081-NLR-NLR-V-74-W.-D.-C.-PERERA-et-al.-Appellants-and-I.-A.-D.-PREMAWATHIE-et-al.-Respondents.pdf
302
Percra v. Premawalh ie
1970Present : Alle?, J., 3nd Siva Supramaniam, J.
W. D. C. PERERA el al., Appellants, one? I. A. D. PREMAWATHIE el al.,Respondents
S. C. 237fG7 (Inly.)—t>. C. Panadura, 7594/P
llegistration of Documents Ordinance {Cop. 117)—Sections 7 and 14 (1)—Invalidity ofunregistered instrument as against subsequent registered instrument— Begistralionof deed relating to an undivided share of a land— Proper folio— Burden of proof—Evidence Ordinance, s. 114—Deed of transfer seventy years old—Valvcbleconsideration—Quantum of evidence—Evidence Ordinance, s. 3—Personclaiming under an unregistered deed as against a person who claims under asubsequent deed uliich has been duly registered—Issue of prescriptive title—Burden of proof.
Where a deed relating to nn undivided share of a land is registered interms of section 14 (1) of the Kegistration of Documents Ordinance in a folioof the book allotted to the division in which the land is situated, and theregistration is in a new folio without any cross-reference, the Court maypresume under section 114 of tho Evidence Ordinance that the official act of theRegistrar has been regularly performed. Accordingly, unless tho transferee(or his successors in title) under nn earlier unregistered deed in respect of thosnir.e undivided share proves that there uns in existence an earlier registrationin respect of the whole or part of the said land, to which the registration of thoInter instrument should have been connected, the later instrument must boregarded as duly registered and must prevail over tlio cailicr unregisteredinstrument.
A deed of transfer was more than seventy years old. The parties andthe w itr.esses to it w ere nil dead. It was signed by the transferor and containedan ncknow lodgment by her that the full consideration for the transfer had beenpaid to her by tho vendee.
Held, that tho statement of tho vendor contained in tho deed that she hadreceived tho full consideration for the transfer was sufficient to prove that thointerest that passed on tho deed was for vahmblo consideration.
Whcro tho question is whether A, who claims titlo to a land under onunregistered deed, has acquired prescriptive titlo as against 13 who claims tholand under a subsequent deed which has boon duly registered, tho onus is onA to provo that he has acquired prescriptive tide.
SIVA SUPKAM.-VNIAM, J.—Pcrern v. Prcmawalhie
503
_A.PPE.AL from a judgment of the District Court, Panadura.
A. G. Gooneralne, Q.C., with R. C. Cooneralne, for the 4tli, 6th and 7lhdefendant s-appcllants.
//. VV. Jayeuardene, Q.C., with D. R. P. GoonetUlekc and G. II. S.Samaraueera, for the plain tiffs-respondents.
G. P. J. Kurukulasuriya, for the 2nd ancl 3rd defendants-respondents.
Cur. adv. lull.
March 12,1970. Siva Sopramaxiam, J.—
This is an action for partition of a piece of land called Ivosgahakanatta-watte depicted as lots 1, 2 and 3 on plan No. 156 filed of record. Therearc several matters in dispute between the co-owners but the only onothat concerns this appeal is a cl'spute between the plaintiffs, the 2nd and3rd defendants on the one hand and the 4th, 6th and 7th defendantson the other in regard to 1/4 share of the said land.
It is common ground that one Daniel and one Bastian had been ccjuallyentitled to the land in Cjuestion and that the rights of Daniel have passedto the 4th defendant-appellant-. One of the children of Bastian wasSelohamy who married one Joronis. The 1st ancl 2nd plaintiffs and the1st and 2nd defendants are grand children of Selohamy and Joronis,being cl.il Iren of one of their sons, William. The 3rd defendant is thewidow of William. On Bastian’s death, one half of his interests, i.e.,1/4 share of the whole land, passed to his widow Bunchohamy. It isthat 1/4 share that is the subject of the ptesent dispute between theparties.
Bunchohamy, by deed PI of 24.12.1S95 transferred her 1 /4 share in the.l.-nd to her son-in-law Joronis. Thereafter by deed No. 9533 of 1S.4.1S9G(4D7) she transferred the very same share to one Elaris who by deedNo. 10352 of 18.12.1S97 (4DS) transferred the same to one Don Jamis.Don Jamis by deed No. 12322 of 10.2.1911 (4D9) transferred that .shareto one Thiyonis, another grandson of Bastian. The interests of Thiyonishave now passed to the 4lh, 6th and 7th defendants-appellants, the Cthand 7th defendants being children of the 4th defendant.
t
The contention of the appellants is that the deed PI in favour of Joroniswas unregistered and was void as against the deed 4D7 in favour ofElaris which was an instrument for valuable consideration and wasduly registered and that the appellants who have succeeded to the rightsof Elaris have valid title to the 1/4 share of Bunchohamy. The learnedtrial Judge rejected the contention of the appellants on two grounds—
(1) that there was no affirmative evidence that the registration ofdeed 4D7 was in the correct folio; and
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SIVA SUPRAMAXTA3C. J—Perera v. Prcmawathie
(2) tliat the 4th defendant had failed to prove that there was valuableconsideration for the deed 4D7.
The appellants produced in evidence a certified copy (4D 14) of thefolio containing the registration of the deed of transfer 4D7. The folioindicates that that is the first deed to be registered. The learned trialJudge states : “ 4D7 transfers only a half of an undivided half share ofKosgahakanattewatte. There is no affirmative evidence that 4D14 isthe right folio for the registration of the deed 4D7 or whether it is thefolio in which the first registered instrument affecting Kosgahakanatte-watte is registered or is a continuation of the said folio”.
S. 14 (1) of the Registration of Documents Ordinance (Cap. 117)provides as follows :—
"Every instrument presented for registration shall be registeredin che book allotted to the division in which the land affected by theinstrument is situated, and in, or in continuation of, the folio in whichthe first registered instrument affecting the same land is registered :
Provided that—
I
an instrument may, if the Registrar thinks fit, be entered in a
new folio, cross-references being entered in the prescribedmanner so as to connect the registration with any previousregistration affecting the same land or any part thereof; and
where no instrument affecting the same land has been previously
registered, the instrument shall be registered in a new folioto be allotted by the Registrar.”
The deed 4D7 shows that the land in question is situated at Weniwelkolain Udugaha Pattu of Salpiti Korale. The document 4D14 shows thatit is a folio of the book allotted to tlie aforesaid division. Under theRegistration of Documents Ordinance it is the duty of the Registrarto register the instrument in the book allotted to the said division. Theregistration of 4D7 complies with that requirement. The further dutycast on the registrar is to register it in or in continuation of the folioin which the first registered instrument affecting the same land is registeredand, where no instrument affecting the same land has been previouslyregistered, to register it in a new folio. The registration is a statutoryduty carried out by the Registrar and under s. 114 of the EvidenceOrdinance the Court may presume that that official act had been regularlyperformed. The fact that the registration of the deed 4 D7 is containedin a ne.w folio without any cross reference will therefore lead to thoinference that no instrument affecting the same land had been previouslyregistered. It was, of course, open to the respondents to prove, if suchwas the case, that there was in existence an earlier registration in respectof the whole or part of the said land, to which the registration of 4D7should have been connected. In the absence of such proof, thoappellants were entitled to a finding that the instrument 4D7 wasduly registered.
SIVA SUPRAMANIAM, J.—Pcrerat v. Prctnaa-alhie
305
As regards the second ground, namely, that there is no proof that thetransfer was for valuable consideration, one has to bear in mind that thedeed is more than seventy years old and that the parties and the witnessesto the deed are all dead. The deed which is signed by Bunchohamycontains an acknowledgment by her that the full consideration for thetransfer had been paid to her by the vendee. That statement is anadmission by Bunchohamy against her pecuniary interest and is a relevantfact. The learned Judge, however, held that that fact was not sufficientto prove that consideration was paid. He appears to have beeninfluenced in his view by the judgment of this Court in Diyes Singho u.Ilerath1 in which Fernando J. (Abeyesundere J. agreeing) held that astatement by the notary in his attestation of a deed of transfer that theconsideration was paid in cash in his presence was insufficient to establishthe truth of the payment of such consideration. The Court was not.considering in that case the effect of a statement contained in the deedby a vendor who was dead. Besides, the deed was one which had beenexecuted less than seven years earlier and it would have been possiblefor the parties to lead direct evidence in regard to the considerationpaid. On the facts in the instant case, the statement of the vendorcontained in 4D7 that she had received the full consideration for thetransfer was sufficient to prove that the interest that passed on thatdeed was for valuable consideration. Under s. 3. of the EvidenceOrdinance “ a fact is said to be proved when, after considering the mattersbefore it, the Court either believes it to exist or considers its existenceso probable that a j>rudent man ought, under the circumstances of theparticular case, to act upon the supposition that it exists.”
For the reasons aforesaid, the appellants were entitled to a finding thatdeed 4D7 had been duly registered and that PI was void as againstall parties claiming an adverse interest under 4D7.
The next question is whether Joronis and his successors have acquiredprescriptive title as against the appellants to the aforesaid 1/4 share.On this issue too the learned trial Judge held in favour of the respondents-In support of that finding tlie learned Counsel for the respondentssubmitted that both EJaris and Don Jamis Appu were outsiders and inthe absence of evidence that they possessed any share in the land,Joronis who had been on the land would have acquired prescriptive titleagainst them before Don Jamis Appu transferred his interests to Thiyonis,who was a co-owner, on 4D9 of 1911. It was argued that the possessionof Joronis was referable to his legal title on PI.
On the question of possession the witnesses who gave evidence werethe 2nd defendant and the 4th defendant. At that time the 2nddefendant was 46 years of age and the 4th defendant 64. Neither ofthem could therefore have had personal knowledge of the land during the1(I9C2) 64 N. L. B. 492.
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SIVA S UP F. A } LAJNT AM. J.—Per era v. Premawjihic
period of lire ownership of Elaris or Janiis. The evidence of the 2nddefendant was directed to prove that Joronis was in possession of 1/3share of the land as planter but this claim was rejected by the learnedtrial Judge. It was common ground between the parties that Selohamywife of Joronis was entitled to 1/12 share of the land and Joronis was inpossession of that share even before the execution of PI. There is noevidence that after the execution of deed PI in his favour Joronisenlarged the area he was in possession of so as to include an extentequivalent to the extent he purported to purchase from Bunehohamy.It has also not been disputed that for over thirty years the 4th defendantand his children the Gth and 7th defendants have been in possession oflots 2 and 3 as divided lots and that the total extent of these lots isroughly equivalent to their undivided interests in the whole land inclusiveof the 1/-4 share purchased by Elaris on 4D7. Since the legal title to thedisputed 1/4 share was in the appellants by reason of the due and priorregistration of 4B7, the onus was on the respondents to prove thatJoronis and his successors in title had acquired prescriptive title to thatshare. In the absence of such proof, the appellants were entitled tosucceed. The 2nd defendant conceded that from the time he came toknow this land, the 4th defendant had been in possession of lots 2 and 3.There is no evidence to show that Joronis’s possession was of a largershare than what he was entitled to possess by virtue of the right of hiswife. The trial Judge’s conclusion that neither Jatnis Appu nor Thiyonispossessed the 1/4 share they purchased on 4DS and 4D9 because theydid not register their respective deeds is a non sequitur. On the evidenceled the respondents failed to discharge the burden that lay on them toprove that Joronis and his successors had acquired a prescriptive titleto the said 1/4 share and the learned Judge should have answered theissue in regard to prescriptive title against the plaintiffs-responclcnts.
Issues 1 (a) and 1 (b) should have been answered in the negative andissues 7 (a), 7 (b), 10 (a) and 10 (b) in the affirmative. •
I set aside the decree and that part of the judgment relating to thefindings on issues 1 (a), 1 (b), 7 (a), 7 (b), 10 («) and 10 (b) and direct thata fresh decree be entered on the basis of the aforesaid answers to theabove issues. The learned trial Judge will make an appropriate orderin regard to the costs of the Lower Court.
The appellants are entitled to their costs in appeal.
Alles, J.—I agree.
Appeal allotted.