Sinnapody Et Al V. Mannikan Et Al

1949 Present: Basnayake J. and Gratiaen J.

SINNAPODY et al, Appellants, and MANNIKAN et al,
Respondents

S. C. 305-D. C. Jaffna, 3,786
 

Rectification of deed-Circumstances when it will be granted-Delay in institution of action-Materiality of date of detection of the error-Admissibility of parol evidence.

Decisory oath-Refusal by one party to take it-Effect on evidence-Evidence Ordinance, S. 3-Oaths Ordinance, s. 8.

The amount of the loan in a usufructuary mortgage was by mutual mistake of the parties incorrectly stated in the bond as Rs. 275 when it was in fact Rs. 2,750.

Held, in an action for rectification of the bond, that the rectification should be allowed. The material date for the purpose of deciding whether there had been delay in the institution of the action was the date when the error was noticed and not the date when the error was committed.

Held further, (i) that the fact that the mortgagee had gifted his interests to a third party was no impediment to the grant of rectification.

(h) that parol evidence was admissible to make out a case for rectification. Quaere, whether a judge in weighing the evidence is entitled to draw any inference from the refusal of a party, without sufficient reason, to take a decisory oath when challenged to do so by the opponent.

APPEAL from a judgment of the District Court, Jaffna.

N. E. Weerasooria, K.C., with S. Thangarajah, for the defendants appellants.

S. J. V. Chelvanayakam, K.C., with C. Vanniasingham, for the plaintiffs respondents.

Cur. adv. vult.

December 19, 1949. BASNAYAKE J.-

This is an action for rectification of a usufructuary mortgage bond attested by one S. Sinnathurai, a Proctor and Notary, on 5th October, 1946. The plaintiffs who are husband and wife are the mortgagees and the defendants who are also husband and wife are the mortgagors. The plaintiffs allege that the amount of the loan is incorrectly stated in the bond as Rs. 275 when it should in fact be Rs. 2,750. The defendants deny that allegation.

At the trial the following issues were settled:-

(i) Was the true consideration for deed No. 731 of 5.10.46 Rs. 2,750 ?

(ii) Has the consideration been stated wrongly as Rs. 275 ?

(iii) Is the plaintiff entitled to rectification ?

After hearing the evidence placed before him by the parties the learned District Judge held in favour of the plaintiffs on all the issues, and entered decree ordering the rectification of the deed. The present appeal is by the defendants from that judgment and decree.

The material portions of the mortgage bond, which is in English, read-

" Know all men by these presents that we Kathirkaman Sinnapodi and wife, Varaththai of Palaly, Jaffna, hereinafter called the mortgagors, are jointly and severally held and firmly bound and do hereby acknowledge to be justly and truly indebted to Sinnapodi Mannikan and wife, Umaiaththai, both of Palaly, Jaffna, hereinafter called the mortgagees, in the sum of Rupees Two hundred and seventy-five (Rs. 275) of lawful money of Ceylon which we have this day borrowed and received of and from the said Sinnapodi Mannikan and wife Umaiaththai and therefore renouncing the beneficium non numeratae pecuniae the meaning of which has been explained to us agree and undertake and bind ourselves and our heirs, executors, and administrators to pay the said sum of Rupees Two hundred and seventy-five (Rs. 275) to the said Sinnapodi Mannikan and wife, Umaiaththai, or to either of them or their heirs, executors, administrators, or assigns on demand and until such payment we engage and bind ourselves and our aforewritten to permit the mortgagees and their aforewritten to possess the four lands and premises described hereinafter and take and enjoy the produce of the said 4 lands by way of Otti Mortgage under the Law of Thesawalamai, in lieu of interest on the said sum of Rs. 275.

And for securing the due payment of the said sum of

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