Aserappa V. Weeratunga Et Al.,

[Full Bench.]

Present: Lascelles C.J., Middleton J., and Wood Renton J.    July.26,1911

ASERAPPA v. WEERATUNGA et al.

174-D. C. Colombo, 31,102.

Registration-Priority-Two competing Fiscal's conveyances-Prior registration of prior deed-Does section 17 of the Registration Ordinance apply ?-Fraud-Knowledge of a previous deed.

Plaintiff and added defendant claimed the land in dispute under two competing Fiscal's conveyances. Plaintiff's conveyance was prior in point both of date of execution and registration; but as regards date of seizure and sale, the priority was with the added defendant.

Held, that the added defendant had a superior title.

Mere notice of a previous deed is not enough to deprive a person who has registered his deed of the benefit of registration.

THE facts are set out in the judgment of Middleton J. as follows: -

" This was an action rei vindicatio for a house and premises in Pickering's road called ' Floral Cottage,' or ' Ratna Villa,' by the plaintiff, who based his title on a Fiscal's conveyance dated April 16, 1908, and registered on April 22, 1908. The defendant was the lessee under one Muttu Carpen, who was added as a party to the action. The added defendant based his title on a Fiscal's conveyance dated May 26, 1908, and registered on June 13, 1908. It was admitted that it was the life interest of one Sophia Ratnaike in the property in question which was the subject of the action, and that the life interest was seized on writ in D. C. Colombo, 23,669, issued by the added defendant on February 12, 1907, the seizure being registered on February 18, 1907, and was sold on June 10, 1907, and purchased by the added defendant for Rs. 600; that this sale was confirmed on August 16, 1907, and a Fiscal's transfer issued on May 25, 1908, registered on June 13, 1908. It was also admitted that the plaintiff issued writ against Sophia Ratnaike in C. R. Colombo, 3,576, on January 24, 1907, and seized the life interest on September 19, 1907, and that he made a second seizure on December 16, 1907, registered on December 18, 1907, and that it was sold on February 5, 1908. That the plaintiff himself purchased the life interest for Rs. 10, and that a Fiscal's conveyance was issued to him on April 16. 1908, and registered on April 22, 1908."

The learned District Judge (E. W. Jayewardene, Esq.) found that the plaintiff was aware at the time of the purchase that the added defendant had previously purchased the premises, and held that the plaintiff was precluded by notice of the previous purchase from obtaining priority through the medium of the Registration Ordinance.

The plaintiff appealed.

A. St. V. Jayewardene. (with him Tisseveresinghe), for the appellant.-The mere fact that the plaintiff was aware at the time of the purchase that the added defendant had previously purchased the premises is not enough to deprive the plaintiff of the benefit of prior registration. Counsel cited Ramanathan (1877), 198; Siripana v. Tikiria; 1 Sennaiya Chetty v. Appuhamy; 2 19-C. R. Jaffna, 4,230 A; 3 Kirihamy v. Kiri Banda; 4 Silva v. Sarah Hamy,5 In Crowley v. Bergtheil6 it was proved that the document on which the claim of priority was based were obtained by misrepresentation and fraud.

Bawa, for added defendant, respondent.-The judgment cannot be supported on the authorities relied on by the District Judge. But the question of priority by registration does not arise here. The deed of the plaintiff was earlier in point of date of execution and registration. Counsel referred to Silva v. Tissera 7 Saravanamuttu v. Maruthappa 8

Jayewardene, in reply.-The added defendant must take either date of sale or conveyance as the crucial date. If our conveyance was first, we get a good title, and no question of registration comes in; if the date of sale be taken as the crucial date, we gain priority by registration. Saravanamuttu v. Mannhappa8 was decided without reference to sectio

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