093-NLR-NLR-V-25-WICKREMESINGHE-et-al-v.-ENSOHAMY-et-al.pdf
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Present; De Sampayo and Porter JJ1.WICKREMESENGHE a <rf. v. ENSOHAMY et ah184—D. C. Matara, 9,018.
Gift of share derived by purchase—Mortgage of share described as derivedby inheritance-—Smaller share derived by inheritance—Priorregistration of mortgage—Is mortgage good for the entire sharemortgaged Y—Recitals — Conveyancing—Estoppel — Vendor andPurchaser—Misdescription in Fiscal's conveyance of area ofproperty sold under mortgage decree—Seizure.
A, who was entitled to a r of a land by inheritance andanother share by purchase, donated a share to his children (theplaintiffs), describing it as property belonging to him by right ofpurchase. Subsequently, he mortgaged to S £ share which hestated he was entitled to by inheritance. The mortgaged bondwas registered first.
The plaintiffs contended that as the share mortgaged wasdescribed as the share acquired by right of inheritance, the mortgagedid not come into conflict with the deed of gift which dealt witha share described as acquired by purchase.
Held, that the mortgage, in spite of the recital, was good for £share ; moreover, A was estopped from denying that he mortgagedJ share of the land to S.
32-xxv.12(60)20
1928.
1988.
Wickrema-singhe«.Bneohcrmy
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If a person sells a specific thing, even though his source of titleto it is mistakenly stated, his title, however derived, passes to thepurchaser. On the other hand, it is possible for the vendor,intending to sell the thing only so far as it belongs to him by someparticular title, to execute a deed for that limited purpose, in whichcase the purchaser may not be entitled to the thing if that titlefails.
The mortgage decree, the seizure, and the notice of salecorrectly described the land. The Fiscal’s transfer also desoribeclthe land properly by boundaries, but stated the area as two acresinstead of five acres.
Held, that the error did not materially affect the title.
“ The decisive factor is the seizure in pursuance of which the)sale takes place, and any misdescription in the Fiscal’s conveyanceis immaterial as long as the identity of the property is clear.”
'pHE facts are stated in the judgment.
The mortgage bond was as follows :—
Debt and Mortgage No. 63.
Know all men by these presents that I, Comelis Wickremasinhe,of Kadawedia, within the Four Gravets of Matara (hereinafter calledthe debtor), have demanded, borrowed, and received from SiddiaratchigeDon Theadoris de Silva Appuhamy of Gabadawedia, within the FourGravets of Mat'ara aforesaid (hereinafter called the creditor), a sumof Rs. 80, lawful money of Ceylon, and bounded myself unto the saidcreditor for the payment of which said sum of Rs. 80.
Wherefore renouncing the benefit of the plea that the money wasnot counted and received, I, the above-named debtor, have herebyagreed and bound myself to pay the said principal sum, together withinterest accruing thereon, at the rate of 30 per cent, per annum fromthe date hereof till payment on demand of the above-named creditoror his heirs, &c., and for security the payment of the above-mentionedprincipal sum and interest accruing thereon, I have mortgaged andhypothecated, as a first or primary mortgage to and with the saidcreditor and his afore-named heirs, the property described and mentionedin the schedule hereunder which is free from all encumbrances, such-as security and mortgages with all its appurtenances, as well as a{l myright, title, and interest in and to the same.
And for the due fulfilment of the above set out agreements I, thedebtor above named, for and on behalf of myself, my heirs, &c., arehereby further held and bound.
The Schedule above referred to.
The undivided J part which I, the debtor, hold and possess by rightof paternal inheritance of the trees and of soil of the lands Disawage-watta and Weragodayawatta, both adjoining each other and formin'
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one land, in extent about 5 acres, situated at Gabadawedia and Kada-wedia, respectively, within the Four Gravets of Matara, Matara District,Southern Province; and bounded on the north by Tennakon Walauwe-watta and Daluwattagewatta, east by the portion belonging to the heirsof Hewa Badjamage Don Dines of the land Disangewatta, south by thehigh road, and on the west by the portion belonging to the estate ofHewa Badjamage Don Mathes of the land Weragod&yawatta.
In witness whereof, &o.
November 20, 1003.Witnesses signed and attested.
1922.
Wickremt-singhe v.Eneohamy
Drieberg, K.C. (with him Keuneman), for plaintiffs, appellants.
A. St. V. Jayawardene, K.C. (with him E. 0. P. JayelitteJce), fortenth and eleventh defendants, respondents.
The following cases were cited at the argument: 5 Bal. 75;2 C. W. B. 242; 23 N. L. R. 283; 402 D. C. Matara, 8,999,October 14, 1921 ; 22 N. L. R. 385: 41 Cal. 590 ; 27 Bam. 334;(915) A. C. 900.
February 3, 1922. Db Samtayo J.—
The plaintiffs brought this action for the partition of a landconsisting of lots C and D in the plan dated July 8, 1876, andmarked 10 D 7, and a contest arose between them and the tenthdefendant, who is wife of the eleventh defendant. The landformerly belonged to Sinno Appu Wickremasingha Malawa Arachchi.He died intestate, leaving his widow Danohamy and nine children,of whom the fourth plaintiff was one. The widow, by deed No. 2,603dated August 23, 1902, sold her half share to the fourth plaintiffand two others. Four of the other children by the same deed soldtheir shares to the fourth plaintiff and two others. So that thefourth plaintiff became entitled to 1/18 share by inheritance and to £and 16/216 shares by purchase, all of whichaggregate 64/216 or 16/54.By deed dated January 9, 1903, the fourth plaintiff donated tohis children the first, second, and third plaintiffs 15/54 shares,describing it as property belonging to him by right of purchaseon deed No. 2,603. Notwithstanding this gift the fourth plaintiffby bond dated November 20, 1903, mortgaged to Don Theodorisde Silva £ share, which he stated he was entitled to and possessedof by inheritance. It will be observed that by purchase he hadnot so much as £ share, but that need not be taken into accountin considering the point arising in this connection. The bond,though subsequent in date to the deed of gift, was registered previousto it, and so the mortgagee's right prevailed over that of the donees.But it is contended, on behalf of the plaintiffs, that as the share-mortgaged was described as the share acquired by right ofinheritance, the mortgage did not conflict with the deed of gift
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J.
Wickreme-ainghe v.Ensohamy/
1922. which dealt with a share described as acquired by purchase.
Db Sampayo Sandris v. Dinakahamy1 is relied on as authority on this point. -I
think that case must be taken to be based on the language oi theparticular deed which the Court had to construe. The generalprinciple appears to me to be that if a person sells a specific thing,even though his souroe of title to it is mistakenly stated, his title,however derived, passes to the purchaser. On the other hand, itis, of course, possible for the vendor, intending to sell the thing orflyso far as it belongs to hint by some particular title, to execute a deedfor that limited purpose, in which case the purchaser may not beentitled to the thing if that title fails. 1 can only conjecture thatthe deed construed in Sandris v. Dinakahamy (supra) was or at allevents was considered to be of this kind, for Middleton J-, whodelivered the judgment, said : “ The identity of the subject-matter .of the sale would not be the same so as to enable us to hold practicallythat a conveyance of Blackacre, which she did not possess, mustbe deemed to a conveyance of Whiteacre, which she did.” I donot think that the decision is an authority beyond the circumstancesof that case. It appears that it was followed in 402 D. C. Matara,8,999, S. C. Min., October 14, 1921, but in Tiyadoris v. Sadris-hamy? Sandris v. Dinakahamy (supra) was commented on, and thepoint was dealt with in the same sense as I have above ventured toexpress. Reference may also be made to Edoris v. Adrian,3 which,if I may say so, upholds the true principle in this matter. Moreover,the fourth plaintiff is estopped from denying that he mortgagedl share of the land to Don Theodoris.de Silva, and from saying thathe had no title to it. In GunatUleke v. Fernando,* the Privy Councildiscussed the question of conveyance by estoppel, and pointed outthat while under the English law the estoppel is derived from therecitals of title in the conveyance, and it is these recitals, and theseonly, which the grantor has to make good, the Roman-Dutchprinciple, which is applicable to us, is broader in its effect, and theestoppel does not rest upon the recitals only. That is to say,the grantor must make good the conveyance itself, whatever therecitals may be. This being so, Don Theodoris de Silva had avalid mortgage over J share of the land against the fourth plaintiff,and by reason of the prior registration of the bond against first,second, and third plaintiffs. The tenth defendant, who is astranger purchaser in execution of a mortgage decree obtained byDon Theodoris de Silva, can even more strongly rely on theestoppel.
The other point in the case is as to the exact land, a share ofwhich was conveyed to the tenth defendant by the Fiscal’s transfer.To this transfer was attached a survey plan, which appears todescribe not the whole of lots C and D, but parts of lots C and D.
1 (1910) S B. L. 75.*(1921) 23 N. L. B. 283.
(1919) 21 N. L. R. 124.
(1921) 22 N. L. R. 385.
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This appears to have happened by reason of wrong boundaries
being pointed out to the Fiscal's surveyor. The District Judge De Sampavo
is inclined to think that the fourth plaintiff was responsible for
wrong boundaries being pointed out. But for the purpose of this Wickreme-
appeal it is not necessary to go so far as that. The Fiscal's transfer E^okcmy
describes the land properly by boundaries, which clearly identify
it with lots C and D, but at the end of it, where it means to give the
extent, it states: “ containing inextent 2 acres 3 roods and 26 perches
as described in the diagram or map annexed to these presents,”
though the correct extent was 5 acres 1 rood and 32a26 perches.
In my opinion the error does not materially affect the title. Themortgage decree, the seizure, and the notice of sale correctlydescribed the land, and I think the error introduced by the diagrammust be disregarded. In the Indian case (Thakur Barucha v.
Jiban Bam Manoari1), the Privy Council observed “ that which issold in a judicial sale of this kind can be nothing but the propertyattached, and that property is conclusively described in and bythe schedule to which the attachment refers.” The decisive factorthen is the seizure in pursuance of which the sale takes place,' andany misdescription in the Fiscal’s conveyance is immaterial solong as the identity of the property is clear. In this case, as I havesaid, the boundaries given in the Fiscal’s conveyance itself establishthe identity of the land with lots C and D.
In my opinion the appeal must be dismissed, with costs.
Pobteb J—I agree.
Appeal dismissed. 1
1 /. L. R. 41 Cl. 590.