141-NLR-NLR-V-56-M.-D.-THEOBALD-et-al-Appellants-and-H.-M.-ARAMBEPOLA-et-al-Respondent.pdf
Theobald v. Arambtpola
603
1954Present : Swan J. and Fernando A.J.M. D. THEOBALD et al., Appellants, and H. M. ARAMBEPOLAet al., RespondentsS. C. 174—D. C. Rurunegala, 5,303 L
I'eiutur and purchaser—Sale oj immovable property—Doubt as to whether it wasad quant ita. tern or ad oorpua-^-C; instruction of deeds.
Defendants executed an agrooment undertaking to sell to the plaintiffbfifty-live acres and tliirty-eight perches of land the boundaries of which werespecified in the schedule to the agreement. Shortly afterwards a surveyor wasrequested by the plaintiffs to prepare a plan of the land in question. Despitethe fact that the Plan disclosed the extent as forty-four odd acres cnly, thedefendants executed a conveyance in favour of the plaintiffs and the descriptionof tlie land conveyed was identical with that contained in the schedule to the( agreement to sell, with the only difference that the extent was referred to asbeing “ of about 65 acres ”. Plaintiffs took this conveyance although theywere fully aware, from the plan that had been prepared, that tlio defendantswere in no position to deliver possession of an estate of 56 acres. Subsequentlythe plaintiffs were actually able to obtain possession of only 38 acres 2 roodsand 12 (Marches and, thereupon, sued the defendants in the present action tohave themselves placed in possession of an extent of 10 odd acres to make upthe 55 acres convoyed to them or, in the alternative,.to recover tlio sum ofKs. 10,000 us damages.
Held, that in regard to the issue whether the sale was ad corpus or ad quennti-tatem the correct answer was that the sale was ad quantitatem, but in res|>cotonly of 44 odd acres. As the defendan a wero able to place the plaintiffs inpossession only of 38 odd acres, the defendants were liable to compensate thepluiutiffs for the value of the shortfall of 5 odd acres.
564
FEKNANDO A.J.—Theobald v. Arambepola
,/^.PPEAL from a judgment of the District Court, Kurunegala.
H. H Jayetoardene, Q.C., with P. Sanasingke, for the plaintiffsappellante.
Cyril E. S. Perera, Q.C., with O. 8. M. Seneviratne, for the defendantsrespondents.
Our. adv. vult.
November 24, 1954. Fernando A.J.—
The plaintiffs sued the defendants to have themselves quieted andplaced in possession of an extent of fifty-five acres and thirty-eightperches of land alleged to have been sold to them by the defendants orin the alternative to recover the sum of Us. 10,000 as damages being -the value of the extent of land possession of which is alleged not to havebeen delivered to the plaintiffs, and they have appealed against the decreeof the District Judge dismissing their action.
On July 22, 1948, the defendants executed an agreement (P 3) under-taking to sell to the 1st plaintiff the land described in the schedule to theagreement. The schedule enumerates four lots, mentioning in eachcase tho extent of the lot, describes the whole as one property called andknown as Diwalgollewatta “ containing in extent fifty-fivo acres andthirty-eight perches ”, and further specifies the boundaries of tho wholeproperty.
On July 27, 1948, there was a further agreement (P4) by the defendantswhich recites that the land in question is subject to a conditional transferand acknowledges the receipt of Rs. 15,000 paid by the 1st plaintiff inorder to enable tho defendants to obtain a retransfer and thus presumablyto carry out the agreement P 3.'•
Tho learned Judge has found that very shortly after tho executionof P 3 a Surveyor Fernando was requested by the plaintiff to preparea plan of the land claimed by the defendants. The extent of tho landclaimed by the defendants as shown in his plan of July 31, 1948 (D 1) isA. 44 P. 1 P. 32. The learned Judge has also'accepted the evidence that theplaintiffs saw that plan and became aware early in August, 1948, that thoclaim covered only 44 odd acres. On August 11, 1948, tho defendantsoxccuted a conveyance (PC) in favour of the plaintiffs and tho descriptionof the land conveyed is identical with that contained in the scheduleto P 3 with the only difference that the extent is referred to as being“ of about 55 acres At the trial the plaintiffs produced a plan P 1of the extent of land of wliich they were actually able to obtain posses-sion, namely, A. 38 R. 2 P.12, and their action is based on the failure of thodefendants to deliver the 16 odd acres"necessary to make up the 55 acresconveyed on P 5. The position taken up by the plaintiffs was that P 5was a conveyance ad quantitalem and that the defendants were accordinglyliablo either to deliver the extent of the shortfall or to compensate theplaintiffs for the value of that extent. The defendants maintained thatthe sale was ad corpus and that they were not liable to deliver anythingmore than the extent to which they were actually entitled.
FERNANDO A.J.—Theobald v. Arambepola565
The 1st plaintiff in his evidenoe denied that he even saw the plan D 1before the conveyance P 6 was executed, but he was contradicted on thispoint both by the attesting Proctor-Notary and by the Surveyor Fer-nando. He also stated that his offer for the land was on an acreageKanin at the rate of Rs. 650 per acre, but had to admit that on his firstinspection of the land he realised that only about 25 aores were fullyplanted, and that, of the remainder, about 12 acres were completelyin jungle and the other portions planted with coconut trees here and there.The learned Judge has disbelieved the plaintiff on both these mattersand was then led to conclude “ that the plaintiffs were aware of the landthey were purchasing and satisfied themselves before the purchase ”.He accordingly held that the sale was ad corpus and hence dismissed theaction.
If the agreement P 3 and the conveyance P 5 had stood alone withoutextrinsic evidence as to the ciscumstances in which the sale took placeit would have been impossible to resist the conclusion that the transactionwas ad quantitatem ; the description of the lots by reference to a FinalVillage Plan and to the exact extent of each lot, and the absence of any-thing in the documents to indicate a sale ad corpus would have stronglysupported the plaintiffs’ case. Accepting however the correctness ofthe finding of fact that the plan D 1 was prepared at the request of the1st plaintiff and that he was aware that the extent claimed was only44 odd acres, there seems little doubt that when the plaintiffs subsequentlytook the conveyance they must have been fully aware that the defendantswere in no position to deliver possession of an estate of 55 acres. TheNotary’s evidence (also accepted by the learned Judge) was that hewished to draft a conveyance by reference to the plan 1) 1, but that the1st plaintiff instructed him to retain the description (of 55 acres) givenin the original agreements ; he also said that the defendants reluctantlyagreed to this course and at the last minute the 1st defendant insistedthat the description be altered to “ about fifty-five acres
The somewhat difficult question which arises upon these findings ofevidence is whether on August 11, 1948, the parties intended the saleto be ad corpus, and not ad quantitatem as would appear from tho faceof tho conveyance. Mr. Jayawrardeno urges that the proper inference tobo drawi is that the parties deliberately decided to ignore tho planD 1 and to go through with the original agreement to convey 55 acres,and that the defendants cannot be heard to say that there was any changefrom tlio original intention. The learned Judge has drawn the inferencetfiat the plaintiffs were not at the date of P 5 concerned with the actualextent and were -willing to take a conveyance of the defendants’ rightswhatever those rights may be. I think however that the answer liessomewhere between these two extremes. Both parties were awarebefore P 5 was executed that the land consisted of only 44 odd acres butdespite this they were willing to complete the transaction without auvreduction in the figure of Rs. 37,500 already stipulated in tho originalagreement. But that does not mean that the conveyance must be holdto have been ad corpus. Since D 1 fixed the probable extent as 44 oddacres, it is only reasonable ito suppose that the plaintiffs were agreeableto accepting and the defendants to delivering only 44 acres. Nor is it
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at all likely that the plaintiffs, knowing that the defendants claimedonly 44 acres and not 55 as was thought originally, would have agreedto take the further risk that their purchase would cover an extent evensmaller than 44 acres. The 1st defendant stated in evidence that sherequested that the figure of 44 acres Bhould be mentioned in theconveyance. In these circumstances the correct answer to tho issuewhether the sale was ad corpus or ad quantitatem should have been thatit was ad quantitatem, but in respect only of'44 acres. If D 1 is to availthe defendants as indicating an alteration of the original intention, itmust equally be accepted by them as evidence of the new intentionwhich existed at the time of the exeoution of the conveyance. We havethen the result that, although the parties' intended a conveyance of44 odd acres, tho defendants were able to place the plaintiffs in possessiononly of 38 odd acres. 'An extent of A. 5 R. 3 P. 20 is outstanding? andtho defendants are liable to compensate the plaintiffs for the value ofthat extent.
For the reasons mentioned, I would allow the appeal and set asidethe decree dismissing the action. Decree must be entered ordering thedefendants to place the plaintiffs in possession of the outstanding extentof A. 5 R. 3 P. 20 or in the alternative that they pay to the plaintiffs asdamages the value of that extent. The’case is remitted to the DistrictCourt for the assessment of the amount actually to be paid as damages,which will be calculated at a rate not higher than Rs. 650 per acre.
The claim made in the plaint was much larger than that which theplaintiffs have been able to substantiate^. and the identical claim waspressed at the argument in appeal. Moreover, they did not directlyput in issue the question which has now proved decisive. I thereforeflirect that each party bear his own costs both of trial and of appeal.The costs, if any, to be awarded in respect of further proceedings forassessment of damages will be in the discretion of the District Judge.
Swan J.—I agree..
Appeal allowed.