033-NLR-NLR-V-71-A.-VALLIPURANATHAR-Appellant-and-E.-SELLAR-and-others.-Respondents.pdf
132
Vallipuranathar v. Sellar
Present: Alles, J., and Siva Supramaniam, J.A. VALLIPURANATHAR, Appellant, and E. SELLARand others, Respondents
S. C. 88165 (Inty.)-D. G. Ghavakachcheri, 1621 (P
Sale of land—Sale ad quantitatem and not ad corpus—Effect—Partition action.
Where the sale of a portion of a land is ad quantitatem and not ad corpus, thevendee is not entitled to claim the benefit of any excess found in the extent ofthe whole land on a subsequent survey.
The 1st defendant-appellant had sold to the plaintiff 75 1ms. out of a landwhich was described in the deed of sale as 90 1ms. in extent. In the presentpartition action instituted in respect of the land, interlocutory decree wasentered on the basis that the plaintiff was entitled to 75 /90th share of the landalthough on a survey it was found that the extent of the land, though reputedto be 90 1ms. according to the deeds, was in fact about 178 1ms.
Held, that a fresh docree should be entered on the basis that the plaintiffwas entitled to an extent of 75 lms. and the 1st defendant-appellant to thebalance, excluding a lot which should be ullott^i to the 4th defendant.
SIVA 8UPRAMANIAM, J.—VaUipunmaUiar v. Sellar133
A.PPEAL from an order of the District Court, Chavakachcheri.
O.Ranganathan, Q.C., with K. Sivananthan, for the 1st defendant-appellant.
O.Chellappah, for the plaintiff-respondent.
Cur. adv. vult.
November 8,1966. Siva Supramaniam, J.—
By deed No. 3930 dated 6th February 1909 (PI) VallipuranatherArumugam, the lather of the 1st defendant-appellant, became entitled toa piece of land, said to be in extent 901ms. p.c., being the western portionof a larger land. The boundaries of the said extent of 90 1ms. p.o. wereset out in the deed as follows :—On the East and North by road, on theWest by a bye lane and on the South by river.
On the death of the said Arumugam the said piece of land devolved onthe appellant. By deed No. 2511 dated 18.1.1956 (P3) the appellanttransferred to the plaintiff-respondent an extent of 75 lms. p.c. Thedeed (P3) describes the subject matter of the transfer as follows :—“ Ofthis 90 lms., excluding an extent of 15 lms. p.c. from the North-Westernside, tho remaining in extent 75 lms. p.c. The 75 lms. is bounded on theEast by sandy road, North by road and the said extent of 15 lms. belong-ing to me, West by the aforesaid 15 lms. p.c. excluded portion belongingto me, and South by Kanagarayan river.” It is not disputed that noboundaries were demarcated on the land.
It is also common ground that the subject matter of the present actionfor partition is the extent of 90 lms. p.c. dealt with by deed PI. On asurvey it has been found that the extent of the land, though reputed tobe 90 lms. according to the deeds, is in fact about 178 lms.
The plaintiff-respondent has instituted this action on the footing thathe is entitled to 75/90th share of the land and the appellant to thebalance 15/90th share. The short point for decision on this appeal iswhether the plaintiff-respondent is entitled to claim 75/90th share of theland on the deed P3. That deed does not convey to the plaintiff-respondent any fractional share of the land but an extent of 75 lms. p.c.The vendor had assumed that the total extent of the land was 90 lms.p.o. and on that assumption he had set apart for himself 15 lms. andtransferred to the vendee the remaining 75 lms. p.c. It is clear fromthe description of the subject matter of the transfer in P3 that thesale was one ad quantitatem, and not one ad corpus. What wasoonveyed to the plaintiff-respondent on that deed was an extent of75 lms. p.c. and the pontiff is not therefore entitled to claim a
134
Jayawardhena v. Thiruchelvam
larger extent than 75 1ms. p.c. The consideration he paid was foran extent of 75 1ms. p.c. and for no more. He is not entitled to claimthe benefit of any excess found in the extent of the land on a survey.
We are of the opinion that the learned District Judge was wrong inholding that the plaintiff-respondent is entitled to 75/90th share of theland. We set aside the interlocutory decree entered in the case anddirect that a fresh interlocutory be entered on the basis that the plaintiff-respondent is entitled to an extent of 75 1ms. p.c. and the appellant tothe balance, excluding lot 3 which will be allotted to the 4th defendant-respondent. All other rights will be as determined by the trial Judge inhis judgment.
The appellant will be entitled to his costs of contest in the lower Courtas well as his costs in appeal.
Aeles, J.—I agree.
Order set aside.