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ARUMUGAM et al v. ARUMUGAM
NLR53V490
1951 Present: Gratiaen
J. and Gunasekara J.
ARUMUGAM et al., Appellants, and ARUMUGAM, Respondent
S. C. 27-D. C. Jaffna, 4,635
Registration of Documents
Ordinance (Cap. 101)-Section 7 (2)-" Prior registration " -" Collusion ".
A. bought certain property from B. and entered into possession of it as its
lawful owner. C. was aware of the transaction but, nevertheless, in the hope of
taking advantage of the fact that A. had registered his deed in the wrong folio,
purported subsequently to purchase from B., with knowledge of B's intended
fraud, certain rights in the property. C. registered the later deed in the
correct folio.
Held, that C. was guilty of " collusion " within the meaning of section 7 (2) of
the Registration of Documents Ordinance and could not, therefore, claim the
benefit of prior registration.
APPEAL
from a judgment of the District Court, Jaffna.
C. Thiagalingam, K.C., with V. Arulambalam and P. Somatilakam,, for the
defendants appellants.
C. Renganathan, with S. Sharvananda, for the plaintiff respondent.
Cur. adv. vult
June 6, 1951. GRATIAEN J.-
This action was instituted on 5th July, 1948, for the partition of a land in
which the plaintiff claimed an undivided 1/8 share by right of purchase from the
3rd defendant Thambimuttu under the deed P5 of 1st October, 1947. The main
contest at the trial was between the plaintiff on the one hand and the
appellants (i.e., the 1st and 2nd defendants who are husband and wife) on the
other. The case for the appellants was that under the deed 1D2 of 13th November,
1938, they had already purchased Thambimuttu's undivided 1/4 share in the land
which represented at that time the entirety of his interests in the property.
They claimed that Thambimuttu was therefore vested with no rights which he could
pass to the plaintiff under P5. In reply to this contention, the plaintiff
claimed the benefit of Section 7 of the Registration of Documents Ordinance
(Cap. 101)on the ground that his deed P5, though later in point of time, had
been registered in the correct folio whereas the appellants' deed 1D2 had by
some long-standing error been registered in the wrong folio. The evidence
certainly established that the folio which the plaintiff had selected for the
registration of P5 was the earliest folio in which an instrument affecting a
share in the corpus had been registered.
The appellants disputed the position that P5 was in fact correctly registered,
but on this point the finding of the learned District Judge in favour of the
plaintiff is, in my opinion, clearly right. The plaintiff could therefore claim
priority for his deed if he could satisfy the Court that he had given valuable
consideration for the interests which passed to him under P5-unless, of course,
the appellants were able to defeat this priority by proving fraud or collusion
on the part of the plaintiff either in obtaining his instrument or in securing
its prior registration. Issues were raised at the trial for the learned Judge's
decision on all these points of contest.
Our task as an appellate tribunal has been made more difficult by reason of the
fact that the learned Judge has not recorded in his judgment any specific
finding as to whether or not in his opinion consideration had passed on P5. The
evidence of the plaintiff on this issue is certainly not so convincing that we
could safely infer that it has been accepted by implication by the learned
Judge. For instance, the plaintiff had in the first instance stated that the
entire consideration of Rs. 1,000 had been paid to Thambimuttu in the presence
of the attesting notary. It was then pointed out to him in cross-examination
that this evidence was in conflict with the terms of the notary's certificate in
the attestation clause. In re-examination he gave a different version as to how
and when the alleged consideration had been paid. " I paid earlier than the deed
of transfer ", he sa
