DB KRETSER J.—-ffaneef v. Dingiri Ammo.
1839Present: Soertsz S.PJ. and de Kretser J.
HANEEF v. DINGIRI AMMA.280—D. C. Kandy, 48,754.
Lease—Misrepresentation regarding extent of land—Claim for damages bylessee.
Innocent misrepresentation on the part of a lessor with respect to theextent of the land leased does not entitle the lessee to claim damages.
Innocent misrepresentation may be a ground for rescinding a contractor refusing to perform it
^ PPEAL. from a judgment of the District Judge of Kandy.
V. Perera, K.C. (with him F. C. W. VanGeyzel), for plaintiff, appellant.
E. F. N. Gratiaen, for defend ants, respondents.
Cur. adv. vult.
March 29, 1939. de Kretsep J.—
The defendants leased to the plaintiff for a period of three years with*the option of renewal for a further period of two years and at the sum ofJls. 400 a year seven allotments of land. The first and seventh of theseallotments are parts of one land called Polgodawatta described as being6 acres and 2 perches in extent.
The second, third, fourth and fifth allotments seemed to be parts of aland called Oligodapitiyahena. All of these allotments are described inpaddy sowing extents and in addition the fifth land is stated to be 7 acres1 rood and 4 perches in extent.
We were told that 1 pela was equivalent to i an acre. An amunam isusually 4 pelas; 2 amunams would therefore be 8 pelas or 4 acres. Howthe fifth named land was described to be 2 amunams or 7 acres 1 rood and4 perches cannot be understood except perhaps on the footing thatsomebody confused the Sinhalese for four and seven which are very muchalike.
The sixth named land was called Galagodahena alias watta and wasdescribed as being 2 acres 1 rood and 30 perches in extent.
Adopting these measurements, one gets at the most 16 acres 2 roodsand 36 perches for all the lots excepting lot 4 which is described as being6 lahas in extent.
Adopting a generous computation of J of an acre for this lot one gets17 acres and 9 perches, but if the extent of the fifth land be taken inamunams, it would be about 4 acres and at least a deduction of 3 acresmust be made. The result would be roughly 14 acres.
Before taking the lease the plaintiff inspected the premises andconsidered what extents they would be. The seven allotments seem tohave been put together at some time as one property.
The plaintiff says that at the Notary’s office a calculation was madeof the extent and it came to 17 acres and 4 perches. According to theplaintiff, he took his lease calculating on an acreage basis and he says
DE KRETSER J.—Haneef v. Dingiri Ammo.
he calculated at Rs. 22.50 an acre; but this does not work out at Rs. 400,and according to his own evidence the acreage had not been worked outtill they met at the Notary’s office, by which time presumably the termsof the lease had been agreed upon.
The lease provided for the possibility of one acre of Polgodawatte beingrequired for the benefit of Government, and this was explained to meanthat the land was required for a cemetery. If required, the lessee was togive it up and no provision was made for his being compensated for theloss.
Counsel for the appellant was inclined to think therefore that the renthad really been calculated for 16 acres at Rs. 25 an acre. This broughthim into line with PI and enable him to strengthen his argument thatthe lease had been given ad quantitatem and not ad corpus. But PI israther a complaint that the lessor had been paid for 16 acres and not for17, and the true position may be that after the lease had been executedthe plaintiff made a deduction for an acre which he was going to lose.On this and on many other points the case has been starved of evidence.
Whether it be 16 or 17 acres which he took on lease, the plaintiff appliedfor coupons for 18 acres which apparently he thought the property mightextend to. If his claim was not a dishonest one, then acreage played apart only when it suited his purpose and he had really taken the wholeproperty as it stood.
The defendant was the first person to complain. Within six months hewas complaining that the plaintiff had failed to attend to the propertyas he had agreed to do. He followed this up by suing the plaintiff fora cancellation of the lease and damages for neglecting the premises. Acommission seems to have issued to Mr. Northway to report on thecondition of the land, and his report showed that there was a very largenumber of vacancies, a large proportion of which had come into existenceduring the lease. He reported there had been neglect in other respectsas well.*
On April 27, 1936, besides agreeing on the commission provision wasmade for the plaintiff being allowed to continue the lease. It was theplaintiff who was anxious to continue the lease. The three years originallyagreed upon ended on July 5, 1936. There was no obligation on thepart of the plaintiff to renew the lease, but he was anxious to do so. Hegot another opportunity on September 20, 1927, when it was left to himto deposit the rent and so continue the lease or have it cancelled, and hechose to continue the lease.
Long before this the Tea Controller had stepped in and had reducedthe plaintiff’s assessment, and for this purpose surveys had been made,and plaintiff, well knowing the extents of the different allotments wenton with his contract.
– He now brings this case alleging that the defendant lessor hadrepresented to him that the acreage was 17 acres and 4 perches whereashe received coupons for 10 acres only, and claiming that the defendantshould make good his loss because he had been induced to take the leaseon the defendants’ representation as to the acreage.
He did not claim a reduction of the price, nor a cancellation of thelease, but he claimed damages.
DE KRETSER J.—Haneef V. Dingiri Amma.
In the trial Court attention was concentrated on the single question asto whether the lease had been ad corpus or ad qtlantitatem and the DistrictJudge held that it had been ad corpus.
Before us it was admitted that any misrepresentation which thedefendant had made had been an innocent one. If that be so—and thereis no reason to think it was not—then the plaintiff has no cause of actionfor damages.
Nathan (vol. II., page 626) says: “ . . . . But if a man makes arepresentation in the honest belief that it is true, and there is reasonableground for such belief, a fraudulent intent will not be imputed to him.although the representation may turn out to be false. In other words,it may be laid down that misrepresentation not amounting to fraud, thatis, misrepresentation which is honest and not reckless, will not render theparty making it liable to the legal consequences of fraud, although he maybe liable for misrepresentation ”.
At page 633 he says:“The legal consequences of fraud are to entitle
the party defrauded either to rescind the contract (restitutio in integrum)or to claim damages in tort (delict). But misrepresentation which is.material to the contract, that is, which induced it, although it be innocent,may entitle the person misled by it to rescind the contract or to refuse toperform it ”.
Therefore innocent misrepresentation may be a ground for rescinding acontract or refusing to. perform it, but it is only a false representationamounting to fraud which entitles a person to claim damages.
Even in the case of fraud “ the action will not lie where the party whohas suffered the fraud elects, notwithstanding the fraud, to abide by thecontract, in the belief that the contract will be advantageous to him. Insuch a case he is regarded as ratifying the fraudulent contract followingthe maxim quisque juri pro se introducto renunciare potest ” (vide page 630).
Lee, in his Introduction to Roman-Dutch Law, states at page 236that even the right given to sue for the rescission of a contract induced byinnocent misrepresentation is a modern development, due to the influenceof English practice. He agrees with Nathan’s statement of the law.
It will thus be seen the plaintiff is doubly out of Court, for not only wasthe misrepresentation, if any, innocent, but knowing of the same heelected to abide by the contract.
In fact, however, it seems to me very doubtful that the plaintiff hasproved that he did not obtain the extent leased to him. What he hasdone is to attempt to prove for what acreage he received coupons andthen to ask the Court to infer that that acreage covered the hole of theproperty leased, and that the defendant made a representation to him notonly as to acreage but that the acreage represented would be available,for assessment under the Tea Control Ordinance. The two things are notthe same.
Jle admitted the Tea Controller made deduction for “ the road and likethings”, meaning presumably buildings and vacant spaces. His evidencewas not scrutinized carefully enough in the lower Court. At one stage hemade the statement that as a result of the surveys made at the instanceof the Tea Control Board the extent was found to be 11 acres and 4 perchesand he produced three plans marked P7 to P9.
Hendrick v. Habtiakkala.
P7 cannot be identified as any one of the allotments leased. If it doesrefer to one of the allotments, there must be some confusion in the namesand the extents must be added either to Polgodawatta or to Oligoda-pitiyahena.
According to him that plan showed that Galgodapitiya was 3 roods and10 perches, but he also produced letter P10 and alleged that it dealt withGalgodapitiya and this letter gives the extent as 2 acres 1 rood and 10perches—a difference of only 20 perches from the extent given in the lease,and this may have been due to “ roads and like things If thereforeone substitutes 2 acres 1 rood and 10 perches for 3 roods and 10 perches,one must add to the extent of 11 acres and 4 perches, 1 acre and 2 roodswhich makes a total of 12 acres 2 roods and, 4 perches. He says that P12refers to Polgodawatta, but while that letter refers to a land of 4 acres andlike P10 is addressed to one Jamaldeen, the plan P9 shows an extent of4 acres 2 roods and 11 perches.
The letters give numbers to the allotments ranging from 13,691 to13,697, but the letters actually produced refer only to three such allot-ments. One knows nothing about the remaining four.
Pll states that some allotments had been previously assessed at being9 acres in extent and had been reduced to 3 acres 3 roods and 18 perches.It is said that this letter refers to Oligodapitiyahena, but whether it refersto all the four blocks of that nam,e or to one is not clear, and it will beremembered with regard to Oligodapitiyahena that any representationthat was made, was made with reference to paddy sowing extents and notwith regard to acreage.
The plaintiff’s case fails entirely and the appeal will be dismissed withcosts.
Soehtsz S.P.J.—I agree.
HANEEF v. DINGIRI AMMA