144-NLR-NLR-V-44-SILVA-et-al-Appellants-and-ISMAIL-et-al-Respondents.pdf
550
HOWARD C.J.—Silva and Ismail.
1943Present: Howard C.J. and Keuneman J.
SILVA et al., Appellants, and ISMAIL et al., Respondents.
131—D. C. Tangalla, 4,787.
Deed of. conveyance—Sale of land by description—Specific dimensions control ■description in schedule.
Where in a conveyance the specific dimensions of the premises soldare given at the beginning of the schedule, describing the property,those specific dimensions must control the description given at the endof the schedule.
^^PPEAL from a judgment of the. District Judge of Tangalla.
H. V. Per era, K.C. (with him E. B. Wickremanayake and H. WJayewardene), for the defendants, appellants.
N. E. Weerasooria, K.C. (with him Vernon Wijetunge), for the plaintiffs,respondents.
Cur. adv. vult.
October 28, 1943. Howard C.J.—
This is an appeal by the defendants from a judgment of the DistrictJudge, Tangalla, entering judgment for the plaintiffs for declaration of
1 Ramanathan {1863-68) p. 295
HOWARD C.J.—Silva and Ismail.
551
title to a certain plot of land marked “ C ” in plan “ X ” filed of recordThe question that arises for decision is as to the exact land sold upon adeed of conveyance dated March 24. 1941 (marked D 1), whereby theplaintiffs conveyed to the defendants the premises described and set forthin the schedule. The schedule is worded as follows : —
“All that the soil and plantation of divided off allotment of landseventy and a half feet in length and thirty feet in width together withthe entire boutique comprising of three boutique rooms built by methe said first-named vendor and standing thereon of the entire landcalled the northern two-third (2/3) portion of the land called Illukketiya-mulla depicted in T. P. 69,969, situated at Walasmulla in West Giruwa.pattu in Hambantota District, Southern Province, end bounded on thenorth by Illukketiyamulla and Gansabhawa road, east by minor road,south by the southern portion of the same land, and west by T. P. 69,874,containing in extent two roods and twenty-seven perches being propertyheld and possessed by me the said first named vendor by right of purchaseupon transfer deed No. 6,786 dated July 18, 1930, attested by D. D. S.Muttucumarana, Notary Public, and by me the said second namedvendor by right of purchase upon transfer deed No. 6,258 dated5th September, 1919, attested by Notary aforesaid and which saidportion is bounded on the north by a portion of the northern two-thirdportion of the land called Illukketiyamulla, east by high road leadingfrom Walasmulla to Katuwana, south by the southern one thirdportion of the land called Illukketiyamulla and west by T. P. 69,874.”
The plaintiffs were the owners of lots A, B, C, and D as depicted in planmarked “ X ”. Their contention that only lot D passed by virtue of D 1to the defendants was accepted by the learned Judge. In coming to thatconclusion the latter held that, as the specific dimensions of the premisessold were given at the beginning of the schedule, those specific dimensionsmust control the description given at the end of the schedule. He 'alsoheld that although the western boundary given as “west by T. P.69,874” would include lot C, those words must be treated as a falsedescription. The exact dimensions of the premises conveyed appearat the beginning of the schedule. Those are the dimensions of lot D.These dimensions are not an addition to something which has alreadybeen described, but are part and parcel of the description and definition.They are an essential part of the description. According to the evidenceof the Notary who drafted D 1 and gave evidence on behalf of thedefendants, those dimensions 70h feet by 30 feet were read out to thepurchasers. Moreover as lot C included a well, it seems hardly likelythat it would be included in the conveyance. In my opinion the learnedJudge was right in holding that the subsequent description by boundarieswas controlled by the earlier description in which the exact dimensionsof the premises sold were specified. In this connection I would refer toFrancis i>. Hayward.'. At page 181 Jessel M.R. stated as follows : —
“ When after a description of a property it is stated that on one sideit is bounded by a certain other property, and it appears that it is notso bounded for every inch, there is an inaccuracy in the statement ofthe boundary, but this is not enough to exclude what is not so bounded
» (1SS2) 22 Gh. D 177.
692
HOWARD C.J.—Silva and Ismail.
if it appears from the evidence to have been part of the property dealtwith, and the previous description of that property is sufficient toinclude it.”
In that case it was a question of the boundaries reducing the area thatpassed under the general description. It was held that the generaldescription of the. boundaries does not cut down the effect of the priordescription. In my opinion the converse proposition that the generaldescription of the boundaries does not enlarge the effect of the priordescription also applies. It was also held in Mellor v. Walmesley' thatwhere, in a conveyance of land, the exact dimensions were stated on theparcels and marked on a plan and stated to be, though not in fact“bounded on the west by the seashore”, the words in inverted commasmust be rejected.
Por the reasons I have given, the appeal is dismissed with costs.
Kei-neman J.—T agree.
Appeal dismissed. 1
1 (1905) 2 Ch.184.