Kumarihamy V. Maitripala v

1942 Present: Hearne and de Kretser J J.

KUMARIHAMY v. MAITRIPALA.

257-D. C. Ratnapura, 8,589.

Conveyance-Conflict between the recitals and the operative part-Operative pan prevails.

Where there is a conflict between the operative part of a deed of conveyance and the recital, the terms of the operative part prevail.

APPEAL from a judgment of the District Judge of Ratnapura.

N. Nadarajah, K.C. (with him M. D. H. Jayewardene), for defendant, appellant.

N. E. Weerasooria, K.C. (with him Kurukulasooriya), for plaintiff. respondent.

Cur. adv. vult.

June 22, 1942. DE KRETSER J.-

The plaintiff brought this action claiming one-sixth of a field called Ihalabatadombayaye-Kumbura and one-sixth of a high land called Batadombayayewatta alias Ihala Batadombayayewatta by inheritance from her brother David, who had died issueless, leaving him surviving his widow Susan, and three sisters.

The trial Judge held that plaintiff was not entitled to the high land on the ground that, while both lands formed part of a Nindagama, the paraveni nilakarayas' rights in the field alone had passed to David and the high land had escheated to the Nindagama, coming thereby to the landlords.

The defendant appeals. The plaintiff has acquiesced in the declaration regarding the high land.

In 1914 the plaintiff's only daughter, Victorine, had married E. S. Dassanaike, Barrister-at-Law. A few days before the marriage the plaintiff had gifted a large number of lands to the prospective bride and bridegroom on D 1. The relevent portions of this deed are as follows :--

"Whereas under and by virtue of the last will and testament of Don Moses Tillekeratne, Mudaliyar, .... I, the said grantor, am the owner and seized and possessed of all the lands, houses and

premises described in the Schedule hereto annexed .... Now Know Ye that .... do hereby give, grant, convey, make over and confirm unto the said grantees .... as a gift or donation inter vivos all the shares of the said lands .... and all my estate, right, title, interest, property, claim and demand whatsoever from, in, out of and upon the said premises."

The Schedule conveys one-third of 35 lands, the first being Walauwewatta, the tenth being an undivided half share of Kitulpe Nindagama .... excluding all the chena lands situated in the village, and the 35th the whole of the chena lands in the village then the subject-matter of a partition case.

Batadombayayewatta had reverted to the landlords and Moses was entitled to half. The trial Judge probably would have held that D 1 had conveyed this land to the donees as part of lot No. 35 or of lot No. 10. In fact he held only that David had no right to it and therefore plaintiff had no right. As regards the field he held that inasmuch as plaintiff had gifted only what she got from her father therefore the rights which she derived from her brother remained intact. In other words, he made the introductory recital govern the whole deed.

Apart from the recitals the conveyance was in wide and unrestricted terms and it is admitted would have conveyed to the donees all the donor's rights in the field. It is admitted that Walauwewatta belonged to David and not to the father, and it is the first land mentioned. The donees had litigated for Walauwewatta successfully on the strength of the conveyance and plaintiff was aware of it. Quite clearly she had nothing to do with the field in question and it was the donees and their successors in title who possessed it. Recently gems were found and a speculator tried to claim rights to the field. Thereupon one Willie Gooneratne informed plaintiff of her rights and this action followed. Willie Gooneratne is said to be the F. W. Gooneratne who gave evidence for plaintiff and who was married to her sister. His wife and defendant obtained the licence to gem and he said his wife was entitled to one-t sixth and defendant to five-sixths. There had been tro

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