089-NLR-NLR-V-15-FERNANDO-v.-CHRISTIANA.pdf
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Present : Pereira J.
FERNANDO i>. CHRISTIANA.195—G. R. Kalutara, 5,834.
Prescription—Co-owner entitled to a divided portion of prescription—Saleby co-owner of an undivided share—Falsa demonstratio nonnocet.
Where a co-ownerwhohad acquiredtitle to a'defined portionby
prescription sold byhisdeed an undivided share,itwas heldthat
the vendee could not claim the whole of the divided portion by-virtue of his deed.
Pbbbiba J.—Each case must depend upon its own facts andcircumstances. In the present case I see no reason for the applica-tion of the maximfalsademonstrationon nocet.Thismaxim means
that as soon as there is an adequate and sufficient definition withconvenient vsrtainty of what is intended to pass by a particularinstrument! -> subsequent erroneous addition will not vitiate it.It applies oily when the words of an instrument, exclusive of thefalsa demonstratio,aresufficient ofthemselvestodescribethe
property intended to be dealt with.
fjl HE facts are fully set out in the judgment.
A. St. V. Jayewardene, for defendant, appellant.
IF. Jayewardene for plaintiff, respondent.
Cur. adv. vult.
July 17, 1912. Pereira J.—
The plaintiS in his plaint claims to be entitled to a share of landdescribed as follows: " An undivided four-sixths of one-third share
of the defined southern portion of Mawatabadawatta,
containing in extent about I acre.” This is a perfectly intelligibledescription, and it is the only description of the land in the deedson which the plaintiff bases his title. It is said that this share ofland belonged to one Carolis, and on a writ against him, it was soldby the Deputy Fiscal of Kalutara to one Salmon. Salmon by hisdeed dated October 20, 1866, is said to have sold the share of landto Endris. and Endris by his deed of July 15, 1910, is said to havesold the same to the plaintiff. No Fiscal’s conveyance was obtainedby Salmon, and so the plaintiff never acquired the title of Carolisto the land. He, however, pleads title by prescription. Now, theproperty actually in dispute in this case appears to be, not anundivided share of land as stated above, but a defined portion ofland of the extent of about 27 perches, and described in the decree
ItJ.-N. A 99418 (8/50)
1918
( 322 )
1912.
Pereira J.
Fernando vtChristiana
as the “ defined southern portion of Mawatabadawatta.” Theboundaries given in the decree are the same as those given in theplaint,‘except that while the plaint gives “ the defined two-thirdsportion of this land ” as the northern boundary, the decree gives“ another portion of the same land ” as that boundary. I may, inpassing, observe that I fail to see how a parcel of land can possiblybe bounded by a portion of itself. However, as observed already,the plaintiff relies entirely, on prescriptive possession, but he per-sonally had no possession prior to July, 1910. Can he avail himselfof the possession of his .vendor? He may do so provided theconveyance to him by his vendor is a conveyance of the identicaldefined portion of land now in dispute. The conveyance, however,is a conveyance in express terms of “an undivided four-sixths6hare of the third share of the southern portion of Mawatabada-watta.” Mr. E. W. Jayewardene argued that this was a falsademonstratio that does not, in the eye of the law, make an instrumentinoperative, arid he cited the case of Fernando v. Fernando 1 in. supportof his contention. Each case must depend upon its own facts andcircumstances. In the present case I see no room for the applica-tion of the maxim falsa demonstratio non nocet. This maxim meansthat as soon as there is an adequate and sufficient definition withconvenient certainty of what is intended to pass by a particularinstrument, a subsequent erroneous addition will not vitiate it. Itapplies only when the words of an instrument, exclusive of the falsademonstratio, are sufficient of themselves to describe the propertyintended to be dealt with. There is no- lack of authority insupport of these propositions. In the present case, the onlydescription of the property sold is “an undivided four-sixths shareof the third share of the southern portion of Mawatabadawatta.”This, as I have already observed, is a perfectly intelligibledescription, and is a description that enables us to ascertain theproperty actually conveyed. There was apparently a definedportion to the south; and whatever the parties may haveintended to convey, the property in fact conveyed was anundivided four-sixths of one-third of that portion. That definedportion, it is stated in the deed in the plaintiff’s favour, is about1 acre in extent. If it has now contracted itself to 27 perches,the plaintiff is entitled to no more than four-sixths of one-third ofthat extent of land. I give judgment for plaintiff for an undividedfour-sixths of one-third of the portion of land described in the first ■part of the present decree. The rest of the decree is set aside, andI think that parties should bear their own costs in both Courts.The name of the owner of the land to the north should be ascertained,and the northern boundary described as land belonging .to Him.
Varied.
i (1911) 14 N. L. R. 412.