008-NLR-NLR-V-52-PONNA-Appellant-and-MUTHUWA-et-al.-Respondents.pdf
Present: Gratiaen J. and Pulle J.PONNA, Appellant, and MUTHUWA et. al., Respondents8. G. 308-—D. G. Kandy, 1,397
Partition Ordinance—Two adjacent portions of same Hand—Separate ownership—Common boundary not clearly demarcated—Partition action maintainable—-Action for definition, of boundaries—In what circumstances it wiU lie.
A person conveyed by two deels the northern one-third share of his landto the plaintiff and the southern two-third share to the first defendant men-tioning as the common boundary two landmarks which were thirteen feetaway from each other within the limits of the land. Although it would havebeen practicable to demarcate a boundary so as to separate an area represen-ting an exact one-third on the north from an area representing two-thirds onthe south in such a manner that the two landmarks stood on the commonboundary-, this resnlt could have been achieved in an infinite variety of ways.Held, that plaintiff was entitled to bring an action for partition and that an-action for definition of boundaries did not lie.
The common law remedy of an action for definition of boundaries presupposesthe prior existence of a common boundary which has been obliterated by spinesubsequent event. Xt cannot be sought for the purpose of creating on someequitable basis a line of demarcation which had never been there before.
A PPEAXi front a judgment of the District Court, Kandy.
_L. H. de Alvns, with G. C. Niles, for the first defendant appellant.
N. E. Weerasooria, K.C., with 8. Ganagarayer, for plaintiff respondent.
Cur. adv. vult.
November 15, 1949. Gratiaen J".—
This is an action for the partition of the land depicted in the PlanNo. 400 filed of record. It is common ground that" until 13th October,1930, the entire land belonged to Rajapakse who was the father of theplaintiff and the first defendant. On that date Rajapakse executedtwo deeds. By the deed marked 1 D 1 he conveyed to his child thefirst defendant: —
‘ 'All that southern portion being f shares in extent one amunampaddy sowing from and out of the land called Ehelagahamulahena-(presently garden)j of- one Yelamunam, &e., which said southernportion is bounded on the north by the rock and the lolu tree forming*the boundary of the remaining J share of the land, on the east byGalheeriya, on the south by the Gahena of Ukkigehena, and on thewest by the ditch, together with the plantations and everythingappertaining thereto ”..
To the plaintiff he conveyed by the contemporaneous deed P4:—=
“All that northern ^ part or sharer in extent two pelas paddy Sowingfrom and out of land called Ehelagahamulahena (flow a garden) ofYelamunams (6 or 7 pelas) in extent in the whole situate at Galabaw'aaforesaid which said northern -J part’-or shjre being bounded on thenorth Gala, east by Galheeriya, South by the rock on the limit of theremaining § share of this land and lolu tree,‘
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The first defendant disputed the plaintiff’s claim to have the entire-land partitioned on the ground that the deeds 1 D 1 and F4 transferredspecific parcels of land falling within defined boundaries. There is nodoubt that if this be the correct interpretation of the conveyances thopresent action would not lie, as ownership in common ” is a pre-requisite to the institution of proceedings under the Partition Ordinance.Against the interpretation relied on by the first defendant, however,the plaintiff argues that the deeds operated only as conveyances ofundivided shares in the land. The learned District Juclge upheld the-latter view -and – entered an interlocutory, decree for partition’ on theterms sett out in his judgment. The present appeal is from this, decision.
' Certain facts are not in dispute. Bajapakse continued to possess-the entire land until he died in 1933. The rock and the “ lolu ” treereferred to in the deeds stand thirteen feet away from each other within,the limits – of the land, and it. would doubtless have been, practicable todemarcate a boundary so as to separate an area representing an exact,one-third on the north from an area representing % .on the south in such,a-manner that these landmarks stood on the common boundary. Butthis result -could have been achieved in an 'infinite variety of ways. Ti>.point of fact, no boundary had been demarcated or even selected for de-marcation during Bajapakse's lifetime. After he died the first defendanttook possession of the entire property on behalf of himself and the-plaintiff, to whom a proportionate share of the produce was duly handed,over. Apart therefore, from the legal effect of the deeds 1 D 1 and P4,no question of either party having acquired-a title by prescription – to adefined allotment of the land arises for consideration.. The decision inthis appeal turns solely upon the proper interpretation of the deeds to>which I have referred.
In each of the .-deeds three of the boundaries are indicated with sufficientprecision but the fourth boundary, is not so clearly described that itcould be precisely located by reference only to- the language of thedocument itself. Mr. de Alwis contends that in such a situation theproper remedy is to bring an action for definition of boundaries and to>invite the Court to order a demarcation on some equitable basis designedto implement the wishes of the grantor. Certain decisions of this CourtVTArd cited to us, but though they help to elucidate a general principlethe facts in those cases are clearly distinguishable. In Jalaloon v.CaJ&kim Lai 1 two-co-owners had entered into a formal deed of partitionwhereby they agreed to divide the common land, each party possessinga- defined allotment for- himself. The deed expressly provided that theboundai-y separating these two allotments should be demarcated so as-to give effect to thfe proposed partition. It was held that in thosecircumstances either party could seek the intervention of the Court tohave the boundary demarcated "should disagreement arise as to how the:agreement ^should be implemented. The present case is very ; different.There is -no express or implied contractual obligation imposed on eitherthe, plaintiff or the first defendant which the Court could be. invited toenforce. Nor do I think -that the common law remedy of an action fordefinition of boundaries is appropriate. The actio finium regundorum.
19ldr )2 Bal. Notes o Case t 9.. . .–.
only lies for defining and settling boundaries between adjacent owners“ whenever the boundaries have become uncertain, whether accidently -orthrough the act- of the owners or- some third party. (Vote 10.1.1),Maria v. Fernando .Sueh proceedings in my opinion, presuppose the.prior existence of a cqmmon , boundary • which has been obliterated bysome subsequent event. The remedy cannot be sought fox* the purposeof creating on some equitable basis a line of demarcation- which. – had.never been there before. The true basis of the remedy, as in England,is that there is “a tacit agreement or duty between adjacent proprietors-to keep up and preserve the boundaries between -their respective estat&s’(Story on Equity (third edition) p. 259). When confusion arises as ■ tothe precise 'location of the common boundary, the Court enforces ■'aspecific performance of the implied engagement err duty imposed by" thecommon law..-
now proceed to consider the submission that the deeds 1 D 1 and -P4ionly created undivided interests in the larger land in the proportions1specified in. the respective conveyances. In so deciding the learneddistrict Judge purported to follow the ruling of this- Court in Sena’nayaJcev. Selestine Hamine *. Mr. Weerasooriya concedes that • this ’ casC: is; notprecisely in point because the conveyance which was there . interpretedpurported to deal .only with “an undivided eastern portion, in extenttwo acres” of a larger land. In such a deed, as Bertram C.J. pointedout, “It is clearly impossible to give effect to a word of locality intro-duced into a grant of an undivided share, and such a word is in itself ofno legal significance ”.
Were it necessary to lay down any- general principle for the purpose,.of deciding the effect of a deed whei*eby an owner of land purports to>convey to someone a share in it, I- "would say that where the words ofdescription contained in the grunt are sufficiently clear with referenceto extent, locality and other .relevant matters to permit of an exactdemarcation of all the boundaries of "what has beeri conveyed, then thegrant is of a defined allotment..– If-, however, the language is insufficientto permit of such a demarcation, the grant must- be interpreted as-conveying only an undivided share in the larger land. The authorityryhich seems to approximate most closely to the facts of the presentcase is Dingiriamma v. A'ppaihamy 3 where a person had gifted to one ofthe parties “a -f share towards the southern side from and out of” alarger allotment of land. This deed: :vvas held, -for want of sufficientparticularity in x;espect. of metes, and bounds, to convey only an undivided,share in the land."
Applying the test of precision which appears to me to. be called for insuch cases, I. have taken the view -that Itajapakse by the deeds 1 D 1and J?4 conveyed to his two children only undivided; shares in the pro-portions- of j-to J "respectively. It may perhaps .have been his intentionto make a grant of specific allotments of land, but that’ intention cannotbe effectively implemented in' the absence -of a clear, direction, in thedocuments‘as to 'the line of the common boundary contemplated for theproposed* division. Indeed, neither deed’ 'jkould" be capable of dueregistration as an instrument dealing with a divided portion of landbecause the particular boundaries have not been “clearly and accurately■defined” as required by section 14 (2) of the Registration of DocumentsOrdinance (Cap.> 101). Nor would it be possible in a rei vindicatio actionto comply with the provisions of section 41 of the Civil Procedure Codewhich requires the land to be described " by reference to physical metesand bounds
As has been pointed out by Bertram C.J. in Senaizayake v. SelestinaJ3aminethe only remedy available tb a party whose undivided share
has words of locality attached to it is to ask in partition proceedings foran order in the decree that, if possible, the portion allotted to him shouldbe in the direction indicated. This special relief has in fact been grantedto the first defendant by the learned District Judge.
would dismiss the appeal with costs and affirm the decree exceptthat the costs of the contest in the lower Court should be borne by eachparty. The question which arose with regard to the interpretation ofthe deeds was properly raised for the decision of the trial Judge and didnot in any event involve the plaintiff in additional expenditure.
PunuB J.—I agree.
Appeal dismissed.