047-NLR-NLR-V-78-W.-B.-APPUHAMY-Appellant-and-W.-M.-A.-GALLELLA-and-others-Respondents.pdf
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SHARVANANDA, J.—Appuhamy v. Gallella
1976 Present: Thamotheram, J., Rajaratnam, J., and
Sharvananda, J.
W. B. APPUHAMY, Appellant and W. M. A. GALLELLA and
others, Respondents
S. C. 88/70 (Inty.)—D. C. Negombo 722/P
Deed—Description by extent inconsistent with description by boundaries—Relevance of extrinsic evidence—Maxim falsa demonstrationon nocet—Evidence Ordinance section 97.
Where the extent of a grant of land is stated in an ambiguousmanner in a conveyance, it is legitimate to look at the conveyancein the light of the circumstances which surrounded it in order toascertain what was therein expressed as the intention of the parties.It is permissible to resort to extrinsic evidence in order to resolvethe ambiguity relating to the subject matter referred to in theconveyance. In such circumstances it is proper to have regard tothe subsequent conduct of each of the parties, especially whensuch conduct amounts to an admission against the party’sproprietory interest.
A. PPEAL from a judgment of the District Court Negombo.
C. Ranganathan with S. D. Jayatillake for the Plaintiff-Appellant.
W. Jayawardena with Rajah Dep and Miss S. Fernando forthe defendants-respondents.
Cur. adv. vult.
January 27, 1976. Sharvananda, J.—
The plaintiff seeks to partition the land called ‘ Higgahawatta ’described in the schedule to the plaint containing in extent 40perches. This land is depicted in Plan 1143 dated 24th March,1966, marked X, filed of record, according to which the presentextent of the land is 34.4 perches. The action was institutedon 24th November, 1965.
It was admitted by all parties that Punchi Banda Gallella wasthe original owner of this land. The only contest was whetherPunchi Banda Gallella, on deed No. 1220 of 1959 (3D1), sold andtransferred the entire corpus to the 3rd defendant, or only anextent of about 10 perches out of the corpus. The 3rd defendant’stitle has now been transferred by deed No. 20354 of 1965(P7) to the 2nd defendant with the right to obtain a re-transferbeing reserved to the 3rd defendant. The conflict in the claimsof the plaintiff and the 1st defendant on the one hand and the2nd and 3rd defendants on the other arises out of the differentconstructions placed by the parties on the said deed No. 1220(3D1) as to the extent of the land conveyed by it. The plaintiffrelies on the description by extent, while the 3rd defendant relieson the description by boundaries for his construction of whatwas conveyed by 3D1.
SHAH VAXAXDA, J.—Appuhamy v. Gallellci
405
The plaintiff claims that what was transferred on 3D1 is only10 perches (or l/4th) out of the entire land and that the remain-ing 3/4th share had devolved on the three children of P. M. PunchiBanda Gallella in equal shares, each being entitled to a l/4thshare of the land. Two children of the said Punchi BandaGallella transferred their shares by deed No. 32255 dated 14.10.64(P2) to the plaintiff who accordingly claims an half share of theentire land, the remaining l/4th share being allotted to the 1stdefendant, who is the third child of Punchi Banda Gallella.
The 2nd and 3rd defendants claim that the entirety of theland in extent 40 perches was conveyed to the 3rd defendanton 3D1.
The District Judge has held that the deed 3D1 conveyed theentirety of the land sought to be partitioned to the 3rd defendantand consequently has dismissed the plaintiff’s action. Theplaintiff has appealed to this Court from the said judgment andhas urged that the said deed conveyed only 10 perches represent-ing the portion called ‘ Kadekella ’ out of the entire corpus of 40perches to the 3rd defendant.
Thus, the decisive matter in dispute between the parties is as towhat was conveyed by deed 3 Dl. By the said deed, PunchiBanda Gallella, for a sum of Rs. 2,000, sold and transferred to the3rd defendant the land and premises described in the schedulethereto. The schedule, referred to, reads as follows : —
All that land called Higgahawatta alias Kadekella con-taining in extent 10 perches situated at Dunagahaand
bounded on the North by the high land of the late MarthelisAppuhamy now owned by Baron Appuhamy, East by the highland of Mrs. P. B. Gallella alias Baba Hamine, South by thehigh land of the late Carolis Appuhamy and on the West bythe Dunagaha-Minuwangoda public road together with thebuildings, plantations and everything thereon. ”
The uncertainly of what was conveyed a rises from the inconsis-tent descriptions of the extent. The area description covers 10perches, while the boundary description about 40 perches.
The vendor Punchi Banda Gallella became entitled to thecorpus on deed No. 20189 of 1937 (P9) which was based ondeed No. 16401 of 1915 (P8). The two title deeds P8 and P9refer to the corpus as land called ‘ Higgahawatta ’ without anyalias. The encumbrance sheets P9 and P10 where all the deedsrelating to this corpus are registered give the name of the landas * Higgahawatta portion ’ and extent as 1 rood. It is signifi-cant that 3D1 refers to the portion conveyed by it as Higgaha-
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SHAltVAjSTANDA, J.—Appuhamy v. Oallella
watta alias Kadekella containing in extent 10 perches when,admittedly, Higgahawatta, to which the vendor was entitled,contained an extent of about 40 perches within its boundaries.In conveyancing, ordinarily, the extent is not given at the out-set : it usually follows the description of the corpus by theboundaries or on reference to any available plan, unless theextent intended to be conveyed forms a portion of thecorpus described by boundaries. The reference to 10 perchesat the outset as the extent of the land tends to support theplaintiff’s contention. Further, the reason for the introductionof the alias ‘Kadekella’ is relevant to identify the land.According to the uncontradicted evidence of the plaintiff, onlythe 10 perch extent of the land Higgahawatta where theboutique building No. 2 appearing in Plan X stands is called‘Kadekella’ locally because of the existence of the said boutique.According to him, the 3rd defendant bought on 3D1 only thatportion which was locally called ‘Kadekella’. This explanationof Kadekella has not been disputed by the 3rd defendant. Itserves as a guide to the identification of the boutique portionas the parcel intended to be conveyed by 3D1. Where the extentof a grant of land is stated in an ambiguous manner in a con-veyance, it is legitimate to look at the conveyance in the lightof the circumstances which surrounded it in order to ascertainwhat was therein expressed as the intention of the parties. “Inorder, however, to identify the parcels in a conveyance, resortcan always be had to extrinsic evidence.”—per Lord Parker inEastwood v. Ashton (1915 A. C. 900 at 909).
The plaintiff submits further that the subsequent conduct ofthe 3rd defendant in relation to the land conveyed by 3D1 servesto show the sense in which the language of 3D1 was used. Hestates that the evidence touching the act and conduct of the 3rddefendant, the transferee on 3D1, is admissible to identify theproperty referred to in the schedule to 3D1. Generally, thesubsequent actings of the parties to a contract cannot be usedas throwing light on its meaning. “The words of a written instru-ment must be construed according to their natural meaning, andit appears to me that no amount of acting by the parties canalter or qualify words which are plain and 1unambiguous.”—per Lord Halsbury in North Eastern Rail Co. v. Hastings (Lords)(1900 A. C. 260 at 263). The general rule is that it is not legiti-mate to use as an aid in the construction of the contractanything which the parties said or did after it was made,unless it is to found an estoppel or subsequent agreement. TheHouse of Lords has, in two recent cases, viz. James Millerand Partners Ltd. v. Whitworth Street Estates Ltd. (1970—1A. E. R. 796) and Schuler A. G. v. Wickman Ltd. (1973—2 A. E. R.39) emphasized that, in construing a contract, the Court is not
SHARVANAXDA, <7.—Appuhamy v. Oallella
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entitled to take into account the conduct of the parties subse-quent to the execution of the contract as throwing light onthe meaning to be given to it. This rule is however limited inits operation to cases where the contract is capable of only oneproper meaning when interpreted in accordance with the ordi-nary rules of construction. Parol evidence is not in that eventadmissible either to contradict, vary, add to or subtract fromthe terms of a written agreement the plain or unequivocallanguage of a document. The construction cannot be controlledby previous negotiations, nor by subsequent declarations orconduct of the parties. But, when the words used in the agree-ment or instrument are ambiguous or capable of two meaningsin identifying parties or property, then it is, and always hasbeen, permissible to look at the way in which it was used forsuch identification. It is open to the Court, in that event, tolook at the way in which the party himself who relies on itinterpreted it. For the purpose of applying the instrument tothe facts and determining what passes by it and who takes aninterest under it when the instrument contains inconsistentterms or descriptions relating to the identity of parties or pro-perty, every material fact that will enable the Court to identifythe person or thing mentioned in the instrument and to placethe Court whose province is to declare the meaning of the wordsof the instrument as near as may be in the situation of theparties to it will be relevant to resolve the-ambiguity or equivo-cation relating to the party or subject matter referred to in theinstrument. Thus, in deciding the scope of an ambiguous titleto land, it is proper to have regard to subsequent actings of eachof the parties, especially when such acting amounts toadmission against the party’s proprietory interest. The Houseof Lords, has however, in the two cases referred to above,held that such evidence is not admissible for the constructionof the terms of a contract, even though there be ambiguityabout them. It reiterated that the par lies’ intention must beascertained, on legal principles of construction, from the wordsthey have used.
In Watchman v. East Africa Protectorate (1919 A. C. 533),the question arose as to whether the extent of the propertyconveyed or assured by the certificate issued to the defendant,by the Government was to be fixed by the description of itsarea, or by the description of the boundaries. The areaincluded within the boundaries, mentioned in the certificateswas 160 acres in extent, while the land was described by areato be containing 66| acres in extent only. The defendant hadalways treated the latter as the true area conveyed. A patentambiguity appeared on the face of the document andthe Court was invited to take account of subsequent conduct
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SHARVANANDA, J.—Appuhamy v. Oallella
to determine which of two present but inconsistent descriptionsof the subject matter was to be preferred. It was held by thePrivy Council that the evidence of user may be given in orderto ascertain the sense in which the parties construed thelanguage employed and that this rule applies to both modernand ancient documents and whether the ambiguity be patentor latent. Watchman v. Attorney-General of East Africa (1919A. C. 533) was distinguished in Schuler v. Wickman Ltd. (1973—2 A. E. R. 39) by the House of Lords. It is consistent with theprovisions of section 97 of our Evidence Ordinance. Monir,in his Law of Evidence (4th Ed.) Vol. I at page 594, whencommenting on section 97 of the Evidence Ordinance, quoteswith approval the case of Banaphal Singh v. Mohammed (155
C. 634) (this report is not available to me) for the proposi-tion that where the boundaries given in a deed show thatthe whole grove was sold, but the description of the grove givenby the number and area indicates that only a part of the grovewas sold, other evidence is admissible to establish the identityof the land sold. Since the report is not available, one does norknow whether the other evidence related to surroundingcircumstances or to subsequent user. In the case of Ratranhamyv. Singho (30 N. L. R. 197), the disputed land which formed thesubject of a transfer was described as lying within statedboundaries and as comprising certain lots in a preliminary plan.The question was there raised whether a lot which was out-side the boundaries but within the plan was included in thetransfer. It was held that the case fell within the principle ofsection 97 of the Evidence Ordinance and the evidence givenas to occupation pursuant to such transfer was regarded asconclusive as to what was the proper construction to be placedon ' the document of transfer. Fisher C. J, stated there that“the action of the transferee in not taking possession of thelots in question indicates that the deed must be construedaccording to the boundaries and not according to the plan”.
The 3rd defendant, on deed No. 41188 of 1959(P3), trans-
ferred the premises which he got on 3D1 to Seemon Appuha-hamy subject to a condition of re-transfer within a period of5 years. By deed No. 17755 of 1962 (P4), the 3rd defendantobtained a re-transfer of the very premises with a new schedulecontaining an unequivocal description thereof. The schedule isrevealing. It reads as follows: —
“All that divided portion of land called Higgahawattaalias Kadekella registered jn E. 432/34 being a portion fromand out of Higgahawattekotasa in extent about 1 rood
registered in E. 257/299 situated at Dunagahaand
which said divided portion is bounded on the North by thehighland of Baron Appuhamy, East by land of Mrs. P. B.
SHARVANANDA, J.-i-A ppuhamy v. Oallella
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Gallella alias Baba Hamine, South by highland of lateCarolis Appuhamy, West by the High Road to and fromDunagaha to Minuwangoda containing in extent about 10perches with the soil, plantations and buildings thereon.”
Then, by deed No. 17756 of 1962 (P5), the 3rd defendant, onthe very same day, transferred the premises, as newlydescribed in P4, to Podihamine, subject to the right to re-transfer within 3 years. Podihamine, on deed No. 20353 of 1965(P6), transferred back the premises to the 3rd defen-dant. Then, by deed No. 20354 of 1965 (P7), the 3rd defen-dant transferred his interests to the 2nd defendant, subject tothe right to obtain a re-transfer within 3 years. The newdescription of the premises which the 3rd defendant acquiredon 3D1, as set out in P4, P5, P6, and P7, resolves all ambiguities.It necessarily involves and embodies an admission by the 3rddefendant against his proprietory interest to the effect thatwhat was intended to be conveyed to him on 3D1 was a portionof 10 perches only and not the entire corpus falling withinthe four boundaries set out in 3D1. Though the 3rd defendantwas a party to all these deeds, he did not get into the witnessbox to offer any other explanation for the clarification of whathe acquired on 3D1.
The instrument 3D1 is registered in E. 432/34 (Pll) whichis a new folio opened on 18th May, 1959, without any cross-reference. The name of the land was given as Higgahawattaalias Kadekella and the extent as 10 perches, though theboundary description was that of the entire corpus of onerood. The subsequent instruments P3, P4, P5, P6 and P7 are allentered in that folio Pll. On 5th October, 1962, a cross-reference was entered on Pll with the endorsement "instru-ments relating to the property of which this property is aportion are registered in E. 257/299” (P10) where the instrumentsrelating to the larger corpus of 1 rood are registered. A cross-reference was also made on 5th October, 1962, in P10 that"instruments relating to a portion of this property are registeredin E.432/34” (Pll). The schedule of the deed No. 17755 dated19th September, 1962, (P4), the re-conveyance in favour of the3rd defendant, clarifies the position when it describes the landconveyed as “all that divided portion of land called Higgaha-watta alias Kadekella registered in E.432/34 (Pll) being a portionfrom and out of Higgahawatta also in extent about 1 roodregistered in E.257/299 (P10)”. This clarification and correctionserve to eliminate the doubt engendered by the inconsistentdescriptions in 3D1 of the parcel conveyed thereby.
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SHARVANANDA, J.—Appuhamy v. Gallella
“Where a deed contains an adequate and sufficient definitionof the property which it was intended to pass, any erroneousstatements contained in it as to the dimensions or quantity of ‘the property, or any inaccuracy in a plan by which it purportsto be described will not vitiate this description.” — Mellor v.Walmesley (1905—2 Ch. 164). “Where, in a grant, the descrip-tion of the parcels is made up of more than one part, and onepart is true and the other false, then, if the part which is truedescribes the subject with sufficient accuracy, the untrue partwill be rejected as a falsa demonstratio and will not vitiatethe grant. It is immaterial in what part of the description thefalsa demonstratio occurs.”—Cowen v. Truefitt (1899—2 Ch. 309),“The maxim of ‘falsa demonstratio non nocet’ applies only whenthe Court has made up its mind as to which of two or moreconflicting descriptions ought, under the circumstances, to beconsidered the true description. When this is done, the falsedescription may, of course, be disregarded.”—Eastwood v.Ashton (1915—A.C. 900). The specific reference to Kadekellaand the evidence of subsequent user of the parcel that wasintended to pass on 3D1 by the transferee serve to identify withcertainty the property which was intended to pass by 3D1. Thespecification of the area as 10 perches must be considered as amaterial term of the description of the property. The generaldescription of the boundaries does not enlarge the effect ofthe prior description by area, viz., “containing in extent 10perches”. The description by boundary in 3D1 must, in thecircumstances, be rejected.
Mr. Jayawardena, Counsel for the 3rd defendant-respondent,relied on the case of Jack v. MTntyre (1845—8 E.R. 1356) whichwas a decision of the House of Lords in support of his conten-tion that the reference to the extent of 10 perches in 3D1 isa case of falsa demonstratio. He submitted that the statementas to extent must be regarded as a misdescription, when thecorpus, according to the boundaries, can be fixed. He referredto the passage in the judgment of Romer J. in Cowen v. TruefittLtd. (1898—2 Ch. 551 at 551) where he stated that “in construinga deed purporting to assure a property if there be a descriptionof the property sufficient to render certain what is intended,the addition of a wrong name or of an erroneous statementas to quantity, occupancy, locality, or an erroneous enumera-tion of particulars will have no effect”. This statement ofRomer J- was quoted with approval by Lord Sumner in (1915)A.C. 900 at 914. As Lord Parker observed in Eastwood v.Ashton (1915 A.C. at 912), there is no general rule as to whichof two inconsistent descriptions is to prevail and the doctrineof falsa demonstratio is useless unless and until the Court hasmade up its mind as to which of the two or more conflicting
iSHAJiVANAJNTDA, J.—Appuhamy v. Gattella
411
descriptions ought, under the proved circumstances of the case,to be considered to be the true description. There is no apriori assumption that either or any of the descriptions is false.Words which form an essential part of the description shouldhowever never be rejected.
The facts in Jack v. M’Intyre (8 E.R. 1356) were as follows:By lease made in 1719, the lessor demised for three livesrenewable for ever all that part of the townland of B. con-taining 509 acres arable, meadow and pasture bounded onthe south by Dl, on the north and east with L. N. and on thewest with T’s and W’s land. There were several renewals of-the lease in the same terms as to the contents and boundariesof the demised premises. It was held by the Lords that 400acres of bog and land reclaimed from bog which were situatedwithin the ambit of the specified boundaries passed under thelease and renewals thereof, in addition to the 509 acresarable, meadow and pasture. As the Lord Chancellor said:“There was no inconsistency whatever between the differentparts of the description. It was a demise of all the part ofthe lessor’s lands bounded in a particular way. The boundarieswere minutely and correctly described. All the lands, therefore,contained within those boundaries would pass unless there wassome inconsistency between that description and the otherpart of the instrument”. It was explained in the severaljudgments that the omission to refer to the 400 acres of bog wasbecause at that period it was considered property of little orno value. Further, it was a matter of common notoriety inIreland and a matter of conveyancing practice there “to allowthe bog to pass with the profitable land described in theinstrument as arable, meadow and pasture. It passed by the lawof forfeiture in all the grants of the forfeited estates, and thatlaw was in full force at the time of the lease being executed”.Lord Campbell very relevantly draws attention to the factof possession of the bog by the lessee and those underwhom* he claimed, since the year 1719, for over a hundredyears. The evidence of subsequent possession or non-possessionof the disputed portion by the parties was considered a relevantcircumstance to determine what were the premises that wereintended to be leased on the lease. This case is no authority forthe proposition that area description should, as a matter oflaw, yield to boundary description.
Another circumstance which clinches the construction infavour of the plaintiff is that the originals of the title deeds to3D1, i.e. deeds No. 16401 of 1915(P8) and No. 20189 of 1937
(P9) were not produced by the 3rd defendant, the transfereeon 3DI, but came from the custody of the plaintiff, whoapparently got them from the heirs of the vendor Punchi
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SHAH VAN AND A, J.—Appuhamy v. Oallella
Banda Gallella. If the 3rd defendant has purchased the entirecorpus lying within the boundaries as described jn the scheduleto 3D1, he would have got the original title deeds P8 and P9into his hands from the vendor. But, since only a portion of thecorpus was being purchased by the 3rd defendant, the vendorhad retained the original title deeds for proof of his title to thebalance portion which was not disposed of by 3D1. In the result,I hold that what was conveyed on 3D1 was only that portionof land called Kadekella in extent 10 perches and that thebalance portion of the land sought to be partitioned devolves onthe plaintifl and the 1st defendant as pleaded by the plaintiff.
As Gratiaen J. stated in Ponna v. Muthuwa (52 N.L.R. 59 at61), “where the words of description contained in the grant aresufficiently clear with reference to extent, locality and etherrelevant matters to permit of an exact demarcation of all theboundaries of what has been conveyed, then the grant is of adefined allotment. If, however, the language is insufficient topermit of such a demarcation, the grant must be interpreted asconveying only an undivided share in the larger land.” The deed3D1 suffers from lack of precision or sufficient particularity inrespect of metes and bounds and hence it has to be held thatthe 3rd defendant became entitled on 3D1 to an undivided extentof about 10 perches covering only Kadekella out of the entirecorpus. In the circumstances, it is competent for the plaintiff tohave and maintain this action to partition the entire corpusdepicted in plan X, including the Kadekella portion. But, ofcourse, in the partition decree, the 2nd and/or 3rd defendantwill be allotted, as far as practicable, the Kadekella portioncontaining in extent about 10 perches.
In the result, the appeal is allowed and the judgment of theCourt below is set aside. Let an interlocutory decree be enteredfor partition of the corpus depicted in plan X declaring the 2nddefendant entitled to the Kadekella portion, in extent of about 10perches, out of the corpus, subject to the 3rd defendant’s rightto a re-transfer of the said portion in terms of his deed No. 2038and declaring the plaintiff and the 1st defendant entitled to thebalance portion in the proportion of 2 to 1 shares.
The plain tiff-appellant is entitled to costs of this appeal andof the trial in the lower Court payable by the 2nd and 3rddefendants-respondents.
Thamotheram, J.—I agree.
Rajaratnam, J.—I agree.
Appeal allowed.