COURT OF APPEAL.
G. P. S. DE SILVA. J. (PRESIDENT. C.A.) AND GOONEWARDENA, J.
C.A. 231/81 (F)-D.C. KALUTARA 24.73/L.
APRIL 28 AND 30. 1986.
(Written submissions of appellant on 26.6.1986) '
Rectification-Can deed of rectification be executed unilaterally?-Reception of freshevidence at appeal stage.
Any act of rectification by deed executed unilaterally must be construed as effective tobind only the executant and not others who are not parties to such act. —
Reception of fresh evidence in appeal may be justified if it can be shown that theevidence could not have been obtained with reasonable diligence at the trial. If theevidence could have been led at the trial if reasonable diligence had been exe:cised.such evidence will not be permitted to be led at the appeal stage.
Case referred to:
(1) Ratwatte v. Bandara-(1969) 70 N.L.R. 231. 234.
APPEAL from the judgment of the District Judge of Kalutara.
Sanath Jayatilake for plaintiff-appellant.
Ian Wickremanayake with Miss Priyanthi Gamlath for defendant-respondent.
Cur. adv. vult.
July 31. 1986.
G. P. S. DE SILVA, J. (President, C/A)
The plaintiff brought this action for a declaration of title to the land andpremises described in the second schedule to the amended plaint, forthe ejectment of the defendant and for damages. The case for the ‘plaintiff was: that by virtue of final decree in D.C.- Kalutara caseNo. 22004 Charlis Appuhamy was allotted lot 1 of the land calledKoswatte described in the first schedule to the amended plaint; thatCharlis Appuhamy on P1 dated 29.1 1.56 transferred a portion of thesaid lot 1, about 21 perches in extent, described in the secondschedule to the amended plaint to three persons, namely, ArthurWijekoon who was the deceased husband of the defendant,Ameratunga Wijekoon and the plaintiff, Sirisena Wijekoon; that ArthurWijekoon, Ameratunga Wijekoon and the plaintiff Sirisena Wijekoonare brothers; that Arthur Wijekoon transferred on P2 (also marked asD1) dated 29.3. i 961 his 1/3 share to Aponsu Perera reserving theright to himself to re-purchase the same within a period of 2 years onpayment of a sum of Rs. 1,000 together with interest at 15% perannum; that on P3 (also marked as D2) dated 6.6.1962. AponsuPerera transferred all the right, title, interest, claim and demandwhatsoever accruing to him upon P2 to the said Arthur Wijekoon; thatby a bona fide error the name of Arthur Wijekoon had been inserted asthe vendee on.P3 although it was the plaintiff who had paid the sum ofRs. 1,000 referred to in P3 to Aponsu Perera; that the plaintiffsubsequently detected the error in the name of the vendee as given inP3 and caused to be executed the deed of rectification P4 dated9.12.63 where the name of the plaintiff is inserted as vendee; that onP5, P6 and P7 the title to the entirety of the land' and premisesdescribed in the second schedule to the amended plaint passed to theplaintiff; that since 5.3.77 the defendant is in unlawful occupation ofthe land and premises described in the second schedule to theamended plaint.
The defendant, on the other hand, claimed title to an undivided 1/3share of the land and the entirety of the building thereon and aisked forthe dismissal of the plaintiff's action. After trial, the District Judge heldwith .the defendant and dismissed the plaintiff's action. Hence thisappeal now preferred by the plaintiff.
The case proceeded to trial on the following issues
Is the plaintiff entitled as set out in the amended plaint to the,land and the building described in the second schedule?
Is the defendant in unlawful and illegal occupation of the said
building since 5.3.1 977?•
If the aforesaid issue's are answered in the affirmative is theplaintiff entitled to the relief claimed in the amended plaint?
Is Arthur Wijekoon entitled to 1/3 share of the land and thebuilding described in the second schedule to the amendedplaint?
If so did Arthur Wijekoon's interests devolve on the defendantand her children as stated in her answer?
If so should the plaintiff's action be dismissed?
The District Judge answered issues 1, 2 and 3 in the negative andthe other issues which were raised by the defendant were answered inthe defendant's favour.
The real question which arises for decision on this appeal relates tothe effect of P4 dated 9.12.63 which purports to be a deed ofrectification. According to the plaintiff, the consideration on P3 waspaid by'him and not by his brother, Arthur Wijekoon. It was his casethat by reason of a bona fide error, the name of Arthur Wijekoon wasinserted as the vendee on P3 and with a view to rectifying that errorP4 was executed. It was the contention o.f counsel for thedefendant-respondent that nothing passed on the alleged deed .of ■rectification, P4. This contention advanced on behalf of thedefendant-respondent commends itself to me. In the first place,although P4 purports to be a deed of rectification, Arthur Wijekoonwho was the vendee on P3 was not a party to P4. In my view,therefore, P4 was not binding on Arthur Wijekoon and his successor intitle, namely, his widow the defendant. Secondly, at the time AponsuPerera executed P4 he had no right title or interest for he had already •divested himself of whatever right, title or interest he had by reason of
the execution of P3. No proceedings were instituted to set aside P3.By his unilateral act in executing P4 he could not set at naught theeffect of P3. Therefore P3 remained unaffected by the execution of apurported deed of rectification.
To my mind any act of rectification by deed executed unilaterally ;must be construed to have effect so, as to bind the executant only andnot others who are not parties to such act. Thus the binding effect ofP4 would be limited to Aponsu Perera and would not extend to ArthurWijekoon. To hold "otherwise would mean with respect to atransaction such as the one we are here concerned with, that after asale of property by deed whereupon title has passed to the vendee, avendor so minded could defeat the title of the vendee to such propertyby a purported deed of rectification subsequently executed unilaterallyby the vendor" whereby the name of someone else is sought to besubstituted for the true vendee. A buyer of property and perhaps incertain circumstances even a successor in title to such buyer thenwould never be safe after his purchase and would be at the mercy ofthe seller, a situation which cannot be lightly countenanced. Iaccordingly hold that P4 was ineffective to convey title to the plaintiffand the findings of the trial judge on issues 1, 2 and 4 are correct.
Counsel for the plaintiff-appellant has in his written submissionscontended at length that the trial judge was in serious error when hereached the finding that the plaintiff had fraudulently caused P4 to beexecuted in his favour when there was no such plea taken up in theanswer and the question of fraud was never put in issue at the trial.While it is correct that the plea of fraud was not put in issue at the trial,and it may not have been open to the trial judge to reach a finding inrespect of fraud, yet for the reasons given above, plaintiff's action hadto fail. In my view, the finding of fraud in'respect of P4 does not vitiatethe other findings of the trial judge as reflected in his answers to theissu nor does it affect the ultimate conclusion of the trial judge that thedefendant is entitled to a 1/3 share of the land and premises in suit.
Counsel for the plaintiff-appellant next submitted that there was noneed for Arthur Wijekoon to have been a party to P4 because, to useCounsel's own words, "Rectification has to~be done by the personwho has made the error and by no one else". I do not agree, for, asstated earlier, title had already passed on P3 to Arthur Wijekoon andunless Arthur Wijekoon had joined in P4, P4 would not be binding onhim and his successors in title.
Finally, I wish to advert to an application made at the hearing beforeus on behalf of the plaintiff-appellant to read in evidence an affidavit ofMr. A. I. M. Kaleel, the Notary who executed P3 and P4. This wasstrongly objected to by counsel for the defendant-respondent. In myview, this objection must be upheld. Reception of fresh evidence inappeal may be justified if it can^be shown that the evidence could nothave been obtained with reasonable diligence at the trial (Ratwatte v.Bandara (1)). The evidence of Mr. Kaleel could have been led at thetrial if the appellant had exercised reasonable diligence.
For these reasons, we affirm the judgment of the District Court anddismiss the appeal with costs fixed at Rs. 210.
GOONEWARDENA, J. – I agree.
2-WIJEYAKOON v. WIJEYAKOON