1946 Present: Howard C. J and de Silva J.

RAMANAYAKE, Appellant, and NAGAPPA CHETTIAR
et al., Respondents.

365-D. C. Kegalla, 1,523.

Construction of deed-Conveyance of property-Plan contradictory of words of description-Insufficient description of the property conveyed ?Rule of Falsa demonstration non nocet.

The rule Falsa demonstration non nocet is not applicable in a case where not only the plan attached to the deed of conveyance contradicts the text but also there is no adequate and sufficient definition with convenient certainty of what was intended to pass.

APPEAL from a judgment of the District Judge of Kegalla.
    
                  N. Nadarajah, K.C. (with him D. W. Fernando), for the defendant, appellant.

                H. V. Perera, K.C (with him N.E. Weerasooria, K.C., and T. Nadarajah) for the plaintiffs, respondents.

Cur. adv. vult.

February 12, 1946. HOWARD C.J.-

The facts are set out in the judgment of my brother de Silva and after due consideration I agree with the conclusion at which he has arrived. I was inclined at first to think that this was a case in which the rule ?Falsa  demonstration non nocet? applied. Authority for this rule is to be found in the case of Llewellyn v. Earl o Jersey. In this case Baron Parke stated the rule as follows :-
   
?As soon as there is an adequate and sufficient definition, with convenient certainty, of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it according to the maximum false demonstration non nocet?.

This rule was applied in the Privy Council case of Horne v. Struben2 in which Lord Robertson in giving the judgment of the Court stated that their Lordships considered that assuming, as appears to be the case in regard to the western boundary, that the diagram contradicts the unambiguous text of the title, it must give way to the text. If, however the facts in the present case are examined, it is impossible to say that there is an adequate and sufficient definition with convenient certainty of what was intended to pass. The basic of the plaintiffs? title is P8, the mortgage by Ramanayaka the husband of the defendant. In this deed the property is described as consisting of 5 lots specified by different names with separate boundaries. After these 5 lots have been described the schedule to the deed states as follows:-

?All of which lands adjoin each other and now form one property called and known as Yakebehenayaya estate, situate at Kehelwatugoda

Foot notes

1 152 E. R. 767.
2(1902) A. C. 454

aforesaid and bounded on the east by Ela, south by a fence, rock and land claimed by natives, Mala Ela, and Walawwewatta and on the north by land claimed by natives containing in extent forty-nine acres and two roods (A 49. R 2. P 0) according to the plan and survey made by C. D. Jayasinghe, Special Licensed Surveyor, dated May 24, 1923?.

So, first of all there is a description of the property mortgaged by reference to 5 blocks specified by different names with separate boundaries. Then follows what purports to be a description of the same lands by reference to a consolidated block with a distinct of the name and boundaries according to a plan and survey made by C. D. Jayasinghe dated May 24,1923. Mr. Direckze, the Surveyor, was on April 24, 1942, issued with a commission to identify the lands in dispute. The 5 blocks were referred to by name, but only the boundaries of the consolidated block were given. In his return to this Commission Mr. Direckze said that the chenas referred to by name in the land sold to the plaintiffs now form part of the Narangala Estate. The plan issued in the Commission is not a survey of land in that estate, but refers to land situate at Batuwatte village called the Kiridenekande estate and claimed by Mrs. W. Nugawela. A second commission was issued to Mr. Direckze and on August 28, 1942, he made a further report. In