Registration of Documents 11

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Registration of Documents

In most countries Registration of Documents are

effected in the following manner.

01. Registration of Documents

02. Registration of title


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Registration of title is registration of the names of

owners of the particular property from past to thepresent. By this way the beginning of the ownership is

clearly stated. Registration of ownership became

effective in Sri Lanka by Law No.5 of 1877.

A Commissioner was especially appointed for thepurpose of issuing Certificates of Ownership. These

certificates were registered later.


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This method was to be implemented in the whole of Sri

Lanka and initially such as Dehiwela, Wellawatta and

Kirulapona came under it. These areas are known asSpecial Registration areas and the Survey done in

these areas is known as Cadastral Survey.

These areas are surveyed and plans are prepared by

the Survey General which should be registered at theSurveyors Generals Department. If one wishes to

transfer the ownership of such a property, a deed shall

be submitted together with the approved block Plan of

the property endorsed by the Surveyor General and alsoan affidavit of Surveyor declaring that he has made the

Survey Plan, and has to be submitted too the Land

Registry


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For several years the government had conductedstudies to explore the possibility of introducing

registration of title as opposed to registration of deeds

as now happens. The result was the enactment of the

Registration of Title Act No. 21 of 1998 which came intooperation on 29th April 1998.


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Basically, the Statutes objective is to provide for the

investigation and registration of title to land as is done in

Western Countries. The Act enables the Minister incharge to determine by a Gazette Notification any area

to which the Act will apply. It also provides for three

basic institutions for purposes of implementing its

provisions, namely,1) A Commissioner of Title Settlement

2) A Register-General of Title and Title Registries

3) A Conciliation Board in each Grama Niladari Division

to which the Act Applies.

However, this legislation is still in its formative stage.


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Registration of Documents is done to explain whether

there are/or no restrictions on the property and toillustrate the connection of the chain of title in terms of

the Registration of Documents Ordinance No.23 of 1927

of Sri Lanka.

Registration of title as distinguished from Registration ofDocuments is regulated by Ordinance No.5 of 1877, this

ordinance brought into operation cover only the Special

RegistrationAreas


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Priority by Registration.

Section 7(4) of the Ordinance states that a registered

document has the priority over an unregistered

document though it was prepared before the registered

document.

A deed which is registered prior to another registereddeed has priority over the deed registered later in case

there is a disputed interest over the same property.


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According to Sec. 7(1) of the Registration of Documents

Ordinance if a deed of immovable property is executedon or after 1st January 1864 and, is not registered as

stated in the Registration of Documents Ordinance, any

deed which is registered later affecting the same land

will prevail in law, and will have priority over the formerdeed.

Sec 7(2) states, that a fraudulent deed prepared with a

dishonest intention does not get priority even if it is

registered.


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The following requirements should be complied with to get

priority over another registered deed;

1. The transfer should be done for valuable consideration which

has to be in monetary nature.

2. Contrary interest should exist over the same property at the

same time.

3. It should be properly registered according to Section 13 of

the Registration of Documents Ordinance and all affecting

immovable property other than Last Wills and Codicils, should

have a Schedule with all details of the property, the boundaries,

extent of land.

The Registrar of Lands should satisfy himself that the details inthe Schedule are in accordance with the Plan otherwise he has

the power to reject the registration of Deed under Sec.36(1)


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There should not be any fraud or collusion in preparing

and registering the Deed.

The contrary interests regarding the property should bederived from the same source.

According to Sec. 7(4) , a mere registration of a

document does not give the property a good title as nonew validity is granted to the status quo of the property.

The object of registering is to give priority to a deed

registered against a deed registered later.


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We look at some cases decided by the Supreme Court

which illustrates the effect of non-registration of deeds.

In Banda Vs. Alitambi (1952) 54 NLR 249 ;The owner of a land sold the land to Alitambi and the

Deed of Sale was registered on 22nd August 1929.

Subsequently, he sold the same land to Banda and the

second sale was registered on 15th August 1927. Whenthe Deed of Sale to Banda was registered, the Deed of

the earlier sale had not been registered.


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The Court held that the Deed of Sale to Alitambi was

void against the subsequent Deed to Banda and that

Banda was the Owner of the land. Thus bb mere failure

to register his Deed, Alithambi lost his title to the landwhich he had purchased earlier.


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Similarly, in the case of Gunasekera Vs. Gunatilleka

(1902) 3 Browns Report P.399

The Court held that a mortgage of land that had beenregistered made a previous unregistered mortgage void.

The above cases show the vi ta l importance of

regis t ration o f docum ents affect ing land and how

registered documents prevai l over unregistered

docum ents relat ing to the same land.


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Due to the following reasons a deed shall not obtain the

priority over a another deed if,

1.The deed has been executed or registered with fraudand collusion.

2. The transfer should be done for valuable

consideration which has to be in monetary nature.

3. The holder of the earlier unregistered instrument has

acquired the title by prescription.

4. The deed is a forgery.

5. The property is subject to a partition action.6. The property belongs to an a insolvent person.

7. The document was registered in the wrong Volume

and folio.


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PriorRegistration confers privileges only to Deeds for

ValuableConsideration

A registered instrument takes priority over anunregistered earlier instrument only if there has been

valuable consideration accompanying the registered

transfer.

Eg: If A sells his property to B, but B fails to register hisDeed. Subsequently, A donates the same property to C

and C registered the Deed of Gift. Here the Deed of Gift

in favour of C does not gain priority over the Deed in

favour of B. This is because while B gave valuableconsideration (money) for his deed. C did not give any

thing.

See Fernando Vs. Fernando (1988) 1 CLR 82


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In Mohamed Hamidu Vs. Natchia (1892) 2 CLR 31,The contest was between two deeds of gifts where the

issue of Valuable Consideration did not arise. The later

Deed of gift was registered while the earlier Deed of Gift

was not. In these circumstances the Court held thatregistration was irrelevant and earlier Deed of Gift

prevailed.


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Fraud and Collusion defeats Priority by Registration.

It is well established that, the priority that a registered

instrument gains over an earlier unregistered document

is defeated if there has been fraud or collusion inobtaining the registered instrument or in securing its

prior registration.


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An interesting case of fraud and collusion is that of

Abeysundera Vs Ceylon Exports Limited (1936) 38 NLR

117 ; In this case, in 1908, a father donated his tea estate to

his son. Since, the son was a minor at that time, the

deed of Gift was accepted on behalf of the son by the

mother. The father kept the Deed of Gift with him. A fewmonths later, he sold the same tea estate to the

defendant who registered the Deed of Sale before the

Deed of Gift to the son was registered.


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On a contest between the two deeds, it was proved in

evidence that the defendant who had priority by

registration, was guilty of fraud. The defendant hadprevailed on the father to delay registering the Deed of

Gift in the sons name, until he registered his deed of

sale. Also, the Defendants lawyer had advised him

against buying the property because it had been giftedto the son.

On these grounds Supreme Court held that despite the

prior registration and despite the contest was between a

sale and a gift, priority by registration was not availablebecause of the clear fraud by the defendant.

Although the defendant appealed to the Privy Council, it

was held with the judgment of the S.C.


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Refusal to register an instrument

Section 36 states on what grounds the Registrar of

Lands may refuse to register an instrument.

1. 36(1)(a) ; Where the Registrar has reason to

suspect that the person forwarding the document to be

registered is not an authorized person to do so, he may

refuse to register the document until such time the

contrary is proved by the person who forward the

document.


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Section36(1)(B) ; If the instrument does not comply

with the provisions of the ordinance (especially Sec.13of the Ordinance) or ant other relevant law, the registrarmay refuse to register the instrument.

Sec. 13 ; All deeds affecting immovable property other

than Last Wills and Codicils, should have a Scheduleannexed with all details of the property such as the

boundaries, extent of land, name of the land, Relevant

Plan No's, Where the land is situated etc.


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Eg :THE FIRST SCHEDULE ABOVE REFERRED TO:All that allotment of land marked Lot '2D in Plan No.2292 dated17th December 1994 made by K.A.Kapugeekiyana Licensed

Surveyor of the land called MANIKAGAREDAVATAGAHAWATTA together with the trees, plantation, soiland everything else standing thereon bearing Assessment No.128/23 situated along Karunatilake Mawatha, Off HeenatikumburaRoad, Koswatta, Talangama North within the Municipal Council

Limits of Kaduwela in Grama Niladari Division ofNo.473,Talangama North and Divisional Secretaries Division ofKaduwelathe Palle Pattu of Hewagam Korale in the District ofColombo, Western Province and which said Lot '2D' is boundedon the NORTH; by Lot 2 in Plan No. 696 dated 21-6-1994 made

by D.D.C. Heendeniya Licensed Surveyor, on the EAST; by landof W.A.H. Dabare & Others, on the SOUTH; by State land and onthe WEST; by Lot 2C in said Plan No. 2292 and containing inextent TWENTY FIVE DECIMAL SIX PERCHES (A0. R0. P 25.6)according to said Plan No. 2292 and Registered underVolume/Folio G 1153/153 in the Land Registry of Homagama.


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Section 36(2) states two instances where the Registrar

shall refuse to register an instrument.1. Until the stamp duly is paid if any stamp duty is

paid.(if any stamp duty is payable)

2. Until if the payment of registration fee is made if any

registration fees is payable.


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Sec. 37 states; when refusing to register any instrument

the registrar should inform the applicant in writing thatthe registration of the document was refused and if the

applicant requires, should submit the reason for refusal

without any fee.

Sec. 38 states; When registration is refused by theRegistrar the applicant should appeal within 30 days of

the refusal to the registrar general praying to vary or

reverse the order. Such an appeal should be forwarded

together with an affidavit stating in which way thedocument should be changed.


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If the appeal is accepted on reasonable grounds the

Registrar General informs the Registrar of Lands toregister the instrument and Rs.10/- is payable as the re-

registration fee.

Sec. 38(2) If any person is aggrieved by the decision of

the Registrar General he may within 30 days of receiptof the decision, institute action against the Registrar

General in the District Court to vary or reverse such

decision.


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According to Sec. 39 if it is shown to the satisfaction of

the District Court that the Registered instrument was

made fraudulently or without any authority, the Courtmay cancel such registration or order the necessary

rectification to be done as the circumstances may

require and may order the original instrument to be

brought into Court and the endorsement of registrationto be cancelled or altered.

One may appeal against the order of the District Court

on a question of Law to Appeal Court and thereafter to

the Supreme Court.

Notices given under the Registration of Documents


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Notices given under the Registration of Documents

Ordinance

Notice of Seizure

Sec 9; According to Section 237 of the Civil ProcedureCode if a Creditor has lent money to a debtor and if he is

in default of payment a case could be filed and if any

property of the debtor is seized, the Attorney-at Law of

the Judgment Creditor shall obtain a Seizure notice fromthe Fiscal and forward it to the Land Registry for

purpose of registration.

Sec9(3); A notice of Seizure shall remain in force for six

months on by from the date of registration but may andcould be renewed for every 6 months thereafter as

maybe necessary.

Registration of Documents 11

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