Registration of Documents In most countries Registration of Documents are effected in the following manner. 01. Registration of Documents 02.

Registration of title

Registration of title is registration of the names of owners of the particular property from past to the present. 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 the purpose of issuing Certificates of Ownership. These certificates were registered later.

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 as Special 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 the Surveyors 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 also an affidavit of Surveyor declaring that he has made the Survey Plan, and has to be submitted too the Land Registry

For several years the government had conducted studies 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 into operation on 29th April 1998.

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 in charge 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.

Registration of Documents is done to explain whether there are/or no restrictions on the property and to illustrate 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 of Documents is regulated by Ordinance No.5 of 1877, this ordinance brought into operation cover only the Special Registration Areas

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 registered deed has priority over the deed registered later in case there is a disputed interest over the same property.

According to Sec. 7(1) of the Registration of Documents Ordinance if a deed of immovable property is executed on 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 former deed. Sec 7(2) states, that a fraudulent deed prepared with a dishonest intention does not get priority even if it is registered.

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 in the Schedule are in accordance with the Plan otherwise he has the power to reject the registration of Deed under Sec.36(1)

There should not be any fraud or collusion in preparing and registering the Deed. The contrary interests regarding the property should be derived from the same source.
According to Sec. 7(4) , a mere registration of a document does not give the property a good title as no new 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.

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. When the Deed of Sale to Banda was registered, the Deed of the earlier sale had not been registered.

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 land which he had purchased earlier.

Similarly, in the case of Gunasekera Vs. Gunatilleka (1902) 3 Browns Report P.399 The Court held that a mortgage of land that had been registered made a previous unregistered mortgage void.
The above cases show the vital importance of registration of documents affecting land and how registered documents prevail over unregistered documents relating to the same land.

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 fraud and 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.

Prior Registration confers privileges only to Deeds for Valuable Consideration A registered instrument takes priority over an unregistered 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 his Deed. 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 valuable consideration (money) for his deed. C did not give any thing. See Fernando Vs. Fernando (1988) 1 CLR 82

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 that registration was irrelevant and earlier Deed of Gift prevailed.

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 in obtaining the registered instrument or in securing its prior registration.

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 few months 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.

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 had prevailed 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 gifted to 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 available because 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.

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.

Section36(1)(B) ; If the instrument does not comply with the provisions of the ordinance (especially Sec.13 of the Ordinance) or ant other relevant law, the registrar may refuse to register the instrument. Sec. 13 ; All deeds affecting immovable property other than Last Wills and Codicils, should have a Schedule annexed 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.

Eg :THE FIRST SCHEDULE ABOVE REFERRED TO: All that allotment of land marked Lot '2D in Plan No.2292 dated 17th December 1994 made by K.A.Kapugeekiyana Licensed Surveyor of the land called MANIKAGARE DAVATAGAHAWATTA together with the trees, plantation, soil and everything else standing thereon bearing Assessment No. 128/23 situated along Karunatilake Mawatha, Off Heenatikumbura Road, Koswatta, Talangama North within the Municipal Council Limits of Kaduwela in Grama Niladari Division of No.473,Talangama North and Divisional Secretaries Division of Kaduwelathe Palle Pattu of Hewagam Korale in the District of Colombo, Western Province and which said Lot '2D' is bounded on 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 land of W.A.H. Dabare & Others, on the SOUTH; by State land and on the WEST; by Lot 2C in said Plan No. 2292 and containing in extent TWENTY FIVE DECIMAL SIX PERCHES (A0. R0. P 25.6) according to said Plan No. 2292 and Registered under Volume/Folio G 1153/153 in the Land Registry of Homagama.

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.

Sec. 37 states; when refusing to register any instrument the registrar should inform the applicant in writing that the 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 the Registrar 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 the document should be changed.

If the appeal is accepted on reasonable grounds the Registrar General informs the Registrar of Lands to register the instrument and Rs.10/- is payable as the reregistration fee. Sec. 38(2) If any person is aggrieved by the decision of the Registrar General he may within 30 days of receipt of the decision, institute action against the Registrar General in the District Court to vary or reverse such decision.

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 Court may 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 registration to 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 Ordinance Notice of Seizure Sec 9; According to Section 237 of the Civil Procedure Code 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 from the 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 and could be renewed for every 6 months thereafter as maybe necessary.