Suppramaniam Et Al. V. Erampakurukal Et Al.,

[FULL BENCH]  1922

Present : Bertram C. J. and Porter and Schneider JJ,

SUPPRAMANIAM et al. v. ERAMPAKURUKAL et al.

75-D. C. Jaffna, 13,170.

Prescription-Trust property-Deed of dedication for founding a madam-Appointment of another person as co-trustee along with the person dedicating the property-Does title pass to co-trustee ?-Is declaration of trust an instrument which requires registration ?- Mortgage by heir of person dedicating-Prior registration of mortgage bond- Priority-Acceptance of mortgage with knowledge of trust- Prior registration of Fiscal's transfer by purchaser under the mortgage decree-Priority-Is Fiscal's transfer an instrument for valuable consideration ?-Can persons asserting the trust go behind judgment and show that mortgage was collusive and not for ' valuable consideration ?

In 1881 Visuvanather and his wife, Kathirasipillai, dedicated a field and a garden for the purpose of founding a madam, and appointed themselves and Suppramaniam (a brother of Visuvanather) as trustees. The deed which was not registered merely dedicated the land for the purpose, but did not transfer any title to Suppramaniam who signed it as a party. In pursuance of a plan to get rid of the trust among some of the heirs of Visuvanather in 1893, Arunachalam (an heir of Visuvanather) granted a usufructuary mortgage of a share of the properties to Sinnetamby by a deed which was duly registered. Twenty-five years later, Chellachchi, the heir of Sinnetamby, put the bond in suit, and at the Fiscal's sale purchased the share mortgaged and obtained a Fiscal's transfer, which was duly registered. On the Fiscal going to place Chellachchi in possession, the respondents objected claiming the property as trust property. .

Held, (1) Per BERTRAM C.J. and PORTER J.-No title passed to Suppramaniam, the co-trustee, as the deed did not convey any title to him.

" It was doubtless supposed that by the mere dedication and by the appointment of Suppramaniam as co-trustee, title passed to him and would devolve from time to time on the various trustees successively appointed. This, of course, is a mistake, though a mistake that is often made. The title remained after the dedication in Visuvanather and his wife subject to the trust. In order to vest Suppramaniam and the other trustees with the legal title, notarial transfers were necessary, and the successive trustees were at all times entitled to call for these transfers. Consequently, on the death of Visuvanather, the legal title to his interest in these properties passed to his heirs, subject in all cases to the obligations of the trust, and, in

particular to the obligation to transfer the legal tide to the trustees, for the time being. Was this purpose the heirs were constructive  trustees of the charity '

(2) Per FULL COURT-Sinnetamby gained no priority by registration of the mortgage bond over the declaration of trust..

A declaration of trust does not require registration ; consequently, declarations of trusts are not documents which are liable to be defeated by the prior registration of a subsequent competing instrument. It is only where a trust of immovable property is established by a document inter partes that this document must be registered in order to secure priority.

(3) Per FULL. BENCH.-If Sinnetamby had notice either actual or constructive of the trust he -would be bound by it; if he advanced his money in good faith without notice of the trust he would not be so bound.

(4) Per FULL BENCH.-Chellachchi gained no priority by the registration of her Fiscal's transfer.

" The deed by virtue of which the petitioner's claim the adverse interest is the mortgage bond and not the Fiscal's transfer, and therefore the registration of the Fiscal's transfer would not avail them."

" In Fernando v. Fernando [1] there are certain observations of my own which seem to suggest that where there is a ser

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