PUNCHIRALA v. APPUHAMY.

PUNCHIRALA v. APPUHAMY.

D. C., Kandy, 11,584.

Registration of deeds-Unregistered mortgage bond of intestate-Registered deed of sale by administrator-Priority-Registration Ordinance No. 14 of 1891-Civil Procedure Code, s. 547-Proof of title to property through intestate.

    The registration of letters of administration or of grant of probate does not avoid an unregistered mortgage or sale by the intestate; but if after taking out letters of probate, the administrator or executor sells or mortgages any property dealt with by the intestate and gets the deed, registered prior to that given by the intestate, the former deed would take priority over the latter.

    If a person desires to prove title to property through an intestate, he must prove either that administration has been taken out to the intestate and that the administrator has conveyed the intestate's estate to him or to his predecessor in title; or that the intestate's estate was of less value than Rs. 1,000, so that administration was not necessary.

THE principal issue in this case was whether plaintiff's title was superior to that of the defendant. The transfers under which the plaintiff claimed were registered, while the deed on

which the defendant relied was not registered. The facts, as found by the District Judge were as follows: One Sumangala Unnanse granted a usufructuary mortgage on the 6th March, 1870, in favour of one Punchirala and died in 1879. On the 28th May, 1895, Punchirala assigned the mortgage bond,  which was not registered, to the defendants. On the 10th and 20th January, 1896, certain persons claiming to be the heirs of Sumangala transferred the lands to one Piyadassi Unnanse, who transferred them to the plaintiff on the 29th January, 1896. These transfers were registered. The plaintiff instituted this action to obtain a declaration of title and to eject the defendants.

    On the plaintiff's death, the administrator of this estate was substituted plaintiff.

    The District Judge, Mr. J. H. de Saram, gave judgment in favour of the substituted plaintiff, declaring him entitled to the lands in question, but the Court disallowed his prayer for ejectment, because there was no offer on his part to redeem the mortgage.

    The plaintiff appealed.

    The case was argued on the 6th December, 1900, before Bonser, C.J., and Lawrie, J.

    Wendt, for appellants.

    Van Langenberg, for respondents.

Cur. adv. vult.

14th February, 1901. LAWRIE, J.-

    The lands in question belonged to Sumangala Unnanse. He mortgaged them in 1870 to the defendants, with possession in lieu of interest.

    He died twenty-five years ago, and for at least 17 years his nephews and nieces, who were his next of kin, did not take steps to administer his estate, nor to clothe themselves with title to redeem the mortgage.

    These next of kin sold the land in 1896, and in 1897 the purchaser brought this action against the mortgagee in possession for declaration of title and for ejectment.

    The learned District Judge held that the plaintiff was the owner of the land, but that the defendants were entitled to retain possession until the mortgage-debt was discharged.

    This was an equitable decision in which, I think, the plaintiff should have acquiesced, but he appealed on the ground that the mortgage of 1870 was not registered and was unavailing and void as against the subsequent transfers duly registered.

       Before the plaintiff could avail himself of strict law, he had to show that he, in strict law, had a good title, and in that he has

failed. The transfers to his predecessor in title and to himself, and this action by him were in 1896 and 1897, some years after the passing of the Civil Procedure Codes. This action cannot be maintained; it falls under the 547th section.

    This is not a case where the heirs entered on an inheritance and became the owners by succession and by possession

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