The Colombo Apothecaries Company Limited V. Peiris

[IN THE PRIVY COUNCIL]

1956 Present: Earl Jowitt, Lord Oaksey, Lord Cohen, Lord Keith
of Avonholm and Mr. L. M. D. de Silva

THE COLOMBO APOTHECARIES COMPANY LIMITED, Appellant,
and M. A. PEIRIS and others, Respondents

Privy Council Appeal No. 25 of 1955

 S. C. 358-D. C. Colombo, 5143

Registration of deeds-Transfer of immovable property-Registration of deed at a time when it passed no interest-Subsequent acquisition of title by grantor- Bight of grantee to defeat the provisions of an earlier unregistered deed-Land Registration Ordinance, No 8 of 1863, ss. 38, 39 (re-enacted as ss. 18 and 17 of the Land Registration Ordinance, No. 14 of 1891)-Registration of Documents Ordinance, 1927 (Cap. 101)-Res judicata.

(i) The description of instruments contained in section 38 of the Land Registration Ordinance No. 8 of 1863 is wide, and sufficient to cover instruments which though they are ineffective at the time of execution may become effective at. a later date. The Registration of Documents Ordinance of 1927 makes no difference to this conclusion.

Thus, when a deed of transfer of immovable property is executed at a time when the grantor has no title to the property, the subsequent acquisition of title by the grantor would not only give the benefit of such title to the instrument already executed but would also give the grantee the benefit of priority by the registration of that instrument; if the competing instrument remained unregistered at the time of the acquisition of title, the subsequent instrument, even though it was registered at a time before the grantor acquired his title, would prevail over the unregistered deed.

(ii) One Solomon was originally the owner of certain premises. In 1870, by deed P1 he gifted the premises to his son Lorenzo, reserving a life interest to himself and creating a fideicommissum in favour of Lorenzo's descendants for four generations. During Lorenzo's life time, bis son Lawrenti, although he had only a contingent fideicommissary interest in the property, transferred the whole of the premises to one Dias by deed 6D1 executed on December 21, 1895. In case No. 11,739 Lorenzo sued Dias for a declaration of title to and ejectment from the premises in question. The question in controversy in case No. 11,739 was whether deed P1 conveyed an interest directly to Lawrenti or whether it did not, and it was held that deed P1 prevailed over deed 6D1. The question as to what Dias may have received on 6D1 from Lawrenti by reason of inheritance by Lawrenti from Lorenzo was expressly left open by the Court In the present case the plaintiff, who was a son of Lawrenti, claimed title to the premises as against the defendant, who was the successor-in-title of Dias. At the time when the case was instituted Solomon and Lorenzo had died intestate. It was shown that deed P1 had never been registered whereas deed 6D1 had been registered on December 31, 1895, when Lorenzo was still alive.

Held, that the decree in case No. 11,739 could rot operate as res judicata in the present case.

APPEAL from a judgment of the Supreme Court.

Raymond Walton, with E. S. Amerasinghe and L. Kadirgamar, for the 6th defendant-appellant.

Ralph Milner, for the plaintiff-respondent.

December 11, 1956. [Delivered by MR. L. M. D. DE SILVA]-

The plaintiff in this case (a respondent to this appeal) instituted the action in the District Court of Colombo for a sale under the Partition Ordinance (Chapter 56, Legislative Enactments of Ceylon) of certain premises situated in Colombo. He pleaded that he and the first five defendants (also respondents to this appeal) were entitled to the property as co-owners. He further pleaded that the 6th defendant (the present appellant) had no right to the premises and was in wrongful possession thereof.

The learned District Judge in an able and careful judgment held that the respondents had no title to the

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