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DE SILVA et al. v. ABEYTILEKE et al.
NLR33V154
1931 Present: Akbar J.
DE SILVA et al. v. ABEYTILEKE et al.
59-C. R. Balapitiya 18,092.
Evidence-Conveyance of land and house-Error in description of house-Falsa
demonstrate non nocet.
Where a deed of transfer conveyed to the transferee certain undivided shares of
the soil and " the whitewashed tiled house of 32 feet in length and 49 feet in
breadth standing thereon ", and it transpired that there was only one
whitewashed tiled house on the land but that it was 32 feet in length and 72
feet in breadth,- Held, that title to the house passed to the transferee despite
the error in description.
THIS
was an action for declaration of title to a house against the added
defendant who sold to the plaintiffs certain undivided shares of the soil and a
tiled house 32 feet in length and 49 in breadth standing thereon. There was only
one tiled house on the land but it
was 32 feet in length and 72 in breadth. The question for determination was
whether the vendors intended to convey the whole tiled house to the plaintiff.
The learned Commissioner of Requests held that the plaintiffs were only entitled
to a portion of the house, 32 feet in length and 49 in breadth.
M. C. Abeywardane, for plaintiffs, appellants.-The appeal involves the
construction of a deed by which certain shares of a land and " the whitewashed
tiled house of 32 feet in length and 49 feet in breadth standing thereon" were
conveyed to the appellant. There is only one house on the land in question, and
that a structure 32 feet in length and 72 feet in breadth. The trial Judge held
that the plaintiffs were bound by the terms of their deed and were only entitled
to such portion of the house in question as is 32 feet in length and 49 feet in
breadth. It is submitted that the finding is wrong. This is a case of " falsa
demonstratio non nocet ". What was conveyed was " the house ". The subsequent
mis-description cannot alter the effect of that conveyance. The house was
enlarged to its present proportions long anterior to the conveyance to the
appellants. The erroneous description has probably been copied from an earlier
deed. A reference is made to the earlier deed, in the schedule attached to our
document of title. That deed, however, has not been produced but that is
immaterial. The principles of construction in a case like this were very lucidly
expressed by Lord Sumner in Eastwood v. Ashton 1[(1916) A. C. 900.]. See also Bulner v. Schokman
2[(1920) 22 N. L. R. 60.].
L. A. Rajapakse, for defendant, respondent.-The case of Eastwood v. Ashton is
really in my favour. The appellants are not entitled to the relief they pray
for. The furthest they can go is to make a claim for compensation, vide Fernando
v. Sumangala 3[(1920) 22 N. L. R. 23.]. The principles of construction in a case like this were
considered by "Voet in bk. XVIII., c. 7, tit. 1. Under the Roman-Dutch law no
quantity is mentioned, when a specific property is sold. If a declaration of
quantity is mentioned, there is either a provision that that declaration is not
to be strictly adhered to, or a mention of the boundaries of the property sold.
The appellants are purchasers of undivided shares of the land on which this
house it built. As such, they cannot maintain this action without joining the
other co-owners.
AT. C. Abeywardane, in reply.-The question of co-ownership does not arise. It
was not in issue at the trial. Nor is there any averment in the pleadings
dealing with it. The passage in Voet has no application to the facts of the
present case. Voet was there dealing with the case of lend. The argument in the
passage cited can only apply to land. The Roman-Dutch authorities nowhere deal
with the case of a house.
October 15, 1931. AKBAR J.-
In this case the appellants claimed a house by right of purchase from the added
defendant-respondent and some others. According to the deed of purchase what was
conveyed was certain
