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7/29/2019 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.