( 107 )
Present: Fisher C.J. and Drieberg J.
RATRANHAMY v. SINGHO el al.
148—D. C. Ratnapura, 4,265.
Evidence—Transfer of land—Reference to plan—Lot outside the bound-aries but within plan—-Oral evidence—Intention of parties—Ordinance No. 15 of 1895, s. 97.
Where land, which formed the subject of a transfer,-was describedas lying within stated boundaries and as comprising certain lots ina preliminary plan ; and where the question was whether a lotwhich was outside the boundaries but within the plan was includedin the transfer,—
Held, that the case foil within tho principle of section 97 of thoEvidence Ordinance and that oral evidence was admissible regardingthe intention of tho parties whon they executed the transfer.
^^PPEAL from a judgment of the District Judge of Ratnapura-
N. E. Weerasooria (with Asirimtham), for plaintiff, appellant.
Soertsz (with Samarawickreme), for defendants and addeddefendants, respondents.
November 15, 1928. Fisher C.J.—
In this case the plaintiff brought an action for declaration oftitle to an undivided one-fourth share to certain lands which he claimsto have been transferred to him by a deed No. 1,398 dated October23, 1917. The parcels in the deed are as follows :—“ All that undi-vided one-fourth part of the two allotments of land comprising lotNo. 90 C and lot No. 90 D in P. P. 39 adjoining each other andforming one property appertaining to Dawulkarage Panguwa,situated at Karawita in the Meda pattu of Nawadun korale in theDistrict of Ratnapura of the Province of Sabaragamuwa; andbounded on the north by chenas allotted to Juse Vedarala andEndagala, on the east by Acharigewatta, Aludeniye-ela, Aludeniya,Udukuredola, Udukumbura, Imbulewatta, Udagamawatta, and highroad, on the south by Kudugal-dola, and on the west by boundaryline of Kandewattehenyaya; containing in extent 70 acres.”
The dispute arises as to four lots which form part of lot D inP. P. 39 but lying outside the eastern boundary road. The questionis whether the lots referred to pass under the transfer. Evidencewas led without any objection as to what was in the mind of theparties when they executed the transfer. Evidence was also ledas to the conduct and attitude of the parties after the transfer.
30/1$( 198 )
It is clear from the evidence that if the whole of lot D was conveyedthe eastern boundary is not road, and it is also clear that if theeastern boundary is road the whole of lot D did not pass by thetransfer.
The case therefore seems to me to fall within the principle ofsection 97 of the Evidence Ordinance, 1895, which provides that:“ When the language used applies partly to one set of existingfacts and partly to another set of existing facts, but the whole ofit does not apply correctly to either, evidence may be given toshow to which of the two it was meant to apply.
" A agrees to sell to B ‘ My land at X in the occupation of Y.’A has land at X, but not in the occupation of Y, and hehas land in the occupation of Y, but it is not at X.Evidence may be given of facts showing which he meantto sell.”
The law as to evidence of intention seems to be this, that theparties must be taken to have intended what is to be gatheredfrom the language they used, and that evidence of intention onlyis not admissible. A document must be taken to pass that whichit purported to pass, and that clearly will be the only way of lookingat the matter if the parties to a transfer are dead, subject of courseto evidence of facts properly admissible in evidence.
In the present case it is to be noted that the plan was merelyreferred to and was no part of the document. It is not thereforeon the same footing as the plan in some of the cases cited, forinstance, Eastwood v. Ashton,1 where the plan was endorsed on thedeed and the property conveyed was said to be “ more particularlydescribed in the plan.” In my opinion the evidence given as tooccupation is conclusive as to what is the proper construction tobe placed on this document. The learned Judge in his judgmentsays “The fact that these persons were in occupation is theexplanation why these allotments were excluded from the PartitionCase Kb. 3,660 and support the story of the added defendantsthat they did not sell land lying between the road and the river.”That evidence is evidence of facts showing what was meant to betransferred, and in this connection a passage from the judgment ofLord Parker in Eastwood v. Ashton (supra) is applicable. He says atpages 912, 913 : “ There are, however, numerous cases which showthat the order in which the conflicting descriptions occur is not atall conclusive …. It seems to me that under these circum-stances the court must in every case do the best it can to arrive atthe true meaning of the parties upon a fair consideration of thelanguage used and the facts properly admissible in evidence.”
> (19JS) A. C. 900.
( 199 )
The action of the transferees in not taking possession of the lotsin question indicate that the deed must be construed according tothe boundaries, and not according to a plan which was not appar-ently before the parties. For these reasons I think we cannotdisturb the finding of the learned Judge, and the appeal must bedismissed with costs.
Driebebg J.—I agree.
RATRANHAMY v. SINGHO et al