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Present: Garvin and Drieberg JJ.
SILVA v. DAVITH et al226, 226k—D. C. (Inly.) Kalutara, 9,87:1
Registration of deeds—Ola deed of 1815—Starting point of prescription^
Mortgage action—Lis pendens—Non-registration of decree—Transfer
pendente lite—Subsequent purchaser.
Ary ola instrument of 1815, which has not been registered inaccordance with the provisions of Ordinance No. 6 of 1866, may beadmitted in evidence for the purpose of establishing a starting pointfor a prescriptive title.
An unregistered decree in a rriortgage action instituted prior to Ordi-nance No. 29 of 1917 (Registration of Us pendens) operatesas a valid charge against a transfer effected by the mortgagorpendente lite.
Where a purchaser from such transferee obtained his conveyance afterthe decree and registered it,—
Held, that the registration of his conveyance did not give itpriority over the unregistered decree.
PPEAL from a judgment of the District Judge of Kalutara.
The question in dispute in case No. 226 is stated bythe learned Judge as follows:—“ The plaintiff’s title is based on aDutch grant of 1794. The contesting defendants claim the rightby prescriptive possession to work this field in perpetuity on theirpaying one-fifth share to the owners as ground rent. Their Counselhas moved to produce an ola document of 1815, which has notbeen registered as required by the provisions of Ordinance No. 6 of1866, to prove the starting point of prescription in their favour.
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Objection is taken to its production by the other side on the groundthat, as it has not been registered, it cannot be produced for anypurpose whatever in view of the express provisions of section 7 ofthe Ordinance. In my opinion the document cannot be producedfor the purpose indicated.*'
ff. T' Perera, for appellants in Case No. 226.
E. W. Jayewardene, 2T.C. (with E. W. Perera and N. E. Weera-sooria), for respondents in Case No. 226 and appellants inCase No. 226a.
Be Zoysa, for respondents in Case No. 226a.
February 15, 1928. Garvin J.—
The first of the two appeals in this case (No. 226) was enteredby the 12th to the 21st, 24th to the 32nd, 79th, and 80th defendants.To this appeal the plaintiff is the respondent. It was taken froman order made in the course of these partition proceedings refusingto admit in evidence a certain ola instrument bearing dateNovember 10, 1815.
It was the case for the defendants that they were entitled to theperpetual user and enjoyment of the subject of partition uponterms that they paid to the owner a one-fifth share of the produce.In the answer filed by them they claimed to be declared entitled to4/5ths share of the soil. But that was evidently a mistake, and thetrue nature of their claim was disclosed at the trial. The groundupon which the document was rejected was that it had not beenregistered under the provisions of Ordinance No. 6 of 1866 andconsequently fell into the category of documents, the reception inevidence of which was barred by the provisions of section 7 of thatOrdinance. It was stated, however, that it was not sought to submitthe document as evidencing the right which the plaintiff claims, orto base any claim of right or title upon it, but for the purpose ofestablishing what has been referred to as the “ starting point for aprescriptive title.
Now, the right which these defendants are claiming is in thenature of an emphyteusis. There is authority to be found in theworks of Grotius and of certain other recognized authorities of theRoman-Dutch law for the proposition that such an interest maybe acquired by user for the third of a century, and there is localauthority for the proposition that such a right may even beacquired under the local enactment relating to the law of pre-scription, see Daniel v. Silva,1 Jayawardena v. Silva2 and Podi> 16 N. L,, J?. 461.2 is N. L. B. 269.
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Singho v. Jagukamy.1 The question, however, was not very fullyargued before us and I wish to refrain therefore from expressingany opinion of my own on the point.
I propose to address myself to the question of the admissibilityin evidence of this document on the assumption that the law issettled in the sense that such an interest is susceptible of acquisitionby prescription. The argument that the document cannot beadmitted in evidence for any purpose whatsoever is one to whichI am unable to assent. The Ordinance in terms states that it maynot be admitted for certain purposes. That it is admissible forpurposes other than those specified is a necessary inference fromthe terms of the Statute, and if authority be needed I would referto the dicta in the judgment of Lawrie A.C.J. and Withers J-in the case of Attorney ■‘General v, Kiriya2 Section 7 of the Ordinanceprovides that from the date specified therein “ no deed, sannas, ola,or other instrument as aforesaid shall be received in evidence inany civil proceeding in any Court of justice for the purposes ofcreating, transferring, or extinguishing any right or obligation,unless such deed, sannas, ola, or other instrument shall have beenpreviously registered in the manner heretofore directed.’* Themeaning of these words would seem to be that no such instrumentshall be admitted in evidence in any Court for the purposes ofproving that any right or obligation was created, transferred, orextinguished thereby;- in short, that no such document shall beadmissible as evidence of the creation, transmission, or extinguish-ment of the right or obligation of which it is the record. Havingregard to the scope of the Ordinance, I am unable to see that it wastlie intention of the Legislature that section 7 should be given anywider or more extended interpretation, nor is there reason forsupposing that such documents were not to be admitted for purposesother than those expressly specified. Subject to the limitationsalready noticed, there is no prohibition in the Ordinance againstthe use of these documents as evidence in other cases in which theywould be admissible under the Rules of Evidence for the time beingin force. Recitals and statements in the deed would clearly beadmissible as evidence upon any question relating to paternity,relationship, or marriage, or. to prove any other fact so long asit does not fall within the prohibition already mentioned. Theappellant would clearly be entitled to the benefit of any recital orstatement which directly or by inference establishes the fact thathis predecessor in title entered into possession of these premisesat a certain date.
Counsel for the appellant, however, contends that the documentis admissible, not merely for the purpose of showing the point oftjme at which his. predecessor entered into possession, but also for1 26 N. L. R. ST.2 3 A7. L. R. 31.
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the purpose of showing that when he did so, he did it with theintention of holding it in perpetuity with all the rights of anemphyteutical tenant. This necessarily involves the consideration•of the document and every part of it as a whole. In effect heclaims to be entitled to use the document for the purpose of showing-that this predecessor of his entered into possession in consequenceof the agreement and upon the terms specified therein, in order tolink it up with other evidence by which he proposes to establish thecontinuity of possession upon the same footing and with the sameintention, uninterruptedly up to the present day. The documentis clearly inadmissible as evidence of the rights or obligations whichit purports to create, and nothing can make it -admissible ,for anysuch purpose. But the question is whether it may not be admittedfor the purpose of showing that the possession, if such possessioncan be established, from its very inception, was the possession of aperson who claimed to hold with all the rights of an emphyteuticaltenant. The purpose for which it is sought to be used is not thereforeto establish that the possession at its inception was of right andthat the possession of the successors of the original occupant wasalso of right, but merely to show as I have already indicated, thefact of possession; that it was possession akin to that of an emphy-teutical tenant; and that such possession continued for the necessaryperiod and matured into a prescriptive right to what is sometimesreferred to as a servitude of emphyteusis.
The point is one of no little difficulty and of great interest, but todecide it at this stage would, it seems to me, be premature. Theappellants should first establish that they and their predecessorsin title had been in possession uninterruptedly up to the date ofthis document. For it is only then that it would be necessary toconsider whether the document can be utilized for the purpose ofshowing that the possession of that ancestor was possession akinto that of an emphyteutical tenant-. The case must, it seems to me,go back to enable the defendants to place before the Court theirevidence to establish the right they claim. It is conceivable thatthe right they claim may be established without the necessity ofcarrying their evidence as far back as 1815, but however that mightbe, it is only when and if they succeed in giving reasonable proof ofcontinuous possession by their predecessors in interest which datesback to that period that it will be necessary to consider whether ornot the document of 1815 jean be admitted for the purpose indicated.
I would therefore set aside the order under appeal and send thecase back for trial and disposal. The costs of this appeal will becosts in the cause.
Case No. 226a.
The second appeal—No, 226a—proceeds from a contest betweenthe plaintiffs and the 5th, 6th, and 7th defendants on the one side
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and the 45th defendant on the other. Their respective casesdepend upon the assertion which both sides make that at a certainpoint of time one Balthasar was entitled to a share of this land.
By a bond dated November 28, 1907, and duly registeredBalthasar mortgaged his interests to and with one SuppramaniamChetty, who put the bond in suit in the District Court of Colombo’and on August 80, 1909, obtained a decree declaring those interestsspecially bound and executable for the amount of his judgment.During the pendency of this action Balthasar executed in favourof one Ponniah Pulle a conveyance (P 9) which was registeredon August 16, 1909. Suppramaniam Chetty did not proceed toexecution of his decree. On August 4, 1914, he assigned his interesttherein to the 45th defendant. The decree still remains unexecuted.On December 1, 1917, Ponniah Pulle executed the deed P 10, underand by virtue of which the plaintiffs and the 5th, 6th, and 7thdefendants claim title to the interests of Balthasar. This deed wasregistered on December 6, 1917.
The claim of the 45th defendant was that in any decree enteredin these proceedings the allotment of Balthasar's interests, if any,should be made subject to the reservation of his rights under thedecree of which he is the assignee. The District Judge made orderhi nis favour, and the plaintiffs and the 5th, 6th, and 7th defendantshave appealed.
The submission made in this appeal is that the deed P 10 prevailsover the mortgage decree by reason of the circumstance that it wasduly registered whereas the decree was not. For this deed theclaim is made that it has the same effect as if it had been executedby Balthasar after the unregistered mortgage decree since PonniahPulle by virtue of the right acquired by him on P 9 was hisrepresentative. How far the appellants can for this purpose claimthe benefit of the deed P 9 is a question which I shall consider later.
The proposition that a mortgage decree is a registrable instru-ment and one which should be registered is supported by a largevolume of judicial decision, see Adappa Chetty v. Babt1 and the casereferred to therein. Where such a decree has been entered in anaction instituted after the enactment relating to the registrationof Us pendens affecting land became operative, i.e.t ‘November 9,1917, and is not registered it is void against a purchaser for valuableconsideration who obtains title after judgment and before execution(Saravanamuttu v. Sollamuttu2).
The present action was instituted long prior to the enactmentreferred to, and the effect of the rule of Us pendens to the full benefitof which the plaintiff was entitled afforded him complete protectionagainst all dealings by the defendant Balthasar with the interestsinvolved in the action in the period between the institution of the1 (1923) 25 N. L. R. 284.2 (1924) 26 N. L. R. 385.'
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action and the date of the decree. When that decree was enteredthe property was definitely affected and the charge was valid andoperative, not only as against the defendant, but against all personsto whom he purported to convey the property pendente lite.Balthasar's transfer P 9 was therefore null and void as against therights created by the mortgage decree.
But by reason of the provisions of the [Registration Ordinancethe charge thus created is rendered ineffective against a subsequentpurchaser from Balthasar.
The transferee under P 10 is not in fact a subsequent purchaserfrom Balthasar, and the only way in which the -appellants seek toplace him in that position is by seeking to take the benefit of thedeed P 9 by which Balthasar purported to convey to Ponniah Pulle.
But that conveyance is null and void as against the interests'o.f the decreeholder and cannot be employed by Ponniah Pulle'sassignee to defeat those very interests. It is impossible thereforefor the appellants to place the transferee under deed P 10 in theposition of a purchaser from Balthasar without pleading as againstthe decree the benefits of conveyance executed pendente lite of thevery action in which that decree wag entered, and this they are notentitled to do.
The order of the Court below is I think correct and shouldbe affirmed.
At the close of his argument Counsel for the appellant intimatedthat he had various objections to take to the execution of thisdecree by the assignee, and amongst them satisfaction of the decreeby payment—I cannot now recall whether he said satisfaction inwhole or only in part. He pleaded that in any order adverse to hisclient it should be made clear that the share in dispute will only beexecutable for the amount for which execution is allowed by theCourt which passed the decree. It is obvious that any declarationthat the share, if any, which may ultimately be allotted to the personsclaiming under and by virtue of deed P 10 shall be subject to theright of the assignee to take the same in execution of the mortgagedecree can give the assignee no larger rights than those to whichthe Court to which he has applied for execution of that decree maygrant him so that I do not think it necessary to give any specialdirections in the matter.
The appeal is dismissed with costs.
Drieberg J.—I agree.
SILVA v. DAVITH et al