REGISTRAR-GENERAL, Appellant, and t. SANGARAPILLAI, Respondent

046-NLR-NLR-V-78-REGISTRAR-GENERAL-Appellant-and-t.-SANGARAPILLAI-Respondent.pdf


394
—Registrar-General v. Sangarappillai
1975 Present : Walgampaya, J., Sirimane, J., and Sharvananda, J.REGISTRAR-GENERAL, Appellant, and T. SANGARAPILLAI,
Respondent
S. C. 148/72 (F)—D. C. Jaffna 1679/M.S.
Registration of Documents Ordinance—Whether document acknowledg-ing receipt of moneys due on mortgage bond is registrable—Whether such instrument is a “ release JJ or a “ receipt—Basis ofjurisdiction of the District Court referred to in Section 38(2) ofthe said Ordinance
A document attested by a Notary acknowledging the receiptof moneys due by way of principal, interest and costs ofaction on a mortgage bond is not a “ release ” but a “ receipt ”registrable under the Registration of Documents Ordinance.
The District Court referred to in Section 38(2) of theRegistration of Documents Ordinance is any District Courtwithin the local limits of the jurisdiction of which theland or lands or movables were situated at the time theinstrument affecting the same (and in respect of which thesuit is instituted) was executed.
SIRIMAlSnE, J.—Registrar-General v. Sangarappillai
395
^^PPEAL from a judgment of the District Court, Jaffna.
C. Sithamparapillai, State Counsel, for the dsfendant-respon-dent-appellant.
K. Kanag-Iswaran for plaintiff-appellant-respondent.
Cur. adv. vult.
November 11, 1975. Sirimane, J.—
This is an action filed by the plaintiff who is a Notary underthe provisions of section 38 (2) of the Registration of DocumentsOrdinance (Cap. 117) against the defendant who is the Registrar-General praying that the order of the latter refusing registrationof a document submitted by the plaintiff be set aside and foran order directing that it be registered. The defendant filedanswer denying the jurisdiction of the District Court of Jaffna(where this adtion was instituted) to hear this matter andjustifying his refusal to register the document in question. Thelearned District Judge held against the defendant on thequestion of jurisdiction and against the plaintiff on the questionof registration. Both the plaintiff and the defendant haveappealed to this Court against the orders made by the learnedDistrict Judge.
The relevant facts are briefly as follows : on 25.6.69 the Plain-tiff attested the document (P7), with which we are concernedin this case, and the translation of which reads as follows : —
“ No. 9194Registration refused
Jaffna 15 July 1969Sgd.RL
Know all men by these presents that we SabapathipillaiKandasamy and wife Theivanaipillai of Chulipuram havegranted receipt unto Vely Sinnavy of Chulipuram to wit : —
We have received the sum of Rupees One Thousand fivehundred (Rs. 1500.00) being the amount by way of principaland interests and costs of action due on mortgage bond No. 5086dated 10th January, 1960 attested by this Notary which was putin suit in case No. MB/8229 of the District Court of Jaffna
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SIMMANE, J.—Registrar—General v. SangarappiUai
whereby we mortgaged and hypothecated the land more fullydescribed in the schedule as mortgage in full satisfaction.
The schedule of property(Property is described here)
Sgd. S. KandasamySgd. K. Theivanapillai.
Witnesses :
Sgd. Illegibly.
Sgd. S. Nadarajah.
Sgd. T. Sangarapillai,Notary Public.
(Then follows the usual attestation by the Notary).” Thisdocument bore a stamp of ten cents. When this document wassent for registration (with the registration fee of Rs. 2), theRegistrar of Lands Jaffna by his letter dated 1.9.69 (P8) refusedregistration on the ground that it was not duly stamped as,“ though worded as a deed of receipt the above mentioneddocument is in effect a deed of release of the land described inthe schedule from the effects of mortgage bond No. 5086 …. ”and called for a stamp deficiency of Rs. 10.90 and a penalty ofRs. 10 before it could be registered. The plaintiff by his letterof 4.9.67 (P2) appealed to the defendant against the ruling ofthe Registrar of lands of Jaffna. The defendant by his letter of18.11.69 (P3) stated that in his opinion “A receipt is not aregistrable document ” and invited the views of the plaintiffthereon. The plaintiff by his letter of 22.11.69 (P4) submittedthat a receipt is a registrable instrument. The defendant then(having apparently accepted that a receipt in terms of P7 isregistrable) inquired whether the plaintiff was willing to paythe deficiency and penalty as called for earlier by the Registrarof Lands Jaffna. The plaintiff declined to do so and the defendantby his letter dated 13.7.70 confirmed the order made by theRegistrar of Lands Jaffna.
The questions that arise for decision are therefore whether thedocument (P7) is a “ receipt ” as claimed by the plaintiff or a“ release ” as claimed by the defendant and whether the DistrictCourt of Jaffna had jurisdiction to entertain this action undersection 38 (2) of the Registration of Documents Ordinance (Cap.117).
The question was also raised as to whether a “ receipt ” is aregistrable document under the Registration of DocumentsOrdinance (Cap. 117) and learned State Counsel pointed out toproviso (x) of Section 8 of that Ordinance which excluded “ any
SLEHMANE, J.—Registrar-General v. Sangarappillai
397
receipt for the payment of money due under a mortgage orcharge ’ from the definition of instruments affecting land con-tained in section 8. Section 8 merely defines “ the instrumentsaffecting land ” which must be registered for the purpose ofclaiming priority under section 7 of that Ordinance. A receiptfor the payment of money due on a mortgage (though it undoub-tedly affects the mortgaged land by extinguishing the charge onit) has no relevance to the question of priority and the provisoreferred to above saves such a receipt from being void as againstany later registered documents. This does not mean that sucha document cannot be registered. The First Schedule to thisOrdinance itself in Part 1 item (1) lays down the registrationfees as follows : —
“1 . and every receipt or discharge— Where
the amount of principal for which such instrument orreceipt or discharge is given does not exceed Rs. 5,000 afee of Rs. 2
Where it is indefinite, or it exceeds Rs. 5,000 a fee of Rs. 5”
A receipt is therefore quite clearly a registrable instrumentunder the Registration of Documents Ordinance.
The next question is whether the document P7 above referredto is a “ receipt ” or a “ release ” as the former is chargeablewith a stamp duty of only ten cents whilst the latter is char-geable with a stamp duty of Rs. 10. The stamp duty on a“ receipt” is laid down in Schedule (A) Part (i) of the StampOrdinance (Cap. 247) in item 49 as six cents (amended to tencents at the relevant time) and the stamp duty on a “ release ”is laid down in item 28 of the same Schedule and Part as Rs. 10.A “ receipt ” is defined in Section 94 of the Stamp Ordinance asfollows : —
“ “receipt” includes any note, memorandum or writing: —
whereby any money, or any bill of exchange, cheque or
promissory note is acknowledged to have been received ;or
whereby any other movable property is acknowledged tor
have been received in satisfaction of a debt; or
whereby any debt or demand, or any part of a debt or
demand, is acknowledged to have been satisfied or dis-charged ; or
<d) which signifies or imports any such acknowledgment, andwhether the same is or is not signed with the name ofany person. ”
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SIBIMANE, J.—Registrar-General v. SangarappUlai
I think a reading of the document P7 shows quite clearly thatit falls within the above definition of “ receipt Learned Coun-sel for the State however contends that it is a “ release ” as thelands that were mortgaged for securing the debt were releasedfrom the bond. I do not think that merely because theacknowledgment of the receipt of the principal debt incidentlyhad the effect of the “ charge ” on the land ceasing to exist, suchan acknowledgment can be construed to be a “ release In thecase of a “ receipt ” the obligation ceases to exist by performanceor fulfilment whereas in the case of a “ release ” it must be arelease from an existing or unfulfilled obligation. A receipt isevidence of payment. Thus Wille on Principles of South AfricanLaw (5th Edition) refers to a termination of contracts by per-formance and by release. At pages 351-352 he says,
" Termination of Contracts
A contractual obligation is discharged by performanceof the obligation or by merger, set-off, release, novation,impossibility of performance, prescription, or insolvencyand subsequent rehabilitation.
Where performance has been made by both parties, in thecase of a bilateral contract, or by the debtor in the case ofa unilateral contract, the contract is itself terminated ordischarged.
Performance
Where performance has been duly made by the debtor inaccordance with his duty as set out in the previous section,the obligation is discharged, and so are all accessory obli-gations, such as suretyships and pledges for the obligation. ”
and pages 355-356 :—
“ Release
Release or acceptilatio is a discharge or acquittance of anobligation made by the creditor either gratuitously or forvalue.
A release can be made expressly, by the agreement ofthe parties, or it may be made tacitly, for example, wherethe creditor hands over the instrument of debt to the debtor.In such a case, however, if the creditor denies that heintended to discharge the debt, the onus is on the debtor toprove such intention, since where there is a doubt, a waiverof rights, or a donation is not presumed. The gratuitousrelease of a debt, it must be noticed, constitutes a dona-
SIKIMANE, J.—Registrar-General v. SangarappiUai
399
tion, with the consequence, inter alia, that if the value ofthe debt released is over £500, the release is binding onlyif it had been made with the formalities required by law. ”
and
“ One form of release is a promise by the creditor not tosue the debtor, (Pactum de non petendo), provided that thepromise is unconditional.
The release by a creditor of one or two co-debtors dis-charges the other co-debtor only to the extent to which hewould have had a claim for contribution against the former,unless the creditor intended in fact to discharge the obliga-tion completely. ”
•
In Kathiresu’s Notarys’ Manual 1921 Edition page 465 hecites,
“ A deed of release is an instrument whereby one dothgive or discharge the right or the action, which he may haveor claim against another, or it is the conveyance of a rightor interest which one hath in a thing to another who hasthe possession thereof or some estate therein. ”
and continues,
“ Releases are commonly stated to be of two sorts,namely: — (1) a form of conveyance by which an estateor interest in lands or tenements or in goods and chattelsis transferred by one person to another person who hasalready a vested interest thereon, e.g., a release by a jointtenant to his cc-tenant of an undivided share in landor by a mortgagor to the mortgagee of the equity ofredemption ; and (2) a discharge or renunciation by oneperson of some right of action or claim which he has againstanother, or against another’s property. To these may beadded a third kind of release which hardly falls under eitherof these heads, viz. the release of certain powers, whichoperates in effect as a disclaimer. ”
I think it is therefore clear that merely because the documentP7 which recorded the performance of the principal obligationto pay a debt also had by operation of law the effect of extin-guishing the “charge ” on the mortgage property and thusreleasing it, in the ordinary sense of that word, from continuingto be a security for the debt any longer, that the document P7 isthereby converted into an instrument of “ release ” in the legalsense. As far as I am aware it has always been the practicefor a very long time to stamp documents of this nature as
400SIRIMANE, J.—Registrar-General v. SangarappiUai
receipts. Such a receipt is often written on the mortgage bonditself and submitted for registration with the registration fee ofRs. 2/- or Rs. 5/- as the case may be. The document P7 wastherefore correctly stamped as a “ receipt ” and the decision ofthe defendant that it should be stamped as a “release” cannotbe upheld and must be set aside.
Learned State Counsel strenuously urged that in any case theDistrict Court of Jaffna had no jurisdiction to entertain this suitand the plaintiff’s action must therefore fail. He submittedthat the Registration of Documents Ordinance when it refers tosuits against a decision of the Registrar-General under Section13(5) states,
“ Any person aggrieved by a decision of the Registrar-General under this subsection may, within thirty days fromthe date of such decision being communicated to him,institute in any District Court having jurisdiction a suitagainst the Registrar-General praying for the variation ofsuch decision. ”
In the subsequent provisions of the Ordinance where such aremedy is granted the sections refer to “ a District Court ” or“ the District Court ' The relevant section that applies in theinstant case is Section 38(2) which reads :
“ Any person aggrieved by the decision of the Registrar-General under this section may, within thirty days fromthe date of such decision being communicated to him, insti-tute in the District Court a suit against the Registrar-Gene-ral praying for the variation or reversal of the decision ofthe Registrar-General. ”
He submitted that here too it must be read to mean “ DistrictCourt having jurisdiction ” and not any District Court in theIsland. He submitted that since jurisdiction is not defined inthe Ordinance and since there is a reference to a “ suit ” whichis the same as an “ action ” one must look to the Civil Proce-dure Code and the definition of a “ cause of action ” and whereit arose to determine which District Court has jurisdiction. Hesubmitted that since the decision of the Registrar-Generalwhich has given rise to this suit was made in Colombo and theoffice of the Registrar-General is situated in Colombo it was theDistrict Court of Colombo that had jurisdiction both on theground as to where the cause of action arose and the residenceof the defendant. Learned Counsel for the plaintiff on theother hand submitted that there is no justification to fall backon the Civil Procedure Code and the concept of a “ cause of
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401
action ”, as there defined as the right to institute a suit was astatutory right conferred by Section 38 (2) of the Registration ofDocuments Ordinance itself. He further submitted that sincethe statute refers to the District Court, such a Court anywhere inthe Island had jurisdiction to entertain such a suit.
I am unable to agree with learned State Counsel that thedefinition of a “ cause of action ” in the Civil Procedure Codemust be resorted to in order to ascertain which district Courthas jurisdiction. Since the right to institute a suit, of thisnature is conferred by the statute itself it is a statutory right andthe definition of “action ”, “ cause of action ” and the jurisdic-tion of the Court as defined in the Civil Procedure Code arehardly applicable. I am also unable, to agree that merelybecause the Registrar-General’s office is situate in Colombo allsuits against him provided for in the Registration of Docu-ments Ordinance must be instituted in the District Court ofColombo. If that were so it would mean that persons fromsuch distant parts of the island like Jaffna, Batticaloa andHambantota will have to institute their suits in Colombo attremendous expense and inconvenience to themselves. I donot think that was ever the intention of the legislature when itenacted this Ordinance especially as Section 46 of the Ordi-nance even prevents the Court from granting costs against theRegistrar-General even if a party succeeds in his suit againsthim. In any case such a construction must be avoided if effectis to be given to the new Administration of Justice Law No. 44 of1973 which in Section 2 (c) gives one of the intentions of thatlaw as “ the elimination of unjustifiable expense and delay ”.
I am also unable to agree with learned Counsel for the plain-tiff that any District Court in the Island has jurisdiction inmatters under the Registration of Documents Ordinance as thatwould mean that a person residing in Batticaloa who applies forregistration of an instrument to the Registrar of Lands, Jaffna,and is finally aggrieved by the decision of the Registrar-General*refusing registration, can institute a suit in the District Courtof Hambantota in respect of such a matter. That would bequite unrealistic and there would be no justification for theDistrict Court of Hambantota to entertain a suit when theplaintiff is resident in Batticaloa, the defendant in Colombo andthe instrument is sought to be registered in Jaffna. I howeveragree with learned State Counsel that where the Ordinancerefers to “ a District Court ” or “ the District Court ” it means“ any District Court having jurisdiction ” as earlier stated inSection 13 (5) of the Ordinance. The term “ jurisdiction ” nothaving been defined by the Ordinance one must construe that
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SIR1MANE, J.—Registrar General v. Sangarappillai
term having regard to the intent and purpose of the Ordinancein a way that would be both reasonable and convenient. Itmay be observed that the Registration of Old Deeds Ordinance(Cap. 119) provided that where one has failed to register an olddeed under the previous law, it shall not be registered unlessan application is made to a District Court. Section 4 (2) ofthat Ordinance provided that such application shall be made tothe District Court having jurisdiction in the place where theland or arvy of the lands to which the instrument relates issituated. The Registration of Documents Ordinance (Cap. 117)with which we are here concerned, provides for the registrationof instruments affecting land in Chapter III and for the registra-tion of instruments affecting movable property (pledges, mort-gages and bills of sale) in Chapter 4. The provisions ofChapter 5 are applicable to both types of instruments and thepresent suit has been filed under section 38 (2) in Chapter 5.Section 12 (1) requires the Registrar of Lands to maintainprescribed books for the registration of instruments affectingland alloting to each book a definite division of his province ordistrict. Section 14 (1) requires that when such instrumentsare presented for registration that they be registered in thebook allotted to the division in which the land affected by theinstrument is situated. Similarly section 17 (b) provides thatinstruments affecting movables be registered in the office of theRegistrar of Lands of the District in which such property is atthe time the instrument is executed. Section 28 (1) providesthat where an instrument affects lands or movable propertysituated in more districts than one, such instrument may bepresented for registration to the Registrar of Lands of each ofsuch districts. It would be seen from the foregoing that allinstruments that are required or can be registered under thisOrdinance have to be registered in books maintained for thatpurpose by different Registrars of Lands for the various dis-tricts or provinces where the property was situate at the timethe instrument was executed. So that when such a Registrarof Lands refuses registration and that decision is confirmed bythe Registrar-General it would undoubtedly be most reasonableand convenient to institute the suit referred to in Section 38(2)in that District Court within the limits of the jurisdiction ofwhich the property affected by such instrument was situated atthe time of its execution. The Registrar-General has hisofficers (The Registrars of Lands) in each district or provinceand it could therefore cause no inconvenience to him if suchsuits are instituted in the respective District Courts indicatedabove. Nor can the persons seeking registration have causefor complaint as the Court having jurisdiction will be a Court
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where the property (immovable or movable) affected by theinstrument was situate at the time such instrument wasexecuted and consequently also the Court within the limits ofwhich (normally^ the office of the Registrar of Lands, wherethe books in which such instrument ought to have been regis-tered, is situated. For these reasons I hold that the DistrictCourt referred to in the Registration of Documents Ordinanceis any District Court within the local limits of the jurisdictionof which the land or lands or movables were situated at thetime the instrument affecting the same (and in respect of whichthe suit is instituted) was executed. In view of the above theDistrict Court of Jaffna had jurisdiction to entertain this suit.
In the course of argument my attention was drawn tosections 62, 63 and the following sections of the ( now repealed)Courts Ordinance and the corresponding section 26 et seq. ofthe Administration of Justice Law No. 44 of 1973. It is to benoted that whilst the particular District Court competent tohear and determine Civil, criminal, revenue, matrimonial, in-solvency and testamentary matters is designated, the DistrictCourt having jurisdiction to hear and determine statutoryactions of the nature of suits under section 38 (2) of the Regis-tration of Documents Ordinance is left undefined. Statutoryactions cannot be equated to pleas, suits or actions in civilmatters within the meaning of sections 62 and 63 of the CourtsOrdinance. Indeed section 62 underlines the distinctionbetween jurisdiction in a civil matter and jurisdiction in astatutory action as “ matter in which jurisdiction is given tothe District Court by law ”. One has to look within the frame-work of the particular law or statute for the District Courtwhich is vested with jurisdiction to entertain such statutoryactions. In that view of the matter, for the reasons alreadystated, in my view the District Court of Jaffna is the Courtcompetent under the provisions of the Registration of Docu-ments Ordinance (Cap 117) to hear and determine this action.
I would therefore dismiss the appeal of the defendant andallow the appeal of the plaintiff and set aside the order of thedefendant Registrar-General, and direct that the document P7be duly registered as a receipt. In view of the provisions ofsection 46 of the Registration of Documents Ordinance I makeno order as to costs.
Walgampaya, J.—I agree.
Sha.rvananda, J.—I agree.
Appeal of the defendant dismissed.
Appeal of the plaintiff allowed!.