Contract-s-Rescission-s-Innocent misrepresentation ill the description of land
Land Law-Sale of land-Innocent misrepresentation in description=-Rescis-
sian-Extent of error-s-Location and value of land

Land Law-Partition-When partition is completed

1. Where an innocent misdescription of land being sold is of such im-
portance as to produce a mutual mistake as to the substance of the whole
consideration, as where the plot turns out to be in a different spot and on
less valuable soil, the purchaser.may rescind the contract.

2. Partition of registered land is not complete until the separate plots
of land are marked on the ground and on the map, and their ownership
entered in the register.

Kennedy v. Panama &c. Mail Co. (1867) L.R. 2 Q.B. 580 followed.

Revision

December 3, 1934. Owen C.J.: In. this case the plaintiffs seek
to rescind a contract for the sale of land on the ground. that there is
a difference 10 substance between the plot bargained for and that
obtained.

The facts are short and not in dispute. Sagia 42 (6), Gereif
West, was originally registered in the names of heirs holding in un-
divided shares. In or about November 1931 the heirs applied to the
Mahkama for partition, and in due course an ilam was promulgated
indicating the names of the heirs and their respective shares in terms
of feddans, and also declaring that those 'shares should lie next to one

another beginning at the north end, and continuing according to the
list, as far as the southern boundary of the sagia. Before the decree
was executed, i.e., before the actual physical partition had taken place,
the parties to this appeal started negotiations for the sale of the
defendant's share, an area of about 10 Ieddans, and on a certain
day in December 1932 they duly paid a visit to the sagia. All the
parties were aware of the terms of the ilam, and they all knew that
the actual partition of the land was pending. They all knew, too,
that, according to that ilam, the defendant's plot would be situated
after partition at a certain distance from the northern boundary. It
was therefore of the greatest importance that this northern boundary
should be known. The defendant thought he knew it, and pointed out
to the plaintiffs a certain khor, and, after the parties had made a
rough but satisfactory guess as to the approximate site of the defend-
ant's share, they concluded a sale of that plot for £E.20. None of the
parties intended or contemplated that the subject matter of the sale
was an undivided share. What they thought they were bargaining
for was the plot of land which would be, on partition, the registered
property of the defendant. Unfortunately the defendant was quite
wrong. When the time for partition came, it was found that the
northern boundary of the sagia was a considerable distance to the
north of the khor pointed out by the defendant, and his land there-
fore was in a very different place from that contemplated at the time
of the bargain. Not only 'was it in a different place, but the quality
of the land was different. It was bad land, whereas the other was
good.

So the plaintiffs brought an action for rescission of the contract.

The learned judge of the High Court held that this was a case of
mutual mistake going to the root of the contract and gave judgement
for the plaintiffs accordingly. The defendant has appealed on the
ground that the error was not one of substance, and that in any event
the plaintiffs cannot claim relief in view of their neglect to take the
proper precaution of finding out from the map where the real boundary
was.

I think there can be no doubt that the defendant's misrepresenta-
tion of the boundary was an innocent one. The mistake was mutual,
and the law on the point is clear. When there has been an. innocent
misrepresentation or misapprehension, it does Dot authorize a rescis-
sion unless it is such as to show that there is a complete difference
in substance between what was supposed to be, and what was taken,