142-NLR-NLR-V-47-COSTA-et-al-Appellants-and-REITH-Respondent.pdf
Costa v. Reith.
400
1946Present: Keuneman S.P.J. and W1Jeyewardene J.COSTA et al., Appellants, and REITH, Respondent.
201—D. C. Kandy, 589.
Deed of rectification—Retrospective effect—Date of execution is that of theoriginal deed—Prescription.
Where a deed is rectified by a subsequent deed it is to be read as ifit had originally been drawn in its rectified form. The date of execution,for the purposes of prescription, is that of the original deed, even thoughthe deed of rectification is executed during the'pendency of the actionfor declaration of title in respect of the subject-matter of the deed.
PPEAL from a judgment of the District Judge of Kandy,
This action was brought by the plaintiffs on August 30, 1941, for adeclaration that they were entitled to a half share of the estate known asSpringhill. The defendant claimed this property under a deed of sale,D 30, of March 15, 1932. The vendors in D 30 intended to convey bythat deed two properties, but the description of the parcels was onlyapplicable to one of the properties and did not include Springhill. Thedefendant obtained from his vendors a deed of rectification, D 47, datedSeptember 20, 1941.
In regard to the plea of prescriptive possession raised by the defendantit was urged for the plaintiffs that defendant’s possession only datedfrom the time of his deed, D 30, namely March 15, 1932, and that tenyears had not elapsed at the date of action, namely August 30, 1941.It was contended that the defendant could not add to his possession theperiod of prescriptive possession by his vendors for the reason that atthe date of the plaint he had not obtained his deed of rectification and socould not be regarded for the purposes of this action as the successor intitle to his vendors.
N. E. Weerasooria, K.G. (with him H. W. Jayewardene), for the plaintiffs,appellants.—A deed of transfer of land to a partnership as such operatesas a transfer to the members of the partnership (vide Norton on Deedsp. 195). The title to the land was therefore in the names of the 4 partners,i.e., the two plaintiffs and Ponniah Peries and Stanislaus Costa. Thedefendant asserts that the land ceased to be partnership property and wasassigned to Ponniah Peries and Stanislaus Costa as their separate property.The onus of proving that was on him (vide Seyyado Ibrahim Saibo v.Jainambeebee Ammal *) and he has wholly failed to discharge that burden.The property was included in neither the deed of partition between thepartners nor in the transfer by Ponniah Peries and Stanislaus Costa tothe defendant. It has been suggested that it was omitted by errorbut there has not been even an attempt to rectify the deed of partition.The attempted rectification of the deed of transfer (D 30) is no rectificationas there is no evidence of mutual mistake. One cannot rely on thei (1939) 41 N. L. R. 297.
18—xuvu.
1J.N.A 63632-688(8/46)
410
KBUNEMAN S.P.J.—Costa v. Reith.
recitals in the alleged deed of rectification to that effect as the grantorshave not given evidence. Further the deed of rectification was obtainedafter the institution of the action.
[Wijeyewardene J.—What is the effect of a deed of rectification ?]
It would be binding on the parties to the deed of rectification. Itmay also be binding where parties to an action have derived title from thesame source, as in Fernando v. Fernando1. In Ooonesekere v. Periea8it was held that a deed of rectification takes effect retrospectively fromthe date of the rectified deed. In none of these cases has the questionbeen considered whether such a deed would operate retrospectively topass the benefit of possession short of the prescriptive period. Thedefendant has not possessed for 10 years on his own. Further thedefendant could not prescribe against us at all because (1) we are co-owners,
he was in possession as our agent and there was no overt act of ouster.On D 29 our agreement was for the purchase of the interests of PonniahPeries and Stanislaus Costa in Springfield. Admittedly the defendanthas been transmitting monies to India of which the plaintiffs were givena share. We say this was in respect of the income of Springfield.
H. V. Perera, K.G. (with him N. K. Gholesy and B. D. Gandevia), forthe defendant-respondent was not called upon but referred to Malmesburyv. Malmesburys, Craddock Bros. v. Hunt*, and United States of America v.Motor Trucks, Ltd.*.
Cur. adv. vult.
September 17, 1940. Kettneman S.P.J.—
This action was brought by the plaintiffs on August 30, 1941, for adeclaration that they were entitled to a half share of the estate known asSpringhill of about 64 acres. The plaintiffs alleged that the premises inquestion were by Fiscal’s Transfer No. 10 of April 29, 1916 (P 1) trans-ferred to Joseph Costa & Brothers of Matale Town, the partners of whichfirm at the time of P 1 were the two plaintiffs and Ponniah Peries andStanislaus Costa, the brother-in-law and brother respectively of theplaintiffs.
The defendant alleged that in 1920 by P15 the partnership firm acquiredthe estate known as Longville and that about 1923 the two estatesLongville and Springhill were amalgamated and treated as one estateunder the name of Longville estate and that at the time of the dissolutionof the firm of Joseph Costa & Brothers in 1924, Longville estate includingSpringhill was at the distribution of assets allotted to Ponniah Periesand Stanislaus Costa, and that the deed D 28 of September 2, 1926, wasexecuted to achieve that object; and that by D 30 of March 15, 1932,Ponniah Peries and Stanislaus Costa conveyed the whole of Longvilleestate including Springhill to the defendant.
It appears, however, that both in D 28 and in D 30 the description of theparcels was only applicable to Longville estate and did not- includeSpringhill. As regards D 30 the defendant obtained from his vendors a
1 (1921) 23 N. L. R. 266.* (1862) 31 Beave i 407.
■ (1926) 28 N.L. R. 228.* (1923) 2 Ch Civ. 136,
6 (1924) A. C. 196.
KBUNEMA2T S.P.J.—Coala v. Reith.
411
deed of rectification D 47 dated September 20, 1941, but the deed D 28has not been rectified. The defendant also pleaded that he had obtaineda title by prescription to Springhill.
After trial the learned District Judge dismissed plaintiffs’ action, andthe plaintiffs appeal.
Counsel for the appellants Btrongly contested the finding of theDistrict Judge that it was proved by the defendant that at the distributionof assets Springhill was allotted to Ponniah Peries and Stanislaus CoSta.The District Judge himself found that the defendant was obliged to relyentirely upon document D 25 to establish this part of his case. TheDistrict Judge has subjected this document to a detailed examinationand has concluded that this document established the allegation thatSpringhill was allotted to Ponniah Peries and Stanislaus Costa. D 25 wasundoubtedly in the handwriting of the first plaintiff himself, but heexplained that this document was merely a suggestion made by him at anearly stage of the negotiations and did not represent the final settlement.The first plaintiff’s evidence has not been accepted, but the fact remainsthat the defendant was not able to furnish evidence that D 25 was thefinal settlement as to the distribution of assets. Neither Ponniah Periesnor Stanislaus Costa has given evidence, and the defendant himself wasnot acquainted with the facts. There are also certain other matterswhich tell againstthe District Judge’s finding, for he himself drew attentionto the fact that the values of the properties shown in D 25 and D 28 arenot.in agreement and said further that “ the two plaintiffs got in additionto what was allotted to them under D 25 further assets to the value ofRs. 57,041 -50.” I may add also that in D 25 Longville estate includingSpringhill appears to have been allotted to Ponniah Peries alone andnot to him and Stanislaus Costa. On the whole, I am not satisfied thatthere was sufficient evidence before the District Judge to establish theallegation that Springhill had been allotted to the defendant’s vendorsat the distribution of assets at the time of the dissolution.
The District Judge also appears to have held that at the time of theacquisition of Springhill the only two partners of the firm of JosephCosta & Brothers were Ponniah Peries and Stanislaus Costa, and that thelegal title to Springhill estate vested in them alone. I do not think itwas open to the Judge to come to this conclusion in view of the pleadingsin the case and of the absence of any evidence to support the finding. I
I may add that it was not necessary to call upon respondent’s Counselon these points because the case could be decided on the issue of pre-scription. There is very strong evidence that since the purchase ofLongville the two estates have been amalgamated and administered asone estate and that the amalgamated estate has for a long period beenknown as Longville estate, and that Springhill has been known asSpringhill Division. Since the dissolution of the partnership in 1926,Ponniah Peries and Stanislaus Costa have been in possession of theamalgamated estate as owners and have dealt with the income from it.In point of fact the produce of the amalgamated estate has been dealtwith by the mortgagees of Longville who have applied the income to theliquidation of mortgage debts due in respect of txmgville. On no
412
KETTNEMAN S.P.J.—Costa v. Reith.
occasion have accounts been asked for or obtained by the plaintiffs inrespect of Springhill, and in my opinion the explanation given by thefirst plaintiff that the four partners desired to keep the property incommon so as to provide for “ Costa Town ” or for the building of achurch has been rightly rejected.
Another strong point against the plaintiffs is that they by D 29 ofJanuary 18, 1931, agreed to purchase from the defendant’s vendorsboth Xiongville and Springhill of about 500 acres—the joint acreagewas in fact about 468 acres. I think this amounts to a clear acknowledg-ment by plaintiffs that they had no title to Springhill and that the titlewas at the time vested in Ponniah Peries and Stanislaus Costa. I amunable to accept the suggestion of the first plaintiff that the plaintiffswere merely agreeing to purchase Longville and the share of Springhillof the two others. It is in evidence that the deed was read over to theplaintiffs and that they were able to understand what the deed con-tained. This is at any rate a good starting point for prescription, andthe subsequent possession of the defendant’s vendors was exclusive andadverse to the plaintiffs. I do not think there can he any question thatfrom the date of his purchase in 1932, the defendant has been in exclusiveand adverse possession.
I also think the further inference may fairly be drawn from thedocument D 29 read in conjunction with the rest of the evidence thatsince 1926 the defendant and his vendors have been in prescriptivepossession of Springhill as against the plaintiffs.
It has been argued by Counsel for the appellants that there are certainfacts which tell against this view. He referred first of all to the documentP 9 whereby the plaintiffs as well as the vendors to the defendant leasedSpringhill estate bungalow to Mr. Gibb on November 8, 1930, andargued that at the time all the four persons were regarded as owners ofSpringhill. I have considered the explanation given by the DistrictJudge and am inclined to the view that the argument based upon P 9 isinconclusive. As the learned District Judge further points out, theagreement P 29 was entered into after the date of P 9.
Another point urged for the appellants was that the possession by thesecond plaintiff of the block known as the Post Office Buildings wasantagonistic to the claim of the defendant. That these buildings stoodon Springhill and that second plaintiff took the income of these buildingsis clear. But I agree with the finding of the District Judge that thePost Office Buildings were treated as a separate unit independent of theestate proper and that the second plaintiff has now acquired a prescriptivetitle thereto. In any event these buildings have now been excluded fromthe scope of this action. Had the second plaintiff kept this block as andfor his share in Springhill it would have been natural for him to concede ahalf share of it to defendant’s vendors. This he has not done.
The further point has been urged for the appellants that defendant’spossession only dated from the time of his deed D 30, namely, March 15,1932, and that ten years had not elapsed at the date of action, namely,August 30, 1941,. It was contended that the defendant could not add tothis the period of possession by Ponniah Peries and Stanislaus Costafor the reason that at the date of the plaint he had not obtained his deed
Millen v. MiUen.
413
of rectification, D 47, and so could not be regarded for the purposes of thisaction as the successor in title to these two persons. It was argued thatthe subsequent deed of rectification was of no avail to the defendant.
I do not agree with this contention. In Malmesbury v. Malmesbury 1it was held that “ after …. rectification a court of law willtreat the settlement as in that form from the earliest period.” In Crad-dock Bros. v. Hunt2, the Court of Appeal held that after rectification thewritten agreement does not continue to exist with a parol variation ;it is to be read as if it had originally been drawn in its rectified form.”See also the decision of the Privy Council in United States of America v.Motor Trucks, Ltd. 3 The same principle has also been accepted inCeylon, see Ooonesekere v. Pieris *. I hold that in view of the deed ofrectification, the defendant was vested with his vendors’ title to Spring-hill, not at the date of the rectification but from the date of the originaldeed to him, namely, March 15, 1932, and that the defendant could fromthis date regard himself as the successor in title to Ponniah Peries andStanislaus Costa and also avail himself of any prescriptive possessionby these two persons.
In the result I hold that the defendant and his predecessors in titlehave been in prescriptive possession of Springhill since the date of thedissolution of the partnership in 1926, or in any event since January 18,1931. More than ten years have elapsed before action brought and thetitle of the plaintiffs has been extinguished.
The appeal is dismissed with costs.
Wueyewabdehe J.—I agree.
Appeal dismissed.