Back
MEURLING v. GIMARAHAMY et al.
NLR25V500
1922 . Present: De Sampayo and
Schneider JJ.
MEURLING v. GIMARAHAMY
et al.
133-D.C. Matard, 9,845.
Sale under the Partition Ordinance-Mortgage
of share, by purchaser-o Sale of entirety-Registration-Undivided shares
registered in different folios before partition action--Subsequent mortgage and
sale also registered in different folios-Bight folio-Action on mortgage bond
against administrator before letters of administration were taken out.
The land in question was sold under the Partition Ordinance and bought by B, who
thereafter mortgaged a share to M. At the wale under the mortgage decree,
plaintiff purchased the share. B sold the entirety of the land to defendants,
who registered the deed in A 35/120. The mortgage bond and Fiscals' transfer
were registered in A 80/394. Prior to the partition decree, the undivided shares
were registered in the two folios without cross reference. A 80/394 was the
folio in which any deed relating to the land was first registered.
Held, that the transfer in favour of the defendants was not registered in
the right folio.
" No doubt the title created by the certificate of sale cannot be defeated by
prior or other registration of deeds affecting the original undivided shares,
but when a question of competing registrations arises with regard to
transactions subsequent to the certificate of sale and referable to it, the
former volumes and folios in the registrar's book come into play."
Whore a person who was appointed administrator by Court' but who had not taken
out letters of administration was sued as administrator, and the property was
sold in execution, held, that the purchaser's title was not affected by the fact
that letters had not been issued to the administrator.
H. J. C. Pereira, K.C. (with him
Cooray), for defendants, appellants.
Samarawickreme (with him Keuneman and Amerasekera), for plaintiff,
respondent.
November 15, 1922.' DE SAMPAYO J.-
The main question involved in this appeal has reference to the proper
registration of deeds after a partition decree. It appears that the land called
Nagahawatta was owned in common by several persons, one of whom was Don Bastian
de Silva. This land was the subject of the partition action (D. C. Matara,
1,966), in which by decree of April 29, 1898, the land was ordered to be sold.
The sale took place on August 15, 1898, when Don Bastian de Silva became the
purchaser, and the Court issued to him a certificate of sale on September 30,
1898. Though he thus became the owner of the entire land, he by bond dated
August 8, 1912, mortgaged to Miss Frances Meurling an undivided 263/360 shares,
and in discharge of this bond he again mortgaged the same share to Miss Meurling
by a bond dated October 1, 1913. This second bond was put in suit in D. C.
Matara, 7,642, and in execution of the decree obtained in that action the share
mortgaged was sold, and was purchased by the plaintiff, to whom the Fiscal
issued a transfer dated March 24, 1920. His title being disputed by the
defendants, he brought this action to vindicate it. The first, third, and fifth
defendants are daughters of Don Bastian de Silva, and they claim the entire land
for themselves and their sister Leisihamy on the strength of a deed executed in
their favour by Don Bastian de Silva. This is the deed No. 9,550 dated October
8, 1912, by which Don Bastian de Silva purported to sell the land to his four
daughters. There is room for doubt whether this deed, notwithstanding its form,
was a deed for consideration, but the point in this case must, I think, be
decided on the assumption that it was an actual deed of sale. The difficulty in
the case arises from the fact that the deeds prior to the partition action No.
1,966 were registered in two different folios, some being registered in folio A
80/394 and others in folio A 35/120 without any cross references. But the folio
in which any deed was first registered i
