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Present : Bertram C.J. and Ennii J.MEERASAIBU et ol. v. THEIVANAYAGAMPILLAI.
68.—D. C. Batticaloa, 6,116.
Sale of land—Omission of a block 69 mistake-inclusion of block frymistake in sale of adjoining land to another—Action in ejectment—Claim in reconeentton for rectification of deed and cancellationof deed in favour of plaintiff—Joinder of vendor—Jurisdiction.
The administrator sold an estate to defendant, bat bydid not include in the deed a block of 64 acres which formed arecogni; ed part of the estate. Some time later the adjoiningcstato was sold by the administrator to plaintiffs, and the blockwas by mistake included in his deed. Plaintiffs sued defendant inejectment. Tho defendant in reconvention prayed that plaintiffs*deed in so far as it purports to transfer to plaintiffs the blockin question should be cancelled, and be also claimed a rectificationof his own deed, and moved to make the administrator a party.
field, that the administrator should bo added ae a party to thecose.
»J1HE facts appear from the judgment.
H. J. C. Pereira, K.C. (with him Canakeratnem, Croos-Da Brerajand Peri-Sunderam), for defendant, appellant.
Bawa, K.C. (with him Bartholomeusz and R. C. Fonseka), forplaintiffs, respondents.
Samar awickreme, for noticed respondent.
November 20, 1022. Bertram C.J.—
This is an appeal from an order of the Batticaloa District Courtdeclining to allow the defendant, when claiming in reconvention,to add Mr. Sydney Julius, defendant's vendor, as a party to thecase.
The facts alleged by the defendant are as follows:—Many yearsago Mr. Edward Newnhara Atherton bought up several propertiesin the Batticaloa District, and grouped them into certain recognizedestates. On his death in 1907 Mr. Harry Creasy was appointedadministrator cum testamento atmexo, and, in that capacity andin pursuance of Mr. Atherton’s will, conveyed to Mr, Atherton’swidow the estates so constructed. It is alleged, however, that ingrouping the various lots which made up each estate, Mr. Creasymade a mistake and excluded from one estate, known as “ Mayfield, "
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IMS. a block of 64 acres which was a recognized part of that estate, andincluded it in another estate, known as “ Vautharamoolai. ” InCJ. 1918 Mr. Atherton’s widow died leaving a will, and letters with theMeeraaoibu will annexed were granted to Mr. Sydney Julius. Mr. Sydneyv. Julius proceeded to advertise for sale the properties left by Mrs.Atherton. Mayfield Estate was sold to the defendant, eo nomine,and he was given possession of the estate, including the 64-acreblock. Some months later the other estate is said to have beensold to the plaintiffs. Whether it was sold under that name ornot is not clear. Mr. Sydney Julius in giving directions for thepreparation of the conveyance adopted the grouping mistakenlymade fey Mr. Creasy, and thus, unconsciously, repeated Mr. Creasy’s• mistake. The consequence was that this 64-acre block, which,according to the allegations of the defendant, was an integral partof Mayfield, was included in the deeds relating to the estate knownas Vantharamoolai. It is alleged, either expressly or impliedly,by the defendant that the plaintiffs had no intention of buyingthis 64-acre block which is u recognized part of Mayfield Estateand was never comprised in Vantharamoolai, and that Mr. Juliushad no intention of conveying to the plaintiffs anything otherthan what was comprised in Vantharamoolai Estate. The defend-ant further alleged that the plaintiffs have since discovered themistake in the deed, and, taking advantage of that mistake, .areseeking to eject the defendant from this 64-acre block. Heclaims in. reconvention that the plaintiffs’ deeds in so far as theypurport to transfer to plaintiffs the block in question should becancelled. He also claims a rectification of his own deed, and,for this purpose, desires to add Mr. Sydney Julius as a parly. '■ Inthe alternative he asks that it may be declared that the plaintiffshold the 64-acre block in trust for the defendant, and that they beordered to execute a convejrance thereof to the defendant.
More briefly stated the problem is this : Sales are said to havetaken place to the plaintiffs and defendant, respectively, of twoestates, and, by a mistake, a block which should have been includedin the defendant’s deeds has been included in the plaintiffs’. Thedefendant ask> that the mistake be rectified, and, for this purpose,desires that all the patties to the mistake should be made partiesin the cause.
Assuming the facts stated to be true, it would be a singular thingif the Court were not in a position to do justice in the matter, andit is difficult to see how justice co'uld be done unless all the partiesto the alleged mistake were before the Court. For the purposeof regularizing the situation, the defendant is asking that theplaintiffs’ deeds should be cancelled in so far as they purport toconvey the 64-acre block. It is difficult to see how this can bedone, unless both the parties to the deeds sought to be cancelledare before the Court. Also he desires that his own deed from
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Mr. Sydney Julius should be rectified, so that his title to the lendintended to be conveyed to him may be put on a proper footing.It is difficult to see how this can be done without bringing Mr.Julius before the Court. Further, the defendants are a necessaryparty to this claim, because the land which the defendant seeks toinclude in his deed is at present vested in the plaintiffs.
The position is very similar to that disclosed in the case of Wick-ram onay ah e v. Abeywardene.1 There the conveyance sought to becancelled was not made by mistake, but by fraud, but I see nodistinction in principle between these two cases.- It is true that theaction there was a Paulian action, and the maker of the impugneddeed is a necessary party to the Paulian action, but the sameprinciple surely applies to a deed which is alleged to have beenexecuted by a mistake, that is to say, it ought not to be cancelledunless the maker is made a party. Until this deed is cancelledand thus got out of the way, it is impossible for the defendant toclaim that his own deed should be rectified by plaintiffs* vendor.
It is perfectly true that the defendant put forward an alternativeclaim, namely, that the plaintiffs held the 64-acre block under aconstructive trust to convey it to himself. Mr. Sydney Julius isnot a necessary party to that claim, but the defendant is entitledto have his claim considered in the alternative.
Mr. Samarawickreme, who appeared for Mr. Sydney Julius,urged that he could not be added as a party to the cause, becausethe deeds in question were not executed within the jurisdictionof the Batticaloa District Court, and he seemed to suggest thatwhat was in question was not the land referred to in the deeds, butthe deeds themselves. Such a suggestion seems to me to bewholly untenable.
There is one point which requires to be noticed: Among thepersons who originally bought Vantharamoolai Estate was oneMohamado Ally. He sold. his. share to the sixth plaintiff. Thedefendant originally claimed that both he and Mr. Sydney Juliusshould be added as parties.. The District Judge disallowed theapplication as regards both, but no, appeal has been lodged withregard to Mohamado Ally. Mohamado Ally is therefore not atpresent a party to the cause, and our judgment in this case will notaffect him. It is unnecessary at this stage of the case to decidewhat effect this may have on subsequent proceedings, but I drawattention to the point as one which may require consideration.
In my opinion the appeal should be allowed, but as it is allowedon the basis of averments made by the defendant which may turnout to be unjustified, the costs of this interlocutory matter, bothhere and in the Court below, should, in my opinion, be costs in thecause.
1 (1914) 17 N. L. R. 169.
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lMi Snnis J.—
Jfiwwiftw This was en action lor a declaration of title by the plaintiffs, whoTftiirninnjjrr claim to be the legal owners of the land claimed, against the defend-gnmyttlni ants who are in possession and claim to be the equitable owners.
The defendants prayed for, inter alia, cancellation of the deedconveying the property to the plaintiffs, and applied that thetransferor on that deed, who is also their own transferor, beinade a party to the case. The learned Judge refused the appli-cation, and the appeal is from that order.
In my opinion, when there is a prayer for the cancellation of* a deed, it is desirable that the parties to the deed should be partiesto the action, even if it be not absolutely necessary to make themparties.
A somewhat similar position arose in the case of Wickramanaydkev. Abeywardene (supra), and there it was held that there was nomisjoinder.
I would accordingly allow the appeal. The costs of the appeal
to be costs in the cause.
MEERASAIBU et al. v. THEIVANAYAGAMPILLAI