GOONESEKERE et al. v. PEIRIS et al

040-NLR-NLR-V-28-GOONESEKERE-et-al.-v.-PEIRIS-et-al.pdf


( 228 )
1926.
Present : Branch C.J. and Jayawardene A.J.
GOONESEKERE et al v. PEIRIS et al.
124, 124a—D. G. Kalutara, 10,159.
Rectification of deed—Misdescription of corpus in plaintiff’s deeds—Actionfor partition—Prescription.
Where, on the institution of an action for the partition of land,a misdescription of the corpus and its boundaries in the deeds, uportwhich the plaintiff relied, was discovered,
Held, that the mistake was capable of rectification, and thatfor that purpose the action should be converted into one retoindicatio, to which all the parties to the deeds or their representa-tives should be added-
Prescription begins to run against the party seeking rectificationonly from the date of the discovery of the mistake.
A
PPEAL from a judgment of the District Judge of Kalutara.
The facts are fully set out in the judgment of Jaye-
wardene A.J.
J. S. Jayewardene, for the 4th and 5th defendants, appellants.H. V. Perera, for 6th and 7th defendants, appellants.
Drieberg K.G. (with de Zoysa), for plaintiff, respondent.
January 10, 1926. Branch C.J.—
I have had the advantage of reading the judgment of Jayewar-dene J., and in the very exceptional circumstances of the presentcase I agree that the course proposed by him should be adopted. Ialso agree as regards his order as to costs. There is no doubt thaton the facts before us, including in these facts matters which arecommon ground or are not seriously disputed, the original transferand the subsequent dealings relating to the land called Ambagaha-watte or Wandurugewatte were intended to comprise lots 4 and 5.By a mistake, however, common to both parties the land was givena description, which cannot be said to include lot 5. In other words,transfers containing a very serious and important error were executedby mutual mistake of the parties and the defendants are improperlyseeking to take advantage of that mistake. The error was dis-covered in the course of partition proceedings, and it is not in disputethat relief by way of rectification would not be barred if the periodwithin which such relief may be claimed runs from the time whenthe plaintiffs became aware of the error. Treating the relevantdeeds as rectified to include lot 5, the deeds in their new form will
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operate from the date they were executed and the position of theplaintiffs would thus become unassailable. We have all the factsbefore us, and a grave* injustice would be done if the Court declinedto make an order, such as the one, we think, can and should be made.The contesting defendants rely on purely technical grounds, andwhile I have had a good deal of hesitation in arriving at the con-clusion that we can so drastically reform the case as we propose todo, I am glad to think that the wide powers we possess enable thisto be done.
Jayawardene A.J.—
This is an action for partition. The plaintiff seeks to partitiontwo contiguous lots, 4 and 5, of a land called Ambagahawatte aliasWandurugewatte. The defendants and certain added parties,content that the plaintiff is not entitled to any share in lot 5, andthat the partition should be restricted to lot 4, in which aloneplaintiff is entitled to share on his deeds. The learned DistrictJudge has held that the plaintiff is entitled to shares in both lots, andhas directed their partition. Against this judgment and order the-4th, 5th, 6th, and 7th defendants appeal. In view, however, ofan admission made by the 4th and 5th defendants at the trial, theirappeal has rightly not been pressed. It is common groundthat the land Ambagahawatte alias Wandurugewatte was by apartition deed of the year 1886 divided into 7 blocks among itsowners, that lot 4 was allotted to one Suwaris Appu, lot 5 adjoiningit on the south to one Don Davith Gunasekere Dissanayake, and thatby a deed of the year 1879 Suwaris Appu sold his lot 4 to DonDavith the owner of lot 5, who thereupon became the owner of lots 4and 5. Don Davith died many years ago leaving a widow and sixchildren who became entitled—the widow to a half share andeach of the children to a one-twelfth of the two lots. Three of thechildren, Comelis,Carlina the 6th defendant-appellant, and
Porlent-ina, by deeds executed in the years 1902 and 1904 sold theirrights to Mr. Domingo de Silva. The other children are the 1st,the 3rd defendant (now dead), and the 4th defendant-appellant.The share of the widow was sold by her administrator and purchasedin 1902 by Mr. Domingo de. Silva, who in 1908 sold all the shareshe was entitled to to one Anthonis Arseeularatne, whose daughterand husband in 1913 sold those rights to the first plaintiff. Hetransferred them in 1918 to the second plaintiff, his wife. Theplaintiffs and their predecessors in title had entered into the posses-sion of and possessed a three-fourth share of lotg 4 and 5. In June,1921, they instituted the present action for the partition of lots 4and 5, praying that they be allotted a three-fourth share, the 1stand 2nd defendants one-twelfth and the 4th and 5th defendantsqne-sixth. The defendants filed answer and asked that lot 5 be-
1988.
Branch C. J.
Oooneaekar-v. Petri*
( 230 )
1926*
’ Jayewak-dekr A.J.
Qooneaeherev♦ Peiris
excluded from the partition, on the ground that no rights in thatlot had been conveyed to the plaintiffs. The other heirs of DonDavith~and his wife, the vendors to Domingo de Silva, intervenedand claimed their shares in lot 5, which they said they had nottransferred, and also asked that lot 5 be excluded from that action.It would appear that in all the transfers executed after the death ofDon Davith on which the plaintiffs base their title, the interestconveyed is described as the vendor’s interest in lot No. 4, and thesouthern boundary is given as lot No. 5. So that it is clear that onthe deeds, as they stand, the plaintiffs are not entitled to any shareof lot No. 5, and they are not entitled to rely on prescription becauseat the date of the institution of the action they had not had ten years’possession, and they are unable to claim the benefit of the possessionof their predecessors in title as the transfers in their favour do notconvey a share of lot No. 5. The plaintiffs contend that there hadbeen a mistake in the description of the land transferred; that themistake was common to all the parties to the deeds; that the partiesintended to deal with shares in both the lots Nos. 4 and 5; and thatthey are entitled to have the deeds rectified. It seems to me thatthe vendors did intend to convey, and the vendees intended topurchase rights in both the lots 4 and 5. The plaintiffs and theirpredecessors have been in possession of shares in both lots since thedate of the sales in 1902 and 1903, that is, for a period of over 22vears, without claim or contest by ^fche present disputants. All theheirs, except the 6th and 7th defendants, have admitted thejustice of the plaintiffs’ claim and abandoned their own in favour ofthe plaintiffs. Taking all the facts and circumstances into con-sideration, I think the plaintiffs have satisfactorily proved that amistake has occurred in the description of the corpus and its boun-daries. That being so, the question arises whether the deeds can berectified in this action which is a partition action and whether theclaim for rectification is barred. Mr. Perera, for the appellant, saysthat there are insurmountable obstacles to the plaintiffs’ applicationfor rectification being granted, even if the Court is inclined to do so.T do not think that there can be an}r serious objection to a deed onwhich the plaintiff relies being rectified in the course of a partitionaction, provided all the necessary parties are before the Court if amistake is discovered after the institution of the action. It iscontended that until the deed is rectified the plaintiff would have notitle, and his rights would arise on the deed only after its rectification.Ho that the plaintiff would have had no title at the date of theinstitution of the action, and the action cannot be maintained. Heis said to be in the same position as a cestuique trust who has beenheld is not entitled to bring a partition action until he has obtaineda conveyance from the trustee {Silva v. Silva 1 but see Galgamwoa v.
i (1916) 19 N. L. R. 41.
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Weerasekera 1 and Francisco v. Marihamy 2). It may be that a cestuique trust is not entitled to bring a partition action as he has no title.His title comes into existence only on the execution of the conveyancein his favour. The conveyance has no retrospective effect. Butthe position of a person seeking rectification is entirely different. Adeed when rectified takes effect retrospectively from the date ofthe execution of the rectified deed (Malmesbury v. Malmesbury,3Craddock Bros. Hunt *). As Lord Sterdale M. B. said in the lattercase :—■" After rectification the written agreement …. isto be read as if it has been originally drawn on its rectified from(Johnson v. Bragge *) and it is that written document, and that alone,of which specific performance is decreed.” So that when a deed isrectified it would have the same force as if the mistake had not beenmade, and the party would be entitled to his rights, not from thedate of the rectification, but from the date of the execution of thedeed. Therefore, a plaintiff, when his deed is rectified, would havehad title at the date of the institution of the action and would beentitled to maintain an action for partition.
As regards the question of prescription, the matter is governed bysection 11 of the Prescription Ordinance, and the right to obtainrectification would be barred on the expiry of three years from thetime the cause of action accrued. Mr. Perera contends that thecause of action arose on the execution of the deed containing themistake. That may be so, but where the mistake is not discovereduntil some time after the execution of the deed, I think the cause ofaction arises on the discovery of the mistake. In this case thevendees obtained all they had bargained for, and their possessionwas never disturbed, and the mistake was not discovered until afterthe institution of this action. On the facts of this case no cause ofaction arose until the plaintiff’s title was questioned, and the errorbrought to his notice. In Beale v. Kyte,6 Neville J. said that it wasinconceivable that time could run from the time the mistake wascommitted, and it must run from the time when. the plaintiff’sattention is first called to the error. Under the Limitation Act ofIndia, relief on the ground of mistake is barred on the expiry ofthree years from the time when the mistake becomes known to theplaintiff. (See Article 96 of schedule I. of Act IX-. of 1908.) Theplaintiff’s claim to relief is therefore not barred by limitation.
The plaintiff s difficulties do not, however, end here. The sharesin dispute have devolved on them from two sources and on separateconveyances. One source is the appellant, and the other theadministrator of Don Davith’s widow’s estate. Those parties bytwo deeds transferred their interests to Mr. Domingo de Silva, whotransferred to Anthonis Arseculeratne, whose heir transferred to the
1988.
JaY^WAB-
dbrbAJ.
Oomesokerev. Peiria
i (1919) 21 N. L. R. 108.'■ (1923) 2 T. L. R. 89.
* (1862) 31 Beav. 407.
(1923) 2 Ch. 136. (151,159).6 (1901) 1 Ch. 28 (37).
• (1907) 1 Ch. 564.
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first plaintiff. The transferees on these deeds must be parties to anJXVfiWar- action for rectification, for all the deeds would have to be rectifiedPBfra A.J. before the plaintiffs can succeed in their claim to lot 5. TheseGoonestkere persons or their legal representatives, I do not think, can be madev. PeiHe parties to a partition action. I would therefore convert this actioninto an action rei vindicatio with a prayer for rectification, and directthat Mr. Domingo de Silva or his legal representative be added asparties to the action, and also that the administrator of DonaCatherine's estate be also added, if he is not functus officio.
If, however, the estate has been finally closed, an administrator debonis non would have to be appointed . and joined as a party to theaction. The defendants who have admitted the title of the plaintiffsto their shares in lot 5 and the appellants will be bound by the findingof the Court that they intended to convey lots 4 and 5, and that theplaintiffs are entitled to a rectification of the deeds executed by them,and it will not be open to them to raise those questions again. Ifeel strongly that the justice of the case requires that some suchorder as this should be made in view of the special circumstances ofthis case. There are absolutely 'no merits in the appellants’ claim,and unless such an order is made the plaintiffs run the risk of theirrelief to rectification being defeated by prescription. All the plead-ings, &c., will be stamped as in an action rei vindicatiot for thispurpose the value of a three-fourth share of lot 5 will be taken as thevalue of the relief sought. The plaintiffs will, in the first instance,pay all the stamps fees,. including those payable by the defendants•and added defendants also, if the latter fail to pay them. All the:steps involved in the conversion of the action into an action reivindicatio must be taken within three months of the receipt of therecord in the lower Court, but the Court will grant the plaintiffs suchtime as it considers reasonable to join the parties whose joinder is-directed by this judgment. If the steps required to be taken withinthree months are not so taken, lot 5 will be excluded and the actionwill proceed as an action for the partition of lot 4 only.
The 6th and 7th defendants are entitled to their costs, but theother appellants will bear their own costs of this appeal. All otheroosts, including the costs of the trial already had, will be in thediscretion of the District Judge.
Judgment varied.