1952 Present: Rose C.J., Gratiaen J. and Choksy A.J.

DAVID, Appellant, and MENDIS et al., Respondents

S. C. 339-D. C. Tangalla, 5,691

Registration of Documents Ordinance (Cap. 101)-Sections 17 and 18, as amended by Ordinance No. 13 of 1947-Scope of-Bill of Sale-Meaning of term.

In a contract of sale of movable property, a written acknowledgment given by the seller to the purchaser after title to the goods had already passed to the purchaser on payment of the price and delivery of the goods is not a " bill of sale " within the meaning of section 17 of the Registration of Documents Ordinance. A bill of sale is necessary only where possession of the goods intended to be sold is not given and the object is to pass the property in the goods without possession of them being given.

Sections 17 and 18 of the Registration of Documents Ordinance do not apply to verbal contracts of purchase and sale.

APPEAL from a judgment of the District Court, Tangalla. This case was reserved for the decision of a Bench of three Judges under section 38 of the Courts Ordinance.

N. E. Weerasooria, K.C., with H. W. Jayewardene and W. D. Gunasekera, for the plaintiff appellant.-The document 2D6 is a " bill of sale " and comes within the provisions of the Registration of Documents Ordinance (Cap. 101). This is a transfer of movable property. There must he either delivery or registration. An unregistered bill of sale is not sufficient. On the facts of this case ostensible possession was with the first defendant. Therefore 2D6 was void as against the plaintiff.

H. W. Jayewardene continued.-In the present case 2D6 was put forward as the document intended to pass title. It is therefore a bill of sale which has not been registered-French v. Gething1[(1922) K. B. 236]. Even apart from 2D6 the transaction itself was void for non-compliance with the provisions of the Registration of Documents Ordinance. The definition of " bill of sale " included transactions that were not in writing. The earlier cases took this view. See section 18 (b) and Indian Bank v. Chartered Bank2[(1941) 43 N. L. R. 49.]; Appuhamy v. Appuhamy3[(1932) 35 N. L. R. 329.]; Mohamad v. Eastern Bank 4[(1931) 33 N. L. R. 73.].

H. V. Perera, K.C., with Christie Seneviratne, for the second defendant respondent.-What was sold was the business. 2D6 is only evidence of a transaction and of the fact that the articles were handed over. It is not a document which creates rights. Therefore it is not a " bill of sale ". The Registration of Documents Ordinance (Cap. 101) as amended by Ordinance No.13 of 1947 deals only with documents. Inventories and

receipts are not bills of sale unless they are given as an " assurance "- Haydon v. Brown 1[(1888) 59 L. T. (N. S.) 810 at p. 811.]. With regard to the meaning of " ostensible possession ", see French v. Gething2[ (1922) 1 K. B. 236 at p. 247].

G. C. Niks, for the first defendant respondent.

N. E. Weerasooria, K.C., in reply.-The document, 2D6, is something more than a receipt. It is a document of sale. One must consider the transaction and not the mere form of the document. See Ramsay v. Mar-grett3[(1894) 2Q. B. 18.] and Charlesworth v. Mills 4[ (1892) A. C. 231.].

Cur. adv. vult.

January 16, 1952. GRATIAEN J.-

This appeal was reserved for the decision of a Bench of three Judges under Section 38 of the Courts Ordinance.

On July 21, 1947, the plaintiff obtained a decree against the first defendant for the payment of a sum of Rs. 4,000 and interest due to him on a promissory note dated March 6, 1946. In execution of this decree the plaintiff caused certain furniture and fittings lying at Galiton Hotel in Hambantota to be seized by the Fiscal on July 22 and 23, 1947. The second defendant, however, claimed the goods as his property, and his claim was upheld. The plaintiff thereupon instituted the present action under Section 247 of the Civil Procedure Code to have the property dec