De Silva Et Al. V. Wagapadigedera

Present:  Fisher C. J. and Garvin J.

DE SILVA et al. v. WAGAPADIGEDERA.

272-D.C.Kandy, 33,761.

    Registration-Fideicommissary gift unregistered -Sale by fiduciary heir-Registration of deed of sale-Priority.

Where a deed of gift creating a fidei commissum was unregistered and the fiduciary who was also the intestate heir of the donor sold the property to the defendant who: registered his deed,-

Held, that the defendant's title was superior to that of the fideicommissary heirs.

James v. Carolis1[117 N. L. R. 76.] followed.

APPEAL from a judgment of the District Judge of Kandy.

Loku Mudianse by an unregistered deed of 1868 (PI) gifted his rights in the land which was the subject-matter of this action to his wife subject to a fidei commissum, extending to the full period, in favour of his grandchildren Bandara Menika and Muttu Menika. Bandara Menika gifted her rights free of the fidei commissum to her son William by a registered deed of 1902, and William sold to the defendant-respondent by D1 of 1914, registered on January 14,1914. On the death of William, his widow and children brought this action against the defendant for a declaration of title to Bandara Menika's rights. In a previous appeal the Supreme Court held that

on an interpretation of P1 the plaintiffs were entitled to these rights,

De Silva v. but at the subsequent hearing the defendant taking advantage of the fact that Bandara Menika was the intestate heir of Loku Mudianse claimed better title on the ground of prior registration. The District Judge upheld the contention.

H. V. Perera (with him Rajapakse), for plaintiffs, appellants.- The two claims of title go back to Bandara Menika-that is the common source. ; The defendant is bound by the recitals in his deeds. He must have had knowledge of P1.

A person who enters on property on a certain footing holds the property on the footing of that document. He and all those claiming through him cannot be allowed to plead a different title (Board v. Board1[1 (1873) L. R. 9 Q. B. 48.]).

An attempt was made, but unsuccessfully, to limit this doctrine to wills (Dalton v. Fitz Gerald2).

Keuneman (with him N. E. Weerasooria and Navaratnam), for defendant, respondent. The learned District Judge was right in giving Dl priority over P1 We get back to Loku Mudianse via Bandara Menika by treating her as an intestate heir.

[GARVIN J.-Can you give a single case where a son who received a deed of gift from his father has been allowed to say that he is the intestate heir ?

Ellapata v. Fernando3 is very similar to this case. James v. Carolis 4[4 17 N. L. R. 76.] is directly in point and is binding. Vide also 2[2 (1897) Ch .86.] Dow & Clarke's R. 480.

[GARVIN J.-Can you extend the principle of James v. Carolis any further ?]

You must disregard all unregistered deeds if you can trace title through any other channel.

As regards the question of estoppel you cannot have an estoppel against the Statute law of the land.

The English cases are all based on an interpretation of the English Statute of limitations.

Paine v. Janes 5[ 5 18 Equity Case 320.] is a case in which estoppel was not allowed.

The English law of estoppel by recitals in deeds is not in force in Ceylon (Gunatileke v. Fernando 6[6 22 N. L. R. 385.]).

Mere knowledge will not do (Aserappa v. Weeratunge et al.7[7 14 N. L. B. 417.]). Section 17 of the Registration Ordinance does not bring in any form of notice.

H. V. Perera, in reply.-Cases cited by the other side can be distinguished. Paine v. Jones (supra) has been distinguished in
Dalton v. Fitz Gerald (supra).

We can rely on estoppels to prevent the defendant from going back to Loku Mudianse. The question of estoppel was not raised in Ellapata v. Fernando (supra) and could not have been raised in the 2 Dow & Clarke's case. ' -

March 8, 1929. FISHER C.J.-

In this case one Mudianse by deed of gift P1 dated December 4, 186

Click Here to Read the rest of this document