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1921 Supreme(SC) 53
Privy Council
Phillimore, Atkinson, Justice Viscount Haldane, JJ.
Fernando -Appellant
Versus
Gunatillaka -Resopndent
On appeal from the Supreme Court of Ceylon
Decided On : 28-06-1921
Gregory, King, Herbert Smith Goss, Cooke, Freeman, Lilley, De Gruyther K.C., R.G.N. Combe, Romer
Under Roman-Dutch law, a transfer of property by a vendor without title becomes effective upon the vendor's subsequent acquisition of title, provided traditio is satisfied. For immovable property, the delivery of a registered deed is equivalent to traditio.
Headnote:(A) Roman-Dutch Law - Exceptio reivindicatae et traditatae - Transfer of property by a vendor without title - Subsequent acquisition of title by the vendor - Benefit of such acquisition accrues to the earlier grantee - This principle is broader than the English doctrine of estoppel by recital.
(B) Roman-Dutch Law - Traditio - Delivery of immovable property - In a system where conveyance is effected by registered deeds, the delivery of a registered deed is equivalent to traditio.
(C) Civil Procedure - Res Judicata - Decision on title to small sums of money under land acquisition laws - Whether such decision binds the title to the bulk of the property - If the relevant amending ordinance is prospective, the rule of res judicata applies.
(D) Property Law - Fidei commissum - Alienation of contingent interest - No prohibition in law against the alienation of a contingent interest; such transfer becomes effective upon vesting.
Facts of the case:
A property was subject to a fidei commissum providing that if the primary beneficiary died without issue, the property would devolve upon his brothers. The brothers, before the primary beneficiary's death, executed a registered deed of transfer of their interest to a third party. Subsequently, the primary beneficiary died without issue, and the interest vested in the brothers. The brothers later transferred the property to another party. A dispute arose between the successors of the first transferee and the second transferee regarding the title.
Findings of Court:
The first transfer was valid. Under the applicable law, the subsequent acquisition of title by the transferors made the original transfer effective. The requirement of delivery (traditio) was satisfied by the execution and registration of the deed.
Issues: Whether the delivery of a registered deed constitutes traditio under Roman-Dutch law for immovable property and whether a transfer executed by persons without title at the time becomes effective upon their subsequent acquisition of title.
Ratio Decidendi: The court held that the Roman-Dutch law principle of exceptio reivindicatae et traditatae allows a purchaser to rely on title subsequently acquired by the vendor. In the local jurisdiction, the delivery of a registered deed replaces actual physical delivery as the means of completing the title (traditio). Thus, a registered deed of transfer is effective once the transferors acquire the title they purported to convey.
Result: Appeal dismissed.
Act Referred
Legal Category Hierarchy
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property law
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land title
- fidei commissum
- alienation and transfer
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land title
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civil law
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roman-dutch law
- exceptio rei vindicatae et tradit
- traditio
-
roman-dutch law
-
practice and procedure
- res judicata
Lord Phillimore :-
The suit out of which the present appeal arises concerns the title to certain properties in Colombo. It was brought by the present respondent seeking to acquire possession as against the appellant.
One Maria Felsinger, by a notarial instrument or deed poll, dated 23rd September, 1882, instituted a fide commission which, so far as is material, is in the following terms :-
"Know all men by these presents that I Maria Felsinger of Colpatty in Colombo, widow of Swarisge Marsalinoe Swaris in consideration of the natural love and affection which I have and bear unto my son Swarisge Palis Swaris otherwise called Punchimahatmaya also residing at Colpetty in Colombo of the same age of 16 years and for diverse other good causes and considerations me hereunto specially moving do hereby give grant and assign and transfer and set over unto the said Swarisge Palis Swaris his heirs, executors, administrators and assigns as a gift absolute and irrevocable under and subject to the conditions and reservations hereinafter mentioned all my share right, title and interest in and to." Then the property is described
"Together with all deeds and writings relating thereto and with all my right, title and interest therein and thereto. To Have and to Hold the said premises with the easements, rights and appurtenances thereunto belonging or used or enjoyed therewith or known as part and parcel thereof unto him the said Swarisge Palis Swaris his heirs, executors, administrators and assigns for ever subject however to the following conditions and reservations that the said Maria Felsinger, shall have the right of possessing and enjoying the rents, income, produce and issues of the said lands and premises until the said Swarisge Palis Swaris shall have arrived at the age of twenty-five years, and that after the said Swarisge Palis Swaris shall have arrived the said age of twenty-five years, if I the said Maria Felsinger shall be then living, then, the said Swarisge Palis Swaris shall not be at liberty to sell, mortgage or alienate the said lands and premises during my lifetime, but shall only possess and enjoy the rents, income and produce thereof, but that if I the said Maria Felsinger shall die before the said Swarisge Palis Swaris shall have arrived the said age of twenty-five years, then the said Swarisge Palis Swaris shall only possess and enjoy the rents, produce and income of the said land and premises but shall not be at liberty to sell, mortgage or alienate the same until he shall have arrived the said age of twenty-five years, and that if the said Swarisge Palis Swaris should die without lawful issues then the said lands and premises shall devolve and go to his two brothers Swarisge Stephen Swaris and Swarisge Nicholas Swaris or to their lawful issues provided that I the said Maria Felsinger shall have the right to possess and enjoy the rents, produce and income of the said lands and premises during my lifetime, but if the said Swarisge Stephen Swaris and Swarisge Nicholas Swaris..........should die without any issues then the said land and premises shall revert and devolve on me or my lawful heirs, but if one of them shall die without issues then both the said lands and premises shall devolve on the surviving brother whether he shall have any issue or not and if he shall also die without any issue then the said lands and premises shall devolve on me or my heirs............And I, Elias Perera Senewiratne, do hereby thankfully accept and receive the above-gift and on behalf of the said Swarisge Palis Swaris, subject to the aforesaid conditions and reservations."
The instrument was duly registered. Its construction and effect has given rise to much litigation, both parties to the present suit claiming titles under it.
The narrative of what has since happened is as follows. The son, Palis, attained the age of 25 in 1891 but died without issue in 1896. His mother married a second husband, Daniel John Fernando, and died in 1916. The other
