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Present: Pereira J. and De Satnpayo A.J.
ABDUL CAFFOOR t>. PATTUMUTTU.
337—D. G. Galle, 11,580.Partition—Allotment of a lot to a patty by decree—Conveyance of share toanother—Subsequent variation of decree—Different lot allottedunder decree—Action' by purchaser to rectify deed.
Where A being allotted a certain portion of land in ‘ a decree in apartition suit, conveys that portion to B, and the decree is subse-quently varied, and A is allotted another portion in lieu .of theportion conveyed by him,—
Held, that B cannot maintain an action against. A for rectificationof the deed of conveyance.
^pHE facts appear from the judgment.
A. St. V. Jayawardene, for plaintiff, appellant.
.V. Grenier, for defendant, respondent.
Cur. adv. vult.
September 22, 1918. Pereira J.—
I think that the view taken by the District Judge on the questioninvolved in this case is correct. The first- defendant was by parti-tion decree entered up in case No. 8,138 of the District Coilrt ofGalle declared entitled to a defined portion of land marked lot No. 4in plan 73a filed of record in the case, and he by his deed P 4 soldand conveyed that allotment of land to the second defendant. Thesecond defendant by his deed No. 2,320 of the same date as P 1agreed to re-transfer the land to the first defendant, and- the firstdefendant by his deed No. 10,469 assigned to the plaintiff herinterests on this deed. The second defendant accordingly conveyedto the plaintiff by deed No. 10,607 the allotment of land No. 4mentioned above/ Subsequently the decree in the partition suitmentioned above was amended by this Court, and the first defendantwas declared entitled to lot No. 3 instead of lot No. 4 on .the planreferred to . above. The plaintiff. brings this action to have deedNo. 10,607 rectified. The plaintiff, in. my opinion, ha6 no rightwhatever to claim a rectification of deed No. * 10,607. The case ofBeale v. Kyte 1 cited by the.appellant’s counsel has, so far as 1 can see,no application to the 'present case. That action was based on theground of a common mistake on the part °f the contracting parties:It appeared there that by an error the land conveyed included more
»(1907) 1 Ch. D. 504.
( 174 )
than was comprised in the written'contract, in pursuance of whichthe conveyance was executed. In the present case there was no 'mistake. At the date of . the conveyances referred to above thefirst defendant had title to lot No. 4; the parties intended that thatlot and no other should be conveyed; and the first defendantconveyed to the second, and the second to the plaintiff that lot. Theeffect of the order in the partition suit made subsequently was tovest title in the first defendant in lot No. ,3 in lieu of lot No. 4. Inthese circumstances plaintiff was ‘not entitled to claim a.rectificationof deed No. 10,607, and, indeed, what he claims is, in effect, a separateconveyance to him of lot No. 3. Clearly he has mistaken hisremedy, and I would dismiss the appeal with costs.
Db Sampavo A.J.—I agree.
ABDUL CAFFOOR v. PATTUMUTTU