Document Sample

       LAND LAW
       (PART - II)

      BY : Justice N.E. Dissanayake
                       TABLE OF CONTENTS

                                                            Page nos.
1. Registration of Documents ……………………………….                 03

     Categories of registrable documents …………………...        04
     Effect of Registration of document …………………….          06
     The Requisites of Priority .……………………………..             09
     Factors vitiating priority by registration………………...   12
     Definition of Fraud or Collusion ……………………….           13
     Registration of a Lis Pendens …………………………..            20

2. Servitudes …………………………………………………                          21

     Modes of acquisition of servitudes ……………………..         21
     Kinds of servitudes ……………………………………..                  23
     Modes of loosing servitudes ……………………………               25
     Urban servitudes ………………………………………..                    29
     Preadial servitudes ………………………………………                   33
     Non-preadial servitudes …………………………………                 34

3. Paulian Action …………………………………………….                       36

     A Fraud ………………………………………………..                          37

4. Negotiorum Gestio ……………………………………….                      39
5. Inter-pleader actions ……………………………………....                41
6. Quia-Timet actions ………………………………………..                    43



       The law relating to registration is contained in the Registration of
Documents Ordinance No. 23 of 1927. Chapter III of the Ordinance caters for the
registration of instruments affecting land.

       In Chapter III an instrument is declared to be an instrument affecting land.

       Land is defined as including things attached to the earth or permanently
fastened to anything attached to the earth or permanently fastened to anything
attached to the earth and any estate or interest in land, a mortgage of or a charge
on land”. (Section 5)

       The Ordinance contains an exhaustive definition of the categories of
documents falling within the purview of the statute.

       Unregistered instruments are declared to be void against subsequent
registered instruments. (Section 7(1))

       An obligation is imposed on the Registrar in regard to preparation and
keeping of books for the registration of instruments affecting land (Section 12).
The mode of description of lands in instruments must be registered in the proper
folio, (Section 14(1)) and provision is made as to the method of registration
(Section 15).

Categories of registrable documents

         The fundamental provision contained in the Registration of Documents
Ordinance is that declaring that unregistered instruments are void against
subsequent registered instruments (Section 7(1)). The Ordinance having provided
that an “instrument”, for this purpose means an instrument affecting land.
(Section 6) proceeds to define the phrase affecting “land”. (Section 8)

   For the purpose of the Registration of Documents Ordinance, the following
instruments are declared to affect land, namely;

   (a)      If executed or made before the commencement of the Registration of
            Documents Ordinance, every deed or other instrument of sale,
            purchase, transfer, assignment or mortgage, of any land or of any
            promise, bargain, contract, or agreement for affecting any such object
            of for establishing or transferring any security, interest or encumbrances
            affecting any land (other than a lease at will or for any period not
            exceeding one month); or of any contract or agreement for the future
            sale or purchase or transfer of any land; and every deed or act of
            release, surrender, or annulment of or affecting of any such deed or
            other instrument, and every will disposing of any land, and every grant
            of administration, affecting any land; and every judgment or order of
            Court affecting land ;

   (b)      If executed or made after the commencement of the Registration of
            Documents Ordinance, all instruments including wills, decrees and
            orders of any court or authority, and awards, which purport or operate
            to create, confer, declare limit, assign, transfer, charge, encumber,
            release or extinguish any right, title or interest, whether vested or
            contingent, past present or future, to in or over land, or which create or
            record or are evidence of any contract for effecting any such object and

              a notice of seizure issued under section 237 of the Civil Procedure Code
              ; provided that paragraph (b) shall not apply to:

       (i)       any decree or order of Court where          the action in which the
                 decree or order is made has been duly registered as a lis pendens;
       (ii)      a writ of execution issued under section 225 of the Civil Procedure
       (iii)     any letters of administration to the estate of any interstate;
       (iv)      a decree, order adjudging a person to be insolvent or bankrupt;
       (v)       a decree, order or other instrument, appointment or recording,
                 certifying or confirming the appointment or election an assignee or
                 trustee in insolvency or bankruptcy;
       (vi)      any document relating to shares in a registered company, so long as
                 its only affect, as respects the land affected thereby, is to create a
                 floating charge thereon in such form that the Company can until the
                 security is enforced, dispose of the land in the ordinary course of its
                 business, free from the mortgage or debenture;
       (vii)     any debenture issue by any such Company, the only effect of which,
                 as respects the land affected thereby, is to entitle the holder to the
                 benefit of the security afforded by a duly registered instrument;
       (viii) any endorsement upon or transfer of any debenture specified in (vi)
                 or (vii);
       (ix)      any     receipt   for   payment of money due under a mortgage or

any instrument, if the only interest in land created or dealt with thereby is a
tenancy at will or for a period not exceeding one month or determinable by the
land lord by not more than one month‟s notice (Section 8).

     The following categories of instruments have been held in decided cases to
be registrable;

     (a) a grant of letters of administration (Horne vs. Marrikkar (27 NLR 185)

     (b) a notice of seizure issued by the Fiscal on a mandate of sequestration ;
        Ibrahim vs. Hongkong and Shanghai Bank (37 NLR 51)

     (c) a certificate of no claim ; De Silva vs. Weerappa chetty (43 NLR 566)
        Chapter 101 of the legislative Enactments (1956 edition) embodies the
        main provisions of Ordinance No. 23 of 1927 as amended subsequently in
        regard to minor particulars.

     Section 8 (b) read with section 6, makes a last will a registrable document
under the Ordinance.      Probates are no longer registrable. The amendments
incorporated in section 8 make the will registrable, but the effect of the proviso to
section 26 is that a will cannot be presented for registration, unless it has been
admitted to probate and is accompanied by the probate or letters of
administration to which the will has been annexed.

     Section 10(1) of Cap 101 now provides that a will shall not, as against a
disposition by an heir of the testator of land affected by the will, be deemed to be
void or lose any priority or effect by reason only that at the date of the disposition
by the heir, the will was not registered under this chapter.

Effect of Registration of a document

       The Registration of Documents Ordinance provides that an instrument
executed or made on or after the 1st day of January 1864, whether before or, after
the commencement of this Ordinance shall, unless it is duly registered under
chapter III or, if the land has come within the operation of the land Registration
Ordinance 1877, in the books mentioned in section 26 of that Ordinance, be void
as against all parties claiming an adverse interest thereto on valuable

consideration by virtue of any subsequent instrument which is duly registered
under chapter III or, if the land has come within the operation of the Land
Registration Ordinance, 1877, in the books mentioned in section 26 of that
Ordinance (Section 7(1)).

       Provision is explicitly made that Registration of an instrument under
Chapter III shall not cure any defect in the instrument or confer upon it any effect
or validity which it would not otherwise have, except the priority conferred on it
by section 7 (Section 7(4)).

       It is also declared that “an instrument duly registered before the
commencement of the Registration of Documents Ordinance, under the Land
Registration Ordinance 1891, or any enactment repealed by that ordinance, shall
be deemed to have been duly registered under chapter III (Section 7 (3)).

       In Lairis Appu vs. Tennakoon Kumarihamy (61 NLR 97) at page 105,
Sinnethamby J, declared; “Our Registration Ordinance provides for the
registration of documents and not for registration of titles. If it had been the
latter, then from whatever source the title was derived, registration by itself
would give title to the transferee. When, however provision is made only for the
registration of documents of title, the object in its simplest form, is to safeguard a
purchaser from a fraud that may be committed on him by the concealment or
suppression of an earlier deed by his vendor. The effect of registration is to give
the transferee whatever title the vendor had prior to the execution of the earlier
unregistered deeds.”

       The legal effect of registration of deeds has been explained in a series of
cases which can be looked upon as settling the law on the subject.

       No benefit, other than that of priority, is gained by registration. Thus in
Mohamed Ali vs. Weerasuriya (17 NLR 417) Lascelles C.J. said ; “The relevant

section has always been held to be applicable to cases where there is a competition
between two or more instruments of title proceeding from the same source. At
page 424 Ennis J observed. The principle of priority affects only the devolution of
rights, and leaves an unregistered instrument unaffected for all purposes other
than the establishment of a prior claim to one and the same thing.

       This observation explains the extent to which the unregistered instrument
is affected by the subsequent registered instrument. The former is treated as void,
only so far as this is necessary to give full effect to the registered instrument. The
sole legal effect of registration, therefore, is that, in a competition between a
previous unregistered deed and a later registered deed, the latter, prevails over
the former.

       One of the important limitations on the consequences of registration was
explicitly adverted to in Appuhamy vs. Goonetileke (18 NLR 469), where, de
Sampayo J explained; “The benefit of prior registration is given to an instrument
only against another instrument. Such registration only affects titles based on the
instruments, and has nothing to do with titles acquired otherwise than upon such

       In James vs. Carolis (17 NLR 76) at page 78, Lascelles C.J. made the
following comment on the object of the Registration Ordinance, “If an intending
purchaser finds on the register no adverse deed affecting the property, he is
placed in the same position, as records his title to the land, as if no such deed in
fact existed. On the other hand, the grantee under the prior unregistered deed is
penalized for his failure to put his deed on the register. He is taken to have given
out to the world at large that his deed did not exist, and is prohibited from setting
it up against the registered deed of the subsequent purchaser for valuable
consideration (Vide also Peiris vs. Perera 10 NLR 33).

The requisites of priority

(a)     Instruments shall proceed from the same source.
        Vide Bernard vs. Fernando (16 NLR 438) and Mohamed Ali vs.
        Weerasuriya (17 NLR 417). James vs. Carolis (17 NCL 81)

Instances of same source

(i)     Deceased and heir or executor
        The administrator represents and his estate is in law identical with that of
        his estate. (Punchirala vs. Appuhamy 7 NLR 102)
(ii)    The judgment – debtor and the Fiscal
        A conveyance from the judgment – debtor and a conveyance from the
        Fiscal in the context of the law of registration is regarded as proceeding
        from the same source.
        Canawadipulle vs. Velupillai (4S.C.C. 149) Arumugam vs. Kanapathipulle
        (7S.C.C. 120) Asereppa vs. Weeratunga (14 NLR 417)
(iii)   The insolvent and the assignee in insolvency
        Haniffa vs. Silva (15 NLR 362) are not the same source.

(b)     The concept of adverse interests conferred by separate

(i)     Primary mortgage and Secondary mortgage.
        In a case reported in (1877) Ramanathan‟s Report 198) (Full Bench case)–
        there were two mortgages, the second of which was stated to be secondary
        but was registered first. The name of the first mortgagee admitted that he
        had been informed by the notary of the existence of the first mortgage. It
        was held that the second mortgage prevailed over the first notwithstanding
        the use of the phrase “secondary mortgage in the subsequent instrument.
        Clarence A.C.J. said; every secondary mortgage is capable of being

        enlarged into a primary mortgage by the primary mortgage being got out
        of its way; and we hold that the operation of the Ordinance has put the
        appellant‟s primary mortgage out of the way of the respondents secondary
(ii)    Two Fiscals conveyance – which ever is registered first renders the other
(iii)   A lease and a Private or Fiscals transfer – Private sale registered prevailed
        over an unregistered lease. (Sannaiya Chetty vs. Appuhamy (16 NLR 289)
        Registered mortgage and an unregistered lease. The claimants of
        purchasers in execution prevails over the lease (Umma Legge vs. Segu
        Mohammadu (2 C.L.R. 158).
(iv)    A lease and a Partition Deed.
(v)     A Trust and a mortgage by the settler.
(vi)    A planting agreement and a sale.
(vii)   Two mortgage decrees.
(viii) Gift and a sale.
(ix)    A Fiscal‟s sale and a private sale – priority is attached to which ever is
        registered first.

(c )    The requirement of valuable consideration

                The Law of Sri Lanka confines the advantage of priority by
        registration to deeds supported by the passing of valuable consideration.
        (Registration Documents Ordinance Section 7(1))

                In Fernando vs Fonseka (1 C.L.R. 82) Dias J said; “The term valuable
        consideration is a well known term with a well defined meaning–it is
        money, morning or the like, which the law esteems as an equivalent given
        for the grant”. In this case the owner leased the property for a term of
        years. Thereafter he sold the property to the plaintiffs father who gifted it
        to the plaintiff. The plaintiff‟s gift was registered prior to the lease, and it

was held to be subject to the lease. Dias J said; the plaintiff is a mere
volunteer, his father conveyed the land to him as a gift, and the object of
the Ordinance, manifestly is to give a statutory title to those only whose
claims are founded an valuable consideration.

       In Mohammadu Hamidu vs. Rahimuh Nactchia (2 CLR 32) the
contest was between two deeds of gift. The later deed of gift was
registered, which the earlier deed of gift was not. Registration was held to
be irrelevant in these circumstances. In Diyes Singho vs. Herath (64 NLR
492) T.S. Fernando J, laid down the principle that, although no issue was
raised by either party in respect of the passing of valuable consideration for
the subsequent instrument for which priority by registration was claimed,
the absence of such an issue could not have the effect of absolving the
plaintiff from proving that valuable consideration was given.

       In Nambuvasan vs. Deonis Appu (65 NLR 353) Weerasuriya J
Summarising the law on this point as follows: When “A”, the owner of a
land, sells to deed unregistered and gifts to „C‟, deed registered, “C” cannot
claim priority by registration. But in the converse case–i.e. when “A” gifts
to “B” who does not register and then sells to “C” who registers, the
registration of “C”s deed avoid “B”s–In the first case, if “C”, the donee
transfers for valuable consideration to “D” who registers, “D” obtains
priority over “B” notwithstanding the fact that the deed to “C” if not for
valuable consideration.

Factors vitiating priority by registration

(a)   Fraud or Collusion

              The Registration of Documents Ordinance, having laid down the
      general principle that unregistered         instruments are void against
      subsequent registered instruments. (Section 7(1))

              An established principle on this regard is that the mere existence in
      the mind of a man who has obtained a conveyance for valuable
      consideration, of knowledge of the existence of a prior unregistered
      conveyance, is not sufficient to deprive him of the right to gain priority by
      registration.   Although some earlier decisions took the view that such
      knowledge was sufficient to establish fraud.

              In Appusingho vs. Leelawathie (60 NLR 409) - “A” sold land to “B”
      on 17th May 1952. On 3rd November 1952, “A” sold the same land to “C”.
      “B”‟s deed was not registered, whereas “C”‟s deed was duly registered.
      The question for decision was whether the priority of “C” was defeated by
      fraud or collusion in obtaining the subsequent deed. The evidence showed
      nothing more than the Proctor‟s clerk to whom “C” had entrusted the task
      of obtaining the transfer from “A”, knew of the previous sale of the land to
      “B” and that he had searched the relevant register and discovered that the
      deed in favour of the plaintiff was not registered.

              The Supreme Court held that the evidence did not establish fraud or
      collusion within the meaning of those expressions in Section 7 (2) of the
      Registration of Documents Ordinance, Basnayake C. J. at page 413 stated:
      “It is settled law that mere notice of a prior unregistered instrument is not
      of itself sufficient evidence of fraud for the purpose of the section”.

             In Lairis Appu vs. Tennakoon Kumarihamy (64 NLR 97) Lord
      Devlin, delivering the opinion of the Privy Council, said; “Mere notice of a
      prior unregistered instrument is not enough. There must be actual fraud in
      the sense of dishonesty.”

Definition of fraud or collusion

      In Appu Singho vs. Leelawathi (60 NLR 409) citing the authority of the
Privy Council at page 208 said; It is not necessary or wise to give abstract
illustrations of what may constitute fraud in hypothetical conditions, for each case
must depend upon it‟s own circumstances. The act must be dishonest, and
dishonesty must not be assumed solely by reason of knowledge of an
unregistered interest.”

      All that can be usefully done is to illustrate, by reference to decided cases,
situations in which a finding of fraud has been reached in this context.

In Kirihamy vs. Kiri Banda (14 NLR 284) - The facts were as follows:
             “A” on a deed dated 29th November 1887 purchased a property from
      a sister of “B”, but he did not register his deed. On 21st January 1898, “B”
      obtained a deed from his sister for the same property, apparently for value
      and registered the deed on the following day, the property was
      subsequently seized by others under a writ on a judgment by them against
      “B”. “A” claimed the property, but his claim was disallowed. He therefore,
      brought an action under Section 247 of the C.P.C. in which the two deeds
      were in competition. It was proved that “B” had urged “A” in 1887 to
      purchase the property from his sister, and was present at the execution of
      the deed. The trial judge (D.C) held that, under the circumstances, the
      conduct of B, in taking a conveyance of the property from his sister in 1898

       amounted to fraud in obtaining the deed and in securing prior registration.
       The Supreme Court entirely agreed with this conclusion.

       In Lawaris vs. Kirihamy (1915) 3. Bal Notes of Cases 38) was a case where
certain property had been conveyed to “Y” and his brothers and sisters. (may
have been minors). “Y” then prevailed on his mother to convey the property to
him, thereby taking a dishonest advantage of his younger brothers and sisters in
order to deprive them of what they had obtained on the footing of the earlier
deed. He got this later deed registered before the earlier deed, but it was held that
he was guilty of fraud in the obtaining and requesting of his subsequent deed. It
was of course, the mother whose duty it was as guardian to have the earlier deed
registered on behalf of her children and to preserve her children‟s interests, but it
appeared that the latter also relied on their elder brother for this purpose. The
basis of the finding of fraud was that the elder brother, took advantage of his
position and of his mother‟s failure to safeguard the interests of her other

       The facts of Hall vs. Pelmadulla Valley Tea and Rubber Co. Ltd., (31 NLR
55) were as follows:

       By a notarial writing, which was not registered, the added defendant
agreed to sell and convey to the defendant company all land he might be
possessed of or might thereafter purchase in certain specified villages up to a
thousand acres upon certain terms. In anticipation of the sale, the Company was
allowed to take possession of certain blocks of land. Pending sale, the added
defendant executed a transfer of all the lands in question to the plaintiff who
registered his deed. Neither promissory note nor a cheque alleged to have been
given by the plaintiff was produced.          In this condition of the facts, Lord
Worrington, on behalf of the Privy Council at page 59, observed:

       “Their lordships cannot but come to the conclusion that the whole
transaction was a sham never intended to be anything more than a device for
getting priority over the respondents‟ claim, and that this amounts to fraud or
collusion within the meaning of the ordinance.


       The leading case is Ferdinando vs. Ferdinando (23 NLR 143). The 1st
defendant transferred to his son in 1908, by a deed which was never registered, a
tract of land, subject to the life interest in his favour. The son nevertheless,
possessed and improved the land. He contracted a marriage distasteful to the
family and died in 1918, leaving a widow and child. The widow (plaintiff) sent a
letter of demand to the 1st defendant for the title deed. Three days thereafter, by a
deed which was registered, the 1st defendant transferred the land to his son-in-law
(2nd defendant) who was aware of the earlier deed. The consideration was stated
to be Rs. 5,000/- which included a debt of Rs.2,750/- which was already due from
the 1st defendant to the 2nd defendant. Soon afterwards the 2nd defendant
transferred the property to the 3rd defendant. It was held that, in the
circumstances of the case, there was collusion between the 1st and 2nd defendants
and that consequently, the 2nd defendant did not acquire a superior title by

       At page 147–148 Bertram C.J. explained the idea of collusion as follows:
“Collusion”, means, as the derivation of the word implies, the joining together of
2 parties in a common trick.      It carries with it the implication of something
indirect and underhand…………….

       In Arumugan vs. Arumugam (53 NLR 490), “A” bought certain property
from B and entered into possession of it as its lawful owner. “C” was aware of the
transaction. Nevertheless, “C” in the hope of taking advantage of the fact that

“A” had registered his deed in the wrong folio purported subsequently to
purchase from “B”, with knowledge of “B”‟s intended fraud, certain rights in the
property. “C” registered the later deed in the correct folio. It was held that “C”
was guilty of “collusion”, and would not, therefore claim the benefit of prior

       Bertram C J in Ferdinando vs. Ferdinando (23 NLR 143) at 147 stated… “It
was, I think, for this reason that the word “collusion” was used as an alternative
to the word fraud.”

       Of course there may be circumstances in which the conduct of the parties is
both fraudulent and collusive. This kind of situation is exemplified or Lairis
Appu vs. Kumarihamy (64 NLR 97) PC held that collusion had been adequately
established. The facts are: A person donated certain property on 26th June 1919 to
his son subject to a fidei comissum, after the donees lifetime, in favour of the
donee‟s two children, one of whom was the plaintiff.

       On 12 April 1945, the fiduciary, in breech of the fidei-comissum, sold the
land to the defendant….. The deed of gift of 12th June 1919 was never registered
while the deed of transfer of 12th April, 1945 was registered on 19th April 1945. It
was established, however, beyond all doubt, that the fiduciary and the defendant
knew of and accepted the plaintiff‟s title and were relying on solely on prior
registration to defeat it.

       Lord Devlin, said; “the father was unquestionably defrauding his
daughter, and the defendant was aware of it. More over the default was aware
that the father was a fiduciary and therefore it his duty both as father and
fiduciary, to protect his daughters interest by registering the instrument by which
she derived her title.

(a)   Registration in the wrong folio

      (i)     Statute law applicable
              Under Section 14 (1) and 15 of the Registration Document Ordinance
      it is required to register all instruments presented for registration to be
      registered in the book allotted to the division in which the land affected by
      the instrument is situated and in continuation of the folio in which the first
      registered instrument affecting the same land is registered.

              However, if the Registrar thinks it fit it may be entered in a new
      folio, cross references being entered in the prescribed manner.

              Where no instrument affecting the same land has been previously
      registered, the instrument shall be registered in a new folio.

              An instrument which is not registered as provided above shall not
      be deemed to be duly registered.

      (ii)    The burden of Proof
              In Diyes Singho vs. Herath (64 N.L.R. 392) it was held that the
      burden was on the plaintiff to establish non compliance of provisions
      pertaining to registration of documents.

              A rebuttuable presumption under Section 114 of the Evidence
      Ordiance may be operative in this area. Vide Perera vs. Premawathi (74
      N.L.R. 302)

      (iii)   Definition of the correct folio
              In Silva vs. Appu (1914) 4 Bal. N. of C. 28), De Sampayo J, declared ;
      “The words „right‟ and „wrong‟ are relative terms and have reference to a
      folio already determined. In my opinion, the folio so determined is the

folio which the registrar opened for registering deeds relating to the
particular land and in which the first of such deeds is registered“.

       This criteria has been applied in a series of subsequent cases
including (Marikkar vs. Fernando 17 N.L.R. 481), Fernando vs. Peduru
Pulle (2.C.W.R. 75) and Seneratne vs. Pieris (4.C.W.R. 65).

       The effect of this group of decisions is that, once an instrument
dealing with the land in question has been registered, all other instruments
dealing with that land must, in order to satisfy the requirements of the law
relating to registration, be entered in the same or connected folio. These
decisions directly support the view that the folio in which the first
registration was effected, is the „right folio‟, and any other the „wrong
folio‟, for the registration of instruments effecting land.

       Misdescription of boundaries of a land and the village it is situated,
will vitiate a registration. Vide (Rajapakse vs. Fernando 20 N.L.R. 301),
(Singho vs. Wijesinghe 22 N.L.R. 146) (De Silva vs. Lapiya 29 N.L.R. 177)

(iv)   The imputability of Negligence
       The law appears to be settled in favour of the view that priority is
defeated by registration in the wrong folio, even in the circumstances
where no negligence is imputable to the applicant.

       Where a deed is registered in the wrong folio on account of the
negligence of either the Registrar or one of the parties, the document is
deprived of the priority ordinarily available under the registration laws.
(Vide Logus vs. Lawrence 15 N.L.R. 148) and Achchikuddy vs. Krishnar (69
N.L.R. 520).

(b)   Voidness of the registered instrument

      Priority is not available to the holder of a registered instrument if that
      instrument can be shown be void upon some ground such as fraud,
      illegality or mistake. (Sami Appu vs. Dissnanayake 6 N.L.R. 263)

(c)   Supervening title created by special legislation

      Cases decided under the Partition Ordinance, the Municipal Councils
      Ordinance and the Irrigation Ordinance exemplify this category of
      situation. (Vide Bernard vs. Fernando 16 N.L.R. 479) (Nugawela vs. M.C.
      Kandy 40 N.L.R. 166) and (Vellaithamby vs. A.G. 58 N.L.R. 486)

(d)   Absence of competing instrument

      The effect of a registered instrument is confined to a previous unregistered

(e)   Interests claimed not derived from registered instrument

      The deed under which the interest is gained, and that alone, is required to
      be registered (Peiris vs. Perera 10 NLR 33)

Registration of a Lis Pendens

The applicable provisions are the following:

   (i)     No lis pendens affecting or relating to land instituted on or after the 9th
           day of November 1917, shall bind a purchaser, unless and until, the lis
           pendens is duly registered under chapter III. (Section II (i))
   (ii)    But a lis pendens duly registered before the commencement of this
           Ordinance under provisions of Ordinance No. 29 of 1917 shall be
           deemed to have been duly registered under chapter III.
   (iii)   In this section purchaser means any person (including a mortgagee or
           lessee) who, for valuable consideration, takes any interest in or charge
           on land.
   (iv)    For the purpose of registering a lis pendens, a document in the
           prescribed form shall be presented for registration; and such document
           shall be retained by the registrar.
   (v)     A lis pendens may be registered at any time after the plaint has been
           accepted by the Court in accordance with the provisions of the Civil
           Procedure Code. (Section II (i)).
   (vi)    For the purpose of the application of the doctrine of lis pendens, an
           action duly registered as lis pendens shall be deemed to be pending
           from the date of registration, notwithstanding that the summons has
           not been served on the defendant.
   (vii)   Where lis pendens has been duly registered on a date before the 1st day
           of May 1947, such registration shall continue in force until such time as
           it is cancelled under Section 33 of this Ordinance.

           A mortgage action is a lis (vide Fernando vs. Peiris 24 NLR 121)

                                 2. SERVITUDES

          A person who enjoys a real servitude is entitled to prohibit something or to
do something for his own benefit upon another‟s land, so it‟s a right detached
from the ownership of praedium and attached to the ownership of another (Voet

          Voet states, servitude does not mean that the person should do something,
but that he should allow something to be done or refrain from doing something
(Voet 7.1.1)

          Once a servitude has been granted, all things necessary for its exercise are
considered to have been granted at the same time. The right of drawing water
from a well and the right of leading water by means of a water course entitles him
to keep the water course in repair and to a right of way along it for that purpose.

Modes of acquisition of servitudes

a)        By grants
          Servitude may be created by an agreement accompanied by delivery which
consists in the mere exercise of the right with the owner‟s consent or by the
pointing out by the serviant owner of the place where the right is to be exercised

          Servitude may be created or transferred by statute. Further servitudes are
constituted by decree of a Court, but the claim for the servitude must have been
based upon some recognized method of acquisition such as contract or
prescription, and the court is merely enforcing an existing right (voet 8.4.2)

b)     By Last Wills
       Rights of servitude can be created and bequeathed by a testator in his last
will (Grot 2.36.3). They do not require quasi delivery, for the real right is
transferred by disposition followed by addition (voet 8.4.2). But this is subject to
the executor‟s right to dispose of the assets, burdened by the servitude if payment
of the debts of the estate requires it.

c)     By Prescription
       Title to a servitude may be acquired by prescription. If the occupation or
use of something over which a right is asserted has been exercised nec vi,
(peaceably) nec clam (openly exercised) and nec precario (must be adverse) for a
period of ten years prescription is proved.

       The general rule is that an owner acquires nothing more than the rights he
has exercised throughout the prescriptive period, and so the liberty of the action
of the servient owner is lost only to the extent that the dominant owner‟s acts
limited his freedom (Voet 8.2.2)

d)     By Ex- necessitate
       The owner of land which has no access to a public road is entitled to claim
a right of way of necessity and can compel the owner of the land which lies
between his property and the road, to grant him such a right (voet 8.3.4). If the
latter refuses he can enforce his right by an action.

       A way of necessity can take either of two forms. There are the permanent
right for which compensation must be paid and the precarious right which is to be
exercised only when the necessity compels it for which no compensation need be
offered (voet 8.2.4).

       The way of necessity is not claimable on the ground of mere convenience
but cases may arise where the only alternative route may be so inconvenient and

dangerous as to warrant the granting of a way of necessity. if it is impossible to
construct a building except by entering upon the adjoining land and even erecting
a scaffold on it, the owner may be compelled to permit such entry and erection (
voet 8.2.14)

e)     By Vetustas

       A right of servitude can be established by proving vetustas.

       The doctrine of Vetustus is defined as a state of things which has endured
for so long a time that its origin dates back to a period to which the memory of
man does not extend, giving rise to a legal presumption that such origin was
legitimate and excusing the parties from furnishing proof that is was so. When a
party relies on it he must prove the immemorial existence of the state of affairs
which he desires to maintain. A presumption then arises that this state of things
had come into existence in lawful manner and the onus is then on the other party
to prove that it had an unlawful origin.

Kinds of Servitudes

       Basically there are 2 kinds.
       1.      Preadial
       2.      Non-Preadial (Gvot 2.34.2)

Van de Linden divides servitudes into the following categories.

       1.      Real.
       2.      Personal (V.d.L.1.11.2)

i)       Preadial servitudes
         Preadial servitudes are constituted in favour of a particular preadium
(land) and can only pass with the land. The dominant owner cannot transfer the
servitude to someone else and keep the land for himself or vice versa, nor can he
let the servitude or loan the use of it to strangers apart form the land (voet 8.1.1)

ii)      Personal servitudes
         Personal servitudes are connected to a person and such rights are
extinguished with his death and do not pass to his heirs.

         Servitudes are further divided into two categories terms as rural and

         With regard to rural and urban servitudes the general rule is that dwelling
houses are urban by nature even if situated in the country, and land used for
agricultural purposes is real by nature even if situated in the town, for it is the use
to which the property is put that it is the distinguishing feature (voet

         Rural and urban servitudes differ from each other in that all rural
servitudes consist in allowing something to be done, while urban servitudes do
not merely consist in permitting something to be done, but also imposes a duly
not to do something on one‟s own property which other would be permissible.

         Rural servitudes are from their very nature exercised intermittently while
the urban servitudes are exercised constantly and continuously (V.L 2.19.7) for eg.
Rural servitudes - A farmer‟s right to have water to his field-etc.

Modes of loosing servitudes

Preadial servitudes are lost in the following manner:

a)     Abandonment
       A servitude is lost when the dominant owner clearly and intentionally
abandons it (voet 8.6.5) (Nagassany Vs Vinayagamoorthy 24 NLRT 438)

b)     Revocation
       Where the servitude is not a perpetual one and where the grant was by
way of concession which is by its very nature is temporary it is revocable at the
will of the grantor.

c)     Forfeiture
       If a servitude is created subject to a condition and on violation of such
condition, the servitude shall be forfeited.

d)     Non user
       Where the proprietor of the dominant tenement although having the
opportunity has abstained from using the servitude it comes to an end.

e)     Merger
       When title to the domiant and servient tenement came into hands of one
and the same propertior servitude is extinguished, since one cannot have a
servitude over his won property (Grot 2.37.2)

f)     Renunciation
       When the owner of a dominant tenement renunciates the right of servitude,
it comes to an end (Grot. 2.37.3)

g)        By conduct of owner of dominant tenement which is contrary to the
          When a person having right of way over the neighbour‟s land construct a
building on the ground obstructing his right of way, it comes to an end (Grot.

h)        Destruction of property
          A servitude is destroyed when the dominant or servient tenement is
destroyed but if the property is restored to its former condition the servitude
automatically revives (Voet 8.6.6)

i)        Expiration
          If a person who has a revocable title such as a fiduciary heir, grants a
servitude over property which is subject to a fidei commisisum, the servitude
comes to an end when the condition is fulfilled, and the property passes to the
fidei commissary heirs (voet 2.2)

j)        Loss of grantor’s title
          If a person has burdened with a servitude on a property to which he had
only a revocable title, when his title comes to an end, the servitude also comes to
an end (Grot

1)        Right to Public roods
          The rights of public to a street are not confined to a portion of it, but
extended to the whole space between the fences.

          Under the Roman Dutch Law the public have as much unalienable rights
over the highway as they have over rivers, the sea shore etc. They cannot be
forfeited by non-user. (Voet 43.11.7)

2)     Right to foot path
       That is a right to go on foot over the land of another. (Grot 2.35.2) It
includes the right of going and passing backwards and forwards and so giving
and returning. It is also the right which a man has of going to and from on foot or
on horseback of being carried in a litter or sedan chair
(voet 8.3.1)

3)     Right to drive cattle- over the land of another
       Which includes the right of foot path and bridle road (Grot 2.35.4)

4)     Right to bridle and to drive horses and wages and go on horse
       This right includes the right of foot paths, as the greater includes the less
(Grot 2.35.3)

5)     Right of way
       The relation of dominant tenement and servient tenement must exist in
order to give right of way by reason of prescriptive use (Walter Pereira- Laws of

       In Kandiah Vs Seenithamby (17 NLR 29) De Sampayo A.J. observed, that
the evidence to establish a prescriptive servitude of way must be precise and
definite. It must relate to a defined track, and must not consist of proof of mere
straying across an open land at any point which is at the moment most

       In Mervin Vs Edwin ( 1984 (1) SLR 224) Atukorale,J held that, when a
person establishes physical user of a right of way for a prescriptive period, he is
entitled to succeed in a claim of prescriptive user. Mere enjoyment of the right of
way is proof of adverse user.

6)     Right of way of necessity
       Owners of land which do not abut upon a high road of neighbour‟s road
are entitled to a way of necessity. The Court is empowered to grant them a
necessary road whereby to reach the high road by the shortest way and with the
least damage.

       It was held in Amarasuriya Vs Perera (45 NLR 398) that a right of cart way
by necessity can be claimed no further the actual necessity of the case demands.

       In Chandrasiri Vs Wickramasinghe (70 NLR 15) it was held that a right of
way of necessity cannot be granted if there is another, though, less convenient
path along which access can be had to the public road.

7)     Right to draw water from another‟s well
       This right includes the right of foot path. Any person who enjoys this right
must contribute towards the maintenance of the well or tank. (Voet 8.3.7)

8)     Right to lead water out of a stream
       Everyone has a right to lead water on his own ground from water-courses
maintained by rural population, so far as it is not for bidden by law (Voet 8.3.6)

9)     Right of drain
       That is the right to drain or discharge the water from one‟s own land onto
that of another ( Grot 2.35.16)

10)    Right of ford
       That is the right of wading through another‟s water course and the right of
wading cattle from another‟s water.

11)   Right to use threshing floors.
      In Tikiri Appu Vs Dingirala (36 NLR 267) it was held that the right of use of
a threshing floor is a servitude recognized in our law.

      In Weerasinghe Vs Perera (43 NLR 575) that this servitude can be acquired
by prescriptive user. What is prescribed by long user is not the ground on which
the paddy is threshed but the incorporeal right of servitude.

Urban Servitudes

a)    Right to build- on another’s land
      This right is presumed to be granted when the owner of the ground allows
another person to build on his ground (Grot 2.47.1)- The law requires a distinct
agreement between the parties affected to create such a right.

b)    Right to construct common walls
      A wall constructed partly on one‟s land and partly an another‟s land is
termed as common wall (Grot 2.34.5)

      A doubtful wall between two lands or houses is presumed to be common
to all. A well built by one of the two neighbours on common boundary is a
common wall (Voet 8.2.15)

c)    Right to have beams or support into another’s building
      A person who has such a right is entitled to replace the old beams with
new beams. But he cannot exceed the original number of inserted beams in a
different manner, although they may be of a different shape (Grot 2.34.7)

      But it is highly doubtful whether such a right could be revived in the
present context of law since the intervention of statute in relation to construction

of buildings are governed and controlled by a series of legislative inactments such
as local authorities laws, U.D.A. Act, Town and country Planning Act etc. the said
present day laws do not permit one to interfere with neighbouring land and

d)    Right to build upon wall of another’s land
      This right to build is recognized by the common law. Also vide (voet 8.1.3)

e)    Right to build on common boundary
      Building on the common boundary cannot be done without the consent of
the adjoining land owner. The Roman Dutch law remedy provided against such
construction is to take down the wall built on the common boundary (Voet 8.2.17)

f)    Right to erect scaffolding on neighbour’s land for building purposes.
      In Cooray Vs Samarasinghe (60 NLR 389) it was held that if it is impossible
to construct a building except by entering upon the adjoining land and even
erecting a temporary scaffolding on it, the owner of the adjoining land may be
compelled to permit such entry and erection ex-necessitate. In such a case,
damages can be claimed only from the date of order of the Court granting the

g)    Right of lateral support
      The Roman Dutch law recognizes the principle that an adjoining land
owner has no right to excavate his land in such a manner as to deprive his
adjoining land owner of the natural use of is land. Such right which is known as
„lateral support‟, extends to the support of the neighbour‟s land burdened with

h)     The Right of overhanging trees
       No one may allow his trees to overhang the ground of the neighbour. The
latter may cause whatsoever so over-hang his ground to be cut down, and if he
does not do so, he is entitled to fruits which hand over

i)     Projecting of eaves over the neighbour’s land
       This right was available in the Roman Dutch Law. But in the modern day
with the passing of legislative enactments relating to construction of houses and
building, this right has either got curtailed or extinguished.

j)     Servitude of light and Air
       This right can be acquired by prescription under Roman Dutch Law. In
Goonewardane Vs Mohideen Koya (13 NLR 264) it was held that right to the
servitude of light and air can be acquired by prescription.

k)     Right to prohibit neighbor from obstructing ones light
       Voet states where there is a servitude against interfering with light or
prospect, neither a private person, nor the Crown can build so as to obstruct the
light or obstruct the prospect of another (Voet 1.4.9)

l)     Right to discharge surplas rain water along another’s channel.

m)     Right to expose goods over Public drains
       In (Earnest Vs Ahamade lebbe 21 NLR 248) it was held that person cannot
by immemorial use acquire prescriptive right to expose his goods for sale outside
his shop over the drain by the road-side.

n)     Right of appurtenants
       If a person sells a house or building with appurtenants which requires for
such house, passes to the person who buys it. It was so held in the South African

case of (Nicholas Vs Chamberlain Cro Jac 121) where the conduit pipes were
considered appurtenants.

o)       Right to wash and dry clothes on neighbour’s paddy field.
         This is not a servitude recognized in Sri Lanka (Walter Pereira’s Laws of
Ceylon page 500)

p)       Dropright
         That is the right to let the rain water collected on one‟s roof drop onto a
neighbour‟s property (Grot 2.34.12)

         This servitudal right is too subject to various legislative enactments that
control buildings in Local Authority areas.

q)       Right to Gutters
         Upon a common wall, however either neighbour may lay a gutter         so as to
be a greater burden, and must maintain it as his own at his sole cost. (Grot 2.35.

r)       Right of calling rain water
         Coming from another‟s roof or land for one‟s own benefit (Grot 2.34.13)

s)       Right of Water Course
         This right means to allow one‟s water to flow onto the property of another
who is bound to lead it off over his won land or in a gutter. This servitude applies
only to clean water (Grot 2.34.15)

t)       Right to prohibit a negihbour from raising his building higher
         The purpose of this servitude is to prevent any obstruction to the light.

u)       Right to have windows projecting over the grounds of another
         This right can be acquired by prescription (Neat Vs Abrew 5 S.C.C 126)

v)     Forbid neighbour’s from looking from their properties onto that of

Preadial Servitudes

w)     Outspan
       A public out span is a tract of land set apart for the resting and grazing of
drought animals when unharnessed or unyoked on some journey.

x)     Grazing
       Grazing is the right which one man has of turning his cattle out to graze on
another‟s pasturage (voet 8.3.10)

y)     Wood-Cutting
       Where a property has been subdivided into lots and the owners have given
the right to cut firewood on the remaining extent, a preadial servitude is created.

z)     Ferry
       The right to conduct a ferry, more generally known as a port or conveying
the public across a river, is a right derived in theory from the crown ( voet

Non-Praedial Servitudes

a)     Usufruct
       Usufructus is the privilege of drawing the fruits of the property of another
without diminishing the property itself. (Grot 2.38.5)

       The word usufructus means, the right of the enjoyment of the use of a thing
for a limited time.

       The word usufruct includes rents of houses and all kinds profit derived
things such as young of the animals, wool, milk etc. (Grot 2.38.8)

b)     Usus
       Usus is a privilege less than usufructs. Usus or use is the right to derive
benefit from a thing but not to take all kinds of fruits (Grot 2.44.4)

c)     Habitatio
       That is the right of dwelling in or inhabiting the house of another, it‟s
substance being preserved intact.

d)     Emphyteusis
       Or quit rent tenure is the hereditary usufruct of another‟s immovable

e)     Feudal tenure
       Is defined as a hereditary indivisible usufruct of the immovable property of
another, with a reciprocal obligation of protection on the one side and of homage
and service of the other.

f)     Right to tythes
       Is consists to yield fruits and young.

g)    Census
      Is the right to receive a certain irredeemable annuity reserved by a person
when he transfers the ownership in his property.

h)    The Property in expectancy
      Is the right which a person has to the property of another by virtude of
which the owership must at some time or other come to him e.g last will.

1)    Rights of the Hiwal Andakaraya
      The rights of a hiwal andakaraya consist of a right to cultivate and to take a
share of the cultivated crops. Hiwal Ande was defined in (Bandulahamy Vs
Tikirihamy 44 NLR 539) as follows.
      a)     Cultivator‟s share of the produce of a field being half the crop after
             deducting various payments called „warawe‟;
      b)     Paddy paid for hire of cattle;
      c)     Share of the crops to which a person is entitled for the trouble of

2)    Rights of dominant owners
      The owner of a dominant tenemant has the right to do whatever is
necessary for the full enjoyment of the servitude, and this implies that nothing
must be done which in any way increases the burden imposed upon the servient

                          3. PAULIAN ACTION

i)     The nature and objectives of Paulian action
              The Primary purpose of the Paulian action was to enable the Courts
       to declare void an alienation of property which had been made in fraud of
       creditors. (Jamis Appu Vs Baba Appu 19 NLR 406).

              The nature of the relief available in a paulian action was discussed
       in (Meera Saibo Vs Phlippal 2 NLR 124).

              Withers, J observed: “In no case, I imagine, could the plaintiff
       succeed in having a conveyance from his debtor to a stranger cancelled; at
       the most, he could ask that the conveyance should be declared void, and
       that   the land should be declared executable to his Judgment,
       notwithstanding the conveyance.”

ii)    The Effect of the Paulian action
              The law as to the effect of a decree in the Paulian action has been
       dealt with in the decided cases.

              In (Gunawardena Vs Bilindahamy 1 CWR-95) de Sampayo,J said;
       A fraudulent deed is not annulled by the Paulian action, but it is only
       declared void so far as it is necessary to make he property available for
       Execution. In (Punchi Banda vs Perera 30 NLR 355) , it was held that the
       title to so much of the property as is not sold in execution does not re vest
       in the transferor but remains in the transferee.

iii)   Necessary parties to the Paulian action
              1. The Transferor is a necessary party.
              The Paulian action lies for the revocation of whatever has been
       alienated in fraudem creditorem, and it follows that, when an alienation of

      this land is attacked, both the grantor and the grantee should have an
      opportunity to defend. (Gopalaswamy Vs Ramesamy Pulle ( 14 NLR 238)

iv)   To Whom the Paulian action is available
             The action lies at the instance of all persons who are creditors of the
      alienor at the time of alienation. Moreover, the action is available to not
      only such creditors, but to any person deriving title from them (Suppiah
      Naide Vs Meera Saibo-3 C.W.R. 19) and (Mohamado Vs Manupillai (3
      CWR 10)

v)    Against whom the Paulian action lies
      This action lies against the transferee or donee of property from a debtor
      who had purported to make the alienation in order to defeat fraudulently
      the legitimate claims of creditors.

vi)   Essential ingredients of the Paulian action

A Fraud

a)    Conception of Fraud.
      (i) In Kannappen Vs Mylipody (3 NLR 274) a case involving a donation
          alleged to have been made in fraud of creditors- Creasy, J at page 277
          set out the law applicable as follows; “An alienation by gift may be set
          aside when a man gives away the whole or a considerable portion of his
          estate, knowing that he is insolvent and that he is diminishing the
          substance out of which his debts might be paid. He who acts thus will

            be considered to have intended the natural result of his acts, which is
            the defrauding of his creditors.
       (ii) The burden of establishing fraud on the part of the debtor, must be
            undertaken by the creditor (Louis Vs Dingiri 18 NLR 161)

b)     Inferences from payment or absence of consideration
       In    Meera Saibo Vs Ayan Sinnauan (29 NLR 84) Garvin, J endorsed the
       principle that consideration will not avail the purchaser if he had
       participated in the fraud.

       In Meera Saibo Vs Philippal (2 NLR 124) It was looked upon the payment
       of consideration by the transferee as a circumstances tending to negative

c)     Insufficiency of Assets in the debtor’s hands
       It is only when the property retained by the debtor proves insufficient to
       meet the claims of creditors that the latter can follow the property which
       had been alienated by the debtor (Fernando vs Pieris 33 NLR 1)

vii)   Prescription of Paulian action
       Under section 10 of the Prescription Ordinance a Paulian action is
       prescribed in three years from the accrual of the cause of action.

                       4. NEGOTIORUM GESTIO

       Voet says that a manager of affairs (negotiaram gestor) is one who, without
mandate, carries on the business of one who is absent or who is not aware of the
fact of his business being so carried on. The business affairs of one conceived but
not yet born, or one captured in war, or insane or an infant may thus be carried
on. A person may become liable as negotiorum gestor in respect of the affairs of
one who is dead, and whose estate is laying vacant (Voet 3.5.1). A negotiorum
gestor is liable for his management, and is entitled to expenses. He may be sued
for an account of his administration and payment of money due with interests
(Voet 3.5.2)

       The negotriorum gestor is entitled to indemnify from the person for whom
he has acted, for payments he has made, expenses he has incurred on his behalf.

       He is not liable for fortuitous accident, nor for moneys invested; except
where negligence can be brought home to him. Profits made by his ventures are,
however, often allowed to be set off against losses (Voet 3.5.5). But even when his
management has been prohibited by the owner of the property managed, he is
entitled to reasonable expenses to the extent of the benefit that has accrued to the
owner (Voet 3.5.11).

       In Thangamma vs Ponnambalam (44 NLR 265), de Krester, J held that a
claim made on the footing of negotiorum gestio is governed by the following

       a)      there must be two parties ;
       b)      the person benefited must be ignorant of the act ;
       c)      there must be an intention to act as negotiorum gestor.

       A person may not conduct litigation on behalf of another except in the
limited way provided by the Civil Procedure Code.

       In Atukorale Vs Atukorale (71 NLR 369) it was held that where a person
pays off a debt of another, he has an action on negotiorum gestor. Although in
this kind of action, the gestor is normally required to show that he acted with the
intent of serving the interests of the debtor, the scope of the action is extended in
equitable grounds to a gestor who intervened in bad faith and with intention of
furthering his own interests, but in such a case his claim against the debtor is
limited to the extent of which the debtor has been enriched.

                    5. INTER-PLEADER ACTIONS

       Chapter XL III (18) of the Civil Procedure Code makes provisions with
regard to the procedure to be followed in inter-pleader actions.

       Basically where there are two or more persons claiming adversely to one
another payment of the same sum of money or delivery of the same property
from another person, whose only interest therein is that of a mere stake holder,
and who is ready to render it to the right owner, such stake holder may institute
an action of inter-pleader against all the claimants, for the purpose of obtaining a
decision as the party to whom the payment should be made or the property
delivered, and obtaining indemnity for himself.

       Provided that if any action is pending in which the rights of all parties can
be properly be decided, the stakeholder shall not institute an action of inter-

       In terms of section 629 of the Civil Procedure Code, in addition to the
normal form of a plaint, the plaintiff is obliged to plead that he has no interest in
the thing claimed, otherwise than as mere stakeholder; and the claim made by the
defendant severally. Further it is necessary to lead that there is no collusion
between the plaintiff and any of the defendants. Such a plaint shall also to be
supported by an affidavit of the plaintiff verifying the statement contained

       When such a thing claimed is capable of being paid into Court or placed in
the custody of the Court, the plaintiff must so pay or place it before he can be
entitled to any order of the court.

       Under section 631 of the Civil Procedure Code, the Court after hearing, is
empowered to make the following orders inter alia;

a)     declare that the plaintiff is discharged from all liability to the defendants in
       respect of the thing claimed, award him his costs and discharge him from
       the action; or if it thinks that justice or convenience so require;
b)     to retain all parties until the final disposal of the action; and if it finds that
       the admissions of the parties or other evidence enable it to do so, may;
c)     adjudicate upon the title to the thing claimed; or else it may;
d)     direct the defendant to interplead one another by filing statements and
       entering into evidence for the purpose of brining their respective claim
       before the Court.

       In Nazeer Vs Hassim ( 48 NLR 282) it was held as obiter dictum, that
where a tenant is sued for rent by a stranger as landlord, section 632 of the Civil
Procedure Code, does not prevent the tenant from suing his immediate landlord
in inter-pleader.

                       6. QUIA- TIMET ACTIONS

       Quia-Timet actions are designed to accomplish the ends of precautionary
justice by preventing wrongs or anticipated mischief instead of merely redressing
the parties after they have been committed. If no actual damage is done, there
must be proof of imminent danger, and there must also be proof that
apprehended danger will, if it happens, be very substantial. In other words, it
must be shown that if the damage does occur at any time, it will come in such a
way and under such circumstances that it will be impossible for the plaintiff to
protect himself against it if relief is denied in a quia-timet action.

       In South Africa, de Villers CJ in Geldenhuys Vs Neetling and Buethin
(1918 A.D 426) said that the claim must be founded upon the actual infringement
of right and it is not impossible to visualize rare instances when an invasion of
future or contingent rights can be committed or threatened before they have
reached the stage of final vesting. In such an eventuality it would be idle to wait
until the damage has actually occurred. Accordingly, de Villers, J held in that case
that a fidei commissary may in certain circumstances legitimately claim a judicial
declaration for the protection of his rights, even though such a right can be
classified only as future or contingent, provided that he can prove that there is a
present risk of their infringement to his ultimate prejudice.

       The allegation that the defendant wrongfully and unlawfully disputes the
right of the property is insufficient to establish a cause of action. In other words
such a declaratory relief cannot be claimed merely because the rights of the
claimant have been disputed. It is necessary to prove actual or threatened
infringement by the defendant.

       The said legal principle has been extensively unanalyzed by Gratiaen, J in
Hewawitharana Vs Chandrawathie (53 NLR 169). In that case it was held that a
quia-timet action should not be entertained merely because the rights of the

plaintiff have been disputed by the defendant. To succeed in such action the
plaintiff must establish acts or conduct committed or threatened on the part of the
defendant which can be construed as an effective infringement of the alleged
interests of the Plaintiff.

       Selvam Vs Kandiah (55 NLR 426) was a case where the plaintiff who
claimed to be owner of certain immovable property, alleged that the defendants
were disputing his claim to be the owner, wanted him to pay the value of their
share of the property. He instituted the present action claiming a declaration that
he is the sole owner of the property. He admitted that notwithstanding the
dispute as to title, he had continued to possess the property and enjoy it‟s produce
exclusively. The trial Judge dismissed the action on the ground that it was
premature. Gratiaen J held than an owner of immovable property is entitled to
enjoy it without disturbance and without fear of unjustifiable interference from
outsiders. If his enjoyment is disturbed by forcible ouster, the remedies of a rei-
vindicatio action or (in appropriate cases) of a possessory action are available to
him. If it is seriously threatened, he may demand in quia-timet proceedings a
declaration of his rights so as to prevent in anticipation the apprehended invasion
of his right of ownership.

       However, now a day this cause of action appears to be almost abandoned
for the reason of recent development of the law relating to injunctions.


Shared By:
gjmpzlaezgx gjmpzlaezgx