BURDEN OF PROOF UNDER
SECTION 68 OF EVIDENCE ORDINANCE
EP/ HCCA/AMP/266/2013
When we consider the onus probandi
(burden of proof), it lies with the Plaintiff to prove his case on balance of
probabilities. The standard of proof is in a civil case is enunciated clearly
in Miller v. Minister of Pensions [1947] 2 All E.R. 372. Lord
Denning districted that the standard of proof regarding balance of
probabilities is as follows;
“That degree is well settled. It must
carry a reasonable degree of probability, not so high as is required in a
criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if
the probabilities are equal it is not.”
The standard of proof in civil or criminal
litigation is the legal standard to which a party is required to prove its
case. The standard determines the degree of certainty with which a fact must be
proved to satisfy the Court of the fact. In civil cases the standard of proof
is the balance of probabilities. This means that the Court will assess the
oral, documentary and real evidence advanced by each party and decides which case is more probable. To put it
another way, on the evidence, which occurrence of the event was more likely
than not.
BURDEN OF PROOF
UNDER SECTION 68 ONE WITNESS IS ENOUGH
MUTHUBANDA AND ANOTHER v. GUNARATNE 1999 3 SLR P1
Mr. Herath submitted that the defendant was
not able to obtain the death certificate of Punchibanda a witness to deed No.
31294 to be produced at the trial. However, on the application made to this
Court it was permitted to file the death certificate. He submitted that the
absence of the witness Punchibanda was satisfactorily explained and that the
evidence of the 2nd defendant was sufficient to prove the deed No. 31294,
under section 68 of the Evidence Ordinance. He faulted the learned
District Judge's finding that both attesting witnesses were required to prove
the execution of the deed under section 68 of the Evidence Ordinance.
He also submitted that, at the trial the execution of the deed was not
challenged and not put in issue at the trial.
The deed No. 31295 was attested by two
witnesses, Muthubanda the 2nd defendant's husband and one Premadasa Jayasinghe.
He again faulted the learned District Judge's finding that the defendant failed
to prove the two deeds No. 31294 and No. 31295 in that to wit the witnesses to
each instrument was not called at the trial. Mr. Herath submitted that the
authority relied on by the trial Judge in Arnolis v. Muthumenika(1) is
inapplicable in that the 2 deeds in question were not challenged. The Mortgage
bond referred to in that case was challenged on the basis of a forgery. The
Supreme Court observed: "the plaintiff called the Notary and one of the
attesting witnesses. It appears that the other attesting witness had left the
district and had not been seen for some time. So, that his absence was not
accounted for. The Acting District Judge of Ratnapura held that as a matter of
law it was necessary to call both attesting witnesses. I am unable to agree
with that statement of law.
DEED CAN BE PROVED BY THE
EVIDENCE OF ONE WITNESS MUTHUBANDA AND
ANOTHER v. GUNARATNE 1999 3 SLR P1
A deed can be proved by the evidence of one
witness though as a matter of precaution it may be advisable in many cases to
call all the witnesses. Held, that the deed was sufficiently proved. It is
relevant to point out that the deeds in question were not challenged at the
trial and there was no issue raised on the basis of fraud. Mr. Herath also
referred to Sakar on Law of Evidence 10th edition, page 95. He submitted that
the question of calling more than one witness arises according to the
circumstances of the case.
In Solicitor-General v. Awa Umma(2). T.
S. Fernando, J. observed that
"the learned trial Judge has held that
the prosecution has failed to satisfy section 68 of the Evidence
Ordinance. The section prohibits the use as evidence of any document required
by law to be attested until one attesting witness at least has been called for
the purpose of proving its execution . "
Therefore, I am inclined to accept the
submission of Mr. Herath that the trial Judge erred when he held that the two
instruments were not proved.
As regard the priority of the registration the
plaintiff raised 2 issues 17 and 18. Mr. Gunathilake submitted that there is
due registration of the deeds relied on by the plaintiff and such deeds must
prevail by priority of registration. This submission was based on the fact that
deed of gift No. 59287 was not revoked and had transmitted title to the
plaintiff. The learned District Judge observed that the plaintiff's deeds are
registered in the proper folio suggesting the inference that the defendants
deeds are not. Mr. Herath submitted that the finding of the learned District
Judge is erroneous. That no question of registration or prior registration does
arise here and relied on section 4 (1) of the Ordinance. He submitted that
immediately upon the gift being revoked by the donor the gift becomes void and
of no effect and any transaction that flowed from deed of gift No. 59287 was
void and no rights flow from the said deed. The question of prior registration
does not arise. He referred to Banda v. Hethuhamy(3) which laid down that,
"the doctrine of Caveat Emptor must certainly apply to our contracts for
sale of land in the Kandyan Provinces and all purchases for valuable
consideration should be duly put upon inquiry as to their vendor's title to
convey". Mr. Herath submitted that once a gift becomes void after revocation
in terms of section 4 (1) registration of other deeds or registration in the
proper folio will not revive a deed that is void and thereafter has no right,
title or interest to convey to anybody. In Appuhamy v. Holloway(4) the Supreme
Court observed that the question of title had to be considered independently of
the law of registration. In Appuhamy's case (supra) when Mudalihamy executed
the deed of revocation 2D2 in 1904 the very foundation of title of Punchirala
based on P2 was destroyed and Punchirala had no right based on that deed that
he could transfer to a vendee.
The learned District Judge was in error when
he held in favour of the plaintiff on the question of registration.
It is unnecessary at this stage to go into the
question of prescription by the 2nd defendant since I have come to a finding
that there was a valid revocation of the deed of gift No. 59287 of 10. 6. 1971
by deed No. 31294 of 24. 10. 1976 and that the 2nd defendant acquires title by
deed No. 31295. Question of prescriptive possession by the 2nd defendant,
therefore, does not arise as regards prescriptive rights of the plaintiff. The
trial Judge has come to a finding that the plaintiff has not been in
possession. Even if the plaintiff was in possession the adverse possession
would commence in 1976 when the deed of gift was revoked. Since action has been
instituted in 1983 the question of prescription does not arise.
I, accordingly, set aside the judgment of the
learned District Judge and enter judgment for the defendants as prayed for and with
costs fixed at Rs. 2,100.
ARNOLIS V. MUTU MENIKA, 2
NLR 199
EVIDENCE-PROOF OF DEED-NUMBER OF WITNESSES TO BE CALLED.
In order to prove the execution of a mortgage
bond attested by a notary and two witnesses it is not necessary that the notary
and both the attesting witnesses should be called. It may be proved by the
evidence of only one witness, although as a matter of precaution it may be
advisable in many cases to call all the attesting witnesses.
THIS was an appeal by the plaintiff
from a judgment of the District Judge dismissing his claim with costs. The
action was one on a mortgage bond, which the defendant impeached as a forgery.
The plaintiff called the notary and one of the two attesting witnesses to prove
the bond. The District Judge held that as a matter of law it was necessary to
call both the attesting witnesses. He also expressed dissatisfaction with the
evidence of the witnesses called, and dismissed the action with costs. In
appeal, Dornhorst, for
appellant; De Saram, for
respondent.
October 22, 1896. Bowser, C. J. -
The plaintiff in this case sues on a bond
dated the 25th March, 1886.The bond was given by a Kandyan married woman, and
purported to mortgage certain landed property to secure a sum of two hundred
and fifty rupees and interest. The bond was executed before a notary at
Balangoda. The defendant on being sued set up a defence that the bond was a
forgery.The plaintiff called the notary and one of the attesting witnesses. It
appears that the other attesting witness had left the district and had not been
seen for some time, so that his absence was accounted for, Mr. Drieberg, the
Acting District Judge of Ratnapura, held that as a matter of law it was
necessary to call both the attesting witnesses. I am unable to agree with that
statement of the law. A deed can be proved by the evidence of one witness,
though as a matter of precaution it may be advisable in many cases to call all
the witnesses.[His Lordship here discussed the facts of the case, and held that
the deed was sufficiently proved, and allowed the appeal. ]
Lawrie, J. -
In my opinion there is sufficient proof of the
execution by the defendant of the bond sued on. The notary and one of the
attesting witnesses have given evidence that the defendant did put her mark as
mortgagor on the bond.
How to prove a deed
SC APPEAL
NO: SC/APPEAL/56/2020 Decided on: 20.05.2022
Mahinda Samayawardhena, J.
This Court granted leave to appeal to the
plaintiff on the following two questions of law:
(a) Did the learned Judges of the High Court
err in law in concluding that the deed bearing No. 1986 does not fulfill the due requirements of section 2 of the
Prevention of Frauds Ordinance?
(b) Did the learned Judges of the High Court
misdirect themselves in evaluating the evidence and concluding that the
attesting witnesses have not given evidence when the record bears out that one
attesting witness had in fact given evidence?
The short question to be decided in this
appeal is whether deed No. 1986 has been properly executed in terms of section
2 of the Prevention of Frauds Ordinance, No. 7 of 1840, as amended. The said
section in sofar as relevant to the present purposes reads as follows:
No sale,
purchase, transfer, assignment, or mortgage of land or other immovable
property…shall be of force or avail in law unless the same shall be in writing
and signed by the party making the same, or by some person lawfully authorized
by him or her in the presence of a licensed notary public and two or more
witnesses present at the same time, and unless the execution of such writing,
deed, or instrument be duly attested by such notary and witnesses.
To prove due execution of a deed, this section
requires proof of four matters:
MAIN
ELEMENTS OF A DEED SC APPEAL NO: SC/APPEAL/56/2020 Decided on: 20.05.2022 Mahinda Samayawardhena, J.
(a) the deed was signed by the executant
(b) it was signed in the presence of a
licensed notary public and two or more witnesses
(c) the
notary public and the witnesses were present at the same time
(d) the execution of the deed was duly
attested by the notary and the witnesses
It may be relevant to note that under section
2 of the Prevention of Frauds Ordinance, the document shall be signed by the executant in the presence of the notary and the
two witnesses present at the same time. However, the section does not
expressly state that the document shall also be signed by the two witnesses and
the notary in the presence of the executant at the same time.
Execution and attestation are two different
things: the former by the maker/executant and the latter by the notary and the
witnesses.
Attestation is two-fold: due attestation by
the notary and the witnesses as stated in section 2 of the Prevention of Frauds
Ordinance, and formal attestation by the notary as stated in section 31 of the
Notaries Ordinance, No. 1 of 1907, as amended.
MERE NON OBSERVANCE OF
RULES BY NOTARY DO NOT INVALIDATE DEED SC
APPEAL NO: SC/APPEAL/56/2020 DECIDED ON: 20.05.2022 MAHINDA SAMAYAWARDHENA, J.
In the execution of deeds, the requirements
under section 2 of the Prevention of Frauds Ordinance are mandatory, and
non-compliance renders a deed invalid. Conversely, non-compliance with the
Rules made for notaries set out in section 31 of the Notaries Ordinance does
not invalidate a deed as expressly provided for in section 33 of the Notaries
Ordinance, which reads as follows:
No instrument
shall be deemed to be invalid by reason only of the failure of any notary to
observe any provision of any rule set out in section 31 in respect of any
matter of form:
Provided that
nothing hereinbefore contained shall be deemed to give validity to any
instrument which may be invalid by reason of non-compliance with the provisions
of any other written law.
(Weeraratne
v. Ranmenike (1919) 21 NLR 286, Asliya Umma v. Thingal Mohamed [1999] 2 Sri LR
152, Wijeyaratne v. Somawathie [2002] 1 Sri LR 93, Pingamage v. Pingamage
[2005] 2 Sri LR 370)
What constitutes the attestation and the form
of attestation are set out in sections 31(20) and 31(21) of the Notaries
Ordinance; this is the formal attestation appended by the notary at the end of
the deed. This is different from attesting a deed by the notary and witnesses
as contemplated in section 2 of the Prevention of Frauds Ordinance. If the
formal attestation of a deed is defective, the notary can be prosecuted under
the Notaries Ordinance, but the deed’s validity is unaffected.
NOTARY HAS INSERTED A FALSE OR
WRONG DATE OF ITS EXECUTION DOES NOT RENDER THE DEED VOID.
SC APPEAL NO: SC/APPEAL/56/2020
DECIDED ON: 20.05.2022 MAHINDA
SAMAYAWARDHENA, J.
In Thiyagarasa
v. Arunodayam [1987] 2 Sri LR 184, the deed on its face had the date
14th January 1973 as the date of execution. According to the plaintiff, the
actual date of execution was 7th October 1972. The District Court held that the
deed was not properly executed. On appeal, G.P.S. De Silva J. (later C.J.) held
at 188-189:
Once
it is established that the requirements of section 2 of the Prevention of
Frauds Ordinance relating to the execution of the deed have been complied with,
the mere fact that the notary has inserted a false or wrong date of its
execution does not render the deed void. The lapse on the part of the notary
does not touch the validity of the deed but may render the notary liable to be
prosecuted for contravention of the provisions of the Notaries Ordinance. This
seems reasonable and just for the parties to the transaction have no control
over the acts of the notary who is a professional man. I am therefore of the
opinion that P3 is valid and effective to transfer the legal title to the
property and is not bad for want of due execution.
The Court quoted with approval the following
statement of law found in The
Conveyancer and Property Lawyer (1948) Vol. 1 Part 1 by E.R.S.R.
Coomaraswamy at page 94:
The
formal attestation by the notary is not part of the deed but it is the duty of the
notary to append it. What is compulsory is compliance with the
provisions of section 2 of the Prevention of Frauds Ordinance; non-compliance
with the other provisions of the Prevention of Frauds Ordinance or the Notaries
Ordinance does not ipso facto make
the deed invalid.
It was held in Weeraratne v. Ranmenike (1919) 21 NLR 286 that the requirement
under section 16 (now section 15) of the Prevention of Frauds Ordinance that a
deed shall be executed in duplicate was only a duty imposed on the notary and
was not intended to invalidate the deed in the event of non-compliance. De
Sampayo J. held at 287-288:
It
is clear to my mind that this clause merely imposed a duty on the notary, and
was not intended to invalidate deeds where the notary might have failed to
observe the direction therein contained. It is well settled that a notary’s
failure to observe his duties with regard to formalities which are not
essential to due execution, so far as the parties are concerned, does not
vitiate a deed. For instance, the absence of the attestation clause does not
render a deed invalid. D.C. Kandy, 19,866 (Austin’s Rep. 113); D.C. Negombo,
574 (Grenier (1874), p.39). Similarly, I think the failure on the part of the
notary to have a deed executed in duplicate does not affect its operation as a
deed. The case D.C. Kandy, 22.401 (Austin’s Rep. 139) is an authority on this
point.
I therefore think
that the decision of the Commissioner in this case is erroneous.
WHAT IS ATTESTATION SC APPEAL NO: SC/APPEAL/56/2020 DECIDED ON:
20.05.2022 MAHINDA SAMAYAWARDHENA, J.
Let me now turn to the word “attest” as
contemplated in section 2 of the Prevention of Frauds Ordinance. Following the
ordinary dictionary meaning of “attest” which is “to bear witness to”, a person
who sees the document signed by the executant is a witness to it; if he
subscribes as a witness, he becomes an attesting witness. Black’s Law Dictionary (11th edition)
defines “attesting witness” as “someone who vouches for the authenticity of
another’s signature by signing an instrument that the other has signed.”
A word of caution: although section 2 of the
Prevention of Frauds Ordinance does not require the witnesses and the notary to
attest the deed before the executant, this section requires the execution of
the deed to be “duly attested” by the notary and the two witnesses.
The word “duly” here is not without
significance. How is a deed considered to be duly attested? In this context,
section 2 of the Prevention of Frauds Ordinance needs to be read with section
31(12) of the Notaries Ordinance which runs as follows:
[The
notary] shall not authenticate or attest any deed or instrument unless the
person executing the same and the witnesses shall have signed the same in his
presence and in the presence of one another, and unless he shall have signed
the same in the presence of the executant and of the attesting witnesses.
Although compliance with the Rules contained
in section 31 is not mandatory as explained above, it was held in Emalia
Fernando v. Caroline Fernando (1958) 59 NLR 341 that an instrument which is required
by section 2 of the Prevention of Frauds Ordinance to be notarialy attested
must be signed by the notary and the witnesses at the same time as the maker
and in his presence. This conclusion was reached giving due regard to the
expression “duly attested” found in section 2 of the Prevention of Frauds
Ordinance. I am in complete agreement with this interpretation, for otherwise
the Prevention of Frauds Ordinance which was enacted to prevent fraud can be
misused to cover fraud on the basis that section 2 of the Prevention of Frauds
Ordinance does not require the notary and witnesses to sign the deed before the
executant in the presence of one another. At page 344 Basnayake C.J. held:
Learned counsel
for the appellant contended that the requirement of the Notaries Ordinance in
regard to the attestation of documents is not relevant to a consideration of
the true meaning of the section. I am unable to agree that the provisions of
the Notaries Ordinance are irrelevant to a consideration of the meaning of
section 2 of the Prevention of Frauds Ordinance. I think in giving effect to
the word “duly” we should take into account provisions of law which regulate
the execution of documents required to be notarialy attested.
Section 30(12) of
the Notaries Ordinance provides that a notary “shall not authenticate or attest
any deed or instrument unless the person executing the same and the witnesses
shall have signed the same in his presence and in the presence of one another,
and unless he shall have signed the same in the presence of the executant and
of the attesting witnesses.”
Section 30(20) requires the notary to state in
his attestation that the deed was signed by the party making it and the
witnesses in his presence and in the presence of one another. The view I have
expressed above is in accord with the decision of this Court in the case of Punchi Baba v. Ekanayake (4 S.C. C. 119),
in which this Court expressed the view that section 2 of the Prevention of
Frauds Ordinance required that the notary and the witnesses should sign in the
presence of the maker and at the same time and that a deed not so signed was
not valid.
P6 is the original title deed of the plaintiff
and V1 is the photocopy of that deed tendered by the plaintiff with the plaint
in support of an application for an interim injunction. The contention of the
defendant, which was accepted by the High Court, is that: V1 did not contain
the signature of the second attesting witness; the signature of the second
attesting witness appearing in P6 had been placed after the execution of the
deed; therefore the plaintiff’s title deed had not been duly executed.
NO ISSUE IS BEEN
RAISED ON DUE EXECUTION AT TRIAL / NO
OBJECTION RAISED AT CLOSE SC APPEAL NO:
SC/APPEAL/56/2020 DECIDED ON: 20.05.2022
MAHINDA SAMAYAWARDHENA, J.
It is significant to note that the defendant
did not raise an issue on due execution of the deed either at the beginning of
the trial or during the course of the trial. When the original deed P6 was
marked through the plaintiff, the defendant moved that it be marked subject to
proof. When the plaintiff closed his case reading in evidence the marked
documents including P6, the defendant did not maintain that it had not been
proved, thereby indirectly conceding that the objection was no longer a live
objection.
HOW CAN A DEED BE
PROVED? SC APPEAL NO: SC/APPEAL/56/2020
DECIDED ON: 20.05.2022 MAHINDA
SAMAYAWARDHENA, J.
Section 68 of the Evidence Ordinance reads as
follows:
If a document is
required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to the process
of the court and capable of giving evidence.
The plaintiff called as witnesses the notary
and the first attesting witness to the deed, and they confirmed that the donor,
the donee, the first attesting witness, the second attesting witness and the
notary were all present at the same time and signed the deed in that order.
When they were confronted with V1, they stated that they saw V1 for the first
time in the witness box.
THE FOLLOWING FINDING OF THE
HIGH COURT IS NOT CORRECT: SC APPEAL NO: SC/APPEAL/56/2020 DECIDED ON:
20.05.2022 MAHINDA SAMAYAWARDHENA, J.
When there is a
dispute or challenging a document with regard to the due execution, the notary
alone is not sufficient to give evidence. At least one attesting witness should
give evidence. In this case attesting witnesses have not given evidence and no
explanation is given for it. Although the High Court came to the finding
that no attesting witness was called to give evidence on the execution of P6
and no explanation was provided for such failure, in fact, two attesting
witnesses were called to prove P6: one was the notary and the other was the
first attesting witness. There is no dispute that Anoma Ranaweera, the wife of
the donee who signed as the first witness to the deed and whose evidence has
been overlooked by the High Court, is an attesting witness. The decision of the
High Court would have been different if the Court had drawn its attention to
the evidence of this attesting witness.
The notary is as much an attesting witness as
the two witnesses themselves within the meaning of section 68 of the Evidence
Ordinance. (Wijegoonetileke v.
Wijegoonetileke [1956] 60 NLR 560, The Solicitor General v. Ahamadulebbe Ava
Umma (1968) 71 NLR 512 at 515-516, Thiyagarasa v. Arunodayam [1987] 2 Sri LR
184, Wijewardena v. Ellawala [1991] 2 Sri LR 14 at 35)
In Marian
v. Jesuthasan (1956) 59 NLR 348 it was held:
Where a deed
executed before a notary is sought to be proved, the notary can be regarded as
an attesting witness within the meaning of section 68 of the Evidence Ordinance
provided only that he knew the executant personally and can testify to the fact
that the signature on the deed is the signature of the executant.
In Marian’s
case, the execution of the deed by the executant was in issue but only the
notary who did not personally know the executant gave evidence to prove the
deed. It is in that context the Court held that the notary was not an attesting
witness. This should not be understood to mean that a notary can never be an
attesting witness unless he knows the executant personally. For instance, in
the case at hand, whether or not the notary knew the executant is beside the
point as the deed is challenged on the sole ground that the second attesting
witness did not sign the deed. Even if the notary did not know the executant
personally, he can still be an attesting witness but proof of execution of the
deed is incomplete on his evidence alone.
If the notary does not know the executant, he
must know the witnesses and the witnesses must know the executant. In that
eventuality, at least one of the two attesting witnesses needs to be called to
prove due execution.
Sections 31(9) and 31(10) of the Notaries
Ordinance are relevant in this regard. 31(9)
He shall not authenticate or attest any deed or instrument unless the person
executing the same be known to him or to at least two of the attesting
witnesses thereto; and in the latter case, he shall satisfy himself, before
accepting them as witnesses, that they are persons of good repute and that they
are well acquainted with the executant and know his proper name, occupation,
and residence, and the witnesses shall sign a declaration at the foot of the
deed or instrument that they are well acquainted with the executant and know
his proper name, occupation, and residence.
31(10) He shall
not authenticate or attest any deed or instrument in any case in which both the
person executing the same and the attesting witnesses thereto are unknown to
him.
To sum up, the notary is a competent witness
to prove attestation, SC APPEAL NO: SC/APPEAL/56/2020 Decided on:
20.05.2022 Mahinda Samayawardhena, J.
To sum up, the notary is a competent witness
to prove attestation, and if he knows the executant, he is a competent witness
to prove attestation and execution, both of which are the sine qua non of proving due
execution. This was lucidly explained by T.S. Fernando J. in The
Solicitor General v. Ahamadulebbe Ava Umma (1968) 71 NLR 512 at 516:
The object of
calling the witness is to prove the execution of the document. Proof of the
execution of the documents mentioned in section 2 of No. 7 of 1840 means proof
of the identity of the person who signed as maker and proof that the document
was signed in the presence of a notary and two or more witnesses present at the
same time who attested the execution. If the notary knew the person signing as
maker, he is competent equally with either of the attesting witnesses to prove
all that the law requires in section 68 – if
he did not know that person then he is not capable of proving the identity as
pointed out in Ramen Chetty v. Assen Naina (1909) 1 Curr. L.R. 257, and in such
a case it would be necessary to call one of the other attesting witnesses for
proving the identity of the person. It seems to me that it is for this
reason that it is required in section 69 that there must be proof not only that
“the attestation of one attesting witness at least is in his handwriting” but
also “that the signature of the person executing the document is in the
handwriting of that person.” If the notary knew the person making the
instrument, he is quite competent to prove both facts – if he did not know the
person then there should be other evidence.
In the instant case the notary stated in his
evidence that he knew the executant and the other witnesses personally as the
donee was his classmate, the donor is the donee’s aunt, the first witness is
the donee’s wife, and the second witness is his (the notary’s) clerk. The
question in this case is not whether the executant signed the deed but whether
the second witness was present (together with the others) at the time of the
deed being signed by the executant and duly attested.
This in my view has been proved by marking the
original deed as P6 and calling the notary and the first witness to the deed as
witnesses in the plaintiff’s case. The High Court, without considering the
aforementioned evidence, relied on a photocopy of the deed (which had been
tendered by the plaintiff with the plaint for another purpose) to reject the
original deed. The High Court at page 8 of the impugned judgment states “even though it is a true copy, it has the
Land Registry seal and the inference the court can draw is that the document
marked P6 has been sent to the Land Registry without the signature of one
attesting witness.”
THE
STANDARD OF PROOF OF DUE EXECUTION OF A DEED IS ON A BALANCE OF PROBABILITIES. SC APPEAL NO: SC/APPEAL/56/2020 DECIDED ON:
20.05.2022 MAHINDA SAMAYAWARDHENA, J.
The standard of proof of due execution of a
deed is on a balance of probabilities. It is in my view unjust on the part of
the appellate Court to hold against the plaintiff on “inferences” when there
was no issue raised in the District Court on the due execution of the deed,
when P6 was not objected to at the closure of the plaintiff’s case as a deed
which had not been proved, when the deed was proved by calling two attesting
witnesses, and when the defendant or the District Court did not insist that the
plaintiff produce the duplicate and/or protocol of the deed to further verify
the matter.
W]HEN IT IS ALLEGED THAT A
PERSON SIGNED A BLANK SHEET OF PAPER SC APPEAL NO: SC/APPEAL/56/2020 DECIDED ON: 20.05.2022 MAHINDA SAMAYAWARDHENA, J.
The case of Baronchy Appu v. Poidohamy (1901) 2 Brown’s Reports 221 relied
upon by the High Court to say that in addition to the notary another witness
should have been called has no applicability to the facts of the instant case.
The headnote of this case reads as follows:
[W]hen it is
alleged that a person signed a blank sheet of paper which was subsequently filled
up in the form of a deed and impeached as fraudulent by such person, the
execution of such document ought to be proved, not by calling the notary who
attested it, but by calling at least one of the witnesses thereto.
The statement of law enunciated in the above
case is correct on the unique facts of that case where the deed was challenged
on the basis that the notary obtained the signatures on blank papers. The
challenge in the instant case is different and, in any event, in the instant
case, the notary and another attesting witness have given evidence on due
execution.
The ratio
decidendi in a decision must be understood in light of the unique facts
and circumstances of that particular case. Unless the two situations are
similar, judicial precedents need not be mechanically applied merely because
the subject area is the same.
Moreover, the course of action adopted by the
High Court is against the basic principles of proof of documents as envisaged
in the Evidence Ordinance. Documents must be proved by primary evidence except
in the limited instances where secondary evidence is permitted: sections 64 and
65 of the Evidence Ordinance, section 162 of the Civil Procedure Code. It is
not possible to defeat primary evidence by secondary evidence (other than in
exceptional situations), although vice
versa is possible.
For the aforesaid reasons, I answer the two
questions of law in the affirmative. The judgment of the High Court of Civil
Appeal is set aside and the judgment of the District Court is restored. The
appeal is allowed with costs both here and in the Court below.
SC APPEAL 164/2012 Decided on:
25.07.2022 L.T.B. Dehideniya, J.
The Court granted leave to appeal on the
following
questions of law;
1) Did the learned Judges of the High court
err in law in holding that the Deeds P1 and P2 have not been proved without
giving due weight to the well-established principle reiterated by the Supreme
Court and the Court of Appeal in Balapitiya
Gunananda Thero v. Talalle Meththananda
Thero (1997) 2 Sri L.R 101 and Sri Lanka Ports Authority And Another v Jugolinija- Boal East (1981) 1 Sri L.R 18 that
if no objection is taken to receive in evidence at the close of a party’s case
a document which was earlier marked subject to proof then the said document
would be considered as evidence before court for all purpose?
2) Did the learned Judges of the High Court
err in law in holding that the Plaintiff has failed to prove the document P1
and P2 in terms of Section 68 and 69 of the Evidence Ordinance without giving
any weight to the other relevant provisions of the Evidence Ordinance,
particularly in view of the fact that the document P3, a deed attested by the
same Notary attesting the document P1, and admitted in evidence without being
marked subject to proof, was before court?
This being a rei vindicatio action the plaintiff has to establish his title.
Until the title is established the defendant need not to prove anything. Once
the plaintiff proves title, the burden shifts on to the defendant to show that he has independent
right in the form of prescription as claimed by him. His Lordship Justice
Saleem Marsoof PC in the case of Jamaldeen
Abdul Latheef V. Abdul Majeed
Mohamed Mansoor And Another [2010] 2 Sri L.R 333 considering a long
line of cases
held that;
“In Dharmadasa v.
Jayasena(12) De Silva, C.J/. equated an action for declaration of title with
the rei vindicatio action, and at 330 of his judgement quoted with approval the
dictum of Heart, J., in Wanigaratne v. Juwanis Appuhamy (13),for the
proposition that the burden is on the plaintiff in a rei vindicatio action to
clearly establish his title to the corpus, echoing the following words of
Withers, J., in the old case of Allis Appu v. Endis Hamy (supra) at 93-
In my opinion, if
the plaintiff is not entitled to rei vindicate his property, he is not entitled
to a declaration of title... If he cannot compel restoration, which is the
object of a rei vindicatio, I do not see how he can have a declaration of
title. I can find no authority for splitting this action in this way in the
Roman-Dutch Law books, or decisions of court governed by the Roman-Dutch Law.
As Ranasinghe, J., pointed out in Jinawathie v. Emalin Perera (14) at 142, a
plaintiff to a rei vindicatio action "can and must succeed only on the
strength of his own title, and not
upon the weakness
of the defence." In Wanigaratne v. Juwanis Appuhamy, (supra) at page 168,
Heart, J., has stressed that
"the defendant in a rei vindicatio action
need not prove anything, still less his own title." Accordingly, the
burden is on the Respondents to this appeal to establish their title to the
land described in the schedule to their petition …”
At the trial for the Appellant only the
Appellant and the surveyor gave evidence. The title deed of the appellant was
marked as P1 and it was marked subject to proof. Appellant did not call any
witness to prove the execution of P1. At the closer of the evidence the
Appellant read P1 in evidence and the Respondent did not object to the
document.
The issue in the instant appeal is whether the
P1 can be used as evidence. The Appellant has not called any witness to prove
the execution of P1. Since the defendants have not objected to the document
marked P1 at the closer of Appellant case the Counsel argue that the P1 becomes
evidence as per the Judgement in Sri
Lanka Ports Authority And Another v Jugolinija- Boal East
(1981) 1 Sri L.R
18. In the said case at p. 23-24 Samarakoon CJ,
held that;
“When P1 was
marked during the trial objection was taken “as the author of P1 has not been
called”. I take it, what was meant was, that P1 be rejected unless the author
was called to prove the document. Counsel for the respondent closed his case
leading in evidence P1 and P2. There was no objection to this by counsel for
the appellants who then proceeded to lead his evidence. If no objection is
taken when at the close of a case documents are read in evidence they are
evidence for all purposes of the law”.
This Judgement was followed in Balapitiya Gunananda Thero v. Talalle
Meththananda Thero (1997) 2 Sri L.R 101. Where at p. 105 G. P. S. De
Silva CJ, held that;
“...however, was
marked in evidence subject to proof and the District Court held that the
document was not proved, although P5 was read in evidence at the close of the
plaintiff’s case without objection. This finding of the District Court was
reserved by the Court of Appeal on the basis of the decision in Sri Lanka
Ports Authority And Another v Jugolinija Boal East. In that case
when P1 was marked in the course of the trial objection was taken but when the
case for the plaintiff was closed reading in evidence P1, no objection was
taken by the opposing counsel”.
Section 68 of the Evidence Ordinance provides
that a document which is required to be attested shall not be used in evidence
until at least one attesting witness is called to give evidence.
The Section 68 read thus;
“If a document is
required by law to be attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its execution, if
there be an attesting witness alive, and subject to process of the court and
capable of giving evidence”.
In Wijegoonatilleke v. Wijegoonatilleke 60
NLR 560 Basnayaka CJ held that, “In
our opinion a Notary who attests a deed is an attesting witness within the
meaning of that expression in section 68 and 69 of the Evidence Ordinance”.
If the notary knows the executer the notary also can be witnesses. Neither of them were called as witnesses and no
reason was given for not calling either.
Under these circumstances whether the deed can
be accepted as evidence is the issue. As Tambiah J explained in Jayasinghe v. Samarawickrema (1982) 1 Sri.
L.R 349 at p. 359 citing
Sarkar’s Law of Evidence, “Section 68 of the Evidence Ordinance lays
down that documents required by law to be attested shall not be used as
evidence unless at least one attesting witness is called to prove its
execution. If he is alive and subject to process of the Court. ‘This is not the
same thing as saying that a document required to be attested by more than one
witness shall be proved by the evidence of only one witness. S. 68 only lays
down the mode of proof and not the quantum
of evidence
required.
More than one
attesting witness may be necessary to prove a document according to the
circumstances of a case’ (Sarkar’s Law of Evidence, 10th Edn. P. 591)”. His Lordship
Justice Sisira De Abrew with the agreement of myself and Justice Padmam
Surasena, considered the
decisions of the said Sri Lanka
Port Authority And Another v Jugolinija- Boal East (1981) and Balapitiya Gunananda Thero v. Tallalle Meththananda Thero (1997) 2 Sri
L.R 101 cases
and several other relevant cases and held in the case of Dadallage Anil Shantha Samarasinghe Vs
Dadallage Mervin Silva SC Appeal 45/2010 S/C Minute dated 11.6.2019
that;
“Considering all
the above matters, I hold that when a document which is required to be proved
in accordance with the procedure laid down in section 68 of the Evidence
Ordinance is produced in evidence subject to proof but not objected to at the
close of the case of the party which produced it, such a document cannot be
used as evidence by courts if it is not proved in accordance with the procedure
laid down in section 68 of the Evidence Ordinance. I further hold that failure
on the part of a party to object to a document during the trial does not permit
court to use the document as evidence if the document which should be proved in
accordance with the procedure laid down in section 68 of the Evidence Ordinance
has not been proved.
I would like to
note that the acts performed or not performed by parties in the course of a
trial do not remove the rules governing the proof of documents”.
As mentioned above, if the witness is not
called cannot be considered as evidence. In the case of Amarasinghe Arachchige Don Dharmarathna v.
Dodamgodage Premadasa and Others SC Appeal No.158/2013, Decided on:
12th October 2016, Prasanna Jayewardene, PC, J, has applied the same principle.
His Lordship noted that;
“Our Courts have
consistently taken the view that, other than in instances where a
notarially
attested Deed is admitted by the opposing party or is produced in evidence
without objection
or requirements of proof, the requirements of Section 68 of the Evidence
Ordinance are imperative and that Deed will not be considered in evidence
unless the testimony of, at least, one attesting witness has been led.
Thus, in Bandaiya v. Ungu [15 NLR 263]. Lascelles CJ described the requirements of Section
68 of the Evidence Ordinance as a “wholesome rule” and held that, a
notarially attested Deed shall not be used as evidence until one
attesting witness at least has been call for the purpose of proving its
execution, if there be an attesting witness alive, capable of giving evidence
and subject to the process of the Court. [Emphasis is added]”
Section 31(9) of the Notaries Ordinance reads
as follows, “He shall not authenticate
or attest any deed or instrument unless the person executing the same be known
to him or to at least two of the attesting witnesses thereto...”
E.R.S.R.Coomaraswamy in The Law of
Evidence Vol 2 Book 1 at page 108 explains the object of calling the
witness. He says “In Solicitor General
vs. Ava Umma 71 NLR 512 at 515-516” T.S. Fernando J. said “The object of calling the witness is to
prove the execution of the document. Proof of the execution of the documents mentioned in Section 2 of No. 7 of
1940 (Prevention of Frauds
Ordinance) means
proof of the identity of the person who signed as maker and proof that the
document was signed in the presence of a notary and two or more witnesses
present at the same time who attested the execution.”
Coomaraswamy further say thus;
“Stephen says
that the rule in Section 68 is probably the most ancient, and is, as far as it
extends, the most inflexible of all the rules of evidence. As Lord Ellenborough
says in R. vs. Harringworth
the rule … is
universal that you must first call the subscribing witness; and it is not to
varied in each particular case by trying whether, in its application, it may
not be productive of some inconvenience, for then there would be no such thing
as a general rule.”
Coomaraswami in the same book 106
states that
“if
the witness is alive the subject to the process of the court and capable of
giving evidence a witnesses shall be called. If further states that if one
attesting witness, satisfying the three requirements set out above, can be
called, he must be called.
The omission to
call such a witness, where execution is denied or not admitted, is fatal to the
admissibility of the document.”
In the instant case the title Deed marked P1
was presented in evidence subject to proof. It means that the defendant is not
admitting the title Deed of the Appellant. Since this is a Deed attested by a
Notary Public in front of two attesting witnesses Section 68 of the Evidence
Ordinance comes into operation. It becomes a necessary to call at least one of
the attesting witness to prove the execution. The Appellant has failed to call
any of such witness. Therefore the Deed marked P1 was not proved and therefore
it cannot be considered as evidence. If Appellant has failed to establish
his title in a rei vindicatio action, he is not entitle to any relief. Not
challenging the document marked P3 will not establish the execution of P1.
Case No. C. A. 261/2000(F) Decided on:
09.08.2019 Janak De Silva J.
The next question is whether the Defendant has
established his title to the land claimed by him. He relied on deed no. 2155
dated 13.03.1973 (V.2) attested by F.S.V. De Silva, Notary Public. Section 68
of the Evidence Ordinance reads:
"If a document is required by law to be
attested, it shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the court and capable of
giving evidence."
In this case, F.S.V. De Silva, Notary Public
gave evidence on the execution of deed no. 2155 dated 13.03.1973 (V.2). One of
the attesting witnesses thereto S.J. Herman Gunawardena also testified.
They both testified that Stanley Jayawardena
signed the deed in front of them. In these circumstances, the learned
Additional District Judge was correct in concluding that the execution of deed
no. 2155 dated 13.03.1973 (V.2) has been proved.
On the contrary, the deed relied on by the
Plaintiff no. 1879 dated 04.02.1970 (P.1) attested by T.D. Samson Silva Notary
Public relates to a smaller portion of a larger extent of land the identity of
which the Plaintiff has failed to establish. It is also a conditional transfer
and as the learned Additional District Judge points out the Plaintiff has
failed to establish whether the said conditions have been fulfilled. The
failure to do so results in the Plaintiff failing to establish the requisites
under Roman-Dutch law to prove her ownership. Willie's Principles of South African Law [Hutchinson, Van
Heerden and Der Merwe (eds), 8th Ed. Third Impression, page 270] explains that
ownership is a composite right consisting of a conglomeration of abilities and
states that the composite right of an absolute owner of a thing consists of
right (i) to possess it (ii) to use and enjoy it (iii) to destroy it and (iv)
to alienate it.
Maarsdorp [The Institutes of Cape Low, Book II at p.31 (1903)] states that
the rights of ownership """. are comprised under three heads,
namely, (i) the right of possession, ownership having indeed been defined by
some as consisting in the rights to recover lost possession; (2) the right of
usufruct, that is the right of use and enjoyment; and (3) the right to
disposition." Given the divergent views as to the different rights that
make up the concept of ownership, it is important to ascertain what are the
rights that a person should enjoy over a corporeal thing to be declared as its
owner. Maarsdorp (supra) provides an answer to this question by reference to
the rights of possession, enjoyment and disposition and states as follows:
"these three factors are all essential to
the idea of ownership but need not all be present in an equal degree at one and
the same time. Thus, though there need not be actual use and enjoyment present
in every case, the right of alienation, coupled with the legal means
of effecting such alienation, is at all times
necessary in order to constitute valid ownership: and perhaps a more correct
definition of ownership would be that it is the exclusive right of disposing of
a corporeal thing combined with the legal means of alienating the same and
coupled with the right to claim the possession and enjoyment thereof."
Professor Max Radin, an authority on Roman
Law, in Fundamental Cancepts of the
Raman Law [California Law Review Vol, 13 Issue 3 page 212] states that
"".especially the power of transfer, are legally and popularly associated with the idea of dominium
as fundamental parts of it."
The Privy Council in Attarney General v. Herath (62 N.L.R. 145) adopted
part of Maarsdorp's formulation and held that the rights of an owner under the
general law of Ceylon are comprised under three heads, namely,
(1) the right of possession and the right to
recover possession;
(2) the right of use and enjoyment; and
(3) the right to alienate and that these three
factors are all essential to the idea of ownership but need not all be present
in an equal degree at one and the same time. (emphasis added)
One of the conditions in deed no. 1879 dated
04.02.1970 (P.1) is that the property must be transferred back to Stanley
Jayawardena upon repayment of the money borrowed by him. Clearly the right of
the Plaintiff to transfer the corpus to a third party was limited. There is
also evidence that the Defendant instituted action bearing no. 5584/ZL to evict
one Alikutti from premises no. 110 which is reflected in plan no. 3577 (V.1)
whereas the said assessment number is not shown on plan no. 873 (P.2) relied on
by the Plaintiff.
This being a rei vindicatio action it was a paramount duty on the part of the
Plaintiff to establish correct boundaries in order to identify the land in
dispute [Peeris v. Savunhamy (54
N.L.R. 207)]. There is a greater and heavy burden on a plaintiff in a rei vindicatio action to prove not
only that he has dominium to the land in dispute but also the specific precise and
definite boundaries when claiming a declaration of title [Abeykoon Hamine v. Appuhamy (52
N.L.R. 49)]. To succeed in an
action rei
vindicatio, the owner must prove on a balance of probabilities, not only
his or her ownership in the property, but also that the property exists and is
clearly identifiable. The identity of the land is fundamental for the purpose
of attributing ownership, and for ordering ejectment [Latheef v. Mansaor and
anather (2010) 2 Sri.L.R. 333]. In a vindicatory action it is
necessary to establish the identity of the corpus in a clear and unambiguous
manner and the action must fail upon the failure to do so [Fernando
v. Somasiri (2012 B.L.R.
121)J.
ASLIYA UMMA v. THINGAL MOHAMED 1999 - Volume 2
,Page No - 152
Vindicatory
action - Claim for cancellation of ''fraudulent'' deeds - Proof of execution of
the plaintiff's deed - section 68 of the Evidence Ordinance - The
legal effect of the failure by the Notary to observe statutory provisions
applicable to the extension of a deed - Sections 31 and 33 of the Notaries
Ordinance.
One Abdul Gafoor the clerk to the Notary
Sandrasegara in whose handwriting the deed of revocation was prepared and who
signed it as an attesting witness and also knew the parties well was called as
a witness. In the course of his testimony he said that it was the practice of
Notary Sandrasegara to get him to first write the protocol in full and obtain
the signatures of the parties to the fully written protocol and the other two
copies in blank.
The plaintiff alleged that the 1st to the 3rd
defendants acting collusively influenced Notary Sandrasegara to after the date
in the deed of revocation to read as 19.6.1969. The District Judge gave
judgment for the plaintiff.
Held:
1. The question of due execution of the deed
of revocation did not arise at the trial. In any event at the time of the trial
the Notary was dead and the execution of the deed was proved in terms
of section 68 of the Evidence Ordinance by calling Gafoor.
2. There was no issue raised at the trial on
the question of the 1st defendant's consent to the deed of revocation. In any
event the evidence of the plaintiff and Gafoor as well as a document signed by
the 1st defendant before the Assistant Commissioner of Agrarian Services
agreeing to enter the plaintiff's name in the paddy lands register as the owner
of the land in dispute established her consent to the revocation.
3. The failure of the Notary to observe the
provisions of section 31 of the Notaries Ordinance in executing the deed of
revocation did not make it invalid; for in terms of section 33 of the
Ordinance, the deed shall not be deemed to be invalid by reason only of such
failure.
4. The evidence established that the deed of
revocation was executed on 9.6.1969.
Per Dheeraratne,
J.
"It was quite clear that words and
figures indicating nine in the protocol had been altered to read as nineteen.
The alterations were not in the handwriting of Abdul Gafoor"
Case referred to:
1. Solicitor-General
v. Ava Umma (1968) 71 NLR 512 at 575.
APPEAL from the judgment of the Court
of Appeal reported in (1996) 2 Sri LR 62.
Faiz
Musthapha, PC with Sanjeewa Jayawardena for the appellant.
S.
Mahenthiran with MCM Muneer for the respondent.
Cur. adv. vult.
154
March 26, 1999.
DHEERARATNE, J.
The plaintiff was the owner of a paddy-field
called Puddiyadivayal, in extent 10 acres and 2 roods. He, upon deed No. 690
dated 5.9.1966 attested by A. A. Majeed, Notary Public, in which his wife too
joined, gifted the divided southern portion in extent 5 acres of the said field
(the 5-acre field), to their daughter Nafeela Umma the 1st defendant. The gift
was stated to be irrevocable. On 8.2.1968, the 1st defendant married Uthuma
Lebbe Mohammedthambi the 2nd defendant. By deed No. 557 (the deed of revocation),
attested by V. Sandrasegara, Notary Public, to which the plaintiff, his wife
and the 1st defendant were parties, the earlier deed of gift No. 690 was
revoked. The plaintiff stated that this deed of revocation was in fact attested
on 9.6.1969, although it bore the date 19.6.1969. The 1st defendant, upon deed
No. 20722 dated 11.6.69 attested by S. Gnanamuttu, Notary Public, purported to
gift the said 5-acre field, to her husband the 2nd defendant, who in turn,
purported to transfer the said 5-acre field upon deed No. 21162 dated 4.3.1970
attested by the same Notary to Ismail Lebbe Thingal Mohamed the original 3rd
defendant.
The plaintiff filed this action on 31st
January, 1973, seeking, inter alia, a declaration that he was the owner of the
said 5 acre field; for cancellation of deed No. 20722 of 11.6.1969 and deed No.
21162 of 4.3.1970, both attested by S. Gnanamuttu, Notary Public; and that he
be quieted in possession of the said field. The case of the plaintiff was that
the 1st to 3rd defendants, acting fraudulently and in collusion, influenced V.
Sandrasegara Notary Public, illegally, to falsify the deed of revocation by
postdating it to read 19.6.1969 instead of 9.6.1969. It could be seen that if
the deed of revocation was attested on 9.6.1969 as contended by the plaintiff,
the 1st defendant had no title in the 5-acre field to gift to her husband the
2nd defendant, and consequently no interests would pass on to the 3rd
defendant. The original plaintiff's action was contested only by the 3rd
defendant. The learned trial judge in an admirably well-considered judgment,
having held that the deed of
155
revocation was in fact attested on 9.6.1969
and not on 19.6.1969, gave judgment in favour of the plaintiff as prayed for.
The Court of Appeal set aside the judgment of the learned District Judge
primarily on the basis that - (1) the plaintiff had failed to prove due
execution of the deed of revocation by calling the Notary; (2) that the 1st
defendant had not consented to the revocation of the gift; and (3) that the
deed of revocation was invalid. The present appeal to this Court is the sequel.
As I have mentioned earlier, the 1st and 2nd
defendants did not contest the action. In view of what the Court of Appeal said
about the failure to prove due execution of the deed of revocation, I would
refer to some averments in the answer of the 3rd defendant. In paragraph 2 he
stated ". . . the said deed of revocation No. 557 dated 9th
June, 1969 and attested by V. Sandrasegara, Notary Public, is bad in law and in
fact. . . ". Again in paragraph 3 he stated ". .
. the averments contained in paragraph 6 of the plaint is wrong and
misleading since the revocation of the donation was on 19.6.1969 but the
donation made by the 1st defendant Ahamed Lebbe Nafeela Umma to her husband the
2nd defendant was on 11.6.1969 . . . . The question of due
execution of the deed of revocation did not arise and the trial proceeded on
the issues mentioned below; I have indicated the answer to each of those issues
given by the learned District Judge, within brackets.
Plaintiff's A :
(1) Did the plaintiff execute the deed of
revocation No. 557 attested by V. Sandrasegara with the concurrence of Nafeela
Umma? (Yes).
(2) Was that deed executed on (a) 9.6.69 or
(b) 19.6.69? (On 9.6.69).
(3) If issue No. 2 (a) is answered in the
affirmative was the 2nd defendant aware of the said execution on 11.6.69?
(Yes).
(4) If issue No. 3 is answered in the
affirmative, was the 3rd defendant also aware of deed No. 557 of 9.6.69? (Yes).
156
(5) If issue No. 4 is answered in the
affirmative, did the 3rd defendant obtain a transfer of the property in dispute
by deed No. 21162 of 4.3.70 attested by S. Gnanamuttu NP well knowing that the
2nd defendant fraudulently obtained the deed of donation from Nafeela Umma?
(Yes, but not necessarily fraudulently).
(6) If the deed of revocation referred to had
been executed on 9.6.69, has the date thereon been subsequently altered to
prevent the plaintiff from gaining prior registration in terms of the
Registration of Documents Ordinance ? (Yes).
(7) If the above issues are answered in the
affirmative is the plaintiff entitled in law to have the deed of gift bearing
No. 20722 of 11.6.69 attested by S. Gnanamuttu NP set aside? (No).
(8) If issue No. 7 is answered in the
affirmative, is the plaintiff also entitled to have the deed of transfer in
favour of the 3rd defendant bearing No. 21162 of 4.3.70 also attested by S.
Gnanamuttu set aside on the ground of fraud? (No).
(9) If the above issues are answered in the
affirmative, is the plaintiff entitled to judgment as prayed for in the plaint?
(The plaintiff is entitled to judgment as prayed for in the plaint).
3rd defendant's :
(10) Is the deed No. 690 of 5.9.66 deed of
donation, a deed of gift irrevocable? (Yes).
(11) If issue No. 10 is answered in the
affirmative, did the deed of revocation convey any title to the plaintiff?
(Yes).
(12) Did deed No. 20722 of 11.6.69 convey the
land described in the schedule B to the plaint to Uduma Lebbe Mohamedthambi?
(No).
(13) Has the 3rd defendant bought the said
land by deed No. 211162 of 4.3.70 from the 2nd defendant? (No).
(14) If issue is answered in the affirmative,
has the plaintiff a cause of action against the 3rd defendant? (Yes).
157
Plaintiff's :
(15) Even if issue No. 10 is answered in the
affirmative was the plaintiff entitled to have the deed of gift revoked with
the concurrence of the donee Nafeela Umma? (Yes).
Even if due execution of the deed of
revocation was required, section 68 of the Evidence Ordinance
provides : "If a document is required by law to be attested, it shall not
be used as evidence until one attesting witness at least has been called for
the purpose of proving its execution, if there be an attesting witness alive,
and subject to the process of the Court and capable of giving evidence".
The Court of Appeal overlooked the fact that the evidence in the case disclosed
that the V. Sandrasegara NP was dead at the time the trial commenced and his
clerk Abdul Gafoor, in whose hand-writing the deed was, and who signed the deed
as a witness, gave evidence identifying the signatures of the plaintiff, his
wife, the 1st defendant, and of the Notary, all of whom he undoubtedly knew
well. As observed by T. S. Fernando, J. in Solicitor-General v. Ava Umma(1) the proof of
the execution of the documents mentioned in section 2 of the Prevention of
Frauds Ordinance No. 7 of 1940 means proof of the identity of the person who
signed as maker and proof that the document was signed in the presence of the
Notary and two or more witnesses present at the same time who attested the
execution.
According to the evidence of Abdul Gafoor
which the learned trial judge accepted, Notary Sandrasegara was in the habit of
getting him first to write the protocol in full and obtaining the signatures of
the parties in the fully written protocol and in the other 2 copies in blank.
Although none can grant sanction to such wayward ways, that in fact was what
occurred in the notarial practice of Notary Sandrasegara. Section 33 of the
Notaries Ordinance (chap. 110 NLE) reads : "no instrument shall be deemed
to be invalid by reason only of the failure of any Notary to observe any
provisions of any rule set out in section 31 in respect of any matter of
form". (proviso omitted).
It was quite clear that words and figures
indicating nine in the protocol had been altered to read as nineteen. The
alterations
158
were not in the hand-writing of Abdul Gafoor.
In addition, the document dated 16.6.69 (P12A) signed by the 1st defendant and
sent to the district registrar, Batticaloa, objecting to registering a deed,
obviously a reference to the deed of revocation, supported the position that
the deed of revocation was in fact executed on 9..6.69. This document P12A was
received in the office of the district registrar on 17.6.69. This document
clearly shows that the deed of revocation was not executed on 19.6.69. As the
learned trial judge correctly observed the 1st defendant was both a dutiful
daughter and a plaiant wife.
Although the Court of Appeal thought that the
1st defendant did not give her consent to the deed of revocation there was no
issue raised at the trial in that respect. The evidence of plaintiff and Abdul
Gafoor was to the contrary. Moreover, the document dated 14.6.72 (marked P8)
signed by the 1st defendant before the Assistant Commissioner of Agrarian
Services, shows that she was agreeable to enter the name of her father in the
paddy lands register as the owner of the land in dispute.
There is no doubt that the plaintiff could not
have revoked the gift given to his daughter unilaterally. The learned trial
judge rightly thought that the intention of the parties to the deed of
revocation must be given effect to. According to the evidence led at trial
coming principally from the plaintiff and witness Abdul Gafoor, both of whom
the learned trial judge believed, the learned trial judge came to the
conclusion that the 1st defendant voluntarily divested herself of the interests
in the said paddy-field, in favour of her father.
For the above reasons we allow the appeal, set
aside the judgment of the Court of Appeal and affirm the judgment of the
original Court. The appellant will be entitled to a sum of Rs. 10,000 as costs.
PERERA, J. - I agree.
GUNASEKERA, J. - I
agree.
Appeal allowed;
judgment of the District Court affirmed.
