041-NLR-NLR-V-22-SINGHO-v.-WIJESINGHE-et-al.pdf
( 146 )
1920.
Present: De Sampayo J.
SINGHO v. WIJESINGHE et at.
45-^C. R. AvissaweUa,10,459.
Registration—Different names—:ls identity of names essential ?—Wrongfolio.
A sold her interest in a land to the plaintiff by deed datedJanuary 4,1916,andregisteredon January 24,1919. Subsequentlyby deed dat6d January 3, 1919, A sold the land to the defendant,and this deed was registered on January 8, 1919. Plaintiff's deedwas registered in a folio in which a deed relating to the land wasfirst registered (a deed of 1900). Defendant’s deed was registeredin a different folio and under a different name. In a deed of 1856this land was called Danketiyahena, and under this name the landwas sold to the defendant. . But in plaintiff’s deed and in the deedof 1900 the name given was Kehelkotuwehitinawatta.
Held, that the plaintiff had superior title, as identity of namewas not essential for registration..
“ I think the Commissioner, in holding, as he did, that theregistration of this particular land, should have been according tothe name by which the land was called in the old deed, is not right.”
facts are set out in the judgment.
Croos-Ddbrera (with him E. G. P. Jayatilleke), for plaintiff,appellant.—The right folio is that in which a deed regarding aland is first registered and all folios connected with such folio. Thedefendant’s deed is registered in a different folio unconnected with.the original folio. The plaintiff’s deed, on the other hand, is regis-tered in a folio connected with the original folio. The defendantcannot, therefore, claim the benefit of prior registration. Theplaintiff’s deed is prior in date, and therefore his title is better. TheCommissioner has decided in defendant’s favour on the ground thathis deed gives the correct name of the land. It is submitted thatthis makes no difference so long as the corpus is the same. It is theregistration of a deed regarding a particular land that determinesthe folio. There is no question that the same land has been dealtwith by both.the deeds. Counsel cited the judgment of the PrivyCouncil in Rajapakse v. Fernando.*
Canekeratne, for defendants, respondents.—The name given to theland in defendant’s deed is that which occurs in the earliest deedaffecting the land. . The plaintiff’s deed gives the land a different 1
1 (1920) 21 N. L. R. 495.
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name. The proper folio should be that in which a deed regarding1020.
the land is registered under its correct name. To hold otherwise—“
would cause much inconvenience and hardship, and may open the Wijeavnghtdoor to fraud.
Cwr. adw. wM.
July 20, 1920. De Sampayo J.—
This appeal raises an important question relating to registrationof deeds. Ban Menika was the admitted owner of one-sixth shareof a land which the plaintiff calls Kehelkotuwehitinawatta. Shehad a daughter named Nonahamy alias DingiriEtena, who by deeddated January 4, 1916, registered on January 24, 1919, sold thatinterest to the plaintiff, but, notwithstanding that transaction,
Nonahamy sold the share again to the defendant by deed datedJanuary 3,1919, and registered on January 8,1919. It will be seenthat the defendant's deed though subsequent in date was registeredprior to the plaintiff’s deed, and accordingly the defendant claimsthe benefit of prior registration by virtue of section 17 of the LandRegistration Ordinance. Here the defendant is confronted withthe fact that the plaintiff’s deed was registered in a folio in whicha deed relating to the land was -first registered, namely, a deed ofFebruary, 1, 1900, whereas the defendant’s deed was registered ina different folio, and so the plaintiff contends that the defendant’sdeed was not registered in the right folio. The defendant in histurn, however, seeks to meet the difficulty by relying on a differencein the name of the land. It appears that in a deed of 1856 relatingto this land it was called Danketiyaheiia, and that is the name which "is given in the deed in favour of the defendant, but in the plaintiff’sdeed as well as in the deed of February 1, 1900, to which X havereferred, the name given to the land is Kehelkotuwehitinawatta.
The contention on behalf of the defendant is that the identity of aland for purposes of registration depends, not only on boundaries,
' but on the name of the land, and since Danketiyehena is the namegiven to the land so far back as 1856, it is contended that the folioin which the defendant’s deed is registered is the proper one forthis purpose. But I cannot agree that the name has much to dowith the question of identity for purposes of registration. I quite,understand theinconvenience that persons interested may experiencewhen they wish to search the register with a view to finding outprevious transactions unless the same name is carried forward, butthe point is whether under the. Ordinance identity of name is anessential detail. As far as I know, there is no case in which thecontention on the defendant’s behalf was upheld, and on principleI do not, think the contention is sound. We have some guidance onthis point in the recent judgment of the Privy Council in Rajapaksev. Fernando,1 in which parties claiming adversely to each other had
'(1920) 21N. L. R. 49&
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1620. derived titles-from one Thomas Carry, who held old deeds, on theDb Sampayo Btren8t^1 which he sold to one party, and obtained later Govern-j, ment grants, on the strength of which he transferred the lands toSi ho v°*ber party. This passage occurs in the judgment of the Privy
W^esinghe Council
“ A great part of the argument on behalf of the appellant wasbased on the fact that in the register of the grant of the landby Government to Thomas Carry, it is spoken of as thelhalamedagoda estate, and in the registration of the deedsrelating to the title of the appellant, it is registered as beingin the village lhalamedagoda, whereas in the deeds relatingto the respondent’s title it is spoken of as being in the villageMedagoda. But the provisions of section 24 of the Ordinanceturn on the identity of the lands, and not upon the identityof the nomenclature by which they are described.”
Section 24 referred to in that passage provides that when anyproperty which shall have been once registered shall be subsequentlysold, encumbered^ or otherwise affected or dealt with, the deed orinstrument purporting to transfer or otherwise deal with or affectsuch property shall state the volume and folio of the register inwhich such property has been previously registered. That sectionapplies to this case as much as to the.case which the Privy Councilwas dealing with. .1 think the Commissioner, in holding, as he did,that the registration of this particular land should have been accord-ing to the name by which the land was called in the old deed, is notright, and that his judgment in favour of the defendant on the groundof prior registration cannot be sustained.
The plaintiff is, I'think, entitled to judgment as claimant, withdamages as agreed on January 23, 1920, that is to say, Rs. 25damages already incurred and further damages at Rs. 2 per mensemfrom the date of action till restoration to possession.
"T therefore set aside the judgment appealed from, and direct thatjudgment be entered in favour of the plaintiff for the share of landclaimed and for possession, with damages as above. The plaintiffis entitled to costs of this action and also of this appeal.
Set aside.