Lairis Appu V. Tennakoon Kumarihamy

1958 Present: Basnayake, C.J., and Sinnetamby, J.

A. M. LAIRIS APPU et al., Appellants, and E. N. TENNAKOON
KUMARIHAMY, Respondent

S. C. 260 and 261-D. C. Kurunegala, 1915L

    Registration of Documents Ordinance (Cap. 101)-Prior registration-Will-Dispositions made thereunder-Effect thereon of non-registration of the will-Competing deeds-Must they be traced to same source? -Sections 6,7 (1) (2) (4), 8 (b), 10, 26.

The effect of section 10 (1) of the Registration of Documents Ordinance is that a disposition by will be a testator cannot be defeated by a transfer made by an heir on the basis of an inheritance by intestacy, merely by virtue of the prior registration of the latter instrument.

Quaere, whether the priority created by section 7 (1) of the Registration of Documents Ordinance attaches only to a competing deed from the same source.

APPEAL from a judgment of .the District Court, Kurunegala.

H. V. Perera, Q.C., with N. E. Weerasooria, Q.C., and W. D. Gunasekera, for 1st Defendant-Appellant in S. C. 260 and for 2nd and 3rd Defendants- Appellants in S. C. 261.

E. G. Wikramanayake, Q. C., with H. W. Jayewardene, Q.C., P. Ranasinghe and K. Shinya, for Plaintiff-Respondent in both appeals.

Cur. adv. vult.

November 28, 1958. BASNAYAKE, C .J.-

This is, an action for declaration of title to a land called Kandubodahena, 2 acres 1 rood and 24 perches in extent, with the building thereon, for ejectment of the 1st defendant-appellant (hereinafter referred to as the appellant) therefrom and for damages. The 2nd and 3rd defendants are persons to whom the appellant had mortgaged the land in dispute.

Tennakoon Dissawe by deed No. 5843 of 29th June 1919 (PI) the original of which has not been produced, gifted this land and several other lands to his son Charles Wilmot Tennakoo . The copy of the deed which is in Sinhalese has not been translated in full. The operative parts of the translation read:-

"I the said Charles Edward Tennakoon Ratemahatmaya for and in consideration of the natural love and affection which have and bear unto my loving son, Kandegedera Wijesundera Guneratne Tennakoon Herath Mudiyanse Ralahamillage Charles Wilmot Tennakoon Bandara Mahatmaya and for diverse other good causes and considerations, me hereunto moving, do hereby give grant convey make over

and confirm unto him the said Kandegedera Wijesundera Guneratne Tennakoon Herath Mudiyanse Ralahamillage Charles Wilmot Tennakoon Bandara Mahatmaya as a GIFT OR DONATION subject to my life interest and also subject to the revocation of these presents. Pro:- vided however that the said donee shall no sell, mortgage, gift, pledge as security or in any wise alienate the said premises or lease for a term beyond four years at a time or execute any subsequent leases therefor before the expiration of the period of a previous lease but he shall only hold and possess the same during his life time, and after his death the same shall devolve on his two children, who are now alive, and who are my grand-children, namely, Kandegedara Wijesundera Guneratne Tennakoon Herath Mudiyanse Ralahamillage Nandawathie Enid Tennakoon Kumarihamy and-do-Charles Ennoruwe Tennakoon Bandara Mahatmaya and so on any other lawful child or children in equal shares who may be born to my said son, Charles Wilmot Tennakoon Bandara Mahatmaya and they are hereby empowered to hold and possess the said premises at their will and pleasure."

The gift was not accepted either by the donee or by the fidei commissaries and is not registered.' Tennakoon Dissawe died in 1932. Before he died, by deed No. 55586 of 1930 (P2), he revoked the deed of gift (PI) in respect of some of the lands in it; but that revocation did not affect the land in dispute. By deed No. 2079 attested by D. N. Weeratunga, Notary Public, on 19th December 1944 (P10) Charles Wilmot Tennakoon leased for a period of ten years commencing on 1st January

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