DE KRETSER J.—Kumarihamy v. Maitripala.
1942Present: Heame and de Kretser JJ.
KUMARIHAMY v. MAITRIPALA.
257—D. C. Ratnapura, 8,589.
Conveyance—Conflict between the recitals and the operative part—Operativepart prevails.
Where there is a conflict between the operative part of a deed ofconveyance and the recital, the terms of the operative part prevail.
^^PPEAL from a judgment of the District Judge of Ratnapura.
N. Nadarajah, K.C. (with him M. D. H. Jayewardene), for defendant,,appellant.
N. E. Weerasooria, K.C. (with him Kurukulasooriya), for plaintiff,respondent.
Cur. adv. vult.
June 22, 1942. de Kretser J.—
The plaintiff brought this action claiming one-sixth of a field calledIhalabatadombayaye-Kumbura and one-sixth of a high land calledBatadombayayewatta alias Ihala Batadombayayewatta by inheritancefrom her brother David, who had died issueless, leaving him survivinghis widow Susan, and three sisters.
The trial Judge held that plaintiff was not entitled to the high landon the ground that, while both lands formed part of a Nindagama,the paraveni nilakarayas’ rights in the field alone had passed to Davidand the high land had escheated to the Nindagama, coming therebyto the landlords.
The defendant appeals.. The plaintiff has acquiesced in the declarationregarding the high land.
In 1914 the plaintiff’s only daughter, Victorine, had married E. S.Dassanaike, Barrister-at-Law. A few days before the marriage theplaintiff had gifted a large number of lands to the prospective bride andbridegroom on D 1. The relevent portions of this deed are as follows: —“ Whereas under and by virtue of the last will and testament ofDon Moses Tillekeratne, Mudaliyar, …. I, the said grantor,am the owner and seized and possessed of all the' lands, houses and
154DE KRETSER J.—Kumarihamy v. Maitripala.
premises described in the Schedule hereto annexed …. NowKnow Ye that …. do hereby give, grant, convey, make overand confirm unto the said grantees …. as a gift or donationinter vivos all the shares of the said lands …. and all myestate, right, title, interest, property, claim and demand whatsoeverfrom, in, out of and upon the said premises. ”
The Schedule conveys one-third of 35 lands, the first being Walauwe–watta, the tenth being an undivided half share of Kitulpe Ninda-gama …. excluding all the chena lands situated in the village,and the 35th the whole of the chena lands in the village then the subject-matter of a partition case.
Batadombayayewatta had reverted to the landlords and Moses wasentitled to half. The trial Judge probably would have held that D 1had conveyed this land to the donees as part of lot No. 35 or of lotNo. 10. In fact he held only that David had no right to it and thereforeplaintiff had no right. As regards the field he held that inasmuch asplaintiff had gifted only what she got from her father therefore the rights•which she derived from her brother remained intact- In other words,he made the introductory recital govern the whole deed."
Apart from the recitals the conveyance was in wide and unrestrictedterms and it is admitted would have conveyed to the donees all the•donor’s rights in the field. It is admitted that Walauwewatta belongedto David and not to the father, and it is the first land mentioned. Thedonees had litigated for Walauwewatta successfully on the strength of. the conveyance and plaintiff was aware of it. Quite clearly she hadnothing to do with the field in question and it was the donees and theirsuccessors in title who possessed it. Recently gems were found and aspeculator tried to claim rights to the field. Thereupon one WillieGooneratne informed plaintiff of her rights and this action followed.Willie Gooneratne is said to be the F. W. Gooneratne who gave evidencefor plaintiff and who was married to her sister. His wife and defendant- obtained the licence to gem and he said his wife was entitled to one-sixth and defendant to five-sixths. There had been trouble betweenhim and the defendant and he had had to sue defendant.
Apart from the law, the deferidant had quite clearly acquired a little, "by prescriptive possession; the evidence is all one way. The trialJudge dealt with this aspect of the matter very shortly and said thatplaintiff had allowed Susan to- possess her rights and it was only afterSusan conveyed to defendant that any prescriptive possession began., He has forgotten that although plaintiff did attempt to give this explana-tion she had to admit “ I dont know whether Susan possessed at all.Until Willie Gooneratne told me I did not know who possessed this land.I don’t know whether Dassenaike or my daughter possessed this land ornot.” …. “I. don’t claim any share of Kitulpe .Nindagama
I was prepared to give Mr. Dassenaike whatever'he asked for. ”
But while the action might be decided on this ground alone it is alsoclear that the grantor of D 1 was not confining herself in any wayby the recital I have previously mentioned, and that she meant whatshe said when she conveyed all her right, title, and interest in air the landsforming the Nindagama, from whatever source derived.
DE KRETSER J.—Kumarihamy v. Maitripala.155
Mr. Weerasooria ingeniously suggested that when she conveyed herrights in the Nindagama she could only be held to convey the landlord’srights as that is what the language meant. It is perhaps some such ideathat the trial Judge had when he says the high land reverted to theNindagama.
Now the Nindagama is a gama or village in which a certain tenureobtains by which tenants or nilakarayas obtain a perpetual usus onperformance of services (now commuted) and in which their rights aretransmissible and so closely resemble full dominium that they are calledparaveni nilakarayas. But every land in the village, whether belongingto the tenants or the landlord, forms part of the Nindagama. It cannotescheat to it but rights in it belonging to the tenants may escheat to thelandlord. When, therefore, a grantor conveys rights in a Nindagamahe conveys such rights as he has whether as landlord or as tenant or asboth. Besides, D 1 is quite clear, for all the lands in the village exceptthe chenas form item No. 10 and the chenas form item No. 35.Nothing having been excluded, this field was clearly included in item 10.Now in this field, as in Walauwewatta, Moses had no rights and Davidhad rights. If the plaintiff had any but the vaguest idea of the sourceof her rights, then she blundered badly right at the very outset regardingWalauwewatta.
It is conceded that if there be a conflict between the recitals and theoperative part of the conveyance, the terms of the operative part shoulddecide the question-. There is such a conflict regarding Walauwewattaand if there be a similar conflict regarding this field the operative part ofthe conveyance should succeed. It was to avert this difficulty thatMr. Weerasooria attempted to argue that there was no conflict inasmuchas a conveyance of the Nindagama meant only conveyance of the land-lord’s rights ; in this case the rights plaintiff inherited from her father.I cannot agree. In point of fact the plaintiff inherited from her fatherone-eighth, as she herself says, and from her brother David one-third ofone sixteenth or a total of seven forty-eighths of the landlord rights, andit was from David that she inherited one-sixteenth of the nilakarayas’rights.
There are many reported cases dealing with analogous situations.In Senathiraja v. Brito1 Schneider J. dealt with the argument that thetrue intent of the parties was to be gathered from the recitals and thatthe recitals should be regarded as controlling and limiting the operativepart of the instrument. He said “ It is a well settled principle of con– struction of an instrument that the recitals are subordinate to theoperative part, and consequently when the operative part is clear it istreated as expressing the intention of the parties and it prevails over anysuggestion of a contrary intention afforded by the' recitals. It iswhen there is a variance between the recitals and the operative, part,or when the operative part is ambiguous, that recourse can be had to therecitals for explaining the operative part. ” Schneider J., who wasquoting from paragraph 803 of Volume X of Halsbury’s Laws ofEngland (1909), seems to have departed slightly from what is there-stated when he brought in a variance between the operative part and the
> 4 C.L. Bee. 149.
Sirisena v. Mohottiappuhamy.
recitals. He probably meant an ambiguity, creating what looks like avariance, or he was referring to a case where the operative clause wasin such general terms as to be vague and in conflict with specific detailsdn the recitals. Halsbury quotes a number of English cases, and amongthem is the case of Alexander v. Crosbie where, in a marriage settle-ment, there was a recital of the settler’s intention .to convey all his estateexcept the lands of B and its sub-denominations, and there was in theoperative part a specific conveyance of K, one of the sub-denominationsof B, and it was held that K passed. This case is quoted as authorityfor the proposition—“ Parcels in a deed described with certainty are notcut down by recitals showing that something less was intended to pass. ”In D 1 the parcels are described with certainty arid the recital cannotaffect the title which passed.
In Podi Singho v. Podi Menika where V was entitled to rights bothby inheritance and by purchase and where he sold claiming to be entitledonly by inheritance, his conveyance was held to pass title to both sharessince the operative clause did not limit, the share to one obtained byinheritance.
In Wickremesinghe v. Ensohamy2, where A owned rights both byinheritance and by purchase and donated the rights he obtained onpurchase and mortgaged all his rights claiming to be entitled by inheri-tance and the mortgage prevailed, de Sampayo J. said : “ The generalprinciple appears to be that if a person sells a specific thing, even thoughthe source of his title is mistakenly stated, his title, however derived,passes to the purchaser. ”
Besides, in D 1 there was a further recital to the effect that the donorwas desirous of donating the lands, houses and premises mentioned in theSchedule. She therefore meant to give the shares she donated but thoughther title to them was by inheritance from her father. The operative partsays in effect—“ all my right, title, and interest in one-third- of half of allNindagama. ” It is clear and the assistance of the recitals is not needed.
The appeal is allowed, the decree entered is set aside, and plaintiff’saction is dismissed with costs both in this Court and the Court below.Hearne J.—I agree.