082-NLR-NLR-V-58-THE-COLOMBO-APOTHECARIES-COMPANY-LIMITED-Appellant-and-M.A.-PEIRIS-and-other.pdf
[Lv THE Piuvr Couxcic]1956 ' Present: E3rl Jowitt, Lord Oaksey, Lord Cohen,- Lord Keithof Avonholm and Mr. L. M. D. de SilvaTHIS COLOMBO APOTHECARIES COMPANY LIMITED, Appellant,and M. A. PEIRIS and others, RespondentsPrivy Council Appeal No. 25 of 1955
S. G. 35S—D. G. Colombo, 5143
Registration oj deeds—Transfer of immovable properly-—Registration of deeel ut atime when it passed no interest—Subsequent acquisition of title by grantor—Right of grantee to defeat the provisions of an earlier unregistered deed—LandRegistration Ortlinance, -Yo S of 1S63, ss. 38, 39 (re-enacted as ss. Iff and 17of the Land Registration Ordinance, -Yo. 11 of 1891)—Registration ofDocuments Ordinance, 1937 (Cap. 101)—Res judicata.-
(i) Tho description of instruments contained in section 3S of tho Land Regis-tration Ordinance Xo. S of IS63 is wide, and sufficient to cover instrumentswhich though they aro ineffective at tho time of execution may become effectiveat a later date. Tho Registration of Documents Ordinance of 1927 makes nodiffercnco to this conclusion.
Thus, when a deed of transfer of immovable property is executed at a timo• when tho grantor has no title to tho property, tho subsequent acquisition oftitio by tho grantor would not only givo tho benefit of such title to the instrument 'already executed but would also give tho granteo tho benefit of priority by tha' registration of that instrument; if tho competing instrument remained unregis-tered at tho timo of tho acquisition of title, tho subsequent instrument, oventhough it was registered at- a time before the grantor acquired his title, wouldprevail over tho unregistered deed.
(ii) Ouo Solomon was originally tho owner of certain premises. .In 1S70, bydeed PI ho gifted tho premises to his son Lorenzo, reserving a lifo interest tohimself and creating a fideicominissum in favour of Lorenzo’s descendants forfour generations. During Lorenzo’s lifo time, his son Lawrenti, althoughho had only a contingent fideicommissary interest in tho property, transferredtho whole of tho premises to ono Dias by deed GDI executed on December 21,1S95. In case Xo. 11,739 Lorenzo sued Dias for a declaration of title to andejectment from the premises in question. Tho question in controversy in caseXo. 11,739 was whether deed PI conveyed an interest directly to Lawrenti orwhether it did not, and it was held that deed PI prevailed over deed GDI. TIioquestion as to what- Dias may havo received on GDI from Lawrenti by reasonof inheritance by Lawrenti from Lorenzo was expressly left open by the Court-In tho present caso the plaintiff, who was a son of Lawrenti, claimed titleto tho premises ns against tho defendant, who was tho successor-in-title ofDins. At tho time when the caso was instituted Solomon and Lorenzo haddied intestate. It was shown that deed PI had never been registered whcroa3deed 6D1 had been registered on December 31, 1S95, when Lorenzo was still. alive.
Held, that tho decreo in caso Xo. 11,730 could not operate as res judicata Intho present case.
G1. VIII
2J. N. B 65307—1,693 (5/57).
-^^lPPEALi from, a judgment of the Supreme Court.
Raymond Walton, with E. S. Amera-singJic and L. Kadirgamar, for tho6tli defendant-appellant.
Ralph Milner, for the plaint iff-respondent.
December 11, 1956. [Delivered by Mn. L. M. D. de Silva]—
Tho plaintiff in this ease (a respondent to this appeal) instituted fheaction in the District Court of Colombo for a sale under the PartitionOrdinance (Chapter 56, Legislative Enactments of Ceylon) of certainpremises situated in Colombo. He pleaded that he and the first fivedefendants (also respondents to this appeal) were entitled to the propertyas co-owners. He further pleaded that the 6th defendant (the presentappellant) had no right to the premises and was in wrongful possessionthereof.
The learned District Judge in an able and careful judgment held thatthe respondents had no title to the land and dismissed the action. Onappeal the Supremo Court held that the plaintiff-respondent and thefirst defendant-respondent had certain fiduciary rights to the land undera deed of gift of 1S70 creating a fidei cotnmissum, and that t-lic second tothe fifth defendants-respondents also had had certain rights which theyhad lost owing to prescriptive possession by the appellant. The SupremeCourt entered decree accordingly. .
The appellant now asks that tho decree of the District Court dismissingthe action be restored.
It is common ground that one Solomon Rodrigo was originally the ownerof tho premises. His sole issue was his son Lorenzo Rodrigo. In 1S70by deed No. 8,550 (referred to in the proceedings as PI) Solomon giftedthe premises to Lorenzo, reserving a life interst to himself and creatinga, fidei commission in favour of Lorenzo’s descendants, which, as the deedwas executed in 1S70, was effective for four generations. Solomon diedintestate in 1S73. Lorenzo died intestate in 1S99 leaving issue a daughterMadalena and a son Lawrcnti. Madalena died in 1934 intestate andleaving as issue the 2nd to the 5th defendants-respondents. Lawrcnti diedin 1939 intestate and leaving as issue the plaintiff-respondent and the 1stdefendant-respondent. Lawrcnti on 21st December, 1S95, when his fatherLorenzo was still alive, by deed No. 5249 (referred to in the proceedingsas GDI) transferred fhe whole of the premises to one Dias. It is notdisputed that the interest, if any, in the'prcmises which passed to Diason GDI cither at the time of execution of GDI, or at any time thereafter,lias, upon a scries of instruments, passed to the appellant. It is convenientbefore dealing with the rest of the case to examine what interest if anythe appellant acquired on this scries of instruments.
At the time CD1 was executed Lawrenti had no title to the wliolo oftiie premises which he purported to convey or to any interest at all thereinbecause his father Lorenzo was still alive. The deed GDI was registeredon the 31st December, 1S95. Tho Deed of Gift Xo. 8,550 (PI) was notregistered at tho time and was in fact unregistered at the date of action.Sections 3S and 39 of the Land Registration Ordinance, Xo. 8 of 1SG3(re-enacted as sections 1G and 17 of the Land Registration Ordinance 14of 1S91) arc to the following effect:—
38. “Prom and after the time when this Ordinance shall come intooperation, every Deed or other instrument of sale Purchase, Transfer,Assignment or Mortgage, of any land or other immovable properly,or of Promise, Bargain, Contract or Agreement, for effecting any suchobject, or for establishing or transferring any security, interest orencumbrance affecting such land or property (other than a Lease atwill or for any period not exceeding one month), or of Contract orAgreement for the future sale or purchase or transfer of any suchland or property ; and every Deed or Act of Release, Surrender orAnnulment, of or affecting any such Deed or other instrument, andthe Probate of any Will, and every grant of Administration affectingany such land or property and every Judgment or Order of Courtaffecting any such land or property shall, if executed made granted orpronounced after the time when this Ordinance shall have come intooperation, be registered in the Branch Office of the District or Provincein which sueli land or … property is situate. … ”
39. “ Every Deed, Judgment Order or other instrument as aforesaid,unless so registered, shall be deemed void as against all partiesclaiming an adverse interest thereto on valuable consideration, byvirtue of any subsequent deed, judgment, order or other instrument,which shall have been duly registered as aforesaid. Provided howevert-liat fraud or collusion in obtaining such last mentioned deed,judgment-, order or other instrument, or in securing such prior-registration, shall defeat the priority of the person claiming thereunder,and that nothing herein contained shall be deemed to give any greatereffect or different construction to any deed , judgment, order or otherinstrument registered in pursuance hereof, save the priority herebyconferred on it. ”
Parties are agreed (subject to the possibility of the intervention of anotherprinciple of law discussed later) that, according to tho law of Ceylon, hadLorenzo been dead at the time of execution and registration of GDI, thodeed, b$' reason of registration,' would have passed from Lawrenti to Diassuch interest as Lawrenti would have had if both his father Lorenzo andgrandfather Solomon had died intestate and the grandfather had notexecuted deed Xo. S,550. The registration of GDI would have wiped outthe provisions of deed Xo. 8,550. It is also not disputed that under tho
law of Ceylon by reason of the application of tlie doctrine exceptio reivenditae any interest which Xiawrenti would have inherited from Lorenzoafter the execution of GDI would pass on GDI t-o the transferee althoughat the time of execution of GDI Lawrenti had had no interest. The questionwhich arises is whether the registration of GDI at a time when itpassed no interest is sufficient to enable the transferee to defeat the pro-visions of Deed No. 8,550. It is not disputed that if GDI had been regis-tered after the death of Lorenzo (instead of being registered before thedeath) it would have defeated Deed No. 8,550. "Upon this point thelearned District Judge said :—
“ What I wish to emphasize is, that the same instrument thoughexecuted at a time when the grantor had no title, is made use of tocomplete the title of the grantee ; cannot then, this same instrument,though it had been duly registered- before the grantor acquired histitle, be made use of to give priority by registration over an earlierdeed, which is not registered at all or registered subsequent to theacquisition of such title. My answer to this is in the affirmative.
“ If the subsequent instrument can be made use of to give title, whycannot the registration of the same instrument confer priority, providedall the other requirements to confer such priority, are present: thesubsequent acquisition of title would not only give the benefit of suchtitle to the instrument already executed, but would also in my opiniongive the grantee the benefit of priority by the registration of thatinstrument ; tiie position can however be different if the competingdeed had been registered before the subsequent acquisition of title ;but if the competing instrument remained unregistered at the time ofthe acquisition of title, then, I do think that the subsequent, but dulyregistered, instrument prevails over the unregistered deed. ”
Their Lordships agree. It was argued that as at the time GDI wasregistered it did not pass any interest it was not an instrument comingwithin the range of the documents described in section 3S and that,in consequence, the registration was ineffective at the time it was madeand remained ineffective ever after. Their Lordships cannot accept thisargument as the description of instruments contained in section 3S iswide, and sufficient to cover instruments which though they arc ineffectiveat the time of execution may become effective at a later date. MoreoverGDI remained on the register from the time it was registered and was onthe register at the point of time of, and after, Lorenzo’s death. TheirLordships are of opinion that the character of being a registered instrumentat that point of time is not- avoided or diminished by reason of the factthat it had been on the register before then.
Doth sides referred to the ordinances mentioned above in the course ofargument and it was not suggested that the Registration Ordinance 1927made any difference to the conclusions drawn.
On appeal the Supreme Court did not consider the matters discussedin the preceding paragraph because it thought that the intervention of.another principle of law made them irrelevant. It took the-view :—
“ The main argument addressed to us on behalf of the 0th defendantivas that Lavrenti’s purported conveyance 6D1 of 1S95 was entitledto prevail over the earlier deed PI by virtue of prior registration.On this point, the learned Judge held in favour of the 6th defendant.In my opinion, however, the issue of prior registration has no applica-tion to the facts of this case. An earlier decree PG of the DistrictCourt of Colombo, which was upheld by this Court on appeal, decidedthat PI prevailed over GDI and this decision operates as res adjudicateagainst the Gth defendant who is the succcssor-in-title of the unsuccess-ful party in those proceedings. ”
The decree referred to was the decree in case No. 11,739 of the DistrictCourt of Colombo. In that case Lorenzo sued Dias, the transferee oilGDI, for a declaration of title to and ejectment from the premises inquestion. The original of Deed No. S,550 was unobtainable for thepurposes of case 11,739 and Dias raised the defence that by that deedSolomon had gifted the premises directly to his grandson Lavrenti subjectto an interst in Lorenzo which had expired. On secondary evidence thecontents of deed S,550 were established to be what now appears in t liedocument PI, which, as stated earlier, is a conveyance by Solomon toLorenzo reserving a life interest in Solomon and creating a fidei commis-sion in favour of Lorenzo’s descendants. Lorenzo would have beenentitled to succeed when it became clear that deed 8,550 conveyed nothingdirectly to Lavrenti as contended by Dias. There was however a findingthat deed 8,550 contained a fidei commission- and this finding thoughcorrect was purely incidental. Upon appeal the decision that Lorenzowas entitled to a declaration of title and possession was affirmed but a/hiding by the District Court (unnecessary for Lorenzo’s success) thatthe deed of transfer GDI from Lavrenti to Dias was null and void wasdeleted. The deed was restored to its “pristine condition” and,Lorenzo having died during the pendency of the appeal, the question asto what Dias may have received on GDI from Lavrenti by reason of“ inheritance ” by Lavrenti from Lorenzo was expressly left open by theSupreme Court. This is the very question discussed in previous para-graphs. As it was expressly left open nothing that happened in CaseNo. 11,739 could have given rise to a i>lea of res judicata upon it .
In the present case the Supreme Court on the question of res judicatasaid :—
” 'fhe effect and true meaning of PI was prominently raised in issuebetween the parties to those proceedings. The basis of the decreeagainst Dias in favour of Lorenzo was (1) that PI created a validfidei commission in favour of Lorenzo and his ‘ descendants ’ and (2)that Lavrenti had, at the time when GDI was executed during hisfather’s lifetime, only a contingent fidei commissary interest in the*
2*J. X. B 65307 (5/57)
property. It follows that tlie 6tli defendant, as the successor–in-titleof the purchaser under GDI, is bound by the decision that PI prevailedover GDI. ”
It is true that in Case Ko. 11,739 PI prevailed and GDI did not prevail.The question in controversy there was, whether, as staled by the defen-dant (in that case), PI conveyed an interest directly to Lawrenti or whetherit did not. When PI was reconstructed on secondary evidence it wasclear that PI conveyed no such direct interest and consequently GDI (inwhich the transferor was Lawrenti) became totally ineffective during thelifetime of Lorenzo. It was no doubt held that PI created a Jidei com-•missum. That fact is not, and has never been, denied by the appellantin the present case, and the decision that PI created a Jidei commissumis not material to the considerations in the present case.- The epicstionwhether it created a jidei commissum is not, and has never been, in contro-versy in this ease. What is in controversy is whether in the completelyaltered circumstances prevailing on the death of Lorenzo, GDI could besaid to be a duly registered instrument passing title. The questionsinvolved in this controversy did not arise (and indeed coidd not havearisen) in case 11,739. All that can be said of the decision in CaseKo. 11,739 is that it fixed Dias with notice of the Jidei commissum butthis fact appears to be immaterial for the purpose of their Lordships’
. decision. It was said for the appellant that under the law of Ceylon noticeof a prior deed does not alter the effect of the registration of a subsequent■deed. This view has 3iot been challenged and it follows that there isnothing in the decision in Case Ko. 11,739 which detracts from the normalconsequences of the registration of GDI discussed in previous paragraphs.Upon the series of instruments referred to in those paragraphs the appel-lant became entitled to an undivided half share of the premises.
The 2nd to the 5th defendants-respondenls claimed the remaining halfshare of the premises as fiduciaries under the deed of gift PI on the deathof 3Iadalcna in 1931. The learned District Judge held that the appellantwho had been in possession for 2G years had prescribed to the interestsof these respondents. This finding was not disturbed by the SupremeCourt and has not been challenged on this appeal.
It follows from what has been said that the plaintiff-respondent has nointerest in the premises in respect of which she brought this action. Heraction must therefore be dismissed.
Their- Lordships will humbly advise Her Majesty that the appeal be■allowed, that the decree of the Supreme Court be set aside and that thedecree of the District Court be restored. The plaint iff-respondent, whowas the only appellant to the Supreme Court and who was the only res-pondent represented on this appeal, must pay the costs of this appealand the costs of the appeal to the Supreme Court.
Appeal- allowed.