024-NLR-NLR-V-47-RAMANAYAKE-Appellant-and-NAGAPPA-CHETTIAR-et-al-Respondents.pdf
HOWARD C.J.—Ramnnayrikc v. Nagappa Chettiar.
65
1946Present: Howard C.J. and de Silva J.
RAMANAYAKE, Appellant, and NAGAPPA CHETTIARet al., Respondents.
365—D. C. Kegalla, 1,523.
Construction of deed—Conveyance of property—Plan contradictory of words ofdescription—Insufficient description of the property conveyed—Rule ofFalsa deraonstratio non nocet.
The rule Falsa deraonstratio non nocet is not applicable in a case wherenot only the plan attached to the deed of conveyance contradicts thetext but also there is no adequate and sufficient definition with con-venient certainty of what was intended to pass.
yy PPEAL from a judgment of the District Judge of Kegalla.
N. Nadarajdh, K.C. (with him D. W. Fernando), for the defendant,;appellant.
H. V. Perera, K.C. (with him Nt E. Weerasooria, K.C.,and. T. Nadarajdh),for the plaintiffs, respondents.
Cur. adv. vull.
February 12, 1946. Howard C.J.—
The facts are set out in the judgment of my brother de Silva and afterdue consideration I agree with the conclusion at which he has arrived. Iwas inclined at first to think that this was a case in which the rule “ Falsademonstratio non nocet ” applied. Authority for this rule is to he found inthe case of Llewellyn v. Earl of Jersey x. In this case Baron Parke statedthe rule as follows :—
“ As soon ak there is an adequate and sufficient definition, with con-venient certainty, of what is intended to pass by a deed, any subsequenterroneous addition will not vitiate it according to the maxim falsademonstratio non nocet ”.
This rule was applied in the Privy Council case of Home v. Struben2in which Lord Robertson in giving the judgment of the Courtstated that their lordships considered that assuming, as appears to be thecase in regard to the western boundary, that the diagram contradicts theunambiguous text of the title, it must give way to the text. If, however,the facts in the present case are examined, it is impossible to say that thereis an adequate and sufficient definition with convenient certainty of whatwas intended to pass. The basis of the plaintiffs’ title is P8, the mortgageby Ramanayaka the husband of the defendant. In this deed the propertyis described as consisting of 5 lots specified by different names with separateboundaries. After these 5 lots have been described the schedule to thedeed states as follows :—
“ All of which lands adjoin each other and now form one propertycalled and known as Yakebehenayaya estate, situate at Kehelwatugoda1 152 K. R. 767.* {1902) A. C. 454.
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HOWARD C.J.—Ramanayake v. Nagapfa OheUiar.
aforesaid and bounded on the east by Ela, south by a fence, rock and landclaimed by natives, Mala Ela, and Walawwewatta and on the north byland claimed by natives containing in extent forty-nine acres and tworoods (A 49. R 2. P 0) according to the plan and survey made by C. D.Jayasinghe, Special Licensed Surveyor, dated May 24, 1923”.
So, first of all there is a description of the property mortgaged by referenceto 5 blocks specified by different names with separate boundaries. Thenfollows what purports to be a description of the same lands by referenceto a consolidated block with a distinct name and boundaries accordingto a plan and survey made by G. D. Jayasinghe dated May 24, 1923. Mr.Direckze, the Surveyor, was on April 24, 1942, issued with a commissionto identify the lands in dispute. The 5 blocks were referred to by name,but only the boundaries of the consolidated block were given. In hisreturn to this Commission Mr. Direckze said that the chenas referred to byname in the land sold to the plaintiffs now form part of the NarangalaEstate. The plan issued in the Commission is not a survey of land in thatestate, but refers to land situate at Batuwatte village called the Kiridene-kande estate and claimed by Mrs. W. Nugawela. A second commissionwas issued to Mr. Direckze and on August 28, 1942, he made a furtherreport. In this report he states that he surveyed the Yakambehenayayaestate comprising the 5 blocks specified by name. That the portion sur-veyed formed part of the Narangala estate and, as given in the commission,is in Kehelwatugoda. That the boundaries given in the commission andthe plan are of a different land the location of which he found to be inBatuwatte village. A third commission, issued to him on November 23,1942, was reported on by Mr. Direckze on December 8, 1942. In thiscommission the Surveyor was asked to go to the lands with the defendant’splans and locate in a plan the lands represented in those plans and the landsalready surveyed and the 5 chenas which comprise the land claimed by theplaintiffs in accordance with an amended schedule. The Surveyor wasalso asked to show in the plan the consolidated land as described in theschedule to the plaint. In his report Mr. Direckze has delineated on aplan the 5 chenas as pointed out to him by the persons who accompaniedhim. He says that the extents differ in acreage and the boundaries do nottally with those given in the schedule to the plaint. He is unable to locate-the chenas mentioned in the schedule to the plaint with either the titleplans handed to him by the defendant’s or the plaintiffs’ proctor. Theboundaries of Yakambemukalana differ from the schedule. The landsurveyed by Jayasinghe is 60 chains to the west of the land pointed out.Mr. Direckze testified in evidence to the same facts as appeared in hisreports. Moreover the persons who pointed out the blocks when hemade his surveys also gave evidence. From this evidence it is impossibleto say that the blocks claimed by the p’aintiffs are defined with suchcertainty in the latter’s title deeds that the rule falsa demonstratio nonnocet applies, and that Jayasinghe’s plan can be ignored. Mr. Direckzecannot locate the chenas mentioned in the plaint by reference to theplaintiffs’ title deeds. Moreover the boundaries of Yakembehenayaya,the consolidated block, differ from the boundaries mentioned in the plaint.The extents and boundaries of the separate blocks as pointed out on the
DE SILVA J.—Ramanayake v. Nagappa Chetiiar.
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ground also differ from those given in the plaint. The description of the5 chenas in P 6 and P 8 cannot be-reconciled with that of the consolidatedblock in the same deeds. The case of Eastwood v. Ashton 1 thereforeapplies. In that case Lord Lorebum said “ I do not think that any rulerequires us first to examine the letterpress and then to discard the planif we think the letterpress alone is sufficiently clear. The whole should belooked at and it may be that the plan will show that there is less clearnessin the text than might appear at first sight ”. He held that the otherdescriptions in the deed under consideration in that case wereinaccurate and the one accurate guide was to endorse the plan. Thejudgment of Lord Sumner is also very much in point when the facts ofthis case are considered. At p. 915 he states that the deed purports toconvey parcels described in four different ways which he specifies. Atp. 916 he further goes on to say that if several different species ofdescription are adopted, risk of uncertainty arises, for if one is full,accurate and adequate, any others are otiose if right, and misleading ifwrong. Conveyancers, however, have to do the best they can with thefacts supplied to them, and it is only now and again that confusion arises.The present was, His Lordship thought, a case of such confusion and apretty tangle it was. At p. 917 he states as follows :—
“ The result is that whether the descriptions by name, acreage, andoccupation are taken together or taken singly, the description soconstituted is the very opposite of that to which the rule in Llewellyn v.Earl of Jersey 2 applies. Hence the fourth description, that by theplan, must be taken account of ”.
Eastwood v. Ashton was followed by the Ceylon Divisional Bench inSaminathan Pillai v. Dingiri Amma 3 where it was held that:—
“ A reference to a wrong locality in the description of a land doesnot take away from the effect of a deed if the land affected by the deedis sufficiently described in a plan
It seems to me that-the words of Lord Sumner are peculiarly appositeto the present case. The descriptions by name, boundaries and acreagewhether of the parcels as a consolidated whole or in separate blockspresent a confusing picture of indefiniteness. The only accurate guidewas the plan which purports to convey property which is not specifiedin the plaint and not moreover in the possession of the defendant.
For the reasons I have given I agree with my brother de Silva that theorder of the District Judge must be set aside and judgment entered forthe defendant with costs in this Court and the Court below.
de Silva J.—
This is an appeal by the defendant against a judgment of the DistrictCourt of Kegalla declaring that the plaintiffs are entitled to the landdescribed in ,the amended schedule to the plaint. The plaintiffs insti-tuted this action for a declaration of title to all those five allotments of
'1915 A. O. 900.
•39 N. L. R. 325.
'll M. 4k W. 183.
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DE SILVA J.—Ramanayake v. Nagappa Chettiar.
land called and known as Kurukosgahamulawatta, Yakambehena, Mora-gollehena, Etinawefcichchagalagawahena and Ambagahamulahena adjoin-ing each other and now forming one property called and known asYakembehenyaya estate, situated at Kehelwatugoda in Gandolaha pattuof Beligal korale in the District of Kegalla and for damages against thedefendant, who was alleged to be in wrongful possession, in a sum ofRs. 600 up to May 18, 1943, and Rs. 25 a month thereafter together withcosts.
The defendant filed answer stating that the plaintiffs were seeking to bedeclared entitled to a part of Narangala estate which belonged to her andshe set out her title to that estate. Thereafter three commissions wereissued to Surveyor Collin Direckze to survey the land'in dispute. He madea return to the first commission on May 8, 1942, without making a planas according to him he found that the chenas mentioned in the commissionformed part of the land called Narangala estate of about 144 acres andthat the lands shown in the plan attached to the commission weresituated at Battuwatte village and formed part of Kiridena Kanda estate.In his return to the second commission he stated that he proceeded to thespot with one Weerappa Chettiar, who represented the plaintiffs, andsurveyed the land which was a coconut estate with coconut trees about20 years old with a few rubber trees of about the same age, and that oninquiry from the Conductor of the estate for its name he was informedthat the whole of the estate, including the portion surveyed, was calledNarangala estate. He added that the boundaries given in the commissionand the plaint were of a different land, the location of which he foundto be in a different village, Battuwatte. He attached plan P 1 to hisreturn showing the boundaries of the land claimed as Yakambehenyayaestate. This plan did not show the five separate lands as the plaintdid not give their boundaries. Thereafter the plaintiffs obtained a deedof rectification (P 18) from their vendor showing the boundaries of thefive lands, amended the schedule to the plaint and reissued the com-mission to the Surveyor to enable him to locate the lands on the plan.The Surveyor then made a return on December 8, 1942, attaching planP 1a which showed the land as comprising five lots, A, B, C, D, and Ewhich purported to show the five lands. Though the commissiondirected the Surveyor to show the lands covered by the title plans of thedefendant, which had been sent to the Surveyor by the defendant’sProctor, he omitted to show them as no representative of the defendantwas present at the survey.
If the plaintiffs were not speculative purchasers they would haveascertained the identity and the title of the lands which they werepurchasing and would have been in a position to state what lands theyactually purported to purchase, but the plaintiffs have led no evidenceto show whether they inspected the lands prior to their purchase and if sowhat lands were inspected by them.
At the trial issues were framed and certain evidence was led and thelearned Judge held that the plaintiffs were entitled to the land shown inplan P 1a and awarded them damages as agreed upon. The defendantappeals against this order. It was contended that the land to which theplaintiffs have been declared entitled was entirely different from the land
DE SILVA J.—Romanayake v. Nagappa Chettiar.
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conveyed to them on their deed P 17 dated April 17, 1940, and deed P 18dated November 7, 1942, that the location and the extents of the fivelands were incorrect and that the land shown in P 1 was dearly a portionof Narangala estate which was owned by the defendant on a title ulti-mately derived from the Crown.
It is necessary to examine the terms of deed P 17 to determine whatthe parties intended to convey. It seems clear that what was intendedto be conveyed was the property called and known as Yakambahenyayaestate with the boundaries and extent according to the plan and surveymade by C. D. Jayasinghe, Special Licensed Surveyor, dated May 24,1923, and registered in E296-146. The reference to the five allotments ofland seems to have been made to enable the original title to this estateto be traced. This is a subsidiary description whioh does not affectmaterially the land conveyed by the dead for even if the words hadmerely been “ all those allotments of land now forming one pro-perty ….”, the deed would have been effectual to convey theconsolidated land. The evidence of the witness Collin Direokze showsthat there is a property as described in the deed and the plan at Battu-watta, about 60 chains from the land shown in plan P, 1. Battuwattais a village adjoining Kehelw&tugoda, so that if the village limit of Kehel-watugoda was the same as it is at present at the time when SurveyorJayasinghe made his plan there would be a falsa demonstratio with regardto the situation of the land and the description that it was situated atKehelwatugoda will have to he ignored (see case of Saminathan Pillai v.Dingiri Ammo,1). The circumstances in winch Jayasinghe appears tohave made his plan gives every indication that it was a genuine planmade at a time when the owner was in possession of the land. If the casehad stood as it was presented to Court by the original plaint it is clearthat the plaintiffs were bound to fail. They therefore obtained fromtheir vendor a deed of rectification in which the boundaries and extent ofthe five allotments of land were stated along with the description ofYakembahenyaya estate which appeared in deed P 17. I do not thinkthat this additional description of the allotments makes any substantialdifference to what was intended to be conveyed by the parties. Theproperty conveyed still remains Yakembahenyaya estate. The totalarea of this estate is not the same as the total areas of the five allotmentsof land, nor does it appear that the outer boundaries ofthe five allotmentsas located by the plaintiffs correspond with the boundaries of Yakemba-henyaya estate. As the two descriptions are inconsistent the deedmust be regarded as conveying what the parties really intended toconvey. Counsel for the respondents contended that as the plan wasinconsistent with the clear words describing the land conveyed theplaintiffs were entitled to reject the plan as a falsa derronstratio and wereentitled to rely on the description of the five allotments of land. Herelied on the case of Home v. Struben 2. In my opinion this ease has noapplication as the words describing the land Yakembahenyaya is con-sistent with the plan. What the plaintiffs seek to discard is not merelythe plan but also the material words of description given in the deed,
1 39 N.L.R. 325.
* 1902 A.O. 454.
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TJE SILVA J.—Ramanayahe v. Nagappa Ohettiar.
but even assuming that the plaintiffs can disregard the description ofYakembahenyay a estate as given in their deed and rely on the conveyanceof the five allotments of land, thenthe position would be that the plaintiffswould be obliged to restrict their claim to the five separate allotments ofland according to their description and extents because the statementthat they form one property or that such property has the boundaries orextent given in the deed is rejected.
The total extent of the five allotments is 7 amunams which is equivalentto 24 acres or at the most to 35 acres. It is therefore obvious that theplaintiffs cannot retain the decree by which they have been declaredentitled to an extent of 48 acres 1 rood 18 perches according to planNo. 1,141 dated August 26, 1942. The plaintiffs did not on their deedsobtain title to this area ot 48 acres 1 rood 18 perches as depicted in theabove plan No. 1,141.
What I have stated above would be sufficient to dispose of the appeal.I would however consider whether the plaintiffs have established theirclaim to any portion of the land depicted in plan P 1. The evidenceshows that no serious attempt was made to determine the exact situationor boundaries of each allotment of land. The Surveyor admits that thefive divisions shown in plan P Ia do not correspond with the extents orboundaries of the five allotments of land. An examination of thedocumentary evidence leaves very little doubt that these five allotmentsmust fall outside the boundaries depicted in P Ia.
The deed P 3 by which Tikirikumarahamy conveyed a half share ofthese allotments of land tcMadduma Kumarahamy shows that as far backas 1879 Kurukosgahamulxwatta was conveyed along with the plantationsthereon (see P. 24). Th# deed P 4 dated September 2, 1911, shows thatit was conveyed along with the buildings standing thereon (see P 28).These documents clearly show that Kurukosgahamulawatta was aplanted land with buildings as far back as 1911, but the evidence oalledin this case shows that the land now identified as Kurukosgahamulawattawas in jungle at the feme when the land shown in P 1 and the remainderof Narangala estate were eleared and planted by the witness Theobald.The evidence does not refer to any buildings or plantations which wereon the land Kurukosgahamulawatta though reference is made to 3 jaktrees. If in fact Ihe witnesses had any definite knowledge of the landKurukosgahamulawatta they should have known what happened to theplantations and biildings and how the land reverted to jungle.
If the location of Kurukosgahamulawatta is not correct it seems tofollow that the location of the other lands also cannot be correct.
There is an alternative method of testing whether these five allotmentsof land can fall within tho boundaries of the land shown in P 1. PIdepicts part of the lands which the witness Theobald acquired and plantedon his agreement No. 402 dated December 27, 1922, and April 19, 1923,(D 12). These lands were claimed by Tikirikumarahamy, WilliamNugawella and Robert Nugawella as forming part of Narangalahenyaya-hena of an extent of about 144 acres. This agreement contemplated asubsequent lease after the parties had obtained Crown Grants. CrownGrants were in fact obtained by Tikirikumarahamy and she entered into
JAYETILEKE J.—Saram Appuhamy «. Jtannie.
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the lease D 13. The various title plans referred to in D 13 cover anextent of 144 acres 2 roods 8 perches. These title plans refer to theallotments of land in respect of which they were issued and an examina-tion of these names shows clearly that the five allotments of landmentioned in the plaintiffs’ deeds are not included in the lands in respectof which the Crown Grants were issued. The only land which has someresemblance to one of the lands mentioned in the plaintiff’s deed isYakambamukalana but this is different in name and extent from Yak-ambahena with which the plaintiff’s deeds deal. As the total extentshown in P 1 is covered by the Crown Grants it is clear that the landsmentioned in the plaintiff’s deeds cannot fall within PI. In thecircumstances the other issues raised do not arise.
I would therefore allow the appeal with costs and set aside the decreeof the District Court.
Appeal allowed.