, P. A. Senaratne and R. N.Illangakoon), for tenth defendant, respondent.—-Deed 10 D 1 was dulyregistered. Section 15 of Cap. 101 deals with the registration of twoclasses of land—one a new land, under section 15 (1) (b), and the other,under section 15 (1) (a). Section 15 (1) (a) deals with a case like thepresent one. To get the benefit of due registration there should bea cross-reference to the" old parent land. That is the effect of the word“affecting” in section 15 (1) (a).
A partition decree creates merely new title and does not bring intoexistence new lands. That this is the correct view is supported by thefact that a partition decree would not wipe out a fidei commissum.Section 15 (1) (a) is supplemented by Regulation 14 (Vol. I. of SubsidiaryLegislation, p. 547)' and is fully considered in C. R. Point Pedro, 28,638{S. C. No. 53)' where Meurling v. Gimarahamy =, and Ramasamy Chetty v.Marikar' are discussed. See also Mudalihamy v. Banda et al."; Appuhamyv. Wirasinghen; and Chelliah Pillai v. Devadasan et al.',
An infirmity of misdescription of boundaries is not a fatal irregularity.^Section 14 of Cap. 101 corresponds to section 23 of the older OrdinanceNo. 14 of 1891, except for the addition of sub-section (5). Sub-section (2)of section 14 should be read in conjunction with sub-section (5) andRegulation 6.
N. E. Weerasoaria, K.C., in reply.—The governing section in this caseis section. 15 (1) (b) and not section 15 (1) (a). Even if the latter isapplicable, we have complied with its requirements.
The description of boundaries is vital for registration. Registration,to be correct, should obviate the necessity of looking into any deed.See Jayawardene on Registration of Deeds, p. 139, and the observations ofWood Renton A.C.J. in Cornelis v- Abiasinghe'.
Cur. adv. vult.
March 21, 1941, Wijeyewardene J.—
The questions that have to be considered on this appeal arise underthe Registration of Documents Ordinance (Legislative Enactments,Vol, III., Chapter 101) .
A land called Moragahamulahenawatta of the extent of 3 acres 2 roodsand 35 perches was partitioned in D. C. Kegalla, 8,570. Under the finaldecree entered in that case a defined portion—lot 2 in plan 3,294 madeby K. H. Jansz, Licensed Surveyor, of the extent of 1 acre 3 roods and 17£perches—was allotted to Dingiri Menika, Dingiri Mahatmaya and threepthers.
By deed 10 D 1 of July 16, 1931, Dingiri Menika and Dingiri Mahat-maya conveyed their undivided 2/5 shares to H. M. Tilekeratne who
■ (1937)39 N. L. R. 49S5 (1922) 24 ft’. L. R. 274
» S. a. Mirt’tles of Sept. 20, 1940* (1922) 24N.L.R.2S3
3 (79221 2-5 ft7. L. R. 500.7 (1937) 39 ft7. L. R. OS.
* (1915) IS A7. L. R. 50 ?.8 (1913) 5 Bat. Xotes of Cases 30.
WIJEYEWARDENE J.—Ranmenika v. Appuhamy.
301
by deed 10 D 2 of March 17, 1933, conveyed the same to the tenthdefendant-respondent. These deeds described the property conveyed as“ an undivided 2/5th shares out of lot No. 2 of 1 acre 3 roods and 17£perches in extent defined and depicted in a plan No. 3,294 made by K. H.Jansz, Licensed Surveyor, from and out of the land Moragahamullahena-watta of 3 acres 2 roods and 35 perches which said whole land is boundedon the north .”
Subsequent to the execution of 10 D 1 Dingiri Menika executed deed 9 D 1of December 22, 1931, conveying an undivided l/5th share of lot 2 toR. Ukku Banda who died leaving as his heirs his children, the third,fourth, fifth, sixth and seventh defendants-appellants. This deeddescribed the lot by reference to the plan made by K. H. Jansz and thedecree in the partition case and gave the extent and boundaries of thedivided lot.
The District Judge held that the tenth defendant respondent becameentitled to Dingiri Menika’s l/5th share of lot 2 on the ground that thedeed 10 D 1 was duly registered and was earlier in date of execution anddate of registration to deed 9 D 1. The present appeal is preferredagainst that finding of the District Judge.
The case has been argued on the footing that the earliest deed regis-tered in respect of the entire land is a deed registered in 1886 in F 2/172.The folio B 1/13 is a continuation of that folio.
The deed 10 D 1 was registered in B 116/240 in July 29, 1931. Thatfolio gives the name of the land as Moragahamullehenawatta and theextent as 3 acres 2 roods and 35 perches and under the heading “ Bound-aries ” gives the boundaries of the entire extent of 3 acres 2 roods and 35perches. Under the heading, “ Nature and Particulars of Alienationsand Encumbrances ” the registrar has given the following descriptionin respect of the deed 10 D 1:—“Transfer of undivided 2/5th sharesout of lot No. 2 of 1 acre 3 roods and 17£ perches in extent with the tiledhouse thereon of the above”. The folios B 1/13 and B 116/240 areconnected by cross-references made on November 3, 1932.
The deed 9 D 1 was registered on January 8, 1932, in B 117/297. Thatfolio gives the name of the land as Moragahamullehenawatta lot 2 andthe extent as 1 acre 3 roods 174 perches. It further gives the boundariesof the divided lot 2. The two folios B 117/297 and B 116/240 areconnected by cross-references made on August 19, 1936.
With this preliminary statement of facts I shall Real now with themain question of law arising in the case : —Is the deed 9 D 1 duly regis- •tered, and if so is it entitled to prevail over the deed 10 D 1 ?
The provisions of the law that have to be considered in this connectionare sections 14 and 15 and some of the regulations made under section 49(vide Subsidiary Legislation, Vol. I„ Chap. 101).
It was argued by the Counsel for the appellant that a deed dealingwith a divided lot falls under proviso (b) of section 15 (1) which dealswith cases “ where no instrument affecting the, same land has beenpreviously registered ”, on the ground that a divided lot and the entirecorpus of which it is a portion could not be regarded as “ the same land ”within the meaning of section 15. A study of sections 14 and 15 andRegulation 14 has satisfied me that this contention is not sound.
42/24.
302WIJEYEWARDENE J.—Ranmeniteg v. Appuhamy.
If such an instrument comes under proviso (b) it is difficult to under-stand why the Legislature thought it necessary to provide again inRegulation 14 that “ when an instrument affecting land relates to adivided portion—the registrar shall register the instrument in a separatefolio Regulation 14 provides further that the registrar shall connectthe folio in which a divided lot is registered with the folio in which thereis an earlier registration of a deed affecting the entire land. Now section14 (7) shows how the registrar is to obtain the information with regard toearlier registrations. It provides that “ any instrument (except a will)presented for registration (shall contain) a reference to the volume andfolio in which some earlier instrument relating to the same land isregistered if such reference is known to the notary ”. If a divided lotis not " the same land ” as the larger land of which it is a part thensection 14 does not apply to deeds dealing with divided lots and theregistrar would not be able to make the cross-references required byRegulation 14. Such an interpretation of the words “ the same land ”would therefore tend to defeat the very object of registration.
I think that a deed dealing with a divided lot of a larger land falls underproviso (a) of section 15 (1) wheri^there are earlier registrations affectingthe larger land. That proviso enacts that a registrar receiving any deedfalling urider it could either register the deed “ in, or in continuation ofthe folio ” in which the earlier registration has been entered or in a newfolio, “ cross references being entered in the prescribed manner ”. ButRegulation 14 lays down that a deed affecting a divided portion shouldbe registered in “ a separate folio connecting it with the entry relatingto the whole area by cross-references ”. The joint effect of section 15and Regulation 14 is, therefore, to require the registrar to register a deedaffecting the divided lot in a separate folio and connect by means ofcross-references the new folio and the folio in which there is an earlierregistration with respect to the larger land.
The deed 9 D 1 has been entered in a new folio and it has beenconnected by cross-reference made on August 19, 1936, with the folioB 116/240 which is in turn connected with the folio B 1/13 a continuationof F 2/172. The registration has also been effected in accordance withsection 16 and regulation 13. The deed 9 D 1 was therefore dulyregistered on August 19, 1936.
As stated earlier, the deed 10 D 1 has been registered in B 116/240which is connected with the earlier folios. The question remains, how-ever, to be considered whether this deed has been duly registered asrequired by section 16 and Regulation 13. Now Regulation 13 enactsthat “ the registration of an instrument affecting land shall be effectedby entering the particulars required in Form B ”. That form B requiresthe boundaries and extent of the particular land to be given. Theimportance of these details in the system of registration establishedby. the Ordinance is borne out by the fact that in section 14 (2) it is laiddown in express, terms that where the instrument (except a will) presentedfor registration deals with a divided portion “ such portion shall beclearly and accurately defined by its particular boundaries and extent ”,But the folio D 116/240 gives only the boundaries and extent of the largerland of which lot 2 is a divided portion. There is no indication anywhere
WIJEYEWARDENE J.—Ranmenika v. Appuhamy.
303
in these particulars to show that folio B 116/240 dealt with transactionsin respect of the divided lot. That folio may perhaps be regarded as aseparate folio but it would still be a folio dealing with the larger landand not the divided portion. Anyone searching the registers for priortransactions in respect of lot 2 would not therefore scrutinize thetransactions mentioned in that folio as he would naturally assume thatthey were in respect of the larger land. Moreover the information givenwith regard to 10 D 1 in that folio under the heading “ Nature andParticulars of Alienations and Incumbrances ” makes a mere mention oflot 2 without reference either to the plan made by K. H. Jansz or thedecree in the partition case. I hold that the deed 10 D 1 is not dulyregistered, and is of no effect as against the deed *9 D 1.
I would now refer to certain other questions of law which were discussedat the argument before us. It was contended that a deed in respect of adefined lot need not “ contain embodied therein or in a schedule annexedthereto '* the extent and the boundaries of that lot in order to render theinstrument registrable under section 14 (2) and that such descriptioncould be supplied to the registrar in some other way. This argumentwas founded on the fact that section 14 (2) unlike section 14 (1) andsection 14 (3) did not state expressly that the description should begiven in the body of the deed or in the schedule. But an examination ofsub-sections (4) and (5) of section 14 shows that the description requiredby sub-section (2) should be given in the deed. Sub-section (4) creates anexception in the case of wills and provides that in these cases “ a writtendescription of the land ” given to the registrar could be regarded as asufficient compliance with the provisions of sub-sections (1), (2), and (3).Sub-section (5) indicates that under that section the Registrar-Generalhas to be satisfied with “ the description ” given in the deed. He mayof course ask for and obtain further information from the parties concernedin order to satisfy himself that the description given in the deed issufficient. Moreover it is difficult to believe that the Legislatureintended to create a distinction between a deed dealing with a dividedlot of a larger land and deeds dealing with the larger land itselfon an undivided share of the larger land.
The deed 10 D 1 which does not give the boundaries of the divided lotdid not therefore comply with the provisions of section 14 (2). Thatcould not however prevent the deed from being registered, as section14 (5) enacts that a deed “ which does not state the particulars required ”could be registered with the sanction of the Registrar-General.
It is not necessary for the purpose of this appeal to decide the furtherquestions whether it could be presumed in the absence of definiteevidence that a certain registration has been effected with the sanctionof the Registrar-General and if the validity of a registration sanctionedby the Registrar-General could be questioned in any action. Whatevermay be the decision on these questions I hold that the sanction of theRegistrar-General could only have the effect of making registrable aninstrument which would otherwise have been non-registrable and that itcannot affect the question whether the particular instrument is dulyregistered.
304
Silva v. The Attorney-General.
I would allow the appeal and alter the interlocutory decree enteredin the case by assigning to the tenth defendant only an undivided l/5thshare and to the third, fourth, fifth, sixth, and seventh defendants thel/5th share claimed by them on 9 D 1.
The appellants will be entitled to the costs of the appeal and the costsof the contest in the Court below.
Hearne J.—I agree.
Keuneman J.—I agree.
Appeal allowed.