Karunanayake V. Gunasekara

1962 Present: Basnayake, C. J., and Herat, J.

KARUNANAYAKE and others, Appellants,GUNASEKARA and and others, Respondents

S. C. 105/60-D. C. Matara, 20713/P

    Registration of deeds-Priority of registration as between two competing deeds-Meaning of expression "folios"-Circumstances when a new folio may be opened- Registration of Documents Ordinance, ss. 1, 12, 13, 14 (1)-Registration of Documents Regulations, 12, 13, 14.

There is a difference between a continuation folio under section 14 (1) of the Registration of Documents Ordinance and a new folio opened under the proviso to that section. The discretionary power conferred on the Registrar by the proviso must be exercised only in a case where registration according to the rule laid down in the main section is not feasible, or in a case in which the entry in a new folio is proper in the special circumstances of a case, e.g., when registering a final decree of partition, or in a case where Regulation 13 (3) of the Registration of Documents Regulations is applicable.

The folio in which the first registered instrument affecting a land was regis­tered was B49, folio 5. That registration was continued in B71, folio 6, and B9O, folio 106. Deed 27D14, which was alleged to relate to the same land, was not registered in a continuation of B49, folio 5, but it was registered in B82, folio 217, which had a remark to the following effect:-" See B100/79. Entire land registered in B71/6 ". There were no facts or circumstances which necessitated the commencement of a new folio for registering deed 27D14.

Held (on an issue of priority of registration as between deed 27D14 and a competing deed), that deed 27D14 was registered in the wrong folio. Further, the cross reference in that folio was not made in the prescribed manner.

APPEAL from a judgment of the District Court, Matara.

E. B. Wikramanayalce, Q. C., with H. E. P. Cooray, for 24th Defendant-Appellant.

G. Ranganathan, with M. Shanmugalingam, for 27th and 28th Defendants-Appellants.

H. W. Jayewardene, Q. O., with B. Dheeraratne, for 22nd and 32nd Defendants-Respondents.

H. Deheragoda, Crown Counsel, for Attorney-General, who is the 23rd Defendant-Respondent.

October 25, 1962.   BASNAYAKE, G. J.-

This is an action for partition of a land called Kellegehenawatte bounded on the North by Dumbakellekumbura, East by Nayidekankanamagewatte, South by road and West by Rukgahadeniya, in extent 6 acres. It is common ground that-

(a) this land is depicted in Plan NO. 873 (marked X) and described as a land of 6 acres, 2 roods, 04-11 perches,

(b) the land was possessed in three koratuwas, Western, Eastern and Southern, each of equal extent,

(c) Aron de Silva Gunasekera and other members of his family possessed the Southern l/3rd and enjoyed the produce thereof.
The main dispute is in regard to that Southern 1/3rd. The contest is between the 22nd defendant on the one hand and the 27th and 28th defendants on the other. The 22nd defendant claimed 3/4th of the Southern 1/3rd less the extent of 22-75 perches donated by him to the Director of Education. He also relied on deed No. 27702 dated 8th September 1937 (22D4) from B. M. Wijarama. In their joint answer the 24th, 27th and 28th defendants claimed the benefit of prior registration for their deed No. 4846 of 21st October 1940 (27D14) as against the deed on which the 22nd defendant claimed his title. After the institution of their action the 27th and 28th defendants Ramasamy Chettiar and Yairawan Chettiar sold to the 24th defendant by deed No. 6526 of 5th October 1950 (27D13) " All that right, title, interest and claim of us and the Lot or Lots that may be allotted to us in D. G. Matara Case No. 20713 or the proportionate share of money that may be allotted to us in the event of a sale being ordered in the said case."

The present appeal is by the 24th, 27th and 28th defendants. The question for decision is whether

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