091-NLR-NLR-V-39-SAMINATHAN-PILLAI-v.-DINGIRI-AMMA-et-al.pdf
Saminathan Pillai v. Dingiri Amnia.
325
1937Present: Soertsz J. and Fernando A.J.
SAMINATHAN PILLAI v. DINGIRI AMM-A et al.
134—D. C. Kurunegala 12,482.
Deed—Description of land—Reference to wrong locality—Accuracy of plan.
A reference to a wrong locality in the description of a land does nottake away from the effect of a deed if the land affected by the deed issufficiently described in a plan.
^ PPEAL from a judgment of the District Judge of Kurunegala.
N. E. Weerasooria (with him H. A. Wijemanne), for added defendant,appellant.
H. V. Perera, K.C. (with him E. B. Wikramanayake), for plaintiff,respondent.
S.W. Jayasuriya, for second defendant, respondent.
326
FERNANDO A.J.—Saminathan Pillai v. Dingiri Ammo.
May 28, 1937. Fernando A.J.—
This was a partition action, and the plaintiff asked for a partition oflots F, FI, and I in plan No. 1,194, on the footing that half of' that portionof land belonged to Tennekoon Mudianselage Punchi Banda, Korala,who has also been referred to in the record as Megolla Korale. TheKorala died intestate leaving his widow Ukku Amma, and five children,one of whom is Dingiri Amma the first defendant. Bandara Menika,Podi Menika, Muttu Banda, three of the Korala’s children, and thewidow Ukku Amma conveyed their rights to the plaintiff. The plaintiffalso claims to be entitled to the remaining half share of the land onpurchase from five persons named' in paragraph 5 of his plaint, who, hesays, were the owners of that half share.
The tenth added defendant who is the appellant alleged in his answerthat lots A and B in plan No. 398 were the property of Dingiri Amma,daughter of the Korala, on deed No. 34,330 marked 10d3 from theKorala, and that Dingiri Amma mortgaged ther same lots to the appellantand that in execution of a decree entered against her on that bond, thesaid lots were sold, and purchased by the appellant. He also claimedtitle to one-fifth of the land called Leeniyagollemakulagahamulahena,also referred to in the plaint, on the footing that Dingiri Amma wasowner of that one-fifth and that one-fifth had also been sold against heron the mortgage decree.
When the trial came on, on March 30, 1936, it appears to have beenagreed by all the parties that the land to be partitioned consisted of lotsF, FI, and I in plan No. 1,194. Another plan No. 425 was also producedand it is stated that that plan represents what was claimed by the addeddefendant who is here referred to as the third defendant, and it appearsto have been admitted that lots F, FI, and I take in the whole of lot Aand the land to the north of lot A, whereas, lot B is not included in F,FI, and I. Proctor for the appellant contended that lots A and B inthat plan belonged to his client, and lot B having admitted to be hisproperty that lot A should be excluded from the partition. He alsocontended that whatever the Court found to be the land to be partitionednorth of lot A the appellant claimed a one-fifth share. )
’* The learned District Judge held that the deeds in favour of the appellantwere for 7£ lahas kurakkan sowing extent of Paragahamulahena, situatedin the village of Lindapitiya, whereas the plaintiff’s deeds were forParagahamulahena, situated in the village of Wewagedera, and that thequestion for decision was whether lot A is a portion of Paragahamulahenain the village of Wewagedera or of Paragahamulahena in the village ofLindapitiya. He then proceeded to record evidence, and himself in-spected the land, and after that inspection, he came to the conclusionthat the village limit between Wewagedera and Lindapitiya was theindefinite line marked in red between lots A and B in plan 425. On thisfooting he held that the appellant’s deeds could not apply to lot A whichwas in Wewagedera village, and that Liniyagollehena, a share of whichwas also claimed by the appellant, lies to the north of lot A, and to thenorth also of the land sought to be partitioned.
FERNANDO A*J.—Saminthan Pillai v. Dingiri Ammo.327
Counsel for the appellant argued that it was clear from the' evidencethat the Korala possessed lots A and B, and after his death these lotswere also possessed by Dingiri Amina, who mortgaged it to the plaintiff.He also argued that the village boundary did not conclusively decidethe question, because the bond in favour of the plaintiff 10d4, and thetransfer in favour of the plaintiff 10d5 both referred to the plan madeby Mr. Daniels on January 17, 1927. This plan itself is not now forth-coming, but plan No. 398 was prepared by Mr. G. A. de Silva, Surveyor,from the field notes of Mr. Daniels who had made the missing plan, andit is not denied that plan No. 398 may be regarded as a re-productionof the missing plan. The learned District Judge appears to have dealtwith this contention in this way. The deed in favour of the appellantis for 7£ lahas kurakkan sowing extent in the village Lindapitiya, andtherefore, must apply to lot B. As the land is only 7£ lahas kurakkansowing extent, which is equivalent to 7£ acres, this deed cannot possiblyrefer to lots A and B either in plan No. 398 or in plan No. 425, becausethe extent according to these two plans is either 20 acres 1 rood 34perches, or 19 acres 0 rood 32 perches.
I do not think this is a fair comment on the deeds. The conveyance10d5 refers to the land conveyed in these words. v The northern one-third share of 7j lahas kurakkan sowing extent or containing 19 acresand 32 perches from the western three-fourth partitioned and separatedfrom and out of Udawatta and. Paragahamulahena ”, whereas the mort-gage bond 10d4 refers to “ all that northern one-third share of 7£- lahaskurakkan sowing extent, or containing in extent according to plan datedJanuary 17, 1927, made by E. B. Daniels, 19 acres and 32 perches whichsaid portion of land is held and possessed by me” by right of deedNo. 34,330 (10d3) and that deed-34,330 refers to all that one-third sharetowards the north of 7£ lahas kurakkan sowing extent. Now the dfeedof gift 10d3, which refers to the sowing extent only, is dated March, 1913,whereas the mortgage bond was in September, 1927, and the plan appearsto have been made in January, 1927, before the mortgage bond wasexecuted. Although the mortgage bond 10d4. and the deed of con-veyance 10d5 repeat the expression ‘ the one-third share of 7£ lahaskurakkan sowing extent ’ there can be little doubt that that bond referredto and dealt with a land of 19 acres 32 perches in extent, according tothe plan made by Mr. Daniels, and the question that really arises in the caseis whether the deed does m fact apply to and deal with the land shownin the plan to which a clear reference is made, or whether that referenceshould be entirely disregarded because the land is referred to in the samedeed as being situated in Lindapitiya, and part of the land falls in Wewa-gedera, and also because of the reference to the sowing extent.
Counsel for the appellant referred to the case of Eastwood v. Ashton where Lord Loreburn said, “ I do not think that any rule requires usfirst to examine the letter press, and then to discard the plan, if we thinkthe letter press alone is sufficiently clear. The whole should be looked atand it may be that the plan will show that there is less clearness in thetext than might appear at first sight. ” He held that the other descrip-tions in the deed under consideration in that case were inaccurate, and39/261 <ISIS) Appeal Cotta 900.
I
328FERNANDO A.J.—Saminathan Pillai ». Dingiri Amma.
that the one accurate guide was the endorsed plan. Lord Parker was ofthe same opinion. Lord Sumner cited a passage from the judgment ofRomer J. in Cowen v. Truefitt, Limited *, in these words : “ in construing a•deed purporting to assure a property, if there be a description of theproperty sufficient to render certain what is intended, the addition of awrong name or of an erroneous statement as to quantity, occupancy,locality, or an erroneous enumeration of particulars, will have no effect. ”Applying the principles laid down by the House of Lords in that case,I do not think, there can be any doubt that the most accurate descriptionof the land is the reference to the plan. Obviously there is a disputewith regard to the boundary between the two villages, and there is nothingon the ground itself to indicate that the boundary as laid down by thelearned District Judge was the dividing line between the two villages.In these circumstances, it is not impossible to conceive of a person whoowns land falling into two villages, believing that the land fell only intoone village, and describing the land in a deed in that way; nor is itentirely safe to go on the sowing extent, which even if it is consistentin this district, is known to vary in other districts according to the fertilityof the land. The reference to the sowing extent only means that accordingto the experience of the people who describe the land it was one on whichit was possible to sow 7£ lahas of the grain known as kurakkan. Theacreage as determined by a surveyor is obviously much more accuratethan the description by sowing extent, and as Romer J. sets out* in thepassage quoted by Lord Sumner, a reference to the wrong locality doesnot take away frpm the effect of a deed if the land affected by that deedis sufficiently described in a plan. For these reasons, I come to thoconclusion that- the learned District Judge was wrong in holding thatthe deeds relied on by the appellant referred only to land in Lindapitiyavillage or that the description in the plan must for any other reasonbe regarded as incorrect.
If the land conveyed by the deeds to the tenth defendant is the landshowin in plan 425, then a portion of the land sought to be partitionedmust be excluded as the property of the tenth defendant. The landimmediately to the north of it is also covered by the deeds in favour ofthe tenth defendant, and on that deed the tenth defendant is entitledto claim a one-fifth share of that land.
I would accordingly set aside the decree of the District Court, and sendthe case back so that lot A, shown in plan 425, may be excluded from thepartition, and the remainder of lots F, FI, and I be allotted among theparties on the footing that the appellant is also entitled to a one-fifthshare of that portion. The appellant will be entitled to the costs of thecontest in the District Court from the plaintiff, and the other defendantswho took part in that contest also to the costs of this appeal. It will befor the District Court to award the costs of' further proceedings in theaction.
Soertsz J.—I agree.
1 (1892) 2 Chancery 551.
Appeal allowed.