I'unchi Mi’mkti i'. Kiriniihlivumi' i/vm■ ein-.aif. I <
not expressed. Fernando vs Fernando 23 N.I..R. 266. Bethat as it may, 1 consider that I cannot legitimately re'fuseto.follow the carjief"pVct'edcnts. where, in precisely sifrtiiarcircumstances. Judges of great experience have declined. onequitable considerations, to pay too scrupulous a regard tothe language of a written instrument."
A consideration of the decisions set out above and relied' orf'insupport of the "broad construction’"approach, it is clear: that, when,as a result of mutual mistake, an instrument executed hv the partiescontains a misdescription and does not correctly set out the trueintentions of the parties, then, where it would not cause prejudiceto the intc.re.sls, of others, this Court could, in the exercise of itsjurisdiction “to rectify or treat as rectified", so construe the documentas to give effect to the true ihtentioH of the parties: that, where therequisite Circumstances exist, such relief could be given even wherethe party entitled' to '.such relief has not in fact claimed such relief,and irrespective of ■'Whether the proceedings in which the mattercomes up for consideration be partition or rci vindicatory: that suchrelief could be given whether the deed or deeds in question be thoserelied on by the plaintiff or by the defendants in the case.
It was in this state of the law in regard to this question that theDivisional Court assembled, in the case of (iiriyoris Pcrerit r.v RosalinePerera, 53 N.L.R. p 536, to resolve the conflict between the twoaforesaid decisions in Dona EUsahamy's and Jayaratne's ease. Thefacts and circumstances of that case were: that, at an amicable divisionof a land between its co-owners in 1964 a divided lot, marked F,had been allotted to a person named K. . and another in equalshares: that, notwithstanding such division K. gifted, upon the deed8DI an undivided 1/10 share (which was the correct fractional shareK had in such larger Tand) of the larger land to the 8th and 9thdcfendants:thereafter, by deed 8D3 of 1937, the 9th defendantconveyed “an undivided 1/2 of an undivided 1/10 share" of the largerland to the 8th defendant: that" in 'the action for partition, whilstthe 8th defendant claimed that the deed 8D3 was operative to conveyto her the entirety of 9D’s interests in the divided lot. the corpus.
ihe Mlh defendant, on the other hand, contended that the said deed8D3 operates to convey to the 8th defendant only a 1/20 share 'ofthe corpus. In resolving this contest, Nagalingam A.C.J., representingthe minority view, approached (as set out in the line of authorities
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firstly referred to by me) it as a question dependant “upon a simpleconstruction of the deed, and one has only to look to its trem toascertain what it conveys without letting oneself be influenced byany extraneous consideration such as these allowable in the case ofa will”, (p 537). Gunsckara J. on the other hand, considered it (asreflected in the second line of authorities set out above by me) asone relating “not to the construction of a deed but to the natureand extent of the Court's power to give relief against mistake whenit appears that as a result of mutual mistake the parties have expressedin the deed an intention different from their actual intention." (page544). Choksy, A.J., though he agreed with Nagalingam A.C.J. thattie deeds 8D1-8D3, relied on by the 8th defendant, cannot beconstrued as deeds dealing with shares in the smaller land, as, onthe face of them, they purport to deal with different shares in alarger land yet, agreed with Gunaselcara J. .and thereby constitutingthe majority view, that “the question we have to deal goes beyondthe construction of the deeds and relates to the point as to whetherthe Court can, upon any legal basis, give effect to what appears*from the material on the record to have been the real intention of
all the parties ” (p549: Approaching the problem from that angle
both Gunasekera. J. and Choksy, A.J. re-affirmed the principleenunciated by Gratiaen J. in Jayaratne’s case (supra), and referredto earlier, that:
“The correct solution may lie in the jurisdiction of a Courtto rectify or treat as rectified, documents in which by amutual mistake the true intention of the parties is notexpressed”
The decision in Girigoris Perera’s case (supra) is that of a DivisionalBench of the Supreme Court, and was pronounced, as already stated,in 1952 – over a quarter century ago. It still remains the mostauthoritative decision upon this question. It has also to be notedthat, at page 542 of the judgment of Nagalingam A.C.J., His Lordshipdisagrees with the “undercurrent of thought” that, in the matter ofconstruction of a deed, a distinction should be drawn in regard tothe nature of the proceedings, and expressed the view that theprinciples of construction in both cases should be identical. As alreadyindicated earlier. Lucyhamy’s case (supra),&nd Jayaratne's case (supra),in both of which the Court granted relief,,were both partition actions.
* Although Don Andris's case (supra) and Mensi Nona’s aue(supra)

I'unchi Mciiikti c. Kirimiitlivtinsr (/(m'mwkWh'. J I
have been considered to lay down the converse principle, yet. theywere both cases in which the Court gave effect to what was consideredto be the real intention of the parties to the deeds under consideration:and they were both actions for partition.
The learned District Judge has in this case found that “what KiriBanda intended to convey was his interests in the 6 lands which hadbeen converted into a single entity, viz lot 3 in P3". This findingis. in my opinion, supported by the evidence placed before him atthe trial. Dl is a copy of the plaint filed by the deceased Kiri.Bandaon 27.3.66 – about 4 months after the execution of P1-. in -case no2364/L of the District Court of Kurunegako : against thedefendants-respondents praying for a declartion that the deed of giftD4 of 16.10.64 is “ void and of no effect in law as the plaintiff wasinduced to execute the same by fraud and exercise of undue influenceby the defendants acting jointly and in concert." According to D2.that action was dismissed by the District Court on 15.0.67: and.according to D3. an appeal to the Supreme Court bv the plaintiff(the said Kiri Banda) had also been dismissed on 14.12.69. D6 isan extract from the evidence given by the said Kiri Banda on 16.7.67.at the trial of the said case, in the course of which Kiri Banda hasstated, with reference to D4. that he executed D4 at the request, ofhis wife, and that, by D4 he purported to gift all his properties infavour of the defendants ( the present defendants-respondents) inthat ease. D6 was not objected to at the time it was led in evidenceat the trial. In view of the respective positions taken up at the trial.D6 would have been admissible under sec. 32 (3) Evidence Ordinance.Furthermore, before the institution of the plaint Dl. Kiri Banda had.by deed D5 of 30.12.65-about 2 months after the execution of PI-. purported to revoke the deed of gift D4. In D4. however. KiriBanda had renouned his right to revoke the said gift. An examinationof the recitals contained in D4 shows that therein Kiri Banda has.inter alia, stated: that he was the owner of all lands described inthe schedule to D4: that he donated the said lands and premises tothe defendants-respondants in consideration of the love and affectionhe bore towards the said donees: that the said donces“are ungratefuland they arc plotting against his life": that D4 was written by theexercise of fraud and or undue influence. The six allotments of landdescribed in paragraph 2 of the plaint P4 are all included in D4.All these items of evidence do. in my opinion, justify the findingarrived at by the learned District Judge on this point.
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Neither of the two donees – the two plaintiffs-respondents – gaveevidence at the trial. The only oral evidence led at the trial onbehalf of the plaintiffs-respondents is that of H.A. Dingiri Bandaand of G. Gunatilaka. the two attesting witness to PI. Dingiri Banda,who is a relation of Kiri Banda and whose son is married to adaughter of the 1st plaintiff-respondent, stated in his evidence: thathe was aware that, prior to the execution of PI, Kiri Banda hadgifted some of his lands, and that Kiri Banda had also filed anaction, before the execution of PI, to have a deed of gift grantedby him to the defendants-respondents revoked: that the land registryhad been searched before the consideration set out in PI was paid.An examination of P6, the extracts from the relevant encumbrancesheets, shows that D4 has been registered,. in respect of all sixallotments of land, in folios connected- with the folio in which theaforesaid partition action, no:. 5180cDpJC. Kurunegala, referred toabove, has been registered, and that.-DS,–the deed of revocationreferred to earlier, has also been – registered j .tn. respect of at least 5of said six allotments of land, in the folios in jWhich D4 had earlierbeen registered. Any search of the folios, in which the aforementionedearlier partition action was . registered, would have disclosed theexistence of both D4 and D5. In these circumstances I do not thinkthat the plaintiffs-appellants could be heard to complain of. anyprejudice, if this Court were to “rectify or treat as rectified” thesaid deed D4.
The plaintiffs-appellants have, in their plaint, averred that, afterthe execution of PI, they entered into possession of the said lands,and that a week after the death of Kiri Banda the defendants-respondentsentered into wrongful occupation of the land and of the buildingthereon. If the plaintiffs-appellants had entered into possession afterthe execution of PI, then the defendants-respondants could havethereafter entered into occupation thereof only by dispossessing theplaintiffs-appellants. There is no evidence of any complaint made bythe plaintiffs-appellants to any person in authority of any such forcibledispossession. Furthermore, no evidence, either oral or documentary,was. led at the trial to substantiate the aforementioned avermentcontained in the plaint that the plaintiffs-appellants were placed inpossession after the execution of PI. It has to be noted that D4 issubject to the life-interest of Kiri Banda, and the defendants-respondentscould have entered into possession on the basis of that deed onlyafter the death of the said Kiri Banda.
I'miclii Menika r. Kirimlitliyim w’ (UnniHinyht'. /. I
On a consideration of the foregoing it appears to me that all thefacts and circumstances necessary for the granting of relief in respectof the deed of gift D4, as set out in the Divisional Bench decisionin Girigoris Perera’s case (supra), (and in the other decisions includedin the second line of authorities referred to earlier by me), havebeen established in this case, and that this Court should "rectify ortreat as rectified” the said deed of gift D4. in order to bring it intoline with the real intention of the parties to D4.
In this view of the matter. I am of opinion that the finding ofthe learned District Judge, that the defendants-respondents are entitled,in law, to the entirety of lot 3 in the plan P3. should,stand, andthat the decree of the District Court dismissing the action of theplaintiffs-appellants, should he affirmed. The appeal of theplaintiffs-appellants is accordingly dismissed with costs.
E. DE SILVA J. — I agfcc.Appeal dismissed