146-NLR-NLR-V-23-SENANAYAKE-v.-SELASTINA-HAMINE-et-al.pdf
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Present: Bertram OJ. and De Sampayo J.SENANAYAKE v. SELASTINA HAMINB et at.
26—D. C. Negombo, 13,604.
Conveyance of an undivided eastern portion of 2 acres*—Legal effect—Partition.
Where a person granted to another an undivided eastern portionof land in extent 2 acres,—
HM, that it was not possible to give legal effect to a word oflocality introduced 'into a grant of an undivided share, but tfirtron a partition the Court would endeavour to give effect to theintention implied by the use of such .a word by assigning to theshareholder a poftion in the direction indicated.
T
HIS notion was instituted by the plaintiff to partition the landcalled Higgahawatta. The plaintiff upon deed No..5,615
of February 13, 1918, marked P 3, claimed an extent of 2 acresfrom the east, the defendant being entitled to the rest of the land.
The defendant filed answer admitting the shares, and consentedto the partition, provided the plaintiff was given his 2 aores extentfrom the eastern portion of lot O. At the trial the plaintiff refusedto accept his share from the eastern portion of lot C, on theground that lot 0 was extremely barren land, and also that hisvendors, the daughter and son-in-law of the defendant, purportedto sell to him an extent of 2 acres from the eastern portion of lotsA and B. The District Judge (W. T. Stace, Esq.) delivered thefollowing judgment:—
This is a partition case in which it is admitted that the plaintiff isentitled to 2 acres of the land and the defendant to the rest. Thereis a dispute, however, as to where the plaintiff should have his two, acres. Plan 3,003 filed of record shows thip land consists of lots A, B,and C. The whole land belonged to the defendant. She gifted to herdaughter “ the undivided eastern portion of land in extent 2 acres.”Her daughter sold it to the plaintiff. Plaintiff claims that he shouldhave his share out of lot B. This is fertile land. Defendant claimsthat an eastern portion should be interpreted to mean the most easternportion, and that would be the eastern part of lot C. The easterncomer of lot C, however, is much poorer land than the rest, and braceplaintiff objects. It is difficult to interpret such utterly vague languageaath%taf the deed in question. But, I think, it is clear that defendantcannot have intended to sell 2 acres out of lot 1^ because a glance at theplan will show that 2 acres extent to the east of lot B would include thedefendant’s residing house. Moreover, plaintiff’s argument from thevalue of the land as recited in the deed is worthless, because the valuerecited these is admittedly fictitious. Hence, since defendant did
36-;14-22/453
1921A
1921.
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Senanetyakev. 8daatinaHantine
P 3 was as follows :—
Transfer No. 5,645.
On February 15, 1918, we, Banatunga Aratchige Fraacina Hrnnln*and Tennekonmudalige Comelis Perera Appuhamy, wife end husband,of Yatxyana in Dasiya pattu of Alutkuru korale, declare that the under-described property belonging to us on the deed No. 1,272dated February22/1916, attested by D. B. P. Karunaratne, Notary Public, for NegomboDistrict, is tinder our uninterrupted possession:
And we have agreed with Senanayaka Aratchige Don Seadoris Senaaa*yaka of Yigada in the said pattu and korale to sell and transfer the samein manner, free of mortgage* security, and all encumbrances for Bs. 760Ceylon currency; and so—
Enow all men by these presents that for the said agreement and forthe sum of Bs. 750 well and truly paid to us by him, the said DonSeadoris Senanayaka (the receipt whereof we hereby acknowledge), thefollowing sale was made:—The Higgahawatta at Valpitamulla, inDasiya pattu of Alutkuru korale in Negombo District, is boundedon the north cuxd west by land of Juanis Silva, Muhandiram; east bygarden of Kuruppu Aratchige Denus Appo and the field; and southby lands of late Don Bastian, Police Vidanerala, and others; in extentwithin these boundaries 17 acres 17 perches. Of the undivided five-sixths shares of this land, an eastern undivided portion of 2 acres and thebuildings, plantations, and all appurtenances thereof we hereby sold andtransferred unto the said Don Seadoris Senanayaka.
* So all our rights thereto shall devolve on vendee and his heirs, &c.,for possession or disposal at wifi.
Attested by D. Jn. Gunewabdaxa,
Dated February 15, 1918.Notary Public.
Hayley, for the plaintiff, appellant.
F. de Zoysa (with him Croos-Dabrera), for the defendants,respondents.
October 3,1921. Bertram C.J.—
In this case a difficulty arises, because the grantor of a share inland now sought to be partitioned has effected a conveyance to hisgrantee of an undivided eastern portion of land in extent 2 acres.The question is whether a grantor, who has granted such an interest,can claim on a partition that his grant is to be treated exactly asthough it was a grant of a divided 2 acres. The truth appearsto be that it is not possible to give legal effect to a word of locality
not intend to sell from lot B, it must be from lot 0, and it is certainlythe case that accords best with the wording of the deed, sincelot 0 stretches further east than the rest of the land.
The l«d described in lease deed No. 7,634 is from the boundariesand extent obvioudy lot C in the plan. The ownership of lot C byplaintiff and defendant wifi, therefore, be subject to this lease. Costaof contest between plaintiff and first defendant to be paid by plaintiffs,and other costs pro raid.
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introduced into a grant of an undivided share, and such a word 1391,
is in itself of no legal consequence. But on a partition the Court
would endeavour to give effect to the intention implied by the use c.J.
of such a word by assigning to the shareholder a portion in the
direction indicated. The grantee of such a share would, however,be entitled to all the privileges which in such circumstances belong Bamineto‘the owner of an undivided share, that is to say, in this instancecompensation in respect of the inferior quality of the land assignedto him, and a right of way between the portion so assigned to himand the public road- For a grantor to seek to refuse such rights tohis grantee is an attempt to derogate from his own grant. In myopinion thedecreeshould be varied by a direction to the effectaboveindicated, and the appeal should be allowed, with costs.
Db Sampayo J.—I agree.
Appeal allowed.