Lucyhamy v. Perera.
1938Present: Koch and Soertsz S3.
LUCYHAMY v. PERERA et al.
35—D. C. Colombo, 696.
Conveyance—Title to undivided eastern half share—Lend divided—
Misdescription—Effect of deed.
Where a land was amicably divided into an eastern and western halfand possessed as such and the eastern half share was wrongly describedas undivided in a conveyance,—
Held, that the conveyance passed title to the portion possessed as theeastern half share as a distinct corpus.
Fernando v. Podi Singho (6 Ceylon Law Rec. 75) and Senanayake v.Selestina Hamine (23 N. L. R. 481) distinguished.
PPEAL from a judgment of the District Judge of Colombo.
L. A. Rajapakse, for third defendant* appellant.
H. V. Perera, K.C. (with him N. E. Weerasooria), for plaintiff,respondent.
Cur. adv. vult.
1 L. R. (1906) 1 Ch. D. 26.
KOCH J.—hucyhamy v. Perera.
April 25, 1938. Koch J.—
1 think that the learned District Judge has come to a right conclusionin holding that neither the appellant nor her brother, Neris, had everpossessed any part of the western half of Delgahawatta, over and abovethat portion of it which was planted in rubber. To begin with, theway the appellant set about describing her right to anything morerather disproves her possession, of any land beyond the section plantedwith rubber. If she and her brother possessed a strip to the east of therubber, that strip should have been identified and claimed; insteadshe claims 1 rood and 26£ perches which is made up of the differencebetween the extent of the rubber and the extent of half of Delgahawatta;It is true that in 1925 she and her brother in leasing the rubber portiondescribed this as standing on a 5/12 share of the western half, but thisdoes not mean that the lessors were in possession of the remaining 1/12share.
The evidence which has been accepted by the District Judge is thatboth as the result of their father’s wishes and as the portion plantedwith rubber was more valuable than the rest of the land, the appellantand her brother were quite satisfied to take the rubber for their undividedwestern half and to possess accordingly. The division took place in1924, and it may be that the lessors were foolish enough to lease therubber for not too good a value in order to obtain some ready money inadvance, but, however this may be, the appellant and her brotherwould find it almost impossible to escape the effects of documents of asolemn and binding nature to which they were parties. Brother andsister apparently wanted to bring about a division of the rights they heldin common in the western portion, and went to the expense of getting asurvey made in 1928. It is not likely that in doing so they would haveadvisedly allowed a portion of more rights to remain undivided andscattered by having the survey confined to the rubber section; but,assuming they did so, the eastern boundary in the plan P 11 (b) wouldundoubtedly have been given as Delgahawatta belonging to Neris andLucy and not as belonging to Sedris. and Sederis (Abilinu). As thoughtthis were not sufficient between brother and sister, the two went to thefurther expense of entering into a partition deed in 1930. If there wasany error in the plan, this could have been rectified in the deed, but,on the contrary, the recital in the deed is in the clearest language to the:effect that the rubber surveyed' and defined , in the plans P 11 (a) and"P 11 (b) occupied the undivided western half part or share of the land,they were entitled to. I omitted to state that another boundary on theeast of the land depicted in plan P 11 (b) is given as a road reservation’8 feet broad. This is shown on plan P 16, the plan made for the purpose1of this case, as bringing in the portion south of it as part and parcel of thecorpus sought to be partitioned between the planitiff and the first and:second defendants.
On reference to P 10, the deed of conveyance, in favour of Sedris andAbilinu, of the undivided eastern half, it will be seen that a right of cartway over what is described as the eastern half is reserved to the ownersof the western half.
v KOCH J.—Lucyhamy v. Perera.
The District Judge, in weighing the oral evidence, has fully appreciatedthe weight of these documents and has unhesitatingly accepted Hieevidence of Neris, the appellant’s own brother, who disclaimed titleto any portion to the east of his block. This evidence is supportedby that of another brother, Don James, who says that in 1924, all theland to the east of the ditch which was the eastern boundary of therubber section was given to his two brothers, Sedris and Abilinu, as theresult of a family division in 1924. It is true that Sedris, on the otherhand, has been giving evidence in favour of the appellant, but he wasforced to admit that he and his brother possessed on the west of the roadshown in plan P 16. He tried to explain this by saying that the easternportion was not so big as • the western portion. His evidence does notappear to have b€en satisfactory and the learned District Judge has instrong terms disbelieved him and his sister, the appellant. I am ofopinion that there is justification for the Judge’s finding on the facts.
The only other point is one of law. It is contended on behalf of theappellant that under deed P 18 of 1935 Abilinu purported to convey hisright, title, and interest to an undivided eastern half of the land, andthat the plaintiff, therefore, did not gain rights to a divided eastern halfanti much less to the corpus he sought to partition which extended tosomewhat over a half of the land. In support, appellant’s Counsel citeda number of decisions of this Court, each of which I shall deal withseparately.
The first case was that of Fernando v. Podi Singho Here a personwho had prescribed to a part of a land conveyed an undivided share of theWhole land. It was held that the transferee was bound by the terms ofthe deed and that an undivided share only passed, and not that part ofthe land to which the transfer or had prescribed. This case is distinguish-able for what was conveyed was an undivided share of the whole landirrespective of any reference to where that share was located.
The next case is Senanayake v. Selestina Hamine *. Here what wastransferred was an undivided eastern portion of land in extent 2 acres.It was held that the deed did not convey a divided 2 acres. Thiscase is also distinguishable as an undivided eastern 2 acres is too vagueto admit of definite location.
The third case is Dingiriamma v. Appuhamy*. The facts here aresimilar to the. previous case for .what was conveyed was an undividedtwo-third share towards the southern side. This case can be distinguishedfor the same reason.
The last case is Perera v. Temma', where land owned in common wasidividedly possessed, but what was conveyed was an undivided half shareof the whole land. The facts here are similar to those of Fernando v.Podisingho (supra) and the decision can be distinguished for the reasongiven in dealing with that case.
On the other hand, Counsel for the respondent cited the case of MissiNona v. Neimal Hamy° in which Garvin J. held that where land was
1 6 Ceylon Law flee. 73.3 £ C. A. C. 44.
* 23 N. L. R.'481.* 32 N. L. R. 228.
10 Ceylon Law Rec. 159.
Premaratne v. Indasara.
divided by held and possessed for over the prescriptive period the plaintiffby taking a conveyance for an undivided share cannot regard the landas possessed in common and bring an action for a partition.
The facts of the case before us are that the land was amicably dividedinto an eastern and a western half in 1924. Now, an eastern half is forall practical purposes a definite description. It has not the samevagueness as “ a portion towards the southern side ” or “ an eastern2 acres”. It means the actual eastern half and, though the word“ undivided ” has been used in describing that half, in reality it was theactual eastern half as opposed to the western half. Admittedly whatwas possessed by the co-owners of that half was a divided eastern half,but, in possessing that half by arrangement, the- co-owners, Sedris andAbilinu, who obtained that half under the deed in their favour in 1924,were allowed to possess an extra portion over the western boundary ofthat half, so that the eastern half came to be regarded as a certaincorpus which included the whole of the actual- eastern half.
I am, therefore, of opinion that although the deed purported to conveya share in an undivided eastern half, this was a misdescription andwhat was intended to be conveyed, and what legally passed, was a sharein that which was regarded as the eastern half and is represented by thecorpus shown in P 16. The transferor, Abilinu, was called and admittedthat he intended to pass his rights to the whole of this corpus.
Had the corpus depicted in P 16 been confined to an actual dividedeastern half, would not P 1 have given the rights of- Abilinu to thetransferee in that divided eastern half in spite of the eastern half havingbeen described as' undivided? Does it make a difference that thateastern half has been augmented by long possession and that whatwas regarded as an eastern half was something larger than that actualhalf?
The appeal therefore fails and must be dismissed with costs.
Soertsz J.—I agree.
LUCYHAMY v. PERERA et al