Kanapathipillai V. Kannachi Et Al.,

Present : Mr. Justice Grenier.

KANAPATHIPILLAI v. KANNACHI et al.

C. R., Batticaloa, 15,096.

Prior registration-Fraud-Ordinance No. 14 of 1891, s. 17-Deed of gift- Revocation without judicial proceedings.

A person who has actual notice of the existence of an instrument cannot get priority over it through the medium of the Registration, Ordinance, inasmuch as such an attempt to get priority amounts to fraud within the meaning of the proviso to section 17 of Ordinance No. 14 of 1891.

THE facts material to this report are set out in the judgment.

Vernon Grenier, for appellants.-A deed of gift is by nature irrevocable, and, unless a power of revocation be reserved, can only be set aside by proper judicial proceedings (Voet 39, 5, 24-86; Sansoni v. Foenander;1 Government Agent, Western Province v. Palaniappa Chetty 2). The deed of revocation is therefore inoperative and conveyed no interest capable of registration. Marikar v. Fernando 3 and Kadiravel v. Pina 4 lay down the principle that prior registration cannot avail in such cases. The second defendant cannot, in view of his having been a witness to the original deed of donation, be regarded as an innocent purchaser. He is presumed to know the law i.e., that only the Court could have set aside the deed of gift. Salgado v. Salgado 5 lays it down that such notice of a prior deed prevents prior registration availing a party. See also English cases on the Doctrine of Notice referred to in Jayewardene's Law of Mortgage 84.

No appearance for respondent.

Cur. adv. vult.

May 30, 1910. GRENIER J.-

The first defendant donated to the plaintiffs, who are the appellants, the garden described in the second paragraph of the plaint. . The deed is dated November 5, 1904. It was not registered. On October 29, 1906, the first defendant purported to revoke the deed, of gift by deed dated October 29, 1906, and by deed dated January 18, 1908, conveyed the garden to the second defendant. This action has been brought by the plaintiffs to have the conveyance of January 18, 1908, in favour of the second defendant cancelled, and for a declaration of title in their favour.

Foot Notes:

1 (1872) Ram. 32
2 (1908) 4.A.C.R.4.
3 (1909) 4 Bal. 128.
4 (1889) 9 S. C. C. 36.
5 (1907)1 A. C. R. 137.

The defendants impeached the validity of the deed of gift relied on by the plaintiffs on .the ground that it was not accepted, and they also alleged that the deed of transfer in favour of the second defend-ant, by reason of prior registration, should prevail over the deed of gift in favour of the plaintiffs. Several issues were framed by the  Commissioner, which were agreed to by the parties, but we are concerned only with .the 6th issue on this appeal. The Commissioner held that the deed of donation was duly accepted, and that it could not be revoked without the intervention of the Court. The 6th issue was whether the deed in favour of the second defendant had
priority over the deed in favour of the plaintiffs. The Commissioner was of opinion that it had, and dismissed the plaintiffs' action. Two
points were sought to be made in support of the appeal by the plaintiffs. The first was that there could not be any conflict of registration between the deed of gift and the subsequent deed of conveyance, because it could not be said that the defendants had any adverse interest within the meaning of section 17 of Ordinance No. 14 of 1891. So long as the deed of gift remained in force without any cancellation of it by a Court of competent, jurisdiction, the fact of its not having been registered did not make it void nor render it less operative as a deed of gift. The first defendant, therefore, had no right to execute a deed of revocation, and the deed itself must be regarded as a piece of waste paper. The question, therefore, is as regards the effect on the deed of gift of the deed of conveyance which was registered whilst the d

Click Here to Read the rest of this document