« EelmineJätka »
immanis. It was so pointed out in Fernando v. Fernando.1 I do not regard the sum of Rs. 300 stipulated in the bond as a penalty, even as the term is understood in the English law. It is in the nature of liquidated damages for the reason that upon a breach of any one of the conditions of the bond it would be almost impossible to assess damages. Damages in those circumstances do not mean what the Department of Public Instruction may have had to pay or actually had to suffer in this particular instance. It should be taken into consideration that in pursuance of the policy of Government large sums of money are spent by Government, and that, therefore, failure on the part of one single person who may make default may have more far-reaching effects that are apparent when the particular instance alone is considered.
I am, therefore, of opinion that judgment should be entered for plaintiff as prayed for, with costs. It is urged that the first defendant is a village girl in poor circumstances. If that be the fact, perhaps representation might be made to the proper authorities for some relief. My duty is to decide the case upon legal materials, and I must therefore allow the appeal, with costs, and set aside the judgment of the Court below and give judgment for the plaintiff as prayed for, with costs..
Present: De Sampayo and Schneider JJ.
APPUHAMY v. WIRASINGHE.
272-D. C. Tangalla, 1,880.
Registration-Right folio-Entry in folio "for similar land, see A 51/126." The foundation of defendant's deed D 1 was D. This latter deed (D) was registered in A vol. 24, folio 108. An entry at the foot of the folio stated that the registration was carried over to A 51/126, from which, again, by a similar entry, it was carried over to A 141/312. On the last folio there was no entry indicating any carrying forward. D1 was registered in A 130/87, as D 2, which was a mortgage granted by the transferor in D 1, was registered there; this mortgage was discharged at the execution of D 1. On A 130/87, the words "brought forward from" were crossed over, and in red ink there were inserted the words "for the same land see A 101/114," and another entry "for a similar land see A 51/126.” On A 101/114 was registered a mortgage of the land, and against it in the “remarks " column were the words “see A 24/108, where the title deed has been registered." At the bottom of the folio it was stated "for the same land see A 130/87 and 101/114.”
Held, that D 1 was registered in the right folio.
The AttorneyGeneral v. Costa
Samarawickreme, for second defendant, appellant.
E. W. Jayawardene, for plaintiff, respondent.
February 24, 1922. SCHNEIDER J.
The only question arising on this appeal is whether deed No. 1,277 (D 1), upon which the appellant claims title and which is registered in A vol. 130, folio 87, is registered in the right folio, so that it acquires priority by virtue of that registration.
Admittedly, the original registration of certain deeds dealing with the land commences in A vol. 24, folio 108. An entry at the foot of this folio states that the registration had been carried over to A vol. 51, folio 126, from which, again, by a similar entry, it is carried over to A vol. 141, folio 312. On this last folio there is no entry indicating any carrying forward. But those registrations are connected by certain cross-references, which I shall describe presently with A vol. 130, folio 87. Upon an examination of the particulars given on the deeds in these later registrations, the reason is to be found why they are not connected with the earlier registrations by an entry indicating a continuation of the one set of registrations with the other. In the latter set of deeds there is a variation in the extent, and also in the description of one or other of the boundaries. The extent is larger. The Registrar of Lands, in whose office these registrations had been made, was called at the instance of the District Judge, and gave evidence. He spoke of the registrations in volumes 101 and 130 as "new registrations." The references in these volumes to the earlier set of registrations, he stated, had been made because a similarity in the lands had been noticed at the office and because the lands were not identical. The object of the references was, he said, to help searchers by giving as full information as possible. Upon these facts the learned District Judge held that the appellant's deed was not registered in the right folio, and dismissed his claim.
I do not agree with the learned District Judge. This case is entirely governed by the reasoning in Ramasamy Chetty v. Marikkar1 which was cited to him. In that case this Court held that where a difference of folio in the registration was due to an alteration in the description of the land as the result of its partition, as regards the effect of registration, the requirements of the Ordinance had been satisfied, inasmuch as the later folio contained such reference as was necessary to identify the land with the original registration. It appears to me that the references in the two sets of registrations in this case are ample to show their connection. In A vol. 24, folio 108, is registered deed No. 9,440 (D), which
1 (1915) 18 N. L. R. 503,
Cur. adv. vult.
is the foundation of the title of the transferor in deed No. 1,277 (D 1). In D 1 it is expressly set out that the title is derived by (D). The boundaries are identical. The prior registration stated in deed D 1 is "A vol. 130, folio 87." The reason for this appears to have been that deed D 2, a mortgage granted by the transferor in D 1, is registered there, and this mortgage was discharged at Wirasinghe the execution of D 1. On this folio there are two references to previous registration. At the place where the reference to the previous registration would be inserted ordinarily, the printed words "brought forward from" are crossed over, and in red ink there are inserted the words "for the same land see A vol. 101, folio 114." The other reference is near this, and is for a similar land see A 51/126.”
In vol. 101, folio 114, is registered a mortgage, and against it in the "remarks" column are the words "see A 24/108, where the title deed has been registered." At the bottom of the folio, the printed column giving particulars of the carrying forward of the registration is left blank, but over it is inserted "for the same land see A 130/87 " and " see A 101/114" in two places.
These references conduct the searcher from the one set of the registrations to the other, whether he begins with the one set or with the other, and also establish the identity of the land. What better information can be wanted than are given in these references ? In its own language what the Ordinance requires is that every deed relating to lands should be registered "so as to facilitate reference to all existing alienations or incumbrances affecting the same land."
I would, therefore, hold that D 1 has been registered in the right folio, and that the plaintiff is not entitled to a mortgage decree in respect of the land claimed by the appellant. So much of the decree as directs the land to be sold is set aside. The appellant will have his costs of this appeal and of the lower Court paid by the plaintiff.
I wish to add that I notice from the Judge's notes that the argument in the lower Court proceeded upon the assumption that the Land Registration Ordinance, 1907, No. 3 of 1907, was in force. This is not correct. That Ordinance has not been proclaimed up to date, and has therefore not come into operation.
DE SAMPAYO J.-Agreed.
Present: Bertram C.J. and Schneider J.
PETER et al. v. CAROLIS et al.
491-D. C. Galle, 18,808.
Lease by administratrix-Conveyance to heir after lease-Lessee ousted by administratrix after she became functus officio-Action for damages and cancellation of lease against administratrix by lesseeJudgment for lessee-Seizure of leased property by lessee under writ for damages-Action by heir under section 247, Civil Procedure Code-Paulian action-Wrongful seizure.
The second defendant as administratrix leased a property to the first defendant in 1916, and in 1919 conveyed the leased property to plaintiff, who was an heir, and other properties to other heirs, and the administratrix became functa officio. In 1920 the second defendant ousted the first defendant from the leased property. The first defendant sued the second defendant for damages and cancellation of the lease and obtained judgment, and proceeded to seize their property. The plaintiff brought this action under section 247 of the Civil Procedure Code. The first defendant pleaded that the transfer was in fraud of creditors. Held, that second defendant was not sued as administratrix and could not have been so sued, as she was functa officio.
(2) That the seizure was illegal, and that the transfer was not in fraud of creditors.
"Upon the judgment recovered in that action against a person guilty of a personal tort, it was illegal to seize property vested in other persons who are not parties to the action, simply on the ground that at some previous time the judgment-debtor had been the administratrix of the property which was vested in the person now claiming it."
J. S. Jayawardene (with him Soertsz and Obeyesekere), for appellant.
E. W. Jayawardene, for respondent.
August 1, 1922. BERTRAM C.J.-
This is an appeal from a judgment of the Galle District Court in an action under section 247 of the Civil Procedure Code. The judgment of the learned Judge proceeds upon two grounds. In the first place, it deals with an allegation of fraud. The defendant in the action sets up a claim to cancel a conveyance made by the mother of the plaintiffs in the action in her capacity as administratrix on the ground that the conveyance was made to defraud creditors. In point of fact he sets up a claim in reconvention of
the nature of the Paulian action. Apart from that the learned Judge appears to hold that execution has been rightly issued against the property in question as the property of the plaintiffs, on the ground that it was part of the estate of which the plaintiff's mother was the administratrix.
With regard to the question of fraud, I will consider that subsequently. I will deal first with the suggestion that execution in the original action was rightly issued against the property now claimed. The facts are as follows: On December 16, 1918, the mother of the plaintiffs, as administratrix of her husband, leased this property to the first defendant. Subsequently, the estate was duly administered, and was closed on May 29, 1919. Distribution was ordered on June 25, 1919, and on July 10, 1919, the administratrix executed a conveyance of this particular property on her minor children, taking as her own share under the estate certain other property. This property was thus definitely vested in the minor children, and the administratrix was functa officio. She had no further duties to discharge in connection with the estate, and under the conveyance of July 10, 1919, this property passed to her children, the minor heirs, subject to the lease already granted to the first defendant in this action. What now happened was, after the estate was closed and after it was vested on the minor children, that is to say, on February 14, 1920, the widow invaded this property and ousted the first defendant. The price of coconuts had gone up; she felt that the land had been disadvantageously leased, and she apparently desired to resume possession of the property. That act on her part was a tort, and she was liable personally for the tort. It is difficult to see how she could have been liable as administratrix. The lessee thereupon proceeded against her. On March 7, 1920, he brought an action claiming damages for her trespass, and at the same time claiming that the lease be cancelled. She was sued in her personal capacity; nothing was said about her as administratrix of the estate. The first defendant recovered judgment, and then proceeded to seize this property, which, as I have already explained, many months previously had been conveyed to the plaintiffs. The question is, was he entitled to do so? It seems to me that he clearly was not. Mr. Jayawardene argued, and the learned Judge found that though the action was launched against the second defendant in her personal capacity, yet in substance and intention it was directed against her in her capacity as administratrix, and ought to be so regarded. I am unable to accept that. It was not brought against her as administratrix, and I do not think that, in fact, it could have been so brought, long after she had handed over the administration of the estate. She was responsible for the tort, and I fail to see how any other person could have been made responsible. Indeed, I do not think that in this action a claim for cancellation of the lease should have been joined.