SINNAPODY et al., Appellants, and MANNIKAN et al., Respondents

003-NLR-NLR-V-53-SINNAPODY-et-al.-Appellants-and-MANNIKAN-et-al.-Respondents.pdf


Sinnapody o. Mannikan
9
Pr°°p.nt: Basnayake J. and Gratiaen J.SINNAPODY et al., Appellants, and MANNIKAN at al.,
Respondents
S.C. 305—D. G. Jaffna, 3,786
Rectification of deed—Circumstances token it will be granted—Delayin institution of action—Materiality of date of detection of the error—Admissibility of paroll evidence.
Decisory oath—Refusal by one party to take it—Effect on evidence—Evidence Ordi-nance, s. 3—Oaths Ordinance, s. 8.
The amount of the loan in a usufructuary mortgage was by mutual mistakeof the parties incorrectly stated in the bond as Be. 275 when it was in factBs. 2,750.
Held, in an action for rectification of the bond, that the rectification shouldbe allowed. The material date for the purpose of deciding whether there hadbeen delay in the institution of the action was the date when the error wasnoticed and not the date when the error was committed.
Held further, (i) that the fact that the mortgagee had gifted his interests to athird party was no impediment to the grant of rectification.
(ii) that parol evidence was admissible to make out a case for rectification.
Quaere, whether a judge in weighing the evidence is entitled to draw anyinference from the refusal of a party, without sufficient reason, to take adecisory oath when challenged to do so by the opponent.
10
BASNAYAKE J.—Sinnapody v. Mannikan
^^PPEAL from a judgment of the District Court, Jaffna.
N. E. Weerasooria, h C., with S. Thangarajah, for the defendantsappellants.
S. J. V. Chelvanayakam, K. C., with C. Vanniasingharn, for the plaintiffsrespondents.
Cur. adv. .vult.
December 19, 1949. Basxayake J.—
This is an action for rectification of a usufructuary mortgage bondattested by one S. Sinnathurai, a Proctor and Notary, 'on 5th October,1946. The plaintiffs who are husband and wife are. the mortgagees an.dthe defendants who are also husband and wife are the mortgagors. Theplaintiffs allege that the amount of the loan is incorrectly stated inthe bond as Rs. 275 when it should in fact be Rs. 2,750. The defendantsdeny that allegation.
At the trial the following issues were settled : —
(i) Was the true consideration for deed No. 731 of 5.10.46 Rs. 2,750 ?(ii) Has the consideration been stated wrongly as Rs. 275?
(iii) Is the plaintiff entitled to rectification?
After hearing the evidence placed before him by the parties the learnedDistrict Judge held in favour of the plaintiffs on all the issues, andentered decree ordering the rectification of the deed. The present appealis by the defendants from that judgment and decree.
The material portions of the mortgage bond, which is in English, read—
‘4 Know all. men by these presents that we Kathirkaman Sinnapodiand wife, Varaththai .of Palaly, Jaffna, hereinafter called the mortgagors,are jointly and severally held and firmly bound and do hereby acknow-ledge to be justly and truly indebted to Sinnapodi Mannikan and wife,Umaiaththai, both of Palaly, Jaffna, hereinafter called the mortgagees,in the sum of Rupees Two hundred and seventy-five (Rs. 275) of lawfulmoney of Ceylon which we have this day borrowed and received ofand from the said Sinnapodi Mannikan and wife Umaiaththai andtherefore renouncing the beneficium non numeratae pecuniae themeaning of which has been explained to us agree and undertake andbind ourselves and our heirs, executors, and administrators to pay thesaid sum of Rupees Two hundred and seventy-five (Rs. 275) to the saidSinnarpodi Mannikan and "wife, Umaiaththai, or to either of them ortheir heirs, executors, administrators, or assigns on demand and untilsuch payment we engage and bind ourselves and our aforewritten topermit the mortgagees and their aforewritten to possess the fourlands and premises described hereinafter and take and enjoy the pro-duce of the said 4 lands by way of Otti Mortgage under the Law ofThesawalamai, in lieu of interest on the said sum of Rs. 275.
And for securing the due payment of the said sum of Rs. 275 wethe said mortgagors do hereby specially hypothecate ….”
The case for-the plaintiffs is that" in pursuance of an agreement to lendto the first defendant a sum of Rs. 2,750 on a usufructuary mortgage of
BASNAYAKE J.—Sinnapody c. Mannikan
XI
certain lands the first plaintifi on 25th September, 1946, made a paymentof Rs. 2,475 which the defendants needed to pay one GambukeswaraKurUkkal in order to obtain a reconveyance of certain lands transferredto hinj conditionally and that on 5th October, 1946, when the defendantsexecuted a bond securing the loan by a usufructuary mortgage of four oftheir lands the first plaintiff paid the balance sum of Es. 275. He-says that he asked the notary to execute the bond for 275 meaning thereby275 “’pounds ’* or Rs. 2,750, a “ pound ’’ according to his usage beingequal to Rs. 10. Th’e notary bears him out on the point that the firstplaintiff mentioned only the number 275 without qualifying it; but hesays that when 'the first plaintiff said the bond was for 275 he understoodhim to mean Rs. 275 and prepared the document accordingly. The firstplaintiff is also supported by the Village Headman – to whom the firstdefendant admitted, on being questioned in’ consequence of a complaintby the former, that the amount Rs. 275 in the bond was a mistake forRs. 2,750.
Although the bond was written in October, 1946, it was not till July, 1947,that the first plaintiff removed the deed from the notary’s office. Hewas also given a Tamil translation of the bond by the notary. Whenhe took the documents home his son pointed out to him that the bond wasfor Rs. 275 and not Rs. 2,750. On that very day he pointed out to thenotary the mistake in the bond. The notary at first refused to believehim but later undertook to ascertain from the first defendant whetherhe admitted that the bond was for Rs. 2,750. After meeting him thenotary ■ informed the first plaintiff that the error would be rectified by thedefendants as it was admitted that the amount to be secured by the bondwas Rs. 2,750. Despite the admission, however, the defendants onvarious pretexts avoided the execution of a deed of rectification.
The first defendant denies that the true amount is Rs. 2,750. Hedenies that he ever admitted to the headman or the notary that Rs. 275was a mistake and that Rs. 2,750 was the amount intended to be secured.He alleges that the headman is ill-disposed towards him and that hisevidence is false. He does not attack the notary’s evidence beyondsaying that it is not true.
The learned District Judge who has had the advantage of seeing thewitnesses give. their evidence, has preferred the evidence of the firstplaintiff and his witnesses to the unsupported testimony of the firstdefendant. I see no ground on which I can interfere with his findingof fact.
Before I discuss the law applicable to this case it will be convenientat this point to refer to an incident which occurred at the trial and towhich the learned District Judge has referred in his judgment. Afterthe issues, had been framed and before the evidence commenced thefirst plaintiff challenged the first defendant to take an oath at the PalalyKanagiamman Temple that the true consideration for the deed was notRs. 2,750 and that he did not borrow Rs. 2,750. The first plaintiffundertook to – withdraw the action if the first defendant made the oath.The latter refused to make the bath.
12BASNA.YAXE J.—Sinnapody v. Mannikan
Under our law 1 a party to a judicial proceeding of a civil naturemay offer to be bound by any oath or solemn affirmation in any formcommon amongBt, or held binding by, persons of the race or persuasionto which he belongs, and not repugnant to justice or decency. If a partyor witness refuse to make such oath or solemn affirmation he cannot becompelled to make it but the court is required to record as part of theproceedings “ the nature of the oath or affirmation proposed, the factsthat he was asked whether he would make it and that he refused it,together with any reason which he may assign for his refusalIn the
instant case the first defendant gave no reason for his refusal.
It was contended for the defendant that the learned' District Judgewas prejudiced by the refusal of the first defendant to make the oath.The judgment does not show that he was prejudiced by the first defendant'srefusal. After reaching a conclusion against the defendants on the facts,he has referred to the first defendant’s failure to make the oath as an■added circumstance against him. A judge in weighing the evidence isentitled to take into consideration the refusal of a party, without sufficientreason, to make an oath when required to do so by the opponent 2. Theprovisions of section 8 (4) which require a careful record to be made inthe case of the refusal of a party to make an oath would be pointless-if the refusal to make an oath was entirely irrelevant. In the instantcase the learned judge has in my view rightly regarded it as a circumstance,against the refusing party.
I shall now proceed to consider 'whether on the facts as found by thelearned trial judge the plaintiffs are entitled to an order for rectification.Rectification will not be allowed where there has been an unreasonabledelay in enforcing the right. The material date for the purpose of decidingwhether there has been delay is the date of the notice of the error and notthe date when the error was committed. In the instant case the errorwas noticed in July, 1947, and the present action was instituted on 26thAugust, 1947. The period between the detection* of the mistake and theinstitution of the action was spent in persuading the defendants to rectifyit. There has therefore been on delay.
Rectification will also not, as a rule, be allowed where it would affectprejudicially interests which third parties have acquired for valuable. consideration on the assumption that the instrument in the form in whichit was originally drawn was good. In the instant case the defendantshave by deed of gift dated 20th August, 1947 (D4), gifted the lands dealtwithin the bond along with other lands to their second daughter Sinnammah,wife of Vairavy Vallipuram whose marriage was in 1944 or 1945. Thefirst defendant does not give a satisfactory explanation for the executionof a deed of gift by way of dowry so long after his daughter’s marriage.The close proximity of the date of the gift to the date of the institutionof this action throws considerable doubt as to the bona fides of thetransaction especially as the defendants were at the time aware of theposition taken up by the plaintiffs. Donees stand on a different footingfrom a purchaser for valuable consideration without notice. Eventhough the donees would be affected by an order for rectification because1 Section 8, Oaths Ordinance.
* Iyanohamy v. Carolis Appu (1900) 4 N. L. It. 78.
GBATIAEN J.—Sinnapody r. Mannikan
13
the amount they will have to pay for the redemption of the mortgage willbe nine times more than that expressed in the deed P2, I am of opinionthat it will not be contrary to the principles of law or equity to allow therectifioation of the bond in the instant case.
In order to obtain an' order for rectification of an instrument the partyclaiming relief must show by clear and unambiguous evidence thatthere .was an actually concluded agreement antecedent to the instrumentwhich is sought to be rectified and that the term the inclusion of whichis sought was a term of the agreement between the parties and continuedconcurrently in -their minds down to the time for execution of the instru-ment and that by mutual mistake in drafting there has been a failure tomake the instrument conformable to the agreement. The evidence whichthe learned trial judge has accepted satisfies the above requirements.
The plain tig'scase rests on parol evidence. There is no objection
in law to that class of evidence in an action for rectification. Parolevidence is admissible to make out a case for rectification, and the Courtcan even act on the evidence of the plaintiff alone where no furtherevidence can be obtained.
For the above reasons the plaintiffs are entitled to succeed, and Iuphold the learned District Judge’s order for rectification and dismissthe appeal of the defendants.
This is a case in which both parties are to blame, the plaintiffs for makingthe mistake and the defendants for failing to correct it. The costs oftrial should therefore be borne by either party. But as the defendantsnot content with tl^e decision of the trial judge have brought the plaintiffsto this Court, the plaintiffs’ costs of appeal should be paid by thedefendants.
Gratiaen J.—
I agree that this appeal should be dismissed, and that no good groundsexist, for disturbing the conclusion arrived at by the learned trial Judgeupon the evidence. The probabilities in the case strongly support theversion of the plaintiff. With respect, however, I cannot agree withmy brother Basnayake that, as an additional ground for disbelieving^the defendant, any weight could legitimately be attached to the cir-cumstances that he refused to accept a challenge to take an oath at thePalaly Kanagiamma Temple that the true consideration for the deedwas not Us. 2,750.
A party to an action is entitled to demand that his claim or his denialof a claim (as the case may be) should be decided upon legally admissibleevidence at a trial regulated by the normal procedure which governsCourts of civil jurisdiction. No doubt Section 8 of the_ Oaths Ordinance(Chapter 14) lays down a special process whereby parties, should theyso desire, may have their disputes settled if one of them takes a deeisoryoath in an agreed form. But in such cases mutual agreement is of theessence of the matter, and no party can be compelled to waive his right
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GBATIAEN J.—Sirmapody v. Mannikan
to have the action tried in the normal way. The decision of Bonser C.J.in Iyanohamy v. Carolis 1 lealt with a maintenance case where thedefendent, who had in the first instance agreed to take a decisory oath,later retracted from his undertaking on the ground of impossibility, for areason which the Magistrate characterized as specious. Bonser C.J.held that the duty of the Magistrate in the circumstances was to .try anddetermine the action upon the evidence, but that “ when he came toweigh the evidence, if he was satisfied that the reason given by the defen-dant for refusing to take the oath was inadequate and a mere quibble, andthat the defendant was really afraid to take a solemn oath, he- might takethat fact into consideration. But he must hear what both'sides and theirwitnesses have to say before he decides the case ”.
Section 8 of the Oaths Ordinance permits a party to specify his reasonsfor refusing to take a decisory oath, and in that event the Court is requiredto record those reasons. There may, perhaps, be instances in which aCourt might regard itself as qualified and competent to decide that thereasons assigned are so inherently fantastic that an adverse inference mayproperly be drawn against the party who propounds them. But suchinstances, if I may say po with respect, must be rare indeed. A Court oflaw would to my mind be involved in a most hazardous and embarrassingundertaking if it attempted to examine the merits of a litigant’s personalobjections to have his mundane disputes determined in accordancewith the extraordinary procedure contemplated by section 8. In our.present limited state of knowledge of matters spiritual and metaphysical,it is I think safer for a judicial tribunal to follow the principle adoptedby the House of Lords when it was called upon, in a case dealing with acharitable bequest, to assess the efficacy of prayer.* “ The faithful ”,said Lord Simonds, “ must embrace their faith believing where theycannot prove: the Court can act only on proof Gilmour v. Coats 2.
Whether or not the ruling of Bonser C.J. could with safety be adoptedin appropriate cases, it cannot in my opinion apply to the present action.The defendant was eallenged to take a decisory oath; he refused to do so,assigning no reasons for his refusal. He could not be compelled to givehis reasons, nor had the Court any power to investigate what was notdivulged to it. In that state of things, I do not see what material existedupon which the learned Judge could draw any inference, favourable oradverse to the defendant, from this circumstance. The defendants barerefusal to take a decisory oath is not in my opinion a “ fact ” which aprudent man can accept as ” proof ” of any contentious matter whicharose for adjudication in the case. (Section 3 of the Evidence Ordinance.)I prefer to follow the decision of this Court in Perampalam v. Kandiah 5where Abrahams C.J. said, " The provision that cases can be disposedof by taking an oath in a place of worship is no doubt an excellent one,but there is nothing in the enactment which makes provision for this modeof deciding cases which sanctions an adverse finding against the partyrefusing. A man may have his reasons for issuing a challenge and theother party may have his reasons for refusing to accept the challenge,
(1900) 4 N. L. R. 78.* (1949) A. C. 426.
* (1937) 17 Law Recorder 158.
fiBATIAEK J.—Mariam Beeri v. Ruqqiah Umtna
IB
and not only is the Court sot justified in coming to an adverse conclusionagainst the party who refuses to accept such a challenge but it is alsonot entitled to investigate his reasons
If I took the view that the relevant and admissible evidence in the casewas evenly balanced, and that the adverse inference erroneously drawn bythe trial Judge had in his judgment tinned the scales against the defen-dant, I should have thought it necessary for the case to be tried afresh.In my opinion, however, the other grounds on which the learned Judgehas quite independently held in favour of the plaintiff are very substantialand convincing. X therefore agree to the order proposed by my brotherBasnayake.
Appeal dismissed.