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NOORDEEN LEBBE v. SHAHUL HAMEED
NLR49V274
1948 Present :
Canekeratne and Basnayake JJ.
NOORDEEN LEBBE Appellant, and SHAHUL HAMEED,
Respondent.
S. C. 368-D. C. Kegalla, 3,297.
Sale-Two contiguous blocks-Separate
description of both blocks-Reference to plan Only one block depicted in
plan-Recitals in deed-Which description to be preferred.
C was the owner of two contiguous blocks of land referred to as the eastern
block and the western block. At a sale in execution of a mortgage decree against
C, the blocks were separately put up for sale and bought by S.
The auctioneer's conveyance described each block separately and went on to say
'' which two lands are now forming one property and described as follows in the
figure of survey 2062 dated July 20, 1934 and registered as two lands in C
123/134 and C 141/173". The plan depicted only the western block.
Held, that both blocks passed to the purchaser on the conveyance. The addition
of an erroneous plan did not vitiate an adequate and sufficient dubitation with
certainty of what was intended to pass by the deed.
APPEAL
from a judgment of the District Judge, Kegalla.
H. V. Perera, K.C.; with C. R. Gunaratna and L. G. Weeramantry,
for the plaintiff, appellant.
S.J. V.Chelvanayagam,K.C, with AT. Kumarasingham and P.
Navaratnarajah, for the defendant, respondent.
Cur. adv. vult.
February 20, 1948.
Canekeeatne J.-
This is an appeal by the plaintiff from a judgment dismissing his action in
respect of a land, which formed one of the two blocks referred to in deed P12
dated September 25, 1943.
One Abdul Careem who was the owner of these two blocks mortgaged them with one
Seneviratne and at the say in execution of the mortgage decree, No. 10324 of the
District Court of Kegalla, Seneviratne agreed to purchase the same. The heirs of
Seneviratne executed a conveyance, P 12-which the plaintiff contends conveyed
both blocks. The defendant who appears to be a son of Abdul Careem claims one of
these blocks - the disputed block - on deed D 3 dated November 6, 1943, executed
by his father.
The question is whether the disputed block is comprised in and expressed to be
conveyed by the deed in favour of the plaintiff. If this block did not pass to
Seneviratne on deed P 10, the plaintiff's action must fail.
It can hardly be denied that Seneviratne agreed to buy both blocks at the
auction sale and that consideration for both blocks was given by the purchaser.
That the auction purchaser intended to procure a conveyance, of both blocks is
also unquestionable. The Court on June 29, 1934, confirmed the sale and
authorised the auctioneer to execute a conveyance of both blocks in favour of
the purchaser. It was thus competent to the auctioneer to convey them to
Seneviratne ; actually he received no direction from the Court to include a
description of the lands by reference to a plan. It seems clear that a mistake
was made by the surveyor who made the figure of survey referred to hereinafter
or by the notary. It is possible, perhaps likely, that the survey or did not
have a copy of the decree or of the conditions of sale of both lots with him at
the time.
It is contended by Counsel for the appellant that the plaintiff became entitled
to both lots and he referred to the decision in Home v. Struben 1.
Counsel for the respondent based his arguments chiefly on the decision in
Eastwood v. Ashton 2. The Court must look at the conveyance in the
light of the circumstances which surrounded it in order to ascertain what was
therein expressed as the intention of the parties. The land to be conveyed is
described in the deed P 10 as follows, omitting what is superfluous,-
(1) The entirety of Urulegodawatta .... containing in extent two pelas in paddy
sowing bounded on the east by the ditch of Werellapotha Thambigewatta, south,
west and north by ditches . . . and registered in C 123/134.
Foot Notes:
1 (1902) A. C. 454.
2(1925) A. C. 900.
(2) The entirety
