S. C. KANAGASABAI et al ,Appellant ,and M. VELUPILLAI et al ,Respondents

059-NLR-NLR-V-54-S.-C.-KANAGASABAI-et-al-Appellant-and-M.-VELUPILLAI-et-al-Respondents.pdf

Kanagasabai v. Velupittai
241
1952 Presera : Rose C.J., Gratiaen J. and L. M. D. de Silva J.S. G. KLANAGASABAI et al., Appellants, andM. V KldlPTULAI et al., Respondents
8. C. 534 and 58—D. C. Point Pedro, 3,489 and 3,590
Partition action—Lis pendens—Registration in wrong folio—Conclusive effect offinal decree—“ As hereinbefore provided ”—Jurisdiction of Court—Registrationof Documents Ordinance (Cap. 101), s. 12 (1)—Partition Ordinance (Cap. 56),as. 3, 9, 17.
.Failure to register duly a lis pendens in a partition action as required bysection 12 (1) of the Registration of Documents Ordinance deprives the decreeentered in the action of the “ conclusive effect ” -which it would otherwisehave under section 9 of the Partition Ordinance by reason of the fact that itis a decree not entered “ as hereinbefore provided M
Plaintiffs in Appeal No. 534 claimed title to the land in dispute by virtueof a final decree entered in a partition action which, however, had been registeredin the wrong folio as a lis pendens. Defendant, who was not a party to thepartition action, contended that the decree for partition was not “ good andconclusive ” against him within the meaning of section 9 of the PartitionOrdinance because the action had not been “ duly registered ” as a lis pendensas required by section 12 (1) of the Registration of Documents Ordinance.
Held, that the partition decree relied on by the plaintiffs did not possess thecharacter of a decree which was “ good and conclusive against all personswhomsoever ” within the meaning of section 9 of the Partition Ordinance.
Quaere, whether the failure to register the lis pendens in a partition actionas required by section 12 (1) of the Registration of Documents OrdinanceTenders the decree entered in the action void by reason of lack of jurisdictionin the court which entered it.
^^.PPEALS from two Judgments of the District Court, Point Pedro.They were referred under the provisions of section 48a of theCourts Ordinance for decision by a Bench of Three Judges.
E. B. Wikramanayake, Q.C., with T. Arulananthan and O. M.'de Alwis,for the plaintiffs appellants in Appeal No. 534.—Plaintiffs brought thisaction for declaration of title to the land in dispute. Title to the landwas based on a partition decree. Defendant pleaded firstly, that thepartition decree was obtained by fraud and collusion, and secondly, thatlis pendens was not correctly registered and that the decree was thereforevoid. Before the enactment of section 12 (1) of the Registration ofDocuments Ordinance (Chap. 101) lis pendens was not required to beregistered but the decree was registered. For a statement of the lawbefore the enactment of section 12 (1) see Jayewardene on Registrationof Deeds, p. 172. Under the existing law it is necessary to considersection 12 (1) of the Registration of Documents Ordinance with referenceto section 9 of the Partition Ordinance (Chap. 56). If the decree isgiven t! as hereinbefore provided ” then it is good and conclusive againstthe whole world. With regard to the significance of the words c‘ decreegiven as hereinbefore provided ” see Samarakoon v. Jayawardene 1 and1 (1909) 12 N. L. R. 316 at p. 319.
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Ka-nagaeabai v. VehtpiUai
Jayawardene v. Weerasekera x. It is submitted that section 12 (1) isonly directory. The object of section 12 (1) is to give notice that a partitionaction has been instituted in order to protect intending purchasers.If the object is defeated the remedy is given in section 9 of the PartitionOrdinance. In the present case the lis pendens was registered in thewrong folio. There is no provision in the Registration Ordinance fordismissing a partition action where the lis pendens has not been properlyregistered—Seneviratne v. Kandkaratne 1 2 ; Tochina v. Daniel 3. Providedthe defendant is summoned, there is no case, as far as the Partition Ordi-nance is concerned, which states that where lis pendens is not duly registeredthe decree is void. Section 12 (1) makes the judge the arbiter on thequestion whether lis pendens is duly registered. Once the summonsis issued the decree entered is as “ hereinbefore provided ”. Merenon-compliance with section 12 (1) does not vitiate the partitionproceedings.
C. Thiagalingam, Q.C., with K. Rajaratnam, for the plaintiffs appellantsin Appeal No. 58, adopted the arguments submitted on behalf of appellantsin Appeal No. 534, and continued.—Section 12 (1) of the RegistrationOrdinance is purely directory. The Ordinance does not indicate whatresults flow from non-compliance with section 12 (1). Further, section12 (1) does not affect the question of jurisdiction in the legal sense.Jurisdiction is dealt with in the Courts Ordinance. There is a funda-mental distinction between inherent want of jurisdiction and mereirregularity in procedure. See Spencer Bower : Res Judicata, p. 69;Spencer Bower: Estoppel by Representation, p. 187. If any effect isto be given to section 12 (1) of the Registration Ordinance then it is onlyas a limitation to section 17 of the Partition Ordinance. [Counsel citedBabyale v. Nando 4 ; Bernard v. Fernando 5 : Meurling v. Gimarahamy 6.]
H. W. Jayewardene, with M. L. de Silva, for the defendant respondentin Appeal No. 534.—Section 12 (1) of the Registration Ordinance laysdown a condition precedent to the issue of summons. The Court hasno jurisdiction till summons has been issued as laid down in section 12.The Court will decide the question of due registration only if raised bythe parties and its decision is only binding on the parties. The Courtcannot by a wrong decision on a question collateral to the main issuevest itself with jurisdiction—Halsbury (Hailsham ed.), Vol. 9, pp. 880,881 ; Banbury v. Flitter 7 ; Rex v. Income Tax Special Commissioners 8 ;The King v. Woodhouse 9 ; Rex v. Bradford10 ; R. v. Justices of the Peacefor Weston-Super-Marl11 ; R. v. Fulham, Hammersmith and KensingtonRent Tribunal12 ; Rex v. City of London Rent Tribunal13. There is adistinction between the existence of jurisdiction and the exercise ofjurisdiction—see Weerasooria v. Controller of Establishments 14 and Hriday
1 (1917) 4 C..W. R. 406.
3 (1937) 39 N. L. R. 272.
3 (1937) 39 N. L. R. 168.
i (1915) 18. N. R. R. 370.
3 (1913) 16 N. R. R. 438
6(1922) 25 N. L. R. 500.
7(1853) 9 Exch. Reps 111 at p. 140.
(1888) 21 Q. B. D. 313.
(1906) 2 K. B. 501.
(1908) 98 L. T. 620.
(1944) 1 A. E. R. 747.
(1950) 2 A. E.R. 211 at p. 214, and(1951) 1 A. E. R. 482 at p. A83.
(1951) 1 A. E. R. 195.
13 (1949) 51 N. R. R. 189.
Li. M. D. DB STT.VA J".—Kanagasabai 8. Velvpillai
243
Nath Roy v. Ram Chandra Barna Sarna l. With regard to the distractionbetween an imperative and directory provision of a statute see Maanvell :Interpretation of Statutes, 9th ed., p. 373. The whole purpose of theRegistration of Documents Ordinance would he nullified if section 12 (1)is regarded merely as directory. It is therefore submitted that if theprovisions of section 12 (1) are not complied with the partition proceedingsare nullified. It is also submitted that as section 12 (1) of the Registrationof Documents Ordinance deals with a step in partition proceedings,the Partition Ordinance and the Registration of Documents Ordinancemust be read together. If there is a failure to comply with section 12 (1)of the Registration of Documents Ordinance then a decree enteredunder the Partition Ordinance is not given “ as'hereinbefore provided ”and has no conclusive effect under section 9 of the Partition Ordinance.With regard to the failure to serve summons properly, see Per era v.Fernando2 ; Caldera v. Santiagopillai3 ; Hadden dk Co. v. Ibrahim4 ;Pabilis v. Euginahamy5; Menchinahamy v. Munawira 6 ; Sanchi Appu v.MartJielis7 . Jayawardene v. Weerasekera {supra) cited for the appellants-has been overruled in Siwandian Chetty v. Talawasingham8.
S. J. V. ChelvanayaJcam, Q.C., with H. W. Tambiah and V. Patna-sabapathy, for the defendants respondents in Appeal No. 58 adoptedthe arguments submitted on behalf of respondents in Appeal No. 534,and, on the question of jurisdiction, cited Ma-lkarjan v. Narhari9,Raghunath Has v. Sunde Has Khetri 10, and Khiarajmal v. Haim 11.
E. B. W ikrama-nayake, Q.C., in reply.—Section 12 (1) lays down arule of procedure only. Failure to comply with a rule of procedure cannever affect jurisdiction. It is only an irregularity which cannot heopen to collateral attack. See Silva v. Ka-vanihamy 12 and HuTcm Chand :Res Judicata, pp. 449, 461..
The English cases on the Rent Restriction Acts cited for appellantdeal with ad hoc bodies created with a special jurisdiction. In thepresent case the District Court has a plenary jurisdiction with no limita-tions. It is also submitted that tbe words “ as hereinbefore provided ”mean EE as provided by this Ordinance ”.
Thiagalingam, Q.C., replied.
Cur. adv. mdt.
[The following judgment was delivered in respect of Appeal No. 534:—J
December 15, 1952. L. M. D. de Silva J.—
The question arising for decision in this appeal turns on the legal( consequences of non-compliance with the provisions of sub-section 12 (1)of the Registration of Documents Ordinance (Cap. 101) which lays down
1 (1921) A. I. R. Calcutta 34.a (1902) 3 Br. 5.
(1920) 22 N. L. R. 153.
(1925) 36 24. L. JT. 441.
(1948) SO N. L. R. 346.
(1950) 52 24. L. R. 409.
(1914) 17 N. L. R. 297.
(1927) 28 N. L. R. 502.
(1900) L. R. 27 I. A. 216 at p. 224.
(1914) L. R. 41 I. A. 251 at p. 257.
(1904) L. R. 32 I. A. 23 at p. 35.
18 (1948) 50 N. L. R. 52.
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L. M. D. DE SILVA J.—Kanagasabai v. VelupiUai
that “ a precept or order for the service of summons in a partition actionshall not be issued unless and until the action has been duly registeredas a lis pendens
The 2nd plaintiff who is the wife of the 1st plaintiff claimed title tothe land in dispute by virtue of a final decree for partition entered inher favour in D. C. Point Pedro, No. 2,284. The defendant, who wasnot a party to this action, contended, inter alia, that the decree forpartition was not “ good and conclusive ” against him within the meaningof section 9 of the Partition Ordinance (Cap. 56) because the actionhas not been “ duly registered ” as a lis pendens as required by thesub-section quoted. Lis pendens had in fact, as the learned DistrictJudge has held, been registered in the wrong folio.
The learned District Judge upheld the defendant’s contention on apreliminary issue of law, and dismissed the plaintiff’s action with costs.The present appeal is from this decision.
The object of section 12 of the Registration of Documents Ordinanceis without doubt to protect purchasers of interests of land from beingaffected adversely by section 17 of the Partition Ordinance which enactsthat alienation by co-owners of their interests while a partition actionis pending are void. A prospective purchaser can always examine theregister and make sure that no partition action is pending in respect ofthe interests he is proposing to purchase. It also in some degree givesnotice generally to the world that such an action is pending.
Once a certificate of registration is produced the court has to act onit and is not in a position to decide whether the registration has beenmade in the correct folio without an investigation which would take itoutside its normal functions. The duty is clearly on the plaintiff whoinstitutes the action to ensure that the lis pendens is registered in theproper folio.
The two points which arise for consideration are ::—
whether failure to comply with this section renders the decreeentered in a partition action void by reason of lack of jurisdiction in thecourt which entered it ; and
whether, independent of the point just mentioned, such a failure
deprives the decree of the conclusive effect which it would otherwise haveunder section 9 by reason of the fact that it is a decree not entered “ ashereinbefore provided ” as required by the section..
Upon the first question it has been argued that section 12' (1) of theRegistration of Documents Ordinance is merely directory and thatfailure to observe its provisions does not lead to any fatal results. Itwas further contended that even if the section be regarded as beingimperative, nevertheless, the partition decree was valid, the argumentbeing that the breach of any procedural provision of the law whetherdirectory or’ imperative would not render the decree a nullity. To thislast argument we are unable to assent. In the case of Marsh v. Marsh1the Privy Council dealt with a case in which the Supreme Court ofJamaica by an error in computation made an order, which under aRule of Court could have been made only after a certain period before’i (1945) A. C. 271.
L. M. D. DE SILVA J.—K.anagasabai v. Velupillai
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that period had elapsed. In the course of his judgment Lord Goddardsaid, “ But it does not necesarily follow that because there has not beena literal compliance with the rules the decree is a nullity. A considerablenumber of cases were cited to then Lordships on the question as towhat irregularities will render a judgment or order void or only voidable.Ardaby v. Fraetorius and Smurthioaite v. Hannay2 are leading examplesof the former, while Fry v. Moore3 may be said to illustrate the latter.The practical difference between the two is that if the order is voidthe party whom it purports to affect can ignore it, and he who hasobtained it will proceed thereon at his peril, while if it is voidable onlythe party affected must get it set aside. No court has ever attemptedto lay down a decisive test for distinguishing between the two classesof irregularities, nor will their Lordships attempt to do so here, beyondsaying that one test that may be applied is to inquire whether theirregularity has caused a failure of natural justice. There is, for instance,an obvious distinction between obtaining judgment on a writ whichhas never been served and one in which, as in Fry v. Moore (supra)there has been a defect in the service but the writ had come to theknowledge of the defendant ”.
Under the procedure prescribed by section 12 (1) the court had afteracceptance of the plaint on the material placed before it prima facieto satisfy itself that the action was duly registered as a lis pendens beforeordering summons to issue. It is clear that the court had jurisdictionto accept the plaint and to assume jurisdiction for that purpose so thatthe real question which arises is whether jurisdiction for the furtherprogress of the case was arrested until the lis pendens was duly registered.If so the failure to comply with the provisions of section 12 was such afatal irregularity as would by itself have rendered the decree void.
The one clear instance of a failure of jurisdiction laid down by thePrivy Council is where the breach of a procedural provision resultsin the violation of natural justice. In the case before us there is no suchviolation. Beyond this as observed by Lord Goddard “ no court hasever attempted to lay down a decisive test ” which would help us. Wefind in consequence that a court can answer the question whether therehas been a failure of jurisdiction in the case before us only with muchless certainty than the second question referred to above. As the viewwe have formed on the second question concludes this case it is notnecessary to pursue the question of jurisdiction any further.
^ Does the failure to register a lis pendens in a partition action as requiredby sub-section 12 (1) of the Registration of Documents Ordinance deprivethe decree entered in the action of the “ conclusive effect ” which it wouldotherwise have under section 9 by reason of the fact that it is a decreenot entered as hereinbefore provided ” as required by that section ?The conclusive effect of section 9 is so drastic that in a long series ofcases it has been insisted that before a decree'can have such an effectthe provisions of the Partition Ordinance prescribing the various stepsthat have to precede the decree' must be strictly complied with.
1[1888) 20 Q. B. D. 764.'2(1894) A. C. 494.
3(1889) 23 Q. B. D. 393.'
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•Garvin J. in the ease of Siwa/nadian Chetty v. Talawasingham1 said,■••' There is a strong body of authority for the proposition that theconclusive character assigned by section 9 to decrees only attachesto decrees entered in a proceeding which strictly complies with theessential and imperative provisions of the Ordinance /One of theimperative provisions of the Ordinance relates to the issue of summonsand is to be found in section 3. There can be no proper compliancewith this provision unless sub-section 12 (1) of the Registration ofDocuments Ordinance has been complied with. Consequently in thiscase the decree relied on by the plaintiffs does not possess the characterof a decree which is “ good and conclusive against all personswhomsoever ” within the meaning of section 9 of the Ordinance.
For the reasons we have given the judgment of the learned DistrictJudge must be upheld and the appeal is dismissed with costs.
Rose C.J.—I agree.
Gkatiaen J.—I agree.
[Appeal No. 58 was dismissed for the reasons which appear in thejudgment published above.]
Appeals dismissed.