Ebert Silva V. Wijesekere

1946 Present: Howard C. J

EBERT SILVA, Appellant, and WIJESEKERE, Respondent.

81-C. R. Panadure 9,499.

Registration of Documents-Competition between deeds of transfer executed by a person during his life time and, after his death, by his heirs- Same source-Decree ?affecting land?-Decree in 247 action relating to immovable property-Is a registrable instrument-Registration of Documents Ordinance (Cap. 101), ss 7, 8, (b).

P conveyed his share in a land to plaintiff. After P?s death his intestate heirs conveyed the same property to defendant. The deed in favour of plaintiff was not registered in the correct folio, whereas the conveyance by the heirs of P to the defendant was property registered.
   
Held, that the two conveyances proceeded from the same source and that the deed in favour of plaintiff was void as against the subsequent deed in favour of defendant by reason of prior registration.
   
Held, further, that a decree which the plaintiff had obtained as against P?s heirs in an action brought by him under section 247 of the Civil Procedure Code was a registrable instrument within the meaning of section 8 (b) of the Registration of Documents Ordinance and the failure of the plaintiff to register it gave priority to the subsequent deed registered by the defendant.

APPEAL from a judgment of the Commissioner of Requests, Panadure.

                L. A. Rajapakse, K. C. (with him K. A. P. Rajakaruna), for the 2nd  Defendant, appellant.

              E. B. Wikramanayake (with him A. A. Rajasingham ), for the plaintiff, respondent

Cur. adv. vult.

March 6,1946. HOWARD C.J.-
   
In this case the 2nd defendant appeals from the decision of the  Commissioner of Request, Panadure, declaring the plaintiff entitled to  5/24th share of the land described in the plaint, awarding him also Rs.30 as damages and continuing damages at the rate of Rs.3 a month from June, 1942, till possession is restored and costs. The original owner  of the land was one Appu Perera. The plaintiff claims 11/48th of this land by virtue of three deeds P1, P2, andP3. By P1 dated March 23, 1931, Hendrick Perera, one of the sons of Appu Perera, transferred to the  plaintiff and one other 11/48th share of the land he possessed by paternal inheritance. The transfers on P1 by P2 dated September 7, 1931, transferred this 11/48th share to Sumaneris Silva who by P3 dated December 7, 1931, transferred it to the plaintiff. The 2nd defendant,

the appellant, who concedes that Appu Perera was the original owner of the land, contends that half of this land was gifted by Appu Perera to his wife Podihamy by deed of gift D3 dated July 10, 1899. On the  death of Appu Perera Podihamy became entitled to a further ¼ share whilst the 6 children of Appu Perera became entitled to 1/24th share each. By deed of gift D7 dated December 1, 1900, Podihamy transferred a ½ share to Hendrick and three other children. She subsequently died whereby Hendrick became entitled to a 5/24th share of the land made up as follows: 1/24th by succession to Appu Perera, 1/8th by deed of gift from Podihamy and 1/24th by succession to Podihamy. It is  further contended that on the death of Hendrick his three children Podi Nona, Cecilia and Alpi became entitled to Hendrick?s 5/24th share. By deed D12 of May 3, 1942, this 5/24th share was transferred to the  2nd defendant by these three children of Hendrick. The Commissioner has accepted the evidence of the appellant supported as it is deeds that Hendrick became entitled to 5/24th share of the land. The plaintiff who relied on P1,P2, and P3 filed a 247 action case No. 17,639 in the District Court of Kalutara. The daughters of Hendrick Perera were Made defendants in his action which resulted in the plaintiff being Declared entitled to a 11/48th share. But it would appear that neither P1,P2,P3 nor the decree in D. C., Kalutara, No.17,639 have been Registered in the correct foli

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