GIRIGORIS PERERA, Appellant, and ROSALINE PERERA, Respondent

124-NLR-NLR-V-53-GIRIGORIS-PERERA-Appellant-and-ROSALINE-PERERA-Respondent.pdf


536
NAGA1XNGAM A.C.J.—Girigori* Perero v. Rosaline Pcrera
1982 Present : Nagallngam A.C.J,, Gunasekara J. and Choksy A.J.
GIRIGORIS PERERA, Appellant, and ROSALINEPERERA, Respondent
S. C. 99—D. G. Colombo t 3,640
Partition action—-Transfer of undivided interests in larger land—Vendor entitled in'fact to divided interests in smaller allotment of the larger land—Construction ofdeed—Mistake—Power of Court to give relief—Principles of jusitce andequity—Evidence Ordinance, s. 92, proviso (I).
Held by Gunasekara J. and Choksy A.J. (Nagalmgam A.C.J. dissenting):Where deeds dealing with shares in an allotment of land purport to conveyundivided shares of a larger land ot which the allotment had at one timeformed a part, a Court administering equity has the power, in a partitionaction relating to the allotment, to rectify the mutual mistakes of the partiesin the description of the property, even though no plea of mistake and claimfor rectification is set up in the suit.
PPEAL from a judgment of the District Court, Colombo. Thiscase was referred to a Divisional Bench in view of the conflict' betweenthe decisions in Dona Elisahamy v. Don Julis Appuhamy {1950) 52'N. L. R. 332 and Jayaratne v. Ranapura {1951) 52 N. L. R. 499.
This was an action for the partition of. an allotment of land describedas lot F in a plan made at an amicable partition in 1914. Lot F was adivided portion of a larger land and was assigned to one Kirinelis andanother co-owner in equal shares in lieu of their undivided interests.Notwithstanding the division, Kirinelis by deed 8D1 of 1914 giftedto the 8th and 9th defendants in equal proportions an undivided one-tenth share of the larger land. In 1937, by deed 8D3, the 9th defendantconveyed to the 8th defendant “ an undivided one half of anundivided one-tenth share ” of the larger land although he wasnot in possession of any undivided interests in the larger land and hispossession was confined to the divided lot F. The trial Judge awardedto the 8th defendant a half of the half share of lot F, which representedthe entirety of the interests of the 9th defendant in lot F. In appeal itwas contended on behalf of the 9th defendant that deed 8D3 was effectualto convey only a one-twentieth share of lot F.
Austin Jayasuriya, for the 9th defendant appellant.
. N. E. Weerasooriya, Q.G., with E. S. Amarasinghe and W. D. Thamo-theram, for the 8th defendant respondent.
Cur. adv. vult.
May 28, 1952. Nagalingam A.C.J.—1
This case has been referred to a Divisional Bench in view of thedivergent views • expressed in the cases of Dona Elisahamy v. Don JulitAppuhamy 1 and Jayaratne v. Ranapura 2 as to the effect of deeds conveyingundivided interests in larger lands where the vendors are in fact entitledto divided interests in smaller allotments thereof. –
> 11950) 52 N. L. R. 332.* (1951) 52 N. L. R. 499.
NAGAJjINGAM A.C.J.—Girigoris Perera V. Rosaline Perera
587
This is a partition action, and the point arises for determination inview of the conflicting claims made by the 8th and 9th defendants;they are the children of one Kirinelis who admittedly was entitled to ahalf share of the land called Gorakagahawatte depicted in Plan PIfiled of record. This lot was part of a larger allotment bearing the samename, and at an amicable division effected in 1914 among the co-ownersof the larger allotment was allotted to Kirinelis and another co-ownerin lieu of their undivided interests. Notwithstanding the division,Kirinelis by deed 8D1 of 1914 gifted to the 8th and 9th defendants anundivided one-tenth share of the entirety of the land, which was the correctfractional share to which he was entitled in the entire land,while, as stated earlier, under the division he became entitled to a halfshare of the lot in dispute. . In 1937, by deed 8D3, the 9th defen-dant conveyed “ an undivided one half of an undivided one-tenth shareof the entire land, but it should be noted that the 9th defendant wasnot in possession of any undivided interests in the larger land and thathis possession was confined to the divided lot. The 8th defendantclaims that the deed was operative to convey to her a half of a half shareof the divided lot, which would represent the entirety of the interestsof the 9th defendant in the land sought to be partitioned; whereas the9th defendant contends that the deed is effectual to convey only a one-twentieth share of the land in dispute, though the description ofthe parcel conveyed by him may relate to the bigger land.
The question is what is the interest that the deed in fact conveys. Thisdepends upon a simple construction of the deed, and one has onlyto look to its terms to ascertain what it conveys without letting oneselfbe influenced byextraneous considerations such as those allowable
in the case of a will. Here, the parcel that is conveyed is “an undividedone half of.an undivided one-tenth share ” of the land called Gorakagaha-watte, which is described by metes and bounds and which is said tocontain an extent of land sufficient to plant eight hundred coconuttrees, that is, an extent of about eight acres. Can there be any doubtthat the conveyance is of an undivided one-twentieth share in the largerland ? The description of the interest conveyed is, in the languageof Pereira J., “a perfectly intelligible description ”, and it is the onlydescription of the land in the deed on which the 8th defendant bases her title.But what the 8th defendant desires the Court to do is to read it quitedifferently and to substitute another description which would run asfollows for what is contained therein:“an undivided one half of an
undivided one-half share of the divided part of Gorakagahawatte within-the metes and bounds detailed in Plan PI and of the extent of about oneand a half acres ”. It would be manifest that such a substitution of thedescription of the parcel conveyed will be totally illegitimate and unsup-ported by any known canon underlying the interpretation ofdocuments.'
As observed in the case of Simpson v. Foxon 1, " What a man intendsand the expression of his intention are two different things. He is boundand those who take after him are bound by his expressed intention.”•Construing the deed, which in its terms are clear, unambiguous, and
* (1907) Probate 54.
536
NAG ALINGAM A.C.J.—Gitigoris Perera v. Rosaline Perera
precise, the only conclusion one can come to is that the deed conveyedto the 8th defendant a 1/20 share of the larger land, and if the vendorhad no title to the entirety of the larger land, but title only to a smallerportion of it, the deed can only convey to the vendee the same fractionalshare in the smaller lot, and the deed must be held to be operative onlyto the extent of a 1 /20th share in the lot now in dispute.
It is, however, said that while this would be the correct result on astrict construction of the deed, nevertheless the Court should give effectto the intention of the parties. But “ it is not the functon of the Courtto ascertain the intention otherwise than from the words used in thedeed See Shore v. William 1 and Shelton v. Younghouse 2. And theintention which is being given effect to must be ascertained in accordancewith established principles—R. v. City of London Court Judge 3 andLondon and Indian Docks Co. v. Thames Steam Tug and Lighterage Co. *.Besides, the Court’s powers “ do not extend to making such alterationsas are necessary to bring the document in accord with the Judge’s ideaof what is right or reasonable "—Abel v. Lee s. I do not understandthe use ' of the term ‘ ‘ strict interpretation ’ ’ where a deed employslanguage not obscure but perfectly plain and the construction placedthereon is in accordance with its plain meaning. In such a case yougive neither a strict nor a broad construction. You interpret it simplyaccording to the plain language that has been used, and then it is neithera strict nor a broad interpretation of the words but the one and onlyinterpretation of them. The contention that the intention of the partiesas gathered from facts and circumstances de hors the language of thedeed should prevail is a very slender argument to lean upon, for noauthority can be found that in the absence of ambiguity in the deed evi-dence could be received of the existence of facts and circumstances tendingto contradict or modify the terms of the deed. That the intentionmust be gathered from the words used is a well defined high road alongwhich generations of Judges have travelled, guided by signposts ofnumerous cases, to reach the destination of the real intention of partiesto an unambiguous document that any deviation thereupon would leadthe lone traveller along by-paths into a morass of speculative intentionswherein he would get bogged without any hope of extricating him-self therefrom.
I shall now pass on to a consideration of the various authorities citedand shall first deal with the cases which illustrates the principle that adeed should be construed according to its plain meaning unfetteredby extraneous considerations.
The first case is that of Fernando v. Christina 6 where Pereira J. wasinvited as in the present case to construe a conveyance of an “ undividedfour-sixths of one-third share. of the defined southern portion of Mawata-badawatta ” as conveying the entirety of the divided portion of the landwhich the vendor had possessed in lieu of his undivided interests. Thelearned Judge refused- to accede to the request and held, “ Whatever 1
1 (1842) 9 Cl. <t» Find. 355.* (1909) A. C. 15.
(1942) A. C. 571.6 (1871) L. R. C. P. 365.
(1892) 1 Q. B. 273.* (1912) 15 N. L. R. 321.
NAGALINGAM A.C.J.—Girigoris Perera v. Rosaline Perera
639
fehe parties may have intended to convey, the property in fact conveyedwas an undivided four-sixths of one-third of that portion ”, that is, ofthe divided lot.
The next case to the same effect is that of Bernard v. Fernando 1 wheretoo the vendor who was entitled to two divided lots A and D in lieu ofhis undivided interests in a larger land conveyed a one-fifth share ofthe larger land, and where it was contended that the deed must beconstrued as conveying to the vendee the entirety of the lots A and D.Pereira J., with whom de Sampayo J. was associated, in deliveringjudgment said in emphatic terms: —
” It is, of course, obvious that, having purchased an undividedshare in the entirety, they cannot establish title to the divided lots Aand D.”
A similar view was taken in Fernando v. Podi Sinno 2. In this case•the Court was called upon to construe a deed conveying undividedshares in a bigger extent of land as in fact conveying divided lots towhich the vendors were entitled. Bertram C.J., with whom Jayawardene-J. was associated, repelled the contention and expressed himself thus:
“ If persons who are entitled by prescription of a land persistafter they have acquired that title, in conveying an undivided shareof the whole land of which what they have possessed is a part; andif the persons so deriving title pass on the same title to others, then thepersons claiming under that title, unless they can show that theythemselves acquired a title by prescription must be bound by theterms of their deeds.”
Dalton and Akbar JJ. arrived at a like conclusion in respect of thisquestion in Perera v. Tenna3. The facts here were that the vendorsconveyed an undivided half share of the entire land when in point offact they were entitled to two divided lots D and Dl. The Judgesrejected the argument that the deed must be construed as operating toconvey the divided lots D and Dl.
The next case is that of Mudalihamy v. Appuhamy 4 whereMaartensz A.J. used language which is self-explanatory of the facts. Thelearned Judge said: —
” Having purchased an undivided f share of the whole land,when the execution debtor was entitled to lot A 3 he is only entitled to anequivalent share, namely, § of A 3.”
Dalton J. expressed the same view when he said that the plaintiff “ him-self purchased only an undivided $ share in the entirety, he is entitled asa result to an undivided § share only in the share in severalty ”.
All the cases hitherto considered are cases instituted for declaration oftitle. The last case in this series is one under the Partition Ordinance,
3 (1913) IS N. L. R. 438.3 (1931) 32 N. L. R. 228.
* (192S) 6 C. L. Ree. 73.* (1934) 36 N. L. R. 33.
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XAGALUsGAM A.C.J.—Girigoris Perera c. Rosaline Percnt
and that is the ease of Dona Elisakamy v. Don Julis Appuhamy {supra).That was a case decided by Pulle J. and me. There, to take one of thedeeds dealt with, the conveyance was of a 1/7 of J of 1/12 of a land of 24acres. The vendees claimed a 1/7 of a -J of a divided allotment in extent2 acres, to which divided allotment the vendor’s predecessor-in-titlehad acquired title by prescription. The conveyance was held to beeffective to convey 1/7 of J of 1/12 of the divided extent- of two acresand no more.
It will thus be seen-there is a long series of cases in which the view wastaken that a deed must be construed according to the ordinary connota-tion of the language used in it and the intention ascertained fromthe words employed by the parties.
Now I shall proceed to consider the cases that are said to take a contraryview.
The first of these cases is that of Don Andris v. Sadinahamy 1 decidedby de Sampayo J. and Schneider J. The facts in this case are the converseof what have been considered in the previous cas»". Here the vendor,who was entitled to an undivided share in the land, purported to conveynot his .undivided interests nor even lots allotted to him under a schemeof partition but Icoratuwas or portions which he had possessed for purposesof cultivation. It is to be stressed that there was no contest between theparties as to the proportions in which they were entitled to the land asthe defendants admitted the shares elaime4 by the plaintiff andaccepted the shares allotted to them. The trial Judge on a perusalof the deeds held that as the deed of conveyance in favour of the plaintiffwas for specific portions an action for partition did not lie, and fromthat judgment the case came up in appeal. The Court in these circum-stances felt it could very well decree partition on the basis of the admittedclaims of the parties. No legal principles were discussed, for such acourse was rendered unnecessary in view of the agreement of partiesas to their respective shares, but it is true that de Sampayo J. declaredin that ease: —
“ But if the real intention is to dispose of the interests of the personsin the entire land, this Court has found no difficulty in giving a broadconstruction to such deeds and to deal with the rights of the parties onthe original footing.”_
It is to be observed that counsel has not been able to cite any other caseon similar facts decided prior or subsequent to it.
The next case is that of Fernando v. Fernando 2 which came up beforea Bench consisting of Bertram C.J. and de Sampayo J. This was alsoa case under the Partition Ordinance. Plaintiff claimed a f share andallotted to. the defendant a J share but the. deed of .the plaintiff gavehim a f of the larger land of which the corpus sought to be partitionedwas about half. It was contended on behalf of the defendant that asthe plaintiff’s deed gave him a % of the whole, he could not have more
(1919) 6 G. W. R. 64.
(1921) 23 N. L. R. 483.
NAGATjING-AM A.C.J.—Girigotis Perera v. Rosaline Peseta
541
than a § of- any particular portion of the whole. Bertram C.J., whodelivered the judgment of the Court, took care to say in reference tothis argument, not that it was not good in law but that—
“ the question here is not what is the precise share stated in the deedsof the plaintiff, but in what proportion, as between the plaintiff and thedefendant, is the land to be divided.”
It will be apparent, therefore, that the learned Chief Justicc acceptedthe contention in regard to the construction of the deed as sound butproceeded to decide the case upon other grounds. In fact, that thelearned Chief Justice understood this judgment in this sense is abundantlyclear from his observations in the later case of Fernando v. Podi Sinno-(supra).
Although I have already compendiously stated the point decided inthat case, it is necessary to advert to it a little more fully, to appreciatewhat was laid down in Fernando v. Fernando (supra). Depending uponthe observation of de Sampayo J. in Don Andris v. Sadinahamy (supra)already quoted, the Court was invited to lay down the converse of thatprinciple. The learned Chief Justice in reference to this argumentsaid:
“ That principle was, however, enunciated in a partition action,where it would be conveniently applied. But I do not feel able tO'enunciate the converse of that principle in an action rei vindication ’
He went on to say, and this is what is important:
“ There are other cases in a contrary direction, see Fernando v.Fernando and the cases there cited.”
Now, if Fernando v. Fernando, which was an action for partition, decidedthat a .deed conveying an undivided share in the larger allotment shouldbe construed as conveying the divided interests of the vendor, the casecannot be said to have been decided in a contrary direction to thatof Don Andris v. Sadinahamy (supra); so that it is clear that-even in apartition action, such as Fernando v. Fernando (supra) in reality was,the learned' Chief Justice considered that the view he had taken in respectof the construction of the deed had been in a sense contrary to that laiddown in Don Andris v. Sadinahamy (supra) and that he had adjudicatedupon the rights of parties in that case on other grounds. This case,therefore, cannot be regarded' as an authority for the proposition thatin a partition case" it is permissible to transmute the shares conveying un-divided interests in a larger land into larger shares, fractional orotherwise, of divided portions of it. It is to be emphasised that BertramC.J. himself never attempted the discovery of the intention of the partiesfor the purpose of construing the deed by reference to circumstancesoutside the language used in the deed.
We now come to the last case, decided by Gratiaen J. and Gunasekara J.,namely, that of Jayaratne v. Ranapura (supra). In this case the plaintiffclaimed a 1/6 share of the corpus which was a defined portion of a larger
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NAG ALINGAM A.C.J.—Girigoris Perera v. Rosaline Perera
land by virtue of a deed which conveyed to him an undivided 1/36ahare in the entirety. Gratiaen J. in delivering the judgment of the•Court, after making the observation that:
“ The amicable partition to which I have referred had alreadytaken place, but this circumstance does not seem to have been brought, to the notice of the notary who drafted the conveyance. The interestsof Babanis and Charles ultimately passed, by a series of deeds inwhich various successive purchasers were concerned, to the plaintiffby the deed P 10 of 1947. The evidence establishes very clearlythat each such purchaser in turn possessed, by virtue of his title, theoutstanding 1/6 share of the corpus and made no claim to possess anyinterests in the other allotments comprising the larger land. Un-fortunately, however, as so often happens in loose notarial practice, theshares which Babanis- and Charles and their successors-in-title pur-ported to deal with in their respective deeds were described oneach occasion with reference to the undivided 1/36 of the larger landand not, as they were intended to do, the undivided 1/6 share in thesmaller corpus. The same error was perpetuated in the deed P. 10executed in favour of the plaintiff ”
and purporting to follow what was believed to have been decided inFernando v. Fernando (supra.) held that the plaintiff’s deed should begiven effeect to as if it conveyed a 1/6 share in the divided allotment.
I have said enough already to indicate that it is not permissible todraw an inference as to the intention of the parties by reference toextraneous circumstances, such as that the Notary does not appearto have been apprised of the amicable partition which had taken placeprior to his attestation of the deed or that the successive vendees possessed-a 1/6 share in the defined allotment or that there was an error in the•execution of the deed. Gratiaen J. also further stated:.—
“ I must confess that, if the question was at large, I might findsome difficulty in justifying a departure from the strict rules laid downfor construing written instruments.”
This case must therefore be regarded as having been wrongly decided■and must be overruled.
An undercurrent of thought appeared to prevail during the argumentthat in construing a deed which comes up for construction in a partitionaction different principles from those applicable to a deed in an actionret vindicatio could be applied. I do not think any such distinction•can be drawn, for a partition action is in reality a large number of actionsret vindicatio rolled together, not merely among the parties inter sebut as against the whole world, coupled with a prayer for relief of aspecial kind. The principles of construction in both cases are thereforeidentical.
Before concluding this judgment . I should wish to make one or"two observations in regard to certain ancillary matters.
Tr» the first place, Proviso (1) to section 92 deals with the reception of•evidence on the ground inter alia of mistake but not in regard to ambiguity
NAGAJjINGAM A.C.J.—Girigoris Pcrera r. Rosaline Percra
b4S
in a deed. I need not say that ambiguity is far removed from mistake.Ambiguity is something which is inherent in the language used in thedocument leading to an uncertainty as to what was intended by it.A mistake, on the other hand, deals with an entirely different problem.It proceeds on the basis that the document as constituted is perfectlyclear and plain but that it does nob reflect truly the intent of the partiesto the document.
In the second place, at the argument learned Counsel for the respondentdid not attempt to support the judgment on the ground of either ambiguityor mistake in the deed 8D3, and this f6r good reasons. The deed isprecise and clear, presenting no difficulties of construction, and themeaning is quite plain. Mistake in the execution of the deed was notput forward, for neither in the pleadings nor when the points in dispute-carne to be formulated was any suggestion made that the deed containedan error. The 8th defendant claimed that a i share had been transferredon deed 8D3. The 9th defendant denied the execution of the deed,and there the matter rested so far ns the evidence of the parties wasconcerned. The 8th defendant did not give evidence of any mistake.
In these circumstances it is difficult to see how, without even the9th defendant being given an opportunity of meeting a plea of mistake,the rights to which he would be entitled to after giving full effect to thedeed of conveyance could be denied to him.
The case of Fernando v. Fernando 1 is clearly distinguishable. There,though no plea of mistake was set up, the defendant set up estoppelinstead, an estoppel based on facts which in law did not satisfy therequirements of such a plea, but he relied upon circumstances whichencompassed within them facts from which the existence of mistakecould have been inferred, and the plaintiff was thereby given an oppor-tunity of presenting his case in relation to the facts which constitutedthe ground of mistake, and it is worthy of note that Bertram C.J. said:
“ Strictly speaking, the defendant should have asked for this reliefin his answer and by reconvention.”
I do not therefore think m the present circumstances it is within thepower of the Court, without any proper material before it, and withoutan opportunity being given to the 9th defendant, to take Upon itselfthe duty of pronouncing upon the existence of a non-alleged mistake inthe deed.
Finally, I wish to observe that it cannot be said that the case ofJayaratne v. Ranapura (supra) was decided on any other ground thanthat of the interpretation of the relevant deed, for if it was, therewould have been no conflict between that case and that of Dona Elisahamyv. Don Julis Appuhamy (supra), and the necessity for referring thiscase to a Divisional Bench would not have arisen.
In view of the foregoing, I would hold that deed 8D3 is operativeto convey only a 1/20 share of the land in dispute and that the9th defendant is entitled to the balance of his interests. The decree-would be amended on this basis.
The 8th defendant will pay to the 9th defendant the costs of appealand of the contest in the Court below.
* (1921) 23 N. L. B. 266.
40 – N. L. R. Vol. – Liii
544
UUNASEKARA J.—Girigoris Perera v. Hosaltne Perera
■Gunasekaba J.—
I have had the advantage of reading the draft of the Acting ChiefJustice’s judgment and, if I may say so with respect, I agree with whathe has said regarding the interpretation of deeds. It seems to me,however, that, rightly understood, the controversy with which we areconcerned relates not to the -construction of a deed but to the nature andextent of the Court’s power to give relief against mistake when it appearsthat as a result of mutual mistake the parties have expressed in the deedan intention different from their actual intention.
As for the admissibility of evidence of such mistake it would not becorrect, I think, to state as a general proposition without qualificationthat “ no authority can be found that in the absence of ambiguity in thedeed evidence could be received of the existence of facts and circumstancestending to contradict or modify the terms of the deed ”. In terms of thefirst proviso to section 92 of the Evidence Ordinance, any fact, such asmistake, may be proved which would entitle any person to any decreeor order relating to the deed. The Ordinance itself gives the followingillustration 1: -—
A institutes a suit against B for the specific performance of a contract,and also prays that the contract may be reformed as to one of its provi-sions, on the ground that that provision was inserted in it bymistake. A may prove that such a mistake was made as would by lawentitle him to have the contract reformed.
Under the corresponding provision in the Indian Evidence Act it hasbeen held that in an action for the recvery of land included in an estateconveyed to the plaintiffs by the defendant oral evidence is admissibleto prove that the property in question was included in the conveyanceas a result of a mutual mistake of the parties; and that in such a casea Court administering equity will interfere to have the deed rectifiedso that the real intention of the parties may be carried into effect and willnot drive the defendant to a separate suit to rectify the instrument.Woodroffe and Ameer Alt's Law of Evidence (9th edition) p. $63, citingMohendra v. Jogendra 2. (The report of this case is not available to me.)See also Rangasami v. Souri 3.
A similar view, both as to the effect of the first proviso to section 92of the Evidence Ordinance and as to the powers of a Court to grant reliefagainst mistake, was taken by this Court in the case of Fernando v.Fernando I 4, decided by Bertram C.J. and Garvin J. The plaintiff inthat case had purchased land which was at that time subject to a leasefrom his vendors to the defendant. The parties to the lease had intendedthat it should apply to the whole of the property, but by a mistake in thedrafting of the deed the subject of the lease was described as comprisingonly the southern portion. The plaintiff himself, at the time of his pur-chase, thought that he was buying the property subject to a lease ofits entirety. When he discovered the mistake in the deed of lease,however, he sued the defendant for recovery of the half that was not
1 Section 92, Illustration (e).* {1897) 2 C. W. N. 260.
{1916) 39 Marl.. 792.
(1921) 23 N. L. R. 266.
GUNASEKAKA J.—Girigorit Perera c. Rosaline Perera
545
included in the description of the property leased. The defendantpleaded estoppel. It was held that this plea was misconceived and that“ What the defendant ought to have pleaded was that the lease wasdrawn up in its present form through a mutual mistake of the partiesthereto, and a claim in reconvention ought to have been made that thelease should be rectified so as to represent the true intent and meaningof the parties ; and he should further have pleaded that the plaintiff knewthe true extent of the land leased, and was bound by the same equity ashis vendors. ” The Court held that it had power to grant the defendantrelief upon this footing though he had not asked for it, and dismissed theplaintiff’s action. In his judgment in that case Bertram C.J. oited withapproval the case of Bangasami v. Sour (supra) and another Indiancase, Dagdu v. Bhana *, in which Jenkins C.J. said:
“It is true that rectification is not claimed in this suit as a reliefby the defendants …. but as a Court guided by the principlesof justice, equity, and good conscience, we can give effect as a plea tothese facts, which in a suit brought for that purpose would entitlea plaintiff to rectification.
The case of Jayaratne v. Ranapura 2 was concerned with an instanceof a common form of mutual mistake resulting in misdescription of theproperty dealt with in a deed, where the parties erroneously describeinterests in an allotment of land as a fractional share of a larger estate ofwhich that allotment at one time formed a part. The. action was one forthe partition of an allotment which was one of six lots into which a largerproperty held in common in equal shares by six groups of persons hadbeen informally partitioned by the co-owners, each group of whomthereafter possessed one of the lots exclusively in lieu of their undividedme-sixth share, abandoning their interests in the other lots. Theallotment that was the subject of the action had been possessed in thismanner by the successors in title to one Comelis, who had been the ownerof a one-sixth share of the larger property, and this group had in duecourse acquired title to it by prescription. In 1947 the defendant becameentitled to a 5/6 share of this allotment, representing- 5/36ths of thelarger property which had passed from Cornells to his daughters. Theremaining 1/36 Comelis had transferred in 1908 to two persons namedBabanis and Charles. The interests of these two persons passed throughsuccessive purchasers ultimately to the plaintiff (who acquired them in1947 by the deed P10), and each purchaser had in turn possessed theoutstanding 1/6 share of the allotment in question and had made noclaim to possess any interests in the other allotments. “ Unfortunately,however, as so often happens in loose notarial practice, the shares whichBabanis and Charles and their successors in title purported to deal within their respective deeds were described on each occasion with referenceto the undivided 1/36 of the larger land and not, as they were intended to do,the undivided 1/6 share in the smaller corpus. The same error wasperpetuated in the deed P10 executed in favour of the plaintiff.” Uponthis chain of deeds the plaintiff successfully claimed before the DistrictJudge an undivided 1/6 share of the allotment that was the subject of the
1 {1904) 28 Bom. L. B. 420.* (1951) 52 N. L. B. 499.
J8J- K. B. 69182 (10/57)
546GUNASEKABA J.—Girigoris Perera v. Rosaline Perera
-action. In appeal the defendant’s counsel conceded that “ these notarialinstruments were intended to convey the 1/6 share in the corpus which theplaintiff and his predecessors in title had successively possessed by virtue•of these deeds ”, but he submitted that it was “ not open to a Court togive effect to this intention unless and until the manifest error is correctedby a notarially executed deed of rectification
The appeal was dismissed upon the authority of the decision ofBertram C.J. and de Sampayo J. in Fernando v. Fernando II 1; but ananswer to this argument of Counsel is also provided by the decisionin Fernando v. Fernando 1 2 which too is cited in the judgment of Gratiaen J.and which is authority for the view that where the facts entitle a partyto rectification of a deed a Court administering equity has power to granthim relief upon that footing even though it has not been claimed in the suit.
The case of Fernando v. Fernando II 1 cannot be distinguished fromJayaratne v. Ranapura 3 on the facts. That too was an action for thepartition of an allotment of land that had at one time formed a part ofa larger property. It had been possessed exclusively by a co-owner of thelarger property in lieu of an undivided half share to which he was entitled,and he had acquired a title to it by prescription. His interests ultimatelydevolved on the plaintiff and the defendant. The question for decisionwas whether the plaintiff, whose claim was based on a deed that purportedto convey to him a $ share of the larger property, was entitled to a f shareof the allotment in question or only to a § share of it, and it was held thathe was entitled to a f share. The cases of Fernando v. Christina * andBernard v. Fernando s were cited in support of the contrary view, andBertram C.J. said:
If I understand these cases aright, the principle which they laydown is that a purchaser who acquires an undivided share of a landis only entitled to the same undivided share of any specific portion ofthe land when the partition of that portion is under consideration. Butthat is so where other undivided interests come into consideration.Where, however, two parties have acquired the whole interest of ashareholder in certain proportions, and their deeds describe the interestof such a shareholder as an undivided interest, and it transpires thata specific portion of the land has, in fact, been held by the personthrough whom they both claim as his portion for the prescriptiveperiod, and the question then arises as to the proportion in whichthat specific portion has to be divided, it seems to me that justicerequires that, as between those parties, this specific portion must bedivided in the same proportions as those described in their deeds.”
I respectfully agree with my lord the Acting Chief Justice’s view thatBertram C.J. " accepted the contention in regard to the constructionof the deed as sound but proceeded to decide the case upon other grounds ’ ’.These other grounds were that it had transpired, from evidence outsidethe deeds, that the common predecessor in title of the plaintiff and thedefendant, whose entire interests had been acquired by them in certainproportions, had prescribed to a specific portion of the larger propertyholding it in lieu of an undivided half share, and the question that then
1 (1921) 23 N. L. R. 483.3 (1951) 52 N. L. R. 499. '
• (1921) 23 N. L. R. 266.* (1912) 15 N. L. R. 321.
3 (1913) 16 N. L. R. 438.
GCTNASEKABA J.—Girigoris Perera o. Rosaline Perera
547
arose was “ not what is the precise share stated iii the deeds of theplainidlf, but in what proportion, as between the plaintiff and the*defendant, is the land to be divided In these circumstances it was;held that justice required that the specific portion that represented thecommon predecessor’s half share must be divided between the plaintiffand the defendant in the same proportions as those described in theirdeeds. The result of deciding the case not in accordance with theintention mistakenly expressed in the deeds but upon other grounds, anain accordance with what justice required notwithstanding the terms of thedeeds, was to give effect to the real intention of the parties to the deeds,ascertained from an examination of circumstances outside the instrumentsthemselves. It seems to me that the true explanation of the judgmentsin this case and the case of Don Andris v. Sadinahamy 1 is that suggestedby Gratiaen J. in Jayaratne v. Ranapura 2 when he said (citing the caseof Fernando v. Fernando I 3) that “ the correct solution may lie in thejurisdiction of a Court to rectify, or treat as rectified, documents in which,by a mutual mistake the true intention of the parties is not expressed ”.It is that jurisdiction that enables a Court of law which is also a Court ofequity to make in such cases an order that is in accordance with what“ justice requires ”.
Don Andris v. Sadinahamy (supra), which too was an action for partitionof land, provides an instance of the converse of the case of Fernando v.Fernando IL *. The parties to the deeds that were considered in thatcase had purported to deal with separate allotments into which thecorpus that was the subject of the action had been divided, though theiractual intention (ascertained again from evidence outside the instrumentsthemselves) was to deal with corresponding undivided shares in theentire corpus De Sampayo J., with whom Schneider J. agreed, said:
“It is not uncommon for co-owners to dispose of their interests byreference to particular portions or koratuwas of which they have hadpossession. But if the real intention is to dispose of the interests of thepersons in the entire land, this Court has found no difficulty in givinga broad construction to such deeds, and to deal with the rights of theparties on the original footing.”
The “ broad construction ” that is referred to can only be a process thatinvolves rectification and not merely interpretation of the documents,and therefore an exercise of the Court’s jurisdiction in equity to whichGratiaen J. refers.
Whether relief can be granted on this footing in the case of a mis-description of the kind with which we are here concerned must of coursedepend on the circumstances in which' the question arises. Hence it wasthat in the case of Fernando v. Podi Sinno 5 Bertram C.J., quoting theabove passage from de Sampayo J.’s judgment in Don Andris v. Sadina-hamy *, said:
“We are asked in this case to lay down the converse of that principle.That principle was, however, enunciated in a partition action, where itcould conveniently be applied. But. I do not feel able to enunciate theconverse of that principle in an action rei vindication’
1 (1919) 6 C. W. R. 14.» (1921) 23 N. L. R. 266.
1 (1951) 52 N. L. R. 499.* (1921) 23 N. L. R. 483.
1 (1925) 6 C. W. R. 73.
548
CHOKSX A.J.—Girigoris Perera v. Rosaline Perera .
The case of Dona Elisahamy v. Don Julis Appuhamy 1 was—like the<08868 of Don Andris v. Sadinahamy 2, Fernando v. Fernando II 3 and■Jayaratne v. Ranapura 4—a partition action. The facts of that case.are similar to those of the two last mentioned cases. The corpus sought-to be partitioned had at one time formed part of a larger property andwas approximately l/12th of it in area. The predecessors in title of theparties to the action had been the owners of an undivided l/12thshare of the larger property and had possessed this allotment exclusivelyin lieu of that share and acquired a prescriptive title to it. All thedeeds, however, upon which the parties claimed shares in the corpus thatwas the subject of the action described the shares conveyed as fractionsof the l/12th share of the larger property. The plaintiff, whose deedspurported to convey to him a fraction of that l/12th share, claimedhowever to be entitled to that fraction of the corpus that was to bepartitioned. It was held that he could be allotted only that fraction ofI/12th of the corpus and not that fraction of the corpus. It appears tohave been appreciated that what was claimed by the plaintiff was nomore than what justice required, but the Court appears to have felt thatit was powerless to grant equitable relief. Pulle J., who delivered .thejudgment in that case, said—
" Much as one would wish to give to the plaintiff shares according tohis mode of calculation, the authorities are against him ”,
and he cited the case of Fernando v. Podi Sinno 5 in support of that view.He went on to say:
" I am not unmindful of the fact that certain inconvenient resuitswould flow from the interpretation which I have placed on the deedsas, for example, the unallotted shares might give rise to further disputesand fresh litigation. The parties and their predecessors are entirelyto blame for this situation and I do not think it would be proper tohelp them out of it by construing their instruments of title in a sensecontrary to that laid down by this Court.”
With all respect to the learned Judges who decided that case, it seemsto me that they have taken an erroneous view that the Court had nopower to grant relief against the mistakes of the parties to the deeds thatresulted in a misdescription of the property that was dealt with. Theauthorities, in particular the decision in Fernando v. Fernando II 3 (whichis precisely in point but which is not cited), support the contrary view.
In my opinion the case of Jayaratne v. Ranapura * was correctlydecided. In this view of the law the appeal fails. I would thereforedismiss the appeal with costs.
Choksy A.J.—
In view of the agreement of counsel on both sides at the hearing ofthe appeal before Dias S.P.J. and Gunasekara J., that on the main pointinvolved in this appeal there was a conflict between the decisions inDona Elisahamy v. Don Julis Appuhamy 1 and Jayaratne v. Ranapura *,this appeal was referred by the Chief Justice to a bench of three Judges.
(1950) 62 N. L. R. 332.3 (1921) 23 N. L. R. 483.
(1919) 6 C. W. R. 14.* (1951) 52 N. L. R. 499.
(1925) 6 C. W. R. 73.
CHOKSY A.J:—Girigoris Per era Rosaline Per era
549
' I agree with the view of My Lord the Acting Chief Justice that thethree deeds, namely, 8D1 of 1914, 8D2 of 1933 and 8D3 of 1937 oannot beconstrued as deeds dealing with shares in the smaller land, as, onthe face of them, they purport to deal with different shares in a largerland. The authorities, both English and local, conclude that matter.
■ The first judgment of the District Court, which was set aside pro formaon an application for restitutio-in-integrum made by the present 8thdefendant-respondent, and the judgment of the District Court on the sub-sequent hearing, dealt with the case on the footing that althoughthe deeds of the parties to the action on the face of them purport to dealwith undivided shares in the larger land, the parties in fact intendedto deal with shares in the divided portion of land which from 1914 wasallotted to the original owner of an undivided one-tenth share in thelarger land.
. The land forming the subject matter of this action is lot F in a planmade at the amicable partition in 1914. It is of the extent of 1 Acre1 Hood and 36 Perches, and all the evidence presented to Court was to theeffect that lot F represented the undivided one-tenth share in a largerland, of the extent of 7 acres, which undivided one-tenth share belongedto the common predecessor-in-title of all the parties to this action.
I am satisfied upon a consideration of the evidence led in the case,the basis on which parties presented their respective cases to the lowerCourt, and the basis on which the learned Judge whose judgment is nowunder.appeal dealt with'the matter, that although the deeds dealt withundivided shares in the larger land the intention of the parties was todeal with shares in the smaller land. The only contest has been raisedby the 9th defendant who sought to cling to the literal wording ofthe deeds 8D1, 8D2 and 8D3 and that too at the hearing of the appeal. Evenhis petition of appeal does not raise the point now urged.
I agree with my brother Gunasekara J. that the question with whichwe have to deal goes beyond the construction of the deeds and relatesto the point as to whether the Court can, upon any legal basis, give, effect•to what appears from the material on the record to have been the realintention of all the parties interested in this corpus, including the 9thdefendant-appellant, whenever interests were dealt with upon deedsalthough the deeds undoubtedly do not reflect that real intention.
In is true that in Don Andris v. Sadinahamy 1 the position was madeeasy as both sides prayed that the entire land Be partitioned althoughsome of the deeds dealt with Itoratuwas or divided portions.
It is correct to say that Bertram C.J. in Fernando v. Fernando 3agreed that the deeds had to be construed as giving the plaintiff onlythree-eighths of the whole and the defendant one-eighth of the entire land,but he awarded to the plaintiff three-fourths and the defendant one-fourth of the smaller land because the question was not “ what isthe precise share stated in the deeds …. but in what proportionas between plaintiff and the defendant is the land to be divided ”. Heagreed that the principle laid down in earlier decisions was that “ apurchaser who acquires an undivided share of a land is only entitled
(1919) 6 C. W. R. 64.
* (1921) 23 N. L. R. 483.
660
CHOKSY A.J.—Girigoris Perera v. Rosaline Perera
to the same undivided share of any specific portion of the land when thepartition of that portion is under consideration He, however,points out that in certain circumstances justice requires that the specificportion must be divided in the same proportions as the shares set outin the deeds bear to one another. The shares were left undisturbedas they appeared on the deeds but in dividing the smaller corpus hegave the land to the respective parties in the same proportions which theshare of each bore to the share of the other. As plaintiff got on hisdeeds proportionately three times as much as the defendant got. hegave the plaintiff three timps as much as he gave the defendant.
In the present case the 8th and 9th defendants held their interestsin lot F in equal proportions. By 8D2 and 8D3 all interests of the 9thdefendant in lot F, in the smaller land (or for that matter even in thelarger land), passed to the 8th defendant. Therefore applying thedecision in Fernando v. Fernando 1 the 9th defendant should get nothingand the 8th defendant should get half of lot F as awarded to him by thelearned District Judge in the judgment under appeal. Our Courtsbeing also Courts of equity, Bertram C.J. did that justice between theparties which equity and good conscience required should be donebetween them. It was clear in that case, as it is here, that what theparties intended to do was not what appeared on the face of the deeds,and what appeared on the deeds was not through intention or designbut due to an inaccuracy in description. It is possible that the founda-tion of the order made by Bertram C.J. may be based on another groundthan the jurisdiction of the Court to rectify an erroneous descriptionand make order in accordance with the true intention of the' parties—namely section 96 of the Evidence Ordinance. The deeds here (as there)refer to undivided shares in a larger land which has ceased to exist as aseparate and distinct entity, in the present case 19 years prior to 8D2and 23 years prior to 8D3. See 'Mensi Nona v. Neimalhamy 2. Thesedeeds may therefore be regarded as “ unmeaning in reference to existingfacts ”. The parties were dealing with interests in a land of 1 Acre 1Bood and 36 Perches (which at the dates of these deeds had the metes andbounds depicted on the relative plan) and not with interests in the largerland as it was previous to the amicable division in 1914. If at therespective dates of these deeds the parties to this contest, namely, the8th and 9th defendants, were asked whether they were dealing withundivided interests in.-the larger land their answer would undoubtedlyhave been an emphatic negative.
The identity and integrity of the larger land of 7 acres, as a separateand distinct land, in which Johanis Perera (the common predecessorof all the parties to this action) and others with him had shares—Johanis having only one-tenth—had vanished. Their status as co-owners of that larger land had been put an end to by common consent.The several co-owners of it had cut themselves adrift from one another.The land itself had been fragmented into many lots—up to lot J at least.Therefore, to hold them or any of them as still thinking in terms offractions of the larger land and dealing with those shares, 19 and 23
3 (1921) 23 N. L. R. 483.
(1927) 10 C. L. Rec. 159.
CH0K8Y A.J.—Oirigoris Perera e. Rosaline Petera
651
years later, is to produce an unrealistic result. No doubt one can“ reconstruct ’’ the picture as it was prior to the partition in 1914 butparties in 1933 and 1937 were bent on dealing with a land as itthen existed. When these deeds therefore contained a description of a landof seven acres, and which could not apply to the existing entity, could itnot be said that their language was “ unmeaning in reference to existingfacts *’?
It would be unreasonable to impute to parties an intention which isinconsistent with their whole conduct in reference to the transaction in•question. In his evidence the -9th defendant never said that he intendedto "deal with an undivided half of one-tenth of the larger land. Hepretended that he did not know anything about these deeds which headmitted he nevertheless signed. He also took up the disingenuousposition that his signature was obtained on the footing that he wasconveying the house on this land that is the corpus. He did noteven cross-examine the 8th defendant on the footing that what she wasbuying on 8D2 and 8D3 were interests in an undivided one-tenth shareof the larger land of 7 acres. As I have said, the present contentionwas not even put forward in the 9th defendant’s petition of appeal.
I however do not wish to decide this case on the basis of section 96of the Evidence Ordinance as it was not dealt with in the argumentbefore us although it could be used even perhaps to support the decisionin 23 N. L. R. 483. By applying that decision and holding that the 8thdefendant gets the entirety of the interests of the 9th defendant,one does not rim the risk in this case of " any inconvenient resultsreferred to by Pulle J. in Dona Elisahamy v. Don Julis Appuhamy *.All the interested parties are before Court. No others are affected. Thevendor himself is before Court although he seeks to make an uncon-scientious use of what is after all an erroneous description, unlike thevendor in Ducyhamy v. Perera 2 who frankly admitted the true position.
I agree with the observations of Gratiaen J., quoted by my brotherGunasekara J. from Jayaraine v. Ranapura 3, that possibly “ the correctsolution may lie in the jurisdiction of a Court to rectify or treat as recti-fied documents in which by a mutual mistake the true intention of theparties is not expressed ”. The reference in Don Andris v. Sadinahamy *
to “ the real intention of the parties” by de Sampayo J.
seems to confirm that view.
The question is what is the relief that the Court should grant in thesecircumstances. I am in agreement with the view of my brother Guna-.sekara J. that this Court has power to grant relief against a mistakein the deeds of parties which results in a misdescription of the corpuswhich parties intended to and believed themselves to be dealing with.In that view of the matter I feel that the Court could have granted therelief which was asked- for by the plaintiff in Dona Elisahamy v. Don'Julis Appuhamy s.
I have considered whether the case should be sent back to enable thenecessary plea to be put forward in a formal manner and further pro-ceedings thereon. I do not think it necessary to do so more especially
1 (1950) 52 N. L. R. 332.* (1951) 52 N. L. R. 499.
1 (1938) 40 N. L. R. 232.* (1919) 6 C. W. R. 64.
• (1950) 52 N. L. R. 332.
552
CHGKSY A.J.—Girigoris Perera v. Rosaline Perera
as there has already been considerable delay, including two trials and anapplication for restitutio in between. "I am also influenced in this decisionparticularly having regard to the course which the matter has taken.In her answer in June, 1946, the 8th defendant set up her claim to thewhole of the one-fourth of the 9th defendant to lot F. In his' answerthe 9th defendant, in July, 1946, took up the position that Kirinelisthe father of the 8th and 9th defendants was entitled to an undividedhalf of the corpus (not an undivided half of one-tenth, of the larger land)and that on 8D1 of 1914 he got half of Kirinelis’ interests and that the9th defendant had been in possession of one-fourth of the corpus soughtto be partitioned, that is lot F and not the larger land, since 1914, andclaimed prescriptive title to one-fourth of the corpus. It is true that hepleaded that 8D2 and 8D3 do not refer to the corpus and stated furtherthat these two deeds were not acted upon but he led no evidence onthese points at either trial.
In Fernando v. Fernando 1 this Court granted rectification withoutany plea asking for it and without sending the case back despite the factthat the lessor upon the lease which was treated as rectified by theAppeal Court was not even a party to the case, whereas we have boththe vendor and the vendee before us and it is the vendor who has putforward a claim which is “ thoroughly unconscientious
In Ooonesekera v. Van Rooyen *, Jayawardena J. held that a deed onwhich the plaintiff relies could be rectified in the course of a partition actionprovided all the necessary parties were before the Court if a mistakein the deed is discovered after the institution of the action, as was thecase here also. In the circumstances of that case he converted a partitionaction into an action for declaration of title because certain parties who werenecessary to the rectification were not before the Court and could not bemade parties to a partition action. Even in sending it back he made itclear that the appellants who had absolutely no merits were to be boundby the finding of the Appeal Court that they had intended to conveytwo lots instead of one and that plaintiffs there were entitled to a recti-fication and that it would not be open to the appellants to raisethose questions again as a result of the case being remitted to the lowerCourt. I do not think it makes a difference that here it is the deed of thedefendant that is being treated as rectified. In the absence of circum-stances justifying a remission to the Court below, I am not prepared tosend the case back.
I agree that the appeal should be dismissed with costs.
Appeal dismissed.
» (1921) 23 N. L. R. 266.
(1926) 7-C. L. Rec. 88.