KANDIAH v. KARTHIGESU

044-NLR-NLR-V-31-KANDIAH-v.-KARTHIGESU.pdf


( 172 )
1929.
Present : Fisher C.J. and Drieberg J.
KANDIAH v. KARTHIGESU.99—D. C. Jaffna, 23,599.
Action for declaration that the signature of a deceased person is forgery—Recovery of property—Letters of administration—Civil ProcedureCode, s. 647.
Where an action was instituted to have it declared that thesignature of a deceased person to the discharge of a mortgagebond and the transfer of a land were forgeries,—
Held, that the action was one for the recovery of propertybelonging to the estate of the deceased within the meaning ofsection 547 of (he Civil Procedure Code.
A
PPEAL from a judgment- of the District Judge of Jaffna.The facts appear from the judgment of the Chief Justice.
H. V. Perera (with N. E. Weerasooriya, Navaratnam, andSubramaniam), for defendant, appellant.
Kcnneman (with Bamachandra.), for plaintiff, respondent.
November 4, 1929. Fisher C.J.—
In this case plaintiff prays for a declaration that an endorse-ment on a mortgage bond (P 5) and a deed of transfer (P 4) areforgeries. After hearing a very considerable body of evidencethe learned Judge gave judgment in favour of the plaintiff and adecree was issued declaring that both the documents referred towere forgeries. In my opinion the case in respect of P 4 and P 5must be carefully separated. P 4 is a notarially executed docu-ment and the onus being on the plaintiff to prove that it was a
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forgery the question is whether he discharged that onus. The 1OT®.parties to the document were one Mootathamby and his wife
Sinnappillai as transferors and the defendant as transferee. The
document purports to have been executed on October 11, 1927.
It was apparently registered on November 18, 1927, and Moota-thamby, who was an old man of over eighty years of age, died onNovember 26, 1927. For the purpose of proving that this documentwas a forgery the plaintiff has, in my opinion, to rely entirely onthe evidence of a handwriting expert. It was urged that therewas other evidence to support the plaintiff’s contention, namely,certain statements alleged to have been made at some indefinitedate by the deceased man indicating an intention to benefit thesecond plaintiff and his brother.- The sole deponent to this expression -of intention is the second plaintiff himself, who in the course of theaction became the only plaintiff, and even if such evidence islegally admissible on the issue the Court had to try, Damely, whetherthis document was a forgery or not, I do not think that it is of anyvalue. That being so, is it possible to hold that P 4 was a forgerysolely on the evidence of the handwriting expert ? Looking athis evidence as a whole one is forced to the conclusion that hewas by no means free from doubt in his opinion on the question,of Mootathamby s signature. He had to consider the same questionin connection with the document P 5, and after two authenticspecimens of Mootathamby’s signature had been put before himhe felt constrained to admit that he might have to modify a clausein his report with regard to Mootathamby’s signature havingbeen forged. The evidenceof anexpertonhandwriting is at
best .the expression of an opinion, ro doubt in many cases a verywell founded opinion. Buthavingregardtothewhole of the
expert’s evidence I do notthink itis possible.toaccept it as a
basis for a definite findingthat P4 wasforged.This view is,
moreover, supported by what I cannot help .thinking was thereliable evidence of the Notary employed to draft the document.
His evidence does not read like the evidence of a man "who is outsolely to support the case of the person on whose behalf he is givingevidence. In examination in chief, for instance, he deposed tosomething which he certainly would have refrained from disclosinghad he been, as he must be taken to be if his evidence is rejected, aco-conspirator with the defendant, in concocting a false case. Whetherthe defendant is speaking the .truth when he says that he paid theconsideration for the transfer, or not, is a matter open to question,but unfortunately parties with a good case occasionally seek tobolster it up by false evidence, and having regard to the relation-ship between the deceased man and the defendant, which appearsto have been filial in its character, it seems to be probable that thetransfer was in reality in recognition of the services the defendant
( 174 )
1929.
Fisher C.J.
Kqndiah v.Katthigteu
had rendered to Mootathamby * and his wife though for some reasonor other both defendant and Sinnathamby have sought to showthat it* was a sale. However that may be, in my opinion plaintiffhas failed to prove that P 4 was a forgery.
P 5, however, stands on a different footing. The forgery allegedin this case is a so-called endorsement purporting to show thatthe deed for Rs. 1,750 for which the document was a security hadbeen discharged. In this case the person in whose favour thedocument was originally executed was a son of the deceased’manMootathamby who predeceased his father and died on September5, 1927. The document, itself bears date March 20, 1926. and thedischarge was said to have been effected on April 2, 1927. Theprobabilities seem to be against the debt having been discharged.There was no receipt or other document to support any of thepayments on account which were alleged to have been made.Nor was there any reliable evidence to show that the defendantwas in a position to pay the mortgage debt. The appearance ofthe endorsement itself is suspicious and the statement of the Notaryreferred to, to the effect that on the day after Mootathamby’s deaththe document was not in the state in which it was when it wasbrought before the Court, all constitute elements of suspicionwhich, in my opinion, threw the onus on the defendant of provingthat the document had in fact been duly executed. This onus hecertainly did not discharge and, in my opinion, the finding of thelearned Judge on this document must be upheld.
My brother Drieberg has dealt with the question of the rightof the plaintiff to bring this action.
I agree with his judgment and with the form of the decreewhich he proposes.
Drieberg J.—
I. agree with the judgment of my Lord the Chief Justice on thequestion of the execution of the transfer, P4, and the allegeddischarge of the-mortgage bond, P 5.
The appellant in his answer took the objection that the actioncould not be maintained unless a grant of letters of administrationof the estates of Kanapathipillai and Mootathamby had beenobtained as required by section 547 of the Civil Procedure Code. Anissue was framed on this point; the learned District Judge heldthat administration was not necessary and the trial proceeded.His order was based on two cases, Lewis Humy v. de Silva 1 andWeerasooriya v. Weerasooriya. 2 These were actions brought bythe wife and the heirs of the wife to set aside transfers of the commonproperty made by a husband who had married his wife in com-munity of property. Under the Roman-Dutch law the husband,where the marriage is in community of property, has power of1 U906) 3 BaL 43.2 {1910) 23 N. L. JR. 376.
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disposition over the whole of the common property,- but where 192#he has transferred the common property with the fraudulent 1^^^ Tintention of depriving his wife of the moiety of the common property—i—
which she would have on his death, she or her heirs can have the Xar^eautransfer set aside so far as she has been thereby defrauded. Itshould be noted, however, that such a transfer is good and thattitle to the wife’s moiety is in .the transferee until it is set aside.
In Lewis H-atmj v. de Silva,. {supra) the action was by the wifeagainst donees of her deceased husband. The half share whichshe sought to recover by setting aside the gift never belonged toher husband nor did it form part of his estate, and on .the deedbeing set aside the half share would have vested in her of her ownright and not by virtue of a title derived from her husband.
The spouses are during the continuance of the marriage theowners in equal shares of the common property. Though thehusband alone has the power of disposition of it, on .the death ofthe first there is a dissolution of the community and a separa-tion of the shares of the spouses; the surviving spouse does notderive his or her title to a moiety from the first dying spouse, onwhose death only a half of the common property is subject toadministration. There was thus no necessity for administrationof the estate of the husband.
In Weerasooriya v. Weerasooriya (supra) the action was broughtby the children of the deceased wife to set aside a transfer by thehusband in fraud of their mother’s rights to her half share. Itwas contended that administration of the; mother’s estate wasnecessary. The title to the wife’s half being in the transferee, untilthe deed was set aside to that extent, it was not at the date of theaction “ property belonging to or included in the estate or effects ”of the wife, and section 547 could, therefore, have no applicationto the case.
In this case the foundation of the action is the assertion thatKanapathipillai did not -discharge P 5 and that Mootathambydid not execute the transfer P 4, and that the land dealt with in P 4and the right of action on the bond were their property and includedin their estate at their death. The prayer is for a declarationthat the signatures to the discharge and to the transfer be declaredforgeries in order, so it is alleged, in paragraph 8, that .the estatesof Kanapathipillai and Mootathamby might be administered anddistributed among their heirs.
The action is, therefore, one for property included in the estates.of these persons, but Mr. Keuneman contended that by reason ofthe fact that the action was one for a declaration of title on.y itwas not an action for the “ recovery ” of property. This argumentis based on an observation of Withers J. in Vduma Lebbe v. SeyaduAli 1 that an action for declaration of title only to land' might be
1 (1897) 2 N. L. R. 348.
1MB.
Dbibbebo 'J.
Kandiah v.Karthigesu
( 176 )
brought by an heir and letters of administration to the estate ofthe intestate obtained after the successful result of the action,but he said that in such a case some condition should be attachedto the judgment to prevent the successful heir having the landdelivered to him without obtaining letters of administration. Itis not easy to see how this could be done, and in fact the actionwas dismissed as the estate in question was not administered.
But it is well settled in later cases.,that where a person desiresto prove title to property derived from a person who has diedintestate, he must prove either that • the intestate estate is underBs. 1,000 in value, or if it is over Rs. 1,000 in value, that adminis-tration has been taken out. Bonser C.J. in Fernando v. Dochi. 1
The action does not cease to be one for the recovery of propertybecause possession is not asked for; it may be necessary in somecases to vindicate title to property through the intestate and thoseclaiming title through him might have. no right to possession byreason of a third party having a life interest in the property.
In the present case no prayer for possession was needed as regardsthe bond—the plaintiffs have in fact obtained possession of thebond. So far as the land conveyed by P 4 is concerned it is notstated that the appellant has taken possession of it.
But this is more than an action by an heir for a declaration oftitle to an interest derived from an intestate, for the plaint expresslystates that the declaration is sought for the purpose of administeringthe estate left behind by Kanapathipillai and Mootathambv anddistributing it among their lawful heirs. It is just such an action asmight be brought by a legal representative of the estate of an intestate.
As .the case has been fully argued it is best that we should now.give our finding on all the questions raised in this appeal.
The plaintiffs cannot, however, be allowed the advantage of afinal determination unless and until the provisions of section 547of the Civil Procedure Code are complied' with. Upon that beingdone decree will be entered as follows: —
That the endorsement on mortgage bond, P 5, No. 27,680 ofMarch 20, 1926, attested by A, Sithamparanathapillai, NotaryPublic, purporting to be receipt by Mootathamby Kanapathipillaifor payment of all sums due thereon, is not the act and deed of the.said Mootathamby Kanapathipillai and that it is a forgery.
That the plaintiffs’ action in respect of the deed of transfer.P 4, bearing No. 1,084 of October 11, 1927, and attested by S.Kandyahpillai, Notary Public, be dismissed.
That the defendant do pay to the plaintiffs half of the costsincurred by them in the District Court.
• (4) There will be no costs of this appeal.
Decree varied.
i (1901) 5 N. L. if. 15.