WUE iKWAKDEXE J.—Ja-yawardene and Mai aka.
1944Present: Howard C. J. and Wijeyewardene J.JAYAWARDEXE, Appellant, and AIALAKA, Respondent.
55—D. C. Badulla, 7,270.
Deed—SaleonaFiscal’s conveyance—Falsa demonstrationonnocet-—Appli-
cation cj maxim.
Plaintiff claimed a small strip of land and the house standing thereonon aFiscal’sconveyance,which conveyed to himcertain premises
together with the buildings standing thereon, within certain well-definedboundaries, marked lot 45in theplan.Theevidencedisclosedthat
there were buildings on the land, which had come down hut that thehouse claimed by plaintiff was outside lot 45.
Held,thattheplaintiff wasnot entitled to claim' the houseand that the
maxim falsa demonstratio non nocet did not apply to the facts of the case—-
“ Where the description ismade ofmorethanone partand onepart
is truebuttheother false,then if the part which istruedescribes the
subject with sufficient legal certainty, the untrue part will be rejectedand will not vitiate the devise; the characteristic of cases within therule being that the description so far as it is false applies to no subjectat all, and so far as it is true, applies to one only
A PPEAL from a judgment of the -District Judge of Badulla^.
S. Nadesan, for defendants, appellants.
C. V. Ranawaka, for plaintiff, respondent.
Cur. adv. vult.
October 13, 1944. Wijeyewaedese J.—
This action was instituted to obtain a declaration of title to a smallstrip of land of the extent of 5.5 perches and the house standing on it.The District Judge held that the plaintiff was “ not entitled to the landas it was the property of the Grown but was entitled to the house on it”.The defendants .appeal against that judgment.
Several years ago, one Appuhamy purchased a half share of 3 acres2 roods 13 perches of Koloman Kandurutenne. Appuhamy sold a dividedlot 200 feet by 100 feet and that lot has devolved on the plaintiff who isnow in possession of lot 46 in plan X which is given in that plan as of theextent of 1 rood 33 perches. That would be the correct extent of a lot200 feet by 100 feet. The remaining interests of Appuhamy devolvedon Juan Naide who conveyed them to his wife, the first defendant, andPunchiappu, one of his sons. By bond P 11 of 1926 the first defendant andPunchiappu mortgaged with Barnis Silva two properties: —
a portion of land called Galapitiyagodapatana, and
a half share of “ Koloman Kandurutenne in extent 3 acres2 roods 13 perches (exclusive of portion of this land in extent 200feet in length and 100 feet in breadth) bounded …. on thesouth by road reservation …. together with the buildingsstanding thereon ”.
The bond was put in suit and at the sale held on September 16, 1939,in satisfaction of the mortgage decree, W. H. Perera purchased the first
WUEYEWAItDENE J,—Jayawardene and Malaka.
property and the plaintiff, the second property. The plaintiff, thereafter,obtained his Fiscal’s conveyance P 5 of 1939. The mortgage decree,the sale notice and the Fiscal’s conveyance follow bond P 11 in describingthe property purchased by the plaintiff.
The extent of the land conveyed to plaintiff by P 5 is found on com-putation to be 1 acre 3 roods 6.5 perches. That is the exact extent of lot45 in plan X. The southern boundary of the land is given in P 5 andthe connected document® as the road reservation, and the remainingboundaries given in these documents are the same as the Northern,Eastern and Western boundaries of lot 45 as shown in Plan X. These"facts prove beyond doubt that the property mortgaged by th,e firstdefendant and Punchiappu and ultimately purchased by the plaintiffdoes not include the road reservation. It was also admitted by theplaintiff's Counsel at the trial that “lot 48 stands on Crown reservation’’.There can be no doubt that by lot 48 Counsel intended to refer and did,in fact, refer to the building in question. The plaint itself refers inparagraph 8 to the building as the building “shown as lot 48”. It is,therefore, clear that the building in question is not claimed by theplaintiff as standing on the land purchased by him. The plaintiff'sclaim to the building is put forward on two grounds: —
that the defendants are estopped by their conduct from question-ing the plaintiff’s right to the building;
that by an application of the principle of falsa demowstratio nonnooet the house in question may be taken as included among the“buildings” mentioned in P 5.
There is a conflict of oral evidence with regard to what happened at thesale. The plaintiff’s witness, W. H. Perera, state® that the defendants“ did not say that the buildings had not been .included in the mortgage ”.In cross-examination he says, “ The Fiscal’s Officer asked the firstdefendant whether she had any objection to the sale but she did notreply This evidence cannot help the plaintiff. The defendantscould not and would not object to a sale of the mortgaged propertyand the evidence of Perera does not .show that the defendants were awarethat the Deputy Fiscal was intending to include in his sale a buildingnot standing on the mortgaged property. The plaintiff gives moredefinite evidence on the point. He states that the Deputy Fiscal toldthe defendants that he would .sell the building in question and that thedefendants kept quiet. The plaintiff’s evidence has to be read, however,in the light of what happened afterwards. W. H. Perera and theplaintiff arranged to take possession of their lands on January 13, 1940.Perera went to his land with the Fiscal’s Officer and took possession ofGalapitiyagodapatana without any trouble. The plaintiff, however,brought with him a Sub-Inspector of Police and a Constable in his carto help the Fiscal to put him in possession of the land purchased by him.He has not explained why he thought it necessary to get the assistanceof the Police, if the sale took place without any protest as deposed toby him. The Fiscal's process server gave evidence in chief supportingthe plaintiff. He is clearly a partisan witness. He did not hesitate to saythat the mortgage decree referred to a building with “a tagaram roof”
WUEYBWAEDEKE J".—Jay any ar dene and Malaka.
and thereby try to establish beyond ail doubt that the plaintiff boughtat the sale under mortgage decree the building £h question which isadmittedly a building with a “ tagaram roofIt was only on the
production of the mortgage decree that he admitted that no buildingwith “ a tagaram roof ” was mentioned in the decree. Moreover, in cross-examination he admitted that “ the Deputy Fiscal did not speak to thedefendants on the day of the sale”. The first defendant who gaveevidence said that the Deputy Fiscal did not tell her that he was sellingthe house. The most material witness for the plaintiff would have beenthe Deputy Fiscal who conducted the sale but he was not called to giveevidence. It is impossible to say that the evidence led by the plaintiffshows# that the defendants were aware at the time of the sale that theDeputy Fiscal was proceeding to sell a building which he had no authorityto sell and that the defendants knowingly permitted the plaintiff to bidfor and purchase the property. The conduct of the plaintiff after thesale supports on the other hand the suggestion of the defendant’s Counselthat the plaintiff who was aware that he had not, in fact, bought thebuilding at the sale, desired to take possession of the building and henaturally anticipated trouble and took the unusual step of going with thePolice to obtain possession of the property. I hold against the plaintiffon the first point.
With regard to the second point it has to be noted that the bond P 11and the conveyance P 5 describe the land mortgaged with greatexactitude. The boundaries and the extent leave no doubt that theland conveyed to the plaintiff is lot 45 and does not include the roadreservation. Does the reference to “ buildings ” help the plaintiff ?This would depend partly on the answer to the further question, “ Werethere any buildings on lot 45 at the time of the bond in 1926 ? ’ ’ The firstdefendant’s case is that there were two manna thatched buildings onlot 45 which came down, later. The plaintiff and his witness undertaketo say that there were no such buildings in 1926. The evidence does notshow how they were so interested in the mortgaged property in 1926as to have noticed the non-existence of thatched buildings at somedistance from the * road. Undoubtedly, the mortgagee Barnis Silvawould have been interested in the property in 1926 as he was giving a loanbut the plaintiff has not called Barnis Silva as a witness. Moreover, thecase presented by the plaintiff is that there was only one building andthat was the house in question. Confronted with the difficulty ofexplaining why in that case the bond P 5 referred to buildings one of theplaintiff’s witnesses tried to meet it by saying that ” buildings ” werementioned as the building in question consisted of four rooms. If therewere two thatehed buildings in 1926 as asserted by the defendants thereference to buildings in P 5 would be quite in order.
I do not think that this is a case to which the maxim of falsa demonstra-tio is applicable. That maxim when stated fully rnads, Falsa demonstra-tio non nocet cum, de corpore constat. The significance of this maxim is setout in Broom’s Legal Maxims thus: —
“ Where the description is made up of more than one part, and one
part is true, but the other false, then, if the part which is true describes
the subject with sufficient legal certainty, the untrue part will be
HOWABD C.J.—Amarasuriya and Don Elaris.
rejected and "will not vitiate the devise; the characteristic of caseswithin the rule being, that the description, so far as it is false, appliesto no subject at all, and, so far as it is true, applies to one only”.
Now the description in this case refers merely to “ buildings ” on acertain land that could be identified clearly as lot 45. There is no furtherdescription given of the “ buildings Clearly the house in question'does not stand on lot 45. Moreover, according to the defence there weretwo thatched buildings on lot 45 at the time of the mortgage. Therefore,there is no part of the description “ which is true ” describing the housein dispute with any ‘‘legal certainty”. I hold against the plaintiffon the second point also.
I set aside the judgment of the District Judge and direct decree o beentered dismissing the plaintiff’s action with costs here and in the Courtbelow.
Howard C.J.—I agree.
JAYAWARDENE, Appellant and MALAKA, Respondent