098-NLR-NLR-V-54-R.-JEYASINGHAM-Appellant-and-M.-DE-ALMEIDA-Respondent.pdf
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GRATiAEN J.—Jeyasingham v. De Almeida
1952.. Present: Gratiaen J. and PoIle J.R. JEYASINGHAM, Appellant, and M. DE ALMEIDA,Respondent
S.C. 131—D. C. Colombo, 4,014
Deed—Different parts of it inconsistent with each other—Construction.
' A deed purported to convey four contiguous allotments, each of winchwas described in the conveyance as corresponding to a site to which a particularassessment number was allotted by the local authority and as including nota part but the entirety of a building standing on it. In the case of each allot-ment, the purchaser was placed in possession of (a) the entire area to whichthe relevant assessment number had been allocated, and (6) the entire buildingwhich stood on it. The western boundary, however, in the deed of convey-ance was subsequently discovered to cut through a part of the kitchens andother rooms of some of the- allotments. In a claim made by the vendor fortitle to the fractional portion of the land and buildings falling within eachassessment number—
Held, that this was essentially a case for applying the rule that wheredifferent parts of a deed are inconsistent with each other, effect ought to begiven to that part which is calculated to carry into effect the real intentionof the parties, and that part which would defeat it should be rejected.
j/.PPEAL from a judgment of the District Court, Colombo.
B. Wikramanayake, Q.C., with C. Renganathan, for the plaintiffappellant.
Kingsley Herat, with E. L. B. Mendis, for the defendant respondent.
Cur. adv. milt.
August 1, 1952. Gratiaen J.—
The defendant had in 1926 purchased a block of land in Wellawatte(slightly over 4 acres in extent) intersected at that time by a water-course which is depicted in the plan D3 annexed to the conveyance D4.The watercourse has long since dried up.•
The property was divided up into small allotments by the defendantwho from time to time erected a number of bungalows and Cottagesthereon. A part of the bed of the old watercourse, which did not belongto the original vendor and was not therefore included in the sale, wasfilled up by the defendant and was treated as incorporated in his land,while the rest of the watercourse has since been converted by theMunicipal authorities into a masonry drain. In 1927 he mortgagedthe property to the trustees of the provident fund of a well-knowncommercial firm in Colombo.
GRATTAEtf T.— Jeyasingham v. De Almeida
417
The money borrowed from the trustees was utilised in constructing-certain additional buildings including those to which this action relates—•i.e., cottages standing on four contiguous allotments bearing Municipalassessments numbers 2, 4, 6 and 10 in 44th Lane B depicted in thesketch marked “ X ” annexed to the plaint. A very substantial portion(and in one case the entirety) of each cottage falls within the boundariesof the property originally purchased by the defendant in 1924 underthe deed P4, while the remaining portion projects into that part of thebed (no longer identifiable as such) of the dried-up watercourse to whichI have previously referred.
On 9th June, 1938, the defendant sought to strengthen his positionin respect of this slight encroachment by securing' from the Crown inhis wife’s favour, but admittedly for his benefit, a “ certificate of noclaim ” covering the extent concerned.
By a conveyance PI of 8th January, 1940, the defendant sold certain■of his allotments, with the buildings standing thereon, to the trusteesof the provident fund and obtained a full discharge of his outstandingdebt secured by the earlier mortgage. The allotments conveyed areseparately described in various schedules and in each case with parti-cular reference to a plan No. 24 (marked Dl)dated 22nd October, 1935,made by Surveyor E. R. Claasz. For the purposes of this appeal it isnecessary only to consider the description of the allotments dealt within Ittems 16, 17, 18 and 19 of the second schedule comprising the con-tiguous assessment numbers 2, 4, 6 and 10 abutting 44th Lane B,Wellawatte which, as I have already said, form the subject-matter ofthe present action. In each case one finds (1) that the property con-veyed has been identified as bearing a particular numbered allotmentin the plan Dl, (2) that the deed expressly purports to convey, withoutlimitation or qualification, the building or the buildings standing onthe allotment concerned, (3) that the relevant Municipal assessmentnumber of the property is specified, (4) that the extent conveyed pur-ports to compute the area conveyed in perches and indeed in fractionsof a perch, (5) that the western boundary is described as “ the old water-course ”. The difficulty in the case is that the combined effect of the2nd and 3rd elements enumerated by me does to some slight extentmilitate against the combined effect of the 4th and 5th elements.
Upon the execution of the conveyance the purchasers were in eachcase placed in possession of (a) the entire area to which the relevantassessment number had been allocated, and (6) the entire building whichstood on it. This circumstance is certainly an eloquent guide to thedefendant’s understanding at that time of the effect of the conveyance.In 1941 J>he new owners sold the allotments with which we are now con-cerned to M. C. F. Pieris who conveyed them on the same day to theplaintiff. The plaintiff has been in undisturbed possession of theproperties and the buildings ever.since that date, except for a periodduring the recent war when they were requisitioned for military purposes.The de-requisitioned properties were in due course restored to him, andproceedings are now pending for the assessment of compensation pay-able by the Crown in respect thereof. It is that latter event which
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GRATIAT!N J.—Jeya&ingham. v. De Almeida
seems to have encouraged the defendant to claim for the first time thatthe title to a fractional portion of the land and buildings falling -withineach, assessment number which the military authorities occupied had,upon a very narrow interpretation of his conveyance PI, not passedto the trustees by sale and therefore still remained his property. Inthese circumstances the plaintiff instituted the present action againstthe defendant to vindicate his rights of ownership to what everybodyconcerned had till that date assumed to be the property actually soldby the defendant in 1940 and purchased by the plaintiff in 1941.
The learned District Judge found himself constrained, although withobvious regret, to uphold the defendant’s interpretation of PI. Havinghad the advantage of hearing fuller argument in this Court upon theissues involved, I am satisfied that justice can be done to the plaintiffwithout violating any of the principles laid down for the interpretationof written instruments.
The real conflict which arises in this case concerns the location ofthe western boundary of each of the four allotments forming the subjectmatter of this action. The plan D1 does not purport in so many wordsto define the line of the old eastern bank of the dried up watercourse,but it has been clearly proved, by comparison with the earlier plan D3,that a line (marked in red) appearing in D1 which cuts through a partof the kitchens and other rooms of some of the allotments does in fact—although not visible on the site—correspond to what had once been theeastern bank of the old watercourse. Surveyor Claasz, who preparedthe plan Dl, has also stated that in computing, for the purposes of Dl,the extent of each allotment he had been careful to exclude the areaof any part of the building which extended beyond the line which hadoriginally separated the defendant’s property from the watercourse.The area in dispute in each case is, however, so extremely small that nointending purchaser would, I imagine, have found it possible, by theapplication of that test alone, to ascertain the precise limits of theproperty conveyed.
As against these arguments which were urged on the defendant’sbehalf, we are confronted with the compelling circumstance that eachallotment is described in the conveyance as corresponding to a site to whicha particular assessment number has been allotted by the local authorityand as including not a part but the entirety of a building standing on it.
Putting the argument in favour of the plaintiff at the very lowest,I would say that this is essentially a case for applying the sensible rulethat “ where different parts of a deed are inconsistent with each other,effect ought to be given to that part which is calculated to carry intoeffect the real intention of the parties, and that part which would defeatit should be rejected.” Walker v. Giles 1. Had the learned trial Judgebeen invited to give consideration to this principle, I do not doubt thathe would have rejected the interpretation that the conveyance PI wasintended only to dispose of “ portions of the kitchens and storerooms :sor that the defendant seriously intended to c: reserve for himself theremaining portions which were separated off by an imaginary line so
i (1848) 6 C. B. 662 at 702 ( = 136 English Rep. 1407 at p. 1424).
GTOTASKKARA J.—In re JCanagaratnam
419
far as the actual boundary ran on the ground.” Indeed, it is monstrousto suggest that the true intention was that the conveyance should,contrary to its express terms, pass title in each case only to a part of abuilding standing on a part of a site bearing a specified Municipal assess-ment number.
In my opinion, the plaintiff is entitled to a declaration against thedefendant that he is the owner of the entire ground area covered by thecontiguous allotments of land bearing assessment numbers 2, 4, 6 and10 abutting 44th Lane B, Wellawatte respectively, and to the entiretyof the building or buildings standing on each of the said allotments ofland. I would accordingly allow the appeal and enter decree as indi-cated by him. The plaintiff is entitled to his costs both here and inthe Court below.
PtrLtE J.—I agree.
Appeal allowed.