001-NLR-NLR-V-56-K.-T.-EDWIN-DE-SILVA-Appellant-and-D.-K.-KARUNADASA-DE-SILVA-Respondent.pdf
THE NEW
LAW REPORTS OF CEYLONVOLUME LVI
1954Present: Rose G.J. and Sanson! J.K. T. EDWIN DE SILVA, Appellant, and D. K. KARUNADASADE SILVA, Respondent
S. C. 254- -D. C. Guile, 4,358 L
hand Development Ordinance {Cap. 320)—Sections 162 and 163—Disposition ofprotected holding—Reference in deed to Government Agent's consent—Imperativeand not merely directory—Meaning of term “ attestation ”—Notaries Ordinance{Cap. 91), s. 30 {20) and (21).
Uiulor suction 162 of the Land Development Ordinance the disposition of aprotected holding is vitiated by the failure of the notary to refer specifically,in the attestation clause of the deed, to the written consent of the GovernmentAgent to the disposition.
The term “attestation” in section 162 (1) includes both the subscriptionof the signature and the attestation clause.
JSl PPEAL from a judgment of the District Court, G&lle.
X. E. Weerasooria, Q.C., with T. P. P. Goonelilleke, for the defendantappellant.
E. G. W ikramanayake, Q.C., with Sir Edwin Wijeratne, K. Herat and11. L. de Silva, for the plaintiff respondent.
Cur. adv. vult.
August 4, 1954. Hose C.J.—
In this matter the plaintiff-respondent sought to eject the defendant-appellant from a land described in the schedule attached to the plaintand to recover from him certain sums as arrears of rent and damageson the fooling that the appellant, who was an allottee from the Crownunder the Land Development Ordinance, Chapter 920, of the premisesreferred to, had hv Deed PI of the 9th August, 1947, transferred the landin question to the plaintiff-respondent >vith the consent and approval Of
11, VI
iJ. N. U 3e*lil&-l.0yiS(t»/5t)
K. T. EDWJ
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ROSE C.J.—Edwin de Silva v.jttfrunadasa dt SUva
tho Government Agent, as required'by.|he; Ordinance, duly obtained.By Deed F2 of the same, date the plaintiff-respondent purported tolease the said land to the defendant-appellant on certain terms andconditions which by a subsequent agreement P3 of the 27th of January,1948, was varied to allow the defendant-appellant to possess and enjoythe land for a period of three years at a monthly rental of Rs. 300 subjectto the conditions that if the respondent was in default in the paymentof rent for a period exceeding six months the agreement P3 was to becomenull and void..
Counsel for the appellant confined himself before us to two pointswhich arise under Section 162 of the Land Development Ordinance.In tho first place he contends that the Deed PI is of no effect for thereason that the written consent of the Government Agent had not beenpreviously obtained.
Section 162 of the Ordinance reads as follows :
“A notary shall not attest any deed operating as a disposition of a
protected holding unless the written consent of the GovernmentAgent to such disposition shall have been previously obtainednor unless such deed shall have attached thereto the documentby which the Government Agent granted his consent to thedisposition sought to be effected by such deed. Such documentof consent shall bo specifically referred to by the notary in theattestation of such deed.”
“ A deed executed or attested in contravention of the provisions
of this section shall be null and void for all purposes.”
It is to be noted that the learned District Judge took the view that asthe written consent of the Government Agent was referred to in thebody of the lease P2, which was executed on the same day as PI, theomission to refer to it in Pi was not fatal as in the circumstances of theparticular case PI and P2 could properly be regarded as forming a singledocument. Moreover, the consent of the Government Agent wasattached to PI, although no reference to.it is made in the body of thedocument..
I find it difficult to accept this view as it.feetas to me that the documentPI is undoubtedly a transfer contemplated'by the Ordinance an^L assuch should in itself satisfy the requirements of Section 162. Whileit is true that P2 was executed on the shme day and probably veryshortly after PI, it seems to me that it should properly be regarded as aseparate document and indeed such a lease oould well have been enteredinto at any date subsequent to PI. Moreover, I am inclined to agreewith the appellant’s contention that the mere attaching of the consentto the document PI does not necessarily demonstrate that the consentwaSiobtained prior to the execution of .the deed, as it may well, of course,have Ibeen attached upon its receipt subsequent to the execution ; and-thia, in fact, was the appellant’s suggestion of what occurred in thepresent matter.
ROSE C.J.—>J£dwin de Silva v. Karunadasa de Silva
Apart from this, I am of opinion that the appellant’s second pointis entitled to succeed. He relies on the second sentence of Section. 162(1):
“ Such document of consent shall be specifically referred to bytlie notary in the attestation of such deed.”
. and Sub-Section (2) which provides that a deed executed or attested incontravention of the provisions of sub-section (1) shall be null and voidfor all purposes.
The learned District Judge, perhaps not unnaturally anxious to obviatethe rigours of the section, held that the provision contained in the secondsentence of Section 162 (1) was directory only and was therefore notgoverned by sub-section (2).
Learned counsel for the respondent endeavoured to draw a distinctionbetween the word “ Attestation ” and the act of attesting. He submittedthat the Deed was “ attested ” as soon as the signatures of the Notaryaud the witnesses were subscribed and that, provided the consent of theGovernment Agent had been previously given and had been attached tothe Deed, sub-section (2) would have no operation in the event of theNotary failing specifically to refer to such document of consent in theAttestation ”, which he submits, means the Attestation Clause.
It would seem to be straining the language of the Section so to limitthe meaning of the word “ Attestation ”. The more natural inter-pretation seems to me to be that the Legislature intended to use tlie tword “ Attestation” as the noun describing the act of attesting which |latter term, it would appear, should include both the subscription of the >signature and the attestation clause. Moreover, support for this viewis supplied by Section 30, sub-section (20) of the Notaries Ordinance,Chapter 91, where the side note "‘Attestation” appears opposite thesub-section which begins :—
“ He shall without delay duly attest every deed or instrument…- and shall sign and seal such attestation.”
Sub-section (21) reads :—-
“ Every such attestation shall be substantially in the form E inthe Second Schedule”
Form E sets out a specimen attestation clause.
No Ceylon authority was cited to us by counsel for either party atthe hearing of the appeal but after the close of the argument learnedcounsel for the respondent drew our attention to an English case—Ex Parte BoUand ; in re Roper, Law Journal 1883 New Series Voluidj|;52,Equity, at page 113—in which in the course of the judgment a discussiontook place as to the proper interpretation of Section 10 (1) of thd Bills*of Sale Act, 1878.
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BOSE C.J.—Edwin rle Silva v. Karunadaaa de Silva
The sub-section reads :
■ “ The execution of every Bill of Sale shall be attested by a Solicitorof the Supreme Court, and the attestation shall state that before' theexecution of the Bill of Sale the effect thereof has been explained to theGrantor by the Attesting Solicitor ,… ”
Lord Justice Cotton, in one of three judgments which were deliveredby the Court of Appeal, Bays :
“ As to the other point, the whole argument arises from an inaccurat euse of language in section 10. The word ‘ Attestation ’ is used in sub-section (1) as meaning the ‘ Attestation Clause ’, and sub-section (2) asmeaning the fact of attestation, that the deed has been attested bythe attesting witness. The only thing required by the Act as to themode in which the execution of the deed has to be attested, is that it isto be attested by a Solicitor of the Supreme Court. The explanationis something collateral, which must be done before the deed isexecuted.”
(Terms such as “ attest ” and “ attestation”, when they are not definedi in the Ordinance in which they appear, should, it seems to me, be given! the meaning which is in accord with the context. In the interpretationof that particular sub-section of the Bills of Sale Act, the learned LordsJustices of the Court of Appeal no doubt had good reason for drawing thedistinction that they did. Having regard, however, to the positionin the section which the second sentence of.Section 162 (1) of the LandDevelopment Ordinance occupies, it would seem that to draw sucij adistinction as the learned Lords Justices drew in the above case wouldmake nonsense both of Section 162,itself (as Well as the penalty clause,Section 163, which immediately follows it) and the seotion of the Notaries■ Ordinance to which I have already referred. ;It is for these reasons thati I am of opinion, as I have already stated earlier, that the term “ attesta-J tion ” in Section 162 (1) must reasonably be taken to include both the
i subscription of the signature and the attestation clause.
V*;,"
No doubt the provisions of Section 162 are drastic and may operateharshly in certain cases. Presumably, however, the Legislature intendedstrictly to limit and protect dispositions of land which have been allottedby the Crown under the Land Development Ordinance. In any event,it is not for the Courts to endeavour to mitigate the severities of a pieceof legislation in cases where the language used would seem to admit of noambiguity.
These matters are sufficient to determine the present appeal. Theappeal is therefore allowed and the plaintiff-respondent’s action dis-missed. The appellant will receive the costs of this appeal and of theproceedings in the court below.
Sansosi J.—I agree.
Appeal allowed.