THE NECESSITY TO INTRODUCE A FULLY IMPLEMENTED “TORRENS SYSTEM” IN SRI LANKA TO BRIDGE THE GAP FOUND WITHIN THE PRESCRIPTION ORDINANCE NO.22 OF 1871

THE NECESSITY TO INTRODUCE A FULLY IMPLEMENTED “TORRENS SYSTEM” IN SRI LANKA TO BRIDGE THE GAP FOUND WITHIN THE PRESCRIPTION ORDINANCE NO.22 OF 1871

Research by: Manjitha Athukorala, Chelsea Fernando, Kithmali Wickramathilake

INTRODUCTION

   The Sri Lankan Prescription Ordinance follows the system of Positive Prescription legal principle relating to immovable property in Sri Lanka. Section 2 of the Prescription Ordinance defines immovable property as all shares and interests in such property, all rights, easements and servitudes thereunto belonging or appertaining to such property and Section 3 Prescription Ordinance stipulates, if a defendant has an uninterrupted and undisturbed possession over a land or an immovable property by a title adverse to or independent of that of the claimant or plaintiff for ten years previous to the bringing of a legal action relevant to the land or immovable property, that person shall receive a decree in his favor and costs, which means land owners shouldn’t leave the possession of his/her land or immovable property for more than ten years and must prevent any encroachment or usurpation of other party. However, lands registered under the Title Registration Act No.21 of 1998[1] are not affected by the Prescription Ordinance. Section 3[2] further elaborates that the said period of ten years shall only begin since parties that claiming estates, acquired the possession over the property for the first time, despite that even if the parties that claiming estates acquired the possession of the property before ten years ago, if the previous owner was under following conditions Infancy, Idiocy, Unsoundness of mind, Lunacy and Absence beyond seas then the title of the property shall not be transferred to the defendant[3]. Therefore, if the aggrieved parties can prove that they were under above conditions, they shall be entitled a decree in their favor with all costs. In viewing these provisions stipulated in the Sri Lankan Prescription Ordinance it is vividly prominent that injustice prevails within these sections affecting the rights of the original land owners. In filling this gap, it is recommended to follow a Torrens system of registering lands in Sri Lanka. The Torrens system is a system for recording land titles under which a court may direct the issuance of a certificate of title upon application by the land owner[4]. If a Torrens system fully implemented in Sri Lanka, the prevailing Positive Prescription principles will not be considered as the main method of acquiring the ownership of lands, hence brings about justice and fairness within the legal framework.

METHODOLOGY

This research was carried out with reference to Prescription ordinance no.22 of 1871 which is a significant piece of legislation in reference to the Land Law of Sri Lanka. Additionally, an online questionnaire survey was prepared in order to assess the awareness among the general public with regarding the Prescription Ordinance in Sri Lanka and how lands are acquired within such system, this being the Primary data and Secondary data was collected from various scholarly articles, journals, books and official web pages which is focused on the principles of Sri Lankan Law of Prescription. Accordingly, we identified that various areas of the Prescription law of Sri Lanka are obsolete hence created this research paper suggesting a proper solution for the relevant issues.

 

DISCUSSION

   This discussion is solely focused on the Prescription principles and relevant case laws.

First when looked into the nature of the Prescriptive possession, in the case of I. L. M. Cadija Umma and another v. S. Don Manis Appu and others[5] the court held that the ten-year enjoyment of the possession of a land or immovable property should be an uninterrupted and undisturbed one. in the case of Carolis Appu v. Anagihami [6] the court held that if an heir who doesn’t have the title to a land or immovable property which is granted by a last will, he or she will have to prove that there was undisturbed and uninterrupted possession over the property for more than a period of ten years, in order to acquire the title of the land. In Kirihami Muhandirama v. Dingiri Appu[7] Section 3 of the Prescription ordinance was interpreted as follows, if a person wants the protection under Section 3, he or she must be either a party to the case or a person who enjoys the possession of the land under the permission granted by a party to the case. The court further held that a person who is not a party to the case cannot acquire the title of the land under the Prescription law. In the case of Unambuwa v. Junohami[8] the court held that if a party files a legal action to acquire a land against a prescriptive party of the land, the prescriptive party’s possession over the property shall be interrupted and disturbed since that moment.

There is a very popular argument among provisions of the Prescription Ordinance and provisions of the Sri Lanka Buddhist Temporalities Ordinance. According to the Sri Lanka Buddhist Temporalities Ordinance no.19 of 1931[9],

‘In the case of any claim for recovery of any property, movable or immovable, belonging or alleged to belong to any temple, or for the assertion of title to any such property, the claim shall not be held to be barred or prejudiced by any provision of the Prescription ordinance’

However, in the case of Sri Pannaloka Thero v. Jinorasa Thero[10] the court held that the expression “immovable property” in the above section is used in the sense of corporal immovable property only and a cartway on the ground, isn’t a corporal immovable property. It belongs to the prescriptive user.

Next let’s investigate on the situation where a prescriptive party has the legitimate deed to the land as well as the prescriptive title. In the case of Leisa and another v. Simon and another[11] the court held that in ‘Rei vindication Action’ case there is no need of proving the Prescriptive title when the paper title has been proved even if both titles are available and in the case of Appuhami et al v. Goonatilleke[12] the court held that a subsequent deed to a land doesn’t interrupt the prescription which has already begun and the decree may be in favor of the holder of the earlier (unregistered) deed to the land as well as the prescriptive title. In instances where a creditor failed to evict his or her debtor who enjoyed his or her land for a long time period even after he or she had an ejectment order which received by him or her from a court judgement. The case of M. Samuel v. A. J. Dharmasiri[13] can be referred, where a judgement-creditor couldn’t evict a judgement-debtor from his land till the judgement-debtor enjoys the possession of the land over a time period of ten years. The court held that the prescriptive judgement-debtor can acquire the title of the land according to the Prescription ordinance. Additionally, in the case of Sinnatamby v. Meera Levvai[14] the court held that if a person who was allowed to enter and enjoy a land continued to enjoy the property even after the death of the granter for more than ten years, he or she shall succeed the title of the property according to the Law of Positive Prescription in Sri Lanka.

In reference to these principles, it is crucial to understand the difference between ‘possession’ and ‘occupation’. In the case of Maduanwela v. Ekneligoda[15] Bonsen C.J. held that the possession is an occupation either in person or by agent with the intention of holding the land as the owner. In the case of Theivanipillai v. Arumugam[16] et al the court held that if a person makes an informal grant of a land to another person by way of dowry and the receiver enjoying the possession of the land with the full intention of occupying it as owner over a time period of ten years, then the granter will lose the title of the land.

In relation to instances where there are lands that belonging to more than one owner. Following case laws can be looked into, Wijesundera and others v. Constatine Dasa and another[17] after a judgement of a partition case where such land or immovable property have co-owners, one party enjoyed other party’s area over a time period of ten years. The court held that such area of land should be acquired by the prescriptive user. In the case of Marshall Appuhamy and another v. Punchi Banda[18] the court held that if a third party who isn’t even a co-owner of an immovable property or a land, enjoyed the land over ten years, shall be succeeded the title to the land. In the case of P. K. J. Nonis v. H. D. Peththa and another[19] one owner fully enjoyed a land partitioned by informal document that also belonged to another two owners. He enjoyed that possession over ten years without an interference from other co-owners. Ultimately the court held that the prescriptive owner shall acquire the title of the land.

There are some significant cases that occurred regarding agents of the actual land owners. In the case of Arunasalam Chetty v. Bilinda[20] et al the defendant took a land on lease from the attorney of “N” for a period of twenty years but the attorney signed the lease with his own name instead of in the manner prescribed by the power of attorney as a result the lease was made void. however, the court held that the defendant was entitled to possess the land for the remaining period of the lease by the right of prescription because, he had the possession of the land over ten years under the lease.

Finally, it is important to understand the distinction between “servitudes” and “prescription”. In the case of Salgado v. Jayasinghe[21] the court held that a footway that used over ten years by some users, may belong to such prescriptive users.

The positive prescription principle followed in Sri Lanka is also in force in several other countries as well. In Scotland the Prescription law is regulating by the Prescription and Limitation (Scotland) Act 1973. According to Section 1 of the Act, if someone possessed a land for a continuous period of ten years, openly, peaceably and without any judicial interruption or disturbance will be entitled for the prescriptive title. In South Africa the Prescription law is regulating by the Prescription Act no.68 of 1969. According to the Section 1 of the Act, if a person enjoyed the possession of a land more than thirty years openly, without judicial interruption and without disturbance, he or she will become the owner of such land. We can see that the Prescription law in Scotland and South Africa has a very similar situation to Sri Lankan Law of Prescription.

A Torrens system is a system for recording land titles under which a court may direct the issuance of a certificate of title upon application by the land owner[22]. The Torrens system is followed in many British Commonwealth countries including Canada and many European countries however not widely adopted in USA. In referring to countries that have fully implemented the Torrens system New Zealand is found to be crucial in following the Torrens system. Looking back in history, there was a deed system to record property ownership in New Zealand before 1870. Since 1870 New Zealand has a Torrens system and use of this system is compulsory in the country. Currently all these procedures governed by the Land transfer act 2017. In addition, there are three principles underpinning the current Torrens system of New Zealand and many states that using such system. They are,

  1. Mirror principle – the registrar mirrors the state of title accurately and completely.
  2. Curtain principle – trusts and other similar equities cannot appear on titles.
  • Insurance principle – the state guarantee to the title and the interests registered on it.

Indefeasibility is the core principle of this New Zealand land transfer system as well as in many other countries’ Torrens systems. According to “Indefeasibility” the name of a registered proprietor on the land register is conclusive proof of legal ownership of the land. Most importantly it protects ‘the registered owner’ (also known as ‘the registered proprietor’) against claims of a competing owner and it acts against encumbrances, estates and interests that not appearing on the register. When legal practitioners lodge legal documents with land authorities to record any changes made to titles such as transfers of ownership, discharges of mortgages and new mortgages, the land authorities record the transaction in the record of title for that land and since 2002, in New Zealand the titles, survey plans and other related documents have been held in an electronic database called as ‘Land online’. The second crucial Torrens system in the world was established in 1861 in the then-British colony of Vancouver Island. Which is now part of the Canadian province of British Columbia but few provinces of Canada such as Newfoundland and Labrador, Prince Edward Island and Quebec which are under civil law jurisdiction rather than common law jurisdiction do not have a Torrens system. Thirdly, the Torrens system in Malaysia was implemented in 1965 the current title registration legislation, the National Land Code. This introduction was a slow and complex process spreading over a long period of time. Before 1965 the rights over land allegedly belonged to the Sultans but the people were given the liberty to occupy and use it. Apart from the Torrens system, Malaysian land law has also been influenced by Islamic and customary law.

RECOMMENDATION

   In conformity with Section 13 of the Prescription ordinance no.22 of 1871, a possessor of a land or immovable property does not need any title for the entry or for the enjoyment of such land or immovable property. If he or she enjoyed the land over a time period of ten years without any interruption or disturbance, he or she can acquire the land’s legal ownership as per the research findings it is one of the land ownerships acquiring methods traditional to Sri Lankan land registration and acquiring system. The Torrens system is completely different from the traditional land registration system. In a Torrens system, a court or bureau of registration operates the system, with an examiner of titles and a registrar as the key officers. When land owner files a petition with the registrar to have the land registered, the examiner of titles reviews the legal history of the land to determine if good title exists. If it exists, the registrar issues a certificate of title to the owner. This certificate is ordinary conclusive proof as to the person’s rights to the land or immovable property and cannot be challenged or overcome by a court of law. In a Torrens system details of all dealings should be officially registered on the title of the land. Registration gives validity to the dealings and creates legal estate to the land and all transactions should be affected by the use of stereotyped forms. There is an ‘official record’ to a land that can be consulted by the land purchaser when the title of the land transferring. The register is a collection of individual grant certificates which reflects all the fact materials of the registered owner’s title to the land. The holder of interest in the register is considered a registered proprietor of interest.

It must be noted that there are four main principles in a Torrens system[23]. They are as follows:

  1. Conclusive evidence of ownership.
  2. Facility to transfer.
  • Compulsory registration of titles.
  1. An assurance Fund.

The main purpose of a Torrens system is to provide certainty to the title of the land or immovable property. Moreover, Real estate that is recorded using the Torrens system is also calling as “the Registered property” or “the Torrens property”.

In viewing the history of Torrens system, it must be acknowledged that this system received the name ‘the Torrens system’ after Sir Robert R. Torrens[24], who introduced this system to South Australia in 1858 eventually the Torrens system was introduced to the Australian colonies between 1858 and 1875. He also wrote several books on the subject, explaining his methods and its procedures and this system is the most effective when unimproved land is subdivided for the first time, the reason for that is it will reduce the number of deed entries which an examiner must review. In the case of Breskvar v. Wall[25] Barwick C. J. held that the Torrens system is based on the principle of ‘title by registration’ instead of ‘registration of title’. Further, there are several objectives of the Torrens system they are:

  • ü It overcomes the defects of the old deeds system such as the positive prescription principle
  • ü Provides simplicity and certitude
  • ü Deters the legal technicalities in land dealings
  • ü Provides security of title

If the Torrens system is replaced with the current legal regime of positive prescription many advantages will be flown into the system of registration and acquiring lands.

  • ü Accuracy can be maintained within the system of law.
  • ü Indefeasibility of title.
  • ü Unnecessary expenses can be reduced.
  • ü Saves time.
  • ü The Security of the title is officially guaranteed to the relevant party.

In the case of The Bee v Maruthamuthu[26] the court held that under the Torrens system ‘the registry’ is everything and has a perfect framework to it. Even though there are some disadvantages in a Torrens system such as a general lack of acceptance of the system in most jurisdictions, cumbersome methods and procedures for filing instruments and high initial expense in bringing the land under the Registration act, it is widely regarded as the most successful and fair land title registration system in the world.

Following a comprehensive analysis of the Positive prescriptive system, the lacuna found within the Sri Lankan Prescription ordinance can be bridged with the assistance of Torrens system, such that it will bring about justice to the innocent citizens affected by the Prescription ordinance.

CONCLUSION

   In essence, the Positive Prescription method which introduced to Sri Lanka by the Prescription ordinance no.22 of 1871 should be amended instead of being completely wiped out from Sri Lankan legal system in view of the fact that it’s an unfair, unjust and obsoleted law. As a solution to this issue Torrens system can be fully implemented within the framework of Sri Lankan land law. This system is well organized protecting the right of the innocent citizens.