Haniffa Et Al V. Silva

Present: Lascelles C.J. and Wood Renton J.

HANIFFA et al. v. SILVA

39-D. C. Colombo, 29,611

Registration-Priority-Land sold on writ against judgment-debtor by Fiscal-Subsequent sale by judgment-debtor after he was adjudicated insolvent- Compensation-Bona fide possessor-Discharge of mortgage debt-Adjudication of insolvency not registrable under the Registration Ordinance.

A's property was purchased by B at a Fiscal's sale held under a writ issued against A. Subsequently A was adjudicated insolvent, and thereafter A sold the same premises to C. The purchase money paid by C was applied in discharge of a mortgage decree against A with respect to the same land.

Held, (1) that no. question of priority by registration arose in this case, as the deed in favour of C was invalid, having been granted by A after A's estate had vested in the assignee; (2) that the adjudication of insolvency and the appointment of assignee were not registrable under " The Land Registration Ordinance, 1891 "; (3) that C was. entitled to a jus retentionis till the purchase amount was paid to him.

"It is true that the present case is somewhat different from that of a bona fide possessor who discharges an encumbrance after entering into possession, for here the mortgage was discharged by means of the purchase money which the defendant (C) paid in order to obtain the property. But as between the plaintiff (B) and the defendant (C) this difference is immaterial."

THE facts are stated in the judgment.

Bawa, K.C., for the defendant, appellant.-The Fiscal's transfer on which the plaintiff relies is registered in the wrong folio. The registration is therefore invalid. Paaris v. Perera, 1 Mohammadu Ali v. Isa Natchia. 2 The defendant's deed, therefore, though subsequently registered, is the only valid registration.

Moreover, the fact that the vendor to defendant was adjudicated an insolvent at the date of his transfer to the defendant does not affect this case, as neither the adjudication of insolvency nor the appointment of assignee was registered. The order appointing an assignee is an order affecting land, as in the case of probate, and has to be registered under sections 16 and 17 of the Registration Ordinance of 1891.

The property in question did not vest in the assignee, as the property was sold on writ against Don David before the adjudication. The competition is therefore between two deeds of Don David. The question of insolvency does not arise, as the property

1 (1912) 15 N. L. R. 148.                                                                                                             2 (1911) 15 N. L. R. 157.

would in no case rest in the assignee. Counsel cited Punchirala v. Appuhamy.1

The defendant is entitled to a jus retentionis, as his purchase money was paid to discharge a mortgage debt of the insolvent in respect of this land.

Van Langenberg, K.C., for the plaintiffs, respondents.-The deed in favour of the defendant is bad, not because it is subsequent in point of time to the Fiscal's conveyance, on which the plaintiff relies, but because it was executed by Don David after his insolvency and after the appointment of an assignee. Whatever property Don David had at the date of the adjudication vested in the assignee. Don David had therefore no title to convey. The assignee is the only person who represents the insolvent as he stood at the date of the adjudication. See judgment of Bonser C.J. in Punchirala v. Appuhamy,2 Jansz v. Idroos Lebbe Marikar.3

The order of adjudication of insolvency is never registered. The order of Court referred to in section 17 is an order directly affecting land. The defendant had not paid the mortgage debt, and is not entitled to a jus retentionis.

Bawa, K.C., in reply.

Cur. adv. vult.

June 27, 1912. Lascelles C.J.-

This is an action with regard to certain house property at Maligakanda in Colombo. The plaintiffs and the defendant both derive title fro

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