Punchi Menika v. Kirimudiyanse
COURT OF APPEALPunChi j IVI epi,ka anjj- another' •' liv/ . ).<_>V.
Kirimudiyanse and anotherA. (S.C.) 177173 (F) D C. Kurunegala 3831IL
Misdescription in Deed. Construction of Language of Deed Rectification of mutualmistake Section 91 (2) of Evidence Ordinance
One Kiri Banda by Deed of ->Gift''^D4 dated 16.10.64 gifted toDefendant-Respondent the entirety of the interests he was entitled toin several contiguous allotments of land.subject to his life interest (Theseallotments) are depicted as Lot 3 in Plan 3 Dft-respdts claimed that uponthe death of K they entered into peaceful possession of Lot 3 and are inlawful possession.
Plantiff-appeallants state that by Partition Decree dated 26.11.54 KiriBanda was allotted divided Lot 3 in P3 in lieu of his undivided interestsin the larger lands. That by Deed PI dated 19.11.65 Kiri Banda for valuableconsideration transferred the said Lot 3 to them.
In an action for declaration of title the Judge found .that in executing. D4Kiri Banda intended to convey his interests in the 6 lands which had' sincebeen converted into Lot 3 in P3 and' that the entirety of Ll6V:3'had passedto Defendants, that PI did not operate to convey arty interests–to Plaintiffs.
Counsel for Plaintiff-Appellants argued that final decree dated 26.11.54wiped out all the interests in the undivided lands that K was entitled toand that the Final Decree vested in Kiri Banda a new title in respect of Lot 3.
Defendant-Respondents argued that the intention of Kiri Banda when heexecuted D4, was unmistakably to gift to the donees the entirety of theinterests he was entitled-to in all the contiguous allotments of land, whichwere the subject, m^ttej-j.of the Partition action and which interests werenow represented by divided Lot 3 in Plan 3.
That as a rnistakeohadi'beerr'imade in Deed D4 in describing ’What wasintended to be gifted the.-’Court should in the exercise ofoitis jurisdictionrectify or treat as rectified, the.deed D4 to bring it into.Jing.;with the,.trueintention of the parties to the Deed D4 and that the Court should grantthis relief even though it'Wsis riot-prayed fdf iri' the plaint! ''''
Held (following Girigoris Perera V Rosaline Perera 53 NLR 536) that theDeed of Gift D4 should be rectified or treated as rectified in respect ofthe mutual mistake made in order to bring the Deed D4 into line with thereal intention of the parties.
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APPEAL from Judgment of the District Court of Kurunegala
Argued on:Decided on:
Ranasinghe, J. and (B.E.) de. Silva, J.
C. Ranganathan Q.C. with NimalSenanayake
Miss. S.M Senaratne and
W. Jayewardene Q.C., withHiran Jayewardene, andRonald Perera
Defendants – Respondents23.11.1981,and24.11.1981.
Cur. adv. vult.
The plaintiffs-appellants instituted this action against thedefendants-respondents for a declaration of title to the entirety of adivided allotment of land, depicted as Lot 3 in final plan no: 6227of 8.7.1954 in partition case no:5180 of the District Court of Kurunegalaand a certified copy of which was produced at the trial marked P3,and for ejectment of the defendants-respondents therefrom, and fordamages.
The position taken up by the plaintiffs-appellants in the plaint isbriefly: that the several contiguous allotments of land referred to inthe schedule to the plaint were the subject matter of partition incase no. 5180 of the District Court of Kurunegala : that, by theFinal Decree dated 26.11.54, Herat Mudiyanselage Kiri Banda wasallotted, in lieu of his undivided interests in the said corpus, thedivided lot depicted as Lot 3 in the final plan P3: that thereafterthe said Kiri Banda, by deed PI of 19.11.65, transferred the saidLot 3 to the plaintiffs-appellants, and the plaintiffs-appellants enteredinto possession thereof; that, a week after the death of the said KiriBanda in-May 1971, the defendants-respondents entered into wrongfuloccupation of the said Lot 3.
CAPunvhi Mvnika v. Kirimudiv/insr :J.i
The dcfcndants-rcspondcnts. on the other hand, maintained: thatthe said Kiri Banda was married to the sister of the 2nddefendant-respondant; that both Kiri Banda's wife and their onlychild died in the year 1964: that thereafter, by deed 1)4 of 16.10.64.the said Kiri Banda gifted to the 1st to 4th dcfcndants-rcspondcntsthe entirety of the interests he (Kiri Banda) was entitled to in theseveral contiguous allottments of land, more fully described in theschedule to the plaint (together with certain other interests whichKiri Banda had also inherited from a deceased ,aster and which arenot in dispute in this case) , subject to his life-interest: that theentirety of the interests, which the said Kiri Banda was entitled tofrom and out of the said several contiguous allottments of land andwhich the said Kiri Banda intended to dispose of upon the said deedD4, arc depicted as Lot 3 in the said Plan P3: that thedcfcndants-rcspondcnts did, upon the death of the said Kiri Banda,enter into possession of Lot 3, and are in lawful possession of thesaid lot: that the dcfcndants-rcspondcnts aloijc are entitled to theentirety of the said Lot 3 in Plan P3.
The Learned District Judge has. after trial, held that: in executingD4, "what Kiri Banda intended to convey was his interests in the6 lands which had since been converted into a single entity, viz. Lot3 in P3": that the entirety of Lot 3 has passed to thedefendants-respondents, and that the deed PI, relied on by theplaintiffs-rcspondcnts, docs not operate to convey any interests tothe plaintiffs-rcspondents. On the basis of the said findings, thelearned trial judge dismissed the plaintiffs-appcllnnts's action with costs.,
Learned Queen’s Counsel appearing for the plaintiffs-appellantscontended that the defendants-respondents" deed of gift D4. eventhough earlier in point of time, does not operate to convey to themany interests whatsoever in the said Lot 3 for the reasons: that D4.deals with undivided interests in the larger land as it stood beforethe Final Decree P2: that P2 operated to wipe out the earlierundivided interests the said Kiri Banda was entitled to. and to vestin Kiri Banda a new title in respect of Lot 3 in the said Final planP3: that even though, according to several earlier authorities. D4could have been., construed, as conveying a similar undivided sharein the said Lot .3, yet, in this case, in view of the fact that Lot 3came into existence as a separate entity not by prescription but bvthe final decree in a partition case even such a construction is not
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permissible: that in any event no equitable relief should be given tothe defendants-respondents as against the plaintiffs-appellants whohave purchased the interests in question upon the deed PI for valuableconsideration, in a sum of Rs. 10,000/-.
Learned Queen's Counsel, appearing for the defendants-respondentsseeks to support the decree appealed from on the basis: that theintention of the said Kiri Banda, when he executed the deed of giftD4, was unmistakably to gift to the donees the entirety of theinterests he was entitled to in all the said contiguous allotments oflands, which were the subject-matter of this partition action,andwhich said interests were by then represented by the divided Lot 3in plan P3: that, as a mistake has been made, in the deed of giftD4, in describing what was so intended to be gifted, this Court,could and should, in the exercise of the jurisdiction vested in theCourt, either “rectify or treat as rectified” the said deed of gift inorder to bring it into line with the true intention of the parties tothe said deed, which said intention has. due to a mutual mistakenot been correctly expressed in the said deed: that this Court hasthe power to grant such relief in this action itself, even though nosuch plea for relief had been put forward in the plaint.
It has been found to be not uncommon for persons, who haveacquired title to distinct and divided lots from and out of largerlands in which such persons were once entitled to only undividedinterests, to convey, even after the acquistion of title to such dividedlots, undivided shares of such larger lands. The question, which hadthen arisen in respect of such deeds, is in regard to the preciseinterests which such deeds should, in law, be held to convey to thevendees. This question – approached at times only as a matter ofpure construction of the relevant deed, and at other times as oneinvolving “the nature and extent of the Court’s power to give reliefagainst mutual mistake, when it appears that as a result of mutualmistake the parties have expressed in the deed an intention differentfrom their actual intention” – has engaged the attention of theSupreme Court from about seventy years ago, beginning in the year1911 with the case of Fernando vs Fernando, 14 N.L.R., 412 anddown, to the year 1952 when a Divisional Bench dealt with thequestion in the case of Girigoris Perera vs Rosaline Perera, 53N.L.R. 536
1‘nnchi Menika r. Kirimmliriuoc iKtitunmyhr. J.i
The earliest authority, cited at the hearing of this Case in supportof theldcfe.rmipation of this question only from the standpoint of a
simple, construction of the terms of the deed,"is the case'HifiFernanda
vs Christian, 15 N.LR p 321. The plaintiff iYi that case, relying upona deed which dealt with “an undivided 4lb share of the tWifeb’ShareoV'Vhe ‘southern portion” of a land called'M., claimed the sOtiyhernportion of the'said land which, though said to be One acre in extent,was in fact only 27 perches: and it was contend'ed'that the deSdr'wasnot inoperative,’as the maxim falsii deriioiistratio' non nocet wasapplicable. The Court, having rejected ’the'plea that the said maximwas applicable, proceeded to hold: that'there was only one descriptionof thCiiiterests conveyed: that such description'was perfectly intelligible:that whatever the parties may have' intended to co'nvey. the propertyin fact,(Conveyed' was an' undividcd'4/6 of 1/3 bf'fh'e defined portionto the South and said to be 1 acre in‘‘exterff, that as the said'definedportion ] Wad’ "contracted' itsfclf ‘ to 27 perches, thefp|ai|ptjffii is''entitledto no more than 4/6 of 1/3 of the.'said defined e'^tcnf^oliyg^ peaches.The plaintiff’s claim' to the entirety of the said defjnpd southernportion of 27 perches was hot successful. What’ wcigh^dj.w^h-.lhccourt was not what was said to be'the actual intention of the’parties,biit only the “perfectly intelligible” description setmilir?dde'd itsclf.
In the case of Bernard'vs. Fernando 16 N.L.R p 438 iT’vcndce.whd, having obtained only undivided interests in a land. whiSH’had.prior'to such tfartSf^V W'fact becri'paftit'ibhed and the vendor .IH'otteda divided' lbt 'in lieu'of his undjviddd'1mterests in the larger land,claimed 'the entirety of such divided lot, had to be content with dhlya corresponding fractional share.in such divided lot. '
The decisions in Christian’s case (supra) and Bernard's 'Case'‘(supra)were referred to by Bertram C’.J. in the case of Fernando vs Ftirhai^o23 N.L.R. p 483 where two parties had acquired the whole interestsof a shareholder in certain .proportions, and the deeds described suchinterests as an undividpdfinterest….and.jt transpired that' a specificportion of the land has in fact, (hqy.p^h^ld by thc..pcrson throughwhom they both claim as his port,for]the.prescriptive period. Thequestion which arose for decision ;jhu that "case, as stated by HisLordship, was not what is the precise share stated in the deedij ofthe plaintiff,, but in what proportion as between the pjaintiff and thedefendant is the land to be, divided; and it was decided “that justicerequires that, as between those parties this specific portion must be
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divided in the same proportions as those described in their deeds.”Such a situation does not really arise in this case now before us.
The plaintiff, in the case of Fernando v.r. Podi Sinno, 6 C.L. Rec.73,who had obtained a'conveyance of undivided interests from andout of a larger land, instituted an action for declaration of title inrespect of two divided lots of the said large land, which were referredto as "C” and “D”, and been possessed exclusively by N, one ofthe original co-owners of the large land and through whom theplaintiff claimed, in lieu of his undivided interests and to which Nhad also prescribed. The Supreme Court, however, held that theplaintiff was entitled only to similar undivided shares in Lots C and
Bertram C.J., referring to the case of Don Andiris vs Sadinahamy,
C. W. R 64 (infra) observed that the principle enunciated in thatcase was applied in a partition case where it could be convenientlyapplied- and that His Lordship did not feel able, to enunciate theconverse of that principle in a rei vindicatio action. His Lordshipalso! referred to the case of Fernando vs. Fernando, 23 N.L.R. 483(infra) as a case in a contrary direction, and further refused anapplication, made on the authority of Fernando vs. Fernando, 23N.L.R. p 266, for equitable relief on the basis that such a coursewould change the whole nature and scope of the action institutedby the plaintiff, even though His Lordship was satisfied that, inconveying the fractional shares, the vendors had really intended toconvey Lots C and D. Nevertheless, in holding that the plaintiff wasentitled only to an undivided 1/12 plus 1/6 (which were the fractionalshares referred to in his title deed) of the said lots C and D., HisLordship expressly stated that such decision should not prejudice theplaintiffs right to claim in a later action the remaining interests inthe said lots after joining all the necessary parties.
The decision in Fernando vs Podi Sinno (supra) was followed inthe- year 1931 .in the case of Perera vs Tenna, 32 N.L.R. 228 wherethe plaintiff, who had obtained a conveyance of an undivided 1/2share of the whole land, comprising lots A-D and Dl, from one oftwo co-owners, who had dividedly possessed the whole land, claimeda declaration of title to the entirety of the two lots D and Dl whichhad been dividedly possessed by his vendor, it was held that theplaintiff could not claim, upon the said deed, the entirety of thesaid lots but was entitled only to a similar share, viz. undivided 1/2,of of the said lots D and Dl. Akbar J., expressed the view that the
CAPumiii Mrnika r. Kirimiuliy.iinr lltmuismylie. I.i
case of Mensi Nona vs. Neimalahamy, 10 C. L… Rcc. ISO. (infra) hadno application, as it is the converse of Pod i Sin no.'s case (supra) andwas an action for partition and not for declaration ofititled.
The decision in Bernard's case (supra) was followed in the caseof Mudalihamv vs. Appuhamy, Jf> N.I..R. J.l. In that case the plaintiffhad, in 1927, taken in mortgage an undivided 2/3 share of twocontiguous fields. In January 1930 the defendant instituted an actionto partition the two contiguous fields which were treated as oneentity; and, in August 1930, final decree was entered.allotting to theplaintiff's, mortgagor,..who was hcUl to be entitled only to a 1/2 shareof the ,corpus, the, divided.. l.ot A.;. In January,: 1931 the plaintiff puthis bond ip suit; and, in January 1932, obtained a,Fiscal’s Conveyancein respect of the undivided sharps mortgaged to him and which hehad purchased at the execution style,. In the meantime, however, thedefendant had taken out a writ, in April 1931. against, the mortgagor,for pro rata costs due to him and purchased the said lot A;, and thedefendant had also obtained a fiscal's conveyance in April 1931. The'plaintiffs claim for declaration of title to the entirety of Lot A wasrejected; and they were held to be entitled to only a 2/3 share ofthe said lot A.
An examination of the decisions referred to above shows: that thedeeds, which dealt with undivided shares anil upon which the entiretyof the specific divided portions possessed , by. the vendor (or thepredeccssor-in-title) were claimed, were not held to be ineffective toconvey any interests whatever; that, such deeds were held to conveyte fractional shares specified therein: that, in Christian’s case (supra).Bernard’s case (supra), and Mudalihamv's $asc (supra) there was noconsideration whatever of relief by way of rectification: that in PodiSinno’s case (supra), although the principle enunciated in Don Andiris s .case (supra), was approved, yet it was not applied in that case as ;it was a rei vindicatory action and not a partition action: that inTenna's case (supra) too the fact it was an action for declaration oftitle and not an action for partition seems to have been an important-factor: that both in Bernard 's case (supra) and in Mudalihamv'scase (supra) the undivided interests, referred to in the relevant deeds,had been converted into divided lots, by decrees entered in partitionproceedings, before the execution of the said deeds – just as in thiscase before us.
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The last decisiojijn thisijine of authority – apart from the dissentingjudgment of Nagalingam, A.C.J, in Girigoris Perera's case (infra) -is the judgment of Pulle J (with which Nagalingam A.C.J. agreed),delivered on 7.12.1950 in the case of Elisahamy vs Julis Appuhamy52 N.L.R p 332. The facts of that case were: T, who was entitledto an undivided 1/2 share of a large land of 24 acres, possessed, asa separst^ and divided block, a portion of the larger land, referredto as block “X”. and acquired title to it by prescription. After thedi^ath of t. some of her heirs, who were entitled to shares in thesaid block X, conveyed their interests to the plaintiff. These interestswere described as fractions not of block X (i.e. not as 1/7 of 1/4 ofthe 2 acre block X), but of the larger land (i.e. 1/7 of 1/4 of thelarger land of 24 acres). The plaintiff then instituted an action forpartition of block X, claiming the fractional share, (1/7 of 1/4) setout in the deed of conveyance to him, from and out of the corpus,block X. The Court, however, applying the aforesaid principle laiddown by Bertram C.j. in Podi Sinno’s case ^iipra), held that theplaintiff could get no larger fraction of block X than that set out inrespect of the larger land of 24 acres-i.e. only -1/7 of 1/4 of 1/12 ofthe corpus (block X) sought to be partitioned. It has, therefore, tobe noted that in this case too the deeds in question were held toconvey undivided interests, though not in the manner contended forby the plaintiff. Here too the question was considered merely as oneof construction of the terms of the deed in question. No pleas ofmistake, and the availability of relief by way of rectification wereconsidered._
If, however, this i,s the correct approach, even then the defendant
respondent's claim, at any rate to a 2/3 share'of Lot 3 in P3,seems irresistible. Learned Queen’s Counsel appearing for the plaintiffs
appellants also indicated to this court that, life vyould have concededthat the defendants-respondents’ deeds would operate to convey to
them a 2/3 share of Lot 3 but for the existence !'6f the Final Decree
P2. He submitted that the fact that the title of the plaintiffs-respondents’vendors to the said divided allotment, Lot 3, has vested in them notby virtue of prescriptive possession but by virtue of a final decreein a partition case, operated to distinguish this case from the casesin which such deeds were held to convey similar fractional shares jnthe divided allotments. It has, however, to be noted that both inBernard’s case (supra), and Mudalihamy’s case (supra), which figurein the first group of decisions referred to earlier by me, the title to
– I'unchi Mrniku r. Kirimmlivnmf IRuiKiu’ivhr. I.i
the l<n.s„.i>yhich the vendors ohttiincd in lieu of the undivided interests.wJiiqhvt^ey, hatLiw the larger, land and which.swcre.mlso. the interestsdescribed, in the deeds in. question; had vcHtodrim such;'vendors notby virtue of prescriptive possession but. undervandqby.virtuc of finaldecrees entered in proceedings instituted to partition the larger lands.
The ..authorities relied on by learned Queen's Counsel appearingfor the defendants-respondents in support of the availability of a pleaof mutual mistake of the parties resulting in an incorrect expression,in the deed, of their true intention, and the power of the Court "torectify or treat as rectified” the relevant deeds, commence from thecase,,of Fernando vs Fernando .]4 N.L.K. p 412 the- judgment inwhich . Wits delivered hy Lasiclles-. C.I… sitting alone as .far back asJune|.,l91'l.,iiln. that,.case. S. wlititwaw.'entitled to a divided lot of landunder a’JpartitiOiin decree, leased to J-.-.after the said partition decree,an undivided share of the larger land of which the said divided lothad once formed., a ■ portidn.’.'Kr.assigned the* lease to the plaintiffwho then instituted an action.' to be- putf into'possession during thependency of the lease. Rejecting a defence plea that the lease to F-was wholly ineffective as the lease purports to grant ’an- undividedshare in the land, although S’s. interests, at the date of such lease,consisted of the’specific* share which had been alloted to S underthe partition decree, Lasccllcs. C.J. held that the intention of thelessor was plain and unmistakable, and that the said lease was notinvalid by reason of the misdescription.
An action for partition instituted bv the plaintiff in the ease ofDon Andris vs Sadinahumv 6 C. W. R. 64 was dismissed by the learnedDistrict Judge as he took the view that, although the land had atone time been possessed undividedly. yet. it had for some yearsbeen divided into “koratuwas” and possessed by various co-ownersin that way. with some of them purporting to dispose of the“koratuwas"’ instead of undivided shares of the whole land. In settingaside the judgment of the learned District Judge and sending thecase back for the entering of a partition decree as directed, deSampayo, J. observed (on 11.3.1919) that the learned District .Fudgehad taken a narrow view of the effect of the – deeds.nand that:
.. , •. •I.– n
“It is not uncommon for co-owners to dispose of theirinterests by reference to particular portions or ‘koratuwas’of which they had been in possession. Rut if the fc;U
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intention is to dispose of the interests of the persons in theentire land, this Court has found no difficulty in giving abroad construction to such deeds and to deal with the rightsof the parties on the original (opting.”
True it is that, in that case, both parties prayed for a partitionof the entire land. Even so, it does not, in my opinion, detract fromthe importance and clarity of the principle so laid down. It was thisprinciple which, as stated above, Bertram C.J. stated in Podi Sinno’scase (supra) dealt with the converse position and could convenientlybe applied in a partition case but not in a rei vindicatory action.Such a distinction, however, did not meet, as will be seen later,with the approval of Nagalingam A.C.J in His Lordships dissentingjudgment in Girigoris Perera’s case (infra). Don Andiris’s case (supra)was followed in the year 1959 in the case of Dias vs. Dias, 61 N.L.R. 116.
In the case of Fernando vs. Fernando, 23N.L.R 266, the plaintiff'svendors intended to lease the entirety of a land to the defendant,but by mistake only the southern portion of the land was includedin the deed. Thereafter the plaintiff purchased the land. At the timeof such purchase the plaintiff was aware of the lease and made hispurchase in the belief that the entirety of the land was subject tosuch lease. Four years later, however, the plaintiff discovered themistake in the deed and instituted the action to restrict the rightsof defendant to the portion described in the deed. The defendant’sdefence was a plea of estoppel. Bertram C.J., with Garvin, A.J.agreeing, expressed the view that the defendant’s plea was misconceived,and that the defendant ought to have claimed in reconvention thatthe lease should be rectified on the footing that the lease has beendrawn up in its present form through mutual mistake of the parties,and that the plaintiff knew the true extent of the lease and wasbound by the same equity as his vendors, and proceeded to giverelief on that footing. Bertram C.J followed two Indian cases – Dagduvalad Jairam vs Bhana valad Jairam, (1904) 28 Bomb L.R p 429,and Rengasami Ayyangar vs Souri Ayyangar, (1915) 39 Mad. 792,both of which were also cited by learned Queen’s Counsel appearingfor the defendants-respondents in this case. These two Indian judgmentsare based upon an interpretation of sec. 92(a) of the Indian EvidenceAct, the provisions of which are identical with the provisions of thecorresponding section of our Evidence Ordinance, namely provise (1)of sec 92 and proceeded on the footing that: “If two persons contract,
Punchi Mcnikn v. Kiriinii<lii>n',- i.1.)
; / ■ * ' *and they really agree to one thing, and set down in writing anotner
thing,. and afterwards, execute a .deed, on that, wrong footing, theCourt will substitute the.correct (or the incorrect expression, in otherwords, will rectify the deed”. Relief by way of rectification was
given, even though such relief had not .been, claimed, because “as
a Court guided by the principles of justice, equity, and good conscience,we can give effect as a plea to these facts, which in a suit broughtfor this purpose would entitle a plaintiff ,tc? rectification.”
The plaintiff, who instituted an action for partition, in the case ofGoonesekara vs Pioris, 28 N.L. R p 228, found that there was, inthe deeds, relied on by him. a misdescription of the corpus aqd itsboundaries. The defendants contended that, until the deed is rectifiedthe plaintiff would have no title and that, therefore the. plaintiffsaction cannot be maintained. The Court, however, took" the viewsthat the mistake was capable of rectification and that for that purpose,the action should be converted into one rei vindicatio to which allparties to the deeds or their representatives should be added; andaccordingly the plaintiff’s action was converted by court into as actionrei vindicatio with a prayer for rectification.
The case of Mensi Nona vs Neimalhamy, 10 C.L. Rec 159, whichAkbar J, did, in Tenna's case (supra), think is the converse of PodiSinno’s case (supra), is a case where, after the co-owners of a landhad, consequent upon an informal amicable division among themselvesacquired prescriptive title to their respective lots, a co-owner whoso become entitled to a separate lot, did. in dealing with his interestsby deed, refer to those interests as a fractional share of the largerland. In dismissing as action for partition of the larger land theSupreme Court held that the execution of such a deed dealing withfractional shares of the larger land did not have the effect ofconsolidating the vendor's separate lot with any or all of- the otherseparate lot's so as once again to form the common land.
In Lucihamy vs Perera, 40 N.L..R. 232, the larger land, of whichthe corpus sought to be partitioned was a portion, had been amicablydivided into an eastern half and a western half and was so possessed.A subsequent conveyance of the eastern half.share, however, describedit as being undivided. The vendor, who was called at the trial,admitted that he intended to pass his rights to the whole of sucheastern share, which was the corpus. The Court, having taken the
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view,,that, although the deed purported to convey a share in anundivided western half it was. a misdescription, and that what wasintended,. Jo be conveyed, and what legally . passed, was a share inthat which) .was regarded as the eastepp half which was representedby the corpus, shown in the plea (P16)-made for the purpose of thecase, proceeded to hold that..,the conveyance in question passed titleto the portion possessed as the eastern half share as a distinct corpus.
Then came the judgment of Gratiaen, J. (with Gunasekra, J,agreeing) ^ on the 19th June 1951, in the case of Jayaratne vs Ranapura,52 N.L.R.. 499, In that,case the co-owners of p land amicably dividedit into six separate allotments and each, such co-owner thereafterpossessed exclusively the separate..allotment granted to him at suchdivision. C., who was one, such.corowner who so acquired prescriptivetitle to one such allotment., executed a conveyance in which theinterests being conveyed were described,;as -an undivided 1/36 shareof the larger land, even though..he did in fact intend to convey anundivided 1/6 share in the smaller corpus, the divided allotment,which the plaintiff, to whom.,the interests C. had so conveyed hadultimately passed, sought to partition in that case. Although it wasconceded on behalf of the defence that the deeds in question wereintended to convey a 1/6 share in the corpus, it was neverthelesscontended that it was not open to a Court to give effect to thisintention unless and until such mistake is rectified by a notariallyexecuted deed, and reliance was placed on several of the authoritiesrefered to by me earlier -Bernard's case. Podi Sinno's case andElisahamy's case. Gratiaen J' was satisfied that the real intention ofthe vendors was to convey an undivided 1/6 share of the corpus,and seek the view that the decision in Fernando's case (stipra – 23N.L.R. 483) was on all fours with that case. In dissenting from thejudgment in Girigoris Perera's case (supra), Gratiaen, J, stated as follows: I
I must confess that, if the question was at large, I mightfind some difficulty in justifying a departure from the strictrules laid down for costruing written instruments. But thisCourt seems for many years to have preferred to adopt amore generous approach in situations where it is manifestthat no prejudice could result to the interests of others.Possibly the correct solution may lie in the jurisdiction ofa Court to rectify, or treat as rectified, documents in which,by a mutual mistake, the true intention of the parties is
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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