1930 Present: Garvin A.C.J, and Lyall Grant J.

SILVA v. SALO NONA et al.

13-D. C. Galle. 26,446.

Trust-Registration of agreement to sell land -Subsequent sale to third party-Notice -Ordinance No, 9 of 1917, .s. 93.

Registration of an agreement to sell land is of itself notice, within the meaning of section 93 of the Trust Ordinance, to a person who acquires the land subsequent to such agreement

THE plaintiff sued the first and second defendants and the third defendant, who is the appellant, for specific performance of an agreement entered into by the first and second defendants to convey certain premises to the plaintiff by a valid deed before September 30, 1928. The third defendant, appellant, who purchased the aforesaid premises from the first and second defendant by deed No. 6,104 of October 3, 1928, was added as a party to affect him with notice of the action. The learned District Judge entered judgment for the plaintiff as prayed for.

N. E. Weerasooria, for defendant, appellant.-No question of registration has been raised at the trial. Plaintiff cannot rely on section 93 of Ordinance No.9 of 1917 unless his deed is duly registered. Under section 93 plaintiff must prove both due registration and notice. Section 3 defines notice. It is a question of fact whether a person comes or does not come within its provisions. It is too late to raise the question now. Section 93 was not referred to in the lower Court. To hold that mere registration is notice would be to ignore section 3. The trend of authority is that mere notice of registration does not defeat the priority which a subsequent deed would otherwise have and that registration is not notice. (V. Muttu v. P. Chetty, [1 1 S. C.C. 90.] Fernando v. Peiris.[2 19 N. L. R. 281.] ) Section 93 was probably enacted to meet the case of Fernando v. Peiris (supra). But notice

is necessary, see Jayawardene on Registration, pages 227,228. The observations of Ennis J. in Rajapakse v. Fernando,[1 20 N. L. R. 301. ] are obiter dicta. Notice in fact must be proved or admitted. {Hall v. Pelmadulla Tea Co. [2 28 N. L. R. All and 31 N. L. R. 55.] ) Under the English Acts statutory provision was necessary to declare that registration amounted to actual notice. (47 & 48 Vic. ch. 54, section 15.)

F. de Zoysa, K.C. (with him Rajapakse), for (he respondent.-The issue is whether the appellant is bound by the agreement. Under section 93 he is bound if he had notice. In the case of contracts affecting immovable property the prescribed form of notice is registration. Otherwise there would be a conflict with the provisions of Ordinance No. 7 of 1840. Registration is notice. (Rajapakse v. Fernando (supra).) Under the corresponding section of the Indian Trust Act registration amounts to notice (see Sanjiva Row on the Indian Trusts Act (2 of 1882), section 91 at page 350, also section 3 at pages 17 onward). If the appellant searched the register he would have had notice of the agreement. This omission is wilful and he has had notice within the meaning of section 3 of Ordinance No. 9 of 1917.

Weerasooria, in reply.-The Indian authorities are conflicting.

August 27, 1930. GARVIN A.C.J.-

In our earlier judgment in this case we found upon the evidence that the third defendant had no actual knowledge of the agreement to convey, which is the foundation of the plaintiff's action. In view, however, of the point briefly touched upon by counsel for the respondent in his reply that the registration of the agreement was of itself notice to the third defendant within the meaning of the Trust Ordinance we decided to hear further argument. At the hearing, counsel for the appellant submitted that inasmuch as registration had not been specially pleaded he was not prepared to admit that the agreement had been " duly " registered within the. meaning of the Registration Ordinance

He submitted that he was entitled to an opportunity to