WILISINDAHAMY v. KARUNAWATHI AND OTHERS

025-SLLR-SLLR-1980-V-2-WILISINDAHAMY-v.-KARUNAWATHI-AND-OTHERS.pdf


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WILISINDAHAMY v. KARUNAWATHI AND OTHERSCOURT OF APPEAL
VICTOR PERERA, J. & L. H. DE ALWIS, J.
C. A. (S.C.) 105/72 F. D.C. GALLE 6920/LMAY 15, 1980
Declaration of title – Notaries Ordinance, sections 31 (9) and 33 – EvidenceOrdinance, section 68 – Misjoinder of parties and causes of action.
Action was filed for declaration of title and ejectment of defendants by the plaintiffas administratrix of her late husband. Various incidents which took place between1955 and 1963 were averred in the plaint. The children and husband of the firstdefendant were made defendants. The dispute was originally for the house andthereafter for both the house and the land. Submission was made in appeal thatthe notary who executed the title deed of the plaintiff failed to comply with theprovisions of section 31(9) of the Notaries Ordinance.
Held:
The learned District Judge had misdirected himself in holding that the avermentsin the plaint constituted several causes of action which were embodied in oneaction. The plaint refers to one cause of action against all the defendantrespondents though various incidents which had taken place between 1955 and1963 were mentioned. On the facts pleaded and proved in the case there was nomisjoinder of parties and causes of action. The title deed was properly proved interms of section 68 of the Evidence Ordinance. There was no issue as to whetherthe notary complied with the provisions of section 31(9) of the Notaries Ordinanceand no questions had been asked from him regarding that when he gaveevidence.
Cases referred to:
Lowe v. Fernando 16 NLR 393.
London <& Lancashire Fire Insurance Corporation v. P & O Co. 18 NLR 15.
Wismaloma v. Aiapatha 53 NLR 568.
Fernando v. Fernando 39 NLR 145.
APPEAL from the Order of the District Court of Galle
Nimal Senanayake with A. B. Dissanayake for the Plaintiff-Appellant.
H. W. Jayewardene, Q.C. with Mrs. P. Seneviratne for the 1st Defendant-Respondent.
Cur adv vult.
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15th May, 1980VICTOR PERERA, J.
The plaintiff-appellants in the above case filed this action on the20th December 1963 against the 1st to 11th defendants-respondentsfor a declaration of title to the premises described in the Schedule tothe plaint for ejectment of the defendants and for damages. Theplaintiff-appellant alleged in her plaint that by virtue of the FinalDecree entered in case No. 25091 D.C. Galle, lot 1 in Plan No. 1016filed of Record marked P22 was allotted to Y. L. George de Silva andthat by the said decree Lot 8 in the said Plan was allotted to oneChristinahamy. The said Christinahamy by Deed No. 538 of 1930sold the said Lot 8 to the said George de Silva who thus became theowner of both Lots which were consolidated to form the premisesdescribed in the Schedule to the plaint. He pleaded that Y. L. Georgede Silva by his Deed No. 4196 of 7.10.47 transferred the saidpremises to H. E. U. Wijewardena who on Deed No. 3604 dated30.3.48 sold the same to P. de S. Wimalasundera who by Deed No.6190 dated 17.7.53 sold the same to Y. L. George de Silva. The saidY. L. George de Silva by Deed No. 8191 dated 17.7.53 sold the sameto Francis J. Goonewardena. By agreement No. 8192 of 17.7.53 thesaid Francis J. Goonewardena agreed to reconvey the said premisesto George de Silva within two years from the said date. Thereafter thesaid Francis J. Goonewardena by Deed No. 261 dated 14.10.54conveyed the same to George de Silva who on the same date byDeed No. 262 conveyed the same to the said Francis J.Goonewardena.
The plaintiff-appellant pleaded that Francis Goonewardena hadallowed Y. L. George de Silva to occupy the house on the said landand that after his death the 1st defendant his widow was allowed tooccupy the said house temporarily. The said Francis J.Goonewardena died on 31.3.60 leaving an estate which was beingadministered by the plaintiff in testamentary suit No. 8814 andGeorge de Silva died leaving as his heirs the 1st defendant hiswidow and his children the 2nd to 11th defendants-respondents.
The plaintiff-appellant pleaded further as follows:-
Though the said Francis Jayawickrema Goonewardenarequested her to leave the said buildings the 1st defendanthas been unlawfully and wrongfully in possession of thehouse on the said land since 26h July 1955 and continued todo so.
Though the 1st defendant is openly in wrongful and unlawfulpossession of the said house which is a tiled wattle house of
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11 cubits and its appurtenance on the said land andcontinued to do so, by her answers filed in cases Nos. L5721 and L 6360 of this Court she seems to be disputing thetitle to the rest of the premises too and she and her childrenare stealthily plucking nuts from the trees on the land for aperiod of about 3 years immediately preceding the date ofthis action and it has therefore become necessary to havethe plaintiff declared entitled to the entirety of the premisesdescribed in the schedule hereto.
The 2nd to 11th defendants are the children of the said Y. L.George de Silva who have been disclosed by the 1stdefendant and who are living with her in the said buildingson the said land as heirs of her late husband and they arejoined as parties as they are acting in concert with theirmother the 1st defendant in disputing the plaintiff’s title to thepremises is dispute.
In paragraph 13 the plaintiff-appellant pleaded that a cause ofaction had accrued to her to sue the defendants jointly and severallyfor a declaration of title to the said premises, to recover damagesand for ejectment.
The 1st defendant filed an answer dated 3.3.66 pleading inter alia,that there was a misjoinder of parties and causes of action. The 1stdefendant denied the several averments in the plaint and speciallypleaded that Deed No. 262 of 14.10.54 was not signed or executedby Y. L. George de Silva and put plaintiff to the proof thereof. The 1stdefendant denied the plaintiff-appellant’s title and he pleaded thatshe was in exclusive possession of the said premises even duringthe life time of Y. L. George de Silva and claimed a title in her byprescription. The 2nd to 11th defendants filed a separate answerdated 17.3.76 denying the several averments in the plaint denyingthat George de Silva their father executed or signed Deed No. 262and putting the plaintiff to the strict proof thereof. These defendantstoo denied the plaintiff's title and they claimed prescriptive title bytheir long possession for over 10 years. They too pleaded that therewas a misjoinder of parties and causes of action and that the 1stdefendant’s interests were adverse to their interests.
After various vicissitudes with two appeals to the SupremeCourt which were disposed of on 27.6.67 and 3.10.70 the caseultimately came up for trial on 29th January 1971.
The case proceeded to trial on several issues which includedinter alia the following issues raised by the defendants-respondents:-
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(9) Is there a misjoinder of parties and causes of action?
Is deed No. 262 dated 14.10.54 referred to in paragraph 4of the plaint the act and deed of Y. L. George de Silva?
If it is not, do any rights flow to F. J. Goonewardena and tothe plaintiff to have and maintain this action?
After evidence was recorded the learned District Judge deliveredjudgment holding that the plaintiff-appellant was entitled to the landon the title pleaded by her but dismissed her action on the ground ofmisjoinder of parties and causes of action.
At the hearing of this appeal the first point raised was the questionof the alleged misjoinder of parties and causes of action referred toin issue 9.
On an examination of the plaint dated 20.1.63, it is clear that inparagraphs 2, 3 and 4 the plaintiff-appellant had set out and pleadedall the necessary ingredients in regard to her late husband’s title tothe land in dispute and the subsequent devolution on her. Inparagraph 5 she pleaded that George de Silva had been allowed tooccupy the buildings on the land temporarily and that after his deathhis widow the 1st defendant was allowed to occupy the saidbuildings temporarily. In paragraph 6 she averred that her husbanddied on 31.1.60 and that she was the administratrix of his estate dulyappointed as such in testamentary suit No. 8814 D.C. Galle and inparagraph 10 she pleaded a title to the said land by prescription aswell. In paragraph 12 the plaintiff-appellant set out her damages andin paragraph 13 the plaintiff-appellant clearly set out her cause ofaction as follows:-
“13. A cause of action has therefore accrued to the plaintiff asadministratrix aforesaid to sue the defendants jointly andseverally for a declaration of title to the said premises andto recover damages aforesaid and to have the defendantsejected from the said premises and to recover costs.
The main controversy centered around the averments inparagraphs 7, 8 and 9. It was the contention of the plaintiff-appellantthat the averments therein set out in chronological order the variousevents that had taken place after 26th May 1955 after the deed infavour of her late husband was executed, and which culminated inher having to file this action in this particular way in December 1963.She alleged that during the lifetime of F. J. Goonewardena, herhusband, he had requested the 1st defendant to leave the house andthen since 26th July 1955 she continued in occupation. Thereaftershe refused to vacate the same and was in wrongful and unlawful
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occupation. She pleaded that in case No. 5712/L D.C. Galle filed byher late husband against the 1st defendant and in case No. 6360/LD.C. Galle filed by her that the 1st defendant in her answer seemedto dispute her title not only to the house but to the land also and
that she and her children were stealthily plucking nuts from the landfor a period of about 3 years prior to this action. In paragraph 8 shedefinitely pleaded that it had therefore become necessary to file anaction for a declaration of title to the entirety of the premisesdescribed in the Schedule to the plaint. In paragraph 9 she allegedthat 2nd to 11th defendants were living with the 1st defendant-respondent in the same buildings and that they were acting inconcert with their mother in disputing her title to the premises indispute. A careful study of these averments show clearly that thedispute which started in 1955 in regard to the occupation of thebuildings developed in the course of time to a dispute in regard tothe buildings and as well as the land and enlarged into a disputewith the 2nd to 11th defendants also taking a part. The plaintiff-appellant therefore crystallised her cause of action as a dispute byall the defendants-respondents in December 1963 to the buildingsand the land, namely the entirety of the premises described in theSchedule to the plaint.
No doubt the 1st defendant-respondent and the 2nd to 11thdefendants filed two separate answers on the 3rd March 1966 andthe other on the 17th March 1966. The 1st defendant-respondent inher answer denied all the averments in paragraphs 2 to 13 of theplaint and put the plaintiff respondent to the strict proof of the severalaverments therein. She denied that deed 262 of 1954 was everexecuted by or signed by her husband the late Y. L. George de Silva.She claimed a title by prescription to the said premises commencingeven during the life time of her husband. She specially pleaded thatthere was a misjoinder of parties and causes of action.
The 2nd to 11th defendants-respondents in their answer deniedthe averments in paras 2 to 13 of the plaint; they denied the Deed262 was ever executed or signed by their father Y. L. George deSilva. However, in paragraph 6 of their answer they pleaded that theyhad been in undisturbed and uninterrupted possession of thepremises adversely to the plaintiff-appellant and claimed a title byprescription. These defendants pleaded that the interests of the 1stdefendant were adverse to these of theirs and that therefore therewas a misjoinder of causes of action.
To my mind the averments in the plaint, if proved, clearlyconstituted one cause of action against all the defendants-respondents. It is therefore necessary to examine the several
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averments in paragraphs 7, 8 and 9 of the plaintiff in the light of theevidence led and the documents to see whether they were proved.
In P13 the plaint in D.C. 5712/L filed by F. J. Goonewardena inOctober 1955 against the 1st defendant-respondent he has speciallypleaded that he had allowed 1st defendant to occupy the house onthe land, and that the 1st defendant was disputing his rights to thehouse. He sought a declaration of title to the house only andejectment therefrom. In P14 the answer filed by the 1st defendant-respondent she denied the title of the plaintiff on Deed No. 262, shepleaded the house and land belonged to her late husbandGeorge de Silva who died leaving her and her ten children of whomseven were minors and therefore she as such was in possession ofthe properties of her deceased husband. In paragraph 11, shespecially averred that this action had been wrongly constitutedagainst her alone. However, when the case came up for trial it wasfound that there was no house on the premises described in theschedule to the plaint in that case and accordingly the plaintiff waspermitted to withdraw the action on 13.10.58 with liberty to bringfresh action (vide 1D2B),
The averments in the answer in this case (P44) establish that at(east from January 1956 the 1st defendant-respondent startedasserting title to the house and land on behalf of herself and herchildren the present 2nd to 11th defendants as successors in title ofher husband George de Silva and indicated that her children shouldalso have been joined as defendants, by implication, in her specialplea of non-joinder.
Immediately after the dismissal of case No. 5712/L, the presentplaintiff-appellant as administratrix of the estate of George de Silvafiled case No. 6360/L. D.C. Galle. The plaint in that case had notbeen produced but the answers dated January 1961 (P16) and (P17)and the amended plaint dated 27th January 1963 (P15) had beenproduced. In the amended plaint the present plaintiff-appellant hasaverred that the 1st defendant had been originally allowed to occupythe home but in her answer filed in case No. 5712/L she had raiseddispute to the land as well and therefore she was seeking adeclaration of title to the entire premises.
In paragraph 9 of her plaint she averred that the 2nd to 11thdefendants were the children of George de Silva who were disclosedby the 1st defendant and who were living with her in the buildings onthe land in dispute and though no damages were claimed againstthem they were made parties in order to get a binding decreeagainst them as well. The 1st defendant-respondent and 2nd to 11thdefendants-respondents filed separate answers (P16 and P17).
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Thelst defendant-respondent again denied the execution of deedNo. 262 by George de Silva and claimed title in herself. The 2nd to11th defendants-respondents inter alia pleaded that they togetherwith the 1st defendant-respondent had been in undisturbed anduninterrupted possession of the premises adverse to the plaintiffand they together with the 1st defendant had acquired a title to thesaid premises by prescription. The plaintiff was permitted to withdrawthat action on 8.12.63 (P21) with liberty to file a fresh action.
The pleadings in the said case No. 6360/L were sufficientjustification for the plaintiff-appellant to file the present action aspresently constituted in December 1963 against all the defendants-respondents seeking a declaration of title to the entire property as onthat date it had become one dispute by all the defendants. The oralevidence led in the case too supported this position completely.
Several authorities were cited before us in regard to the mis-joinder of parties and causes of action but on a careful examinationof the facts in each of these cases, it is clear that on the facts in thiscase the plea of misjoinder of parties and causes of action could notprevail. In the case of Lower v. Fernando,™ the plaintiff claimed title tothe entirety of a block of land and complained that the defendantswere severally in possession of separate and defined portions of itand that the court correctly held that there was a clear misjoinder.The case of London and Lancashire Fire Insurance Co. v. P & O.Company(2), does not really have a bearing on the facts of this case.In the case of Wismaloma v. Alapatha,l3) the plaintiff has instituted anaction for a declaration of title to a land against five defendantsclaiming that acting jointly and in concert they were in unlawful andforcible possession of the land. It was established that the subject-matter of the action was a land which consisted of separateallotments which were possessed by separate groups of defendantsindependently and without concerted action. The Court correctlyheld that there was a misjoinder of parties and causes of action. Butin the instant case the defendants-respondents themselves claimedthe identical land of having belonged to their predecessor George deSilva, claimed a title thereto by prescription and joint possession inthe answer filed in the earlier case, though the 1st defendant alsotook up the position that she had acquired a title by prescriptionagainst her husband George de Silva.
The case of Fernando v. Fernando<4>, was different. The plaintiff inthat case joined two causes of action in the same action against twodefendants in one of which it was claimed that the defendants werejointly liable and in the other that one defendant was solely liable.Therefore it was a clear case of misjoinder.
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The learned District Judge has misdirected himself in holding thatthe several averments in the plaint constituted several causes ofaction which were embodied in this one action. As I have alreadyindicated the plaint refers only to one cause of action against all thedefendants-respondents though various incidents have taken placebetween 1955 and 1963.1 hold that on the facts pleaded and provedin this case there was no misjoinder of parties or causes of actionand that the plaintiff was entitled to the relief claimed.
The next point raised by Mr. H. W. Jayewardena, Q.C. was thatthere was no proof of the due and proper execution of Deed No. 262by which Y. L. George de Silva was alleged to have sold his intereststo F. J. Goonewardena. He referred us to Section 31(9) of theNotaries Ordinance (Chap. 107) which lays down as the duty of aNotary that he shall not authenticate or attest any deed or instrumentunless the person executing the same be known to him or at least totwo of the attesting witnesses thereto and in the latter case he shallsatisfy himself before accepting them as witnesses that they arepersons of good repute and that they are well known and acquaintedwith the executant and knew his proper name, occupation andresidence and the witnesses shall sign a declaration to that effect. Inthis case, the Notary was known to the witnesses but the witnesseswere known to him and to the executant.
Section 33 of the Notaries Ordinance, however, provides that-
“No instrument shall be deemed to be invalid by reason only ofthe failure of any Notary to observe any provisions of any ruleset out in Section 31 in respect of any matter of form:
Provided that nothing herein shall be deemed to give validityto any instrument which may be invalid by reason of non-compliance with the provisions of any other written law”.
The validity of the deed was not challenged on any ground otherthan that the said Y. L. George de Silva had not signed the deed andthat it was not his act and deed. There was no suggestion at anystage of the trial that this deed was invalid for want of due and properattestation as required by Section 31(9) of the Notaries Ordinance orthat there was non-compliance with any other written law. Thedefendants-respondents merely contended that Y. L. George de Silvadid not and could not have signed the deed owing to his illness.
There do appear to be very suspicious features in regard to theexecution of the Deed Nos. 261 and 262 which had the effect ofwiping out an undertaking to reconvey the premises within a givenperiod to Y. L. George de Silva the husband of the 1st defendant,
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particularly as there was evidence of his illness in October 1954.There is also evidence that George de Silva had signed differentdocuments in different ways. But there was no cogent evidenceadduced which could establish that the deeds were not in factsigned and that the signatures on the deeds were not those ofGeorge de Silva.
Mr. Nimal Senanayaka, senior counsel for the plaintiff-appellant,however, contended that this position of due execution in terms of theNotaries Ordinance was not an issue raised at the trial. The issueraised in the pleadings and at the trial was whether Deed No. 262 of14.10.54 was the act and deed of Y. L. George de Silva.Mr. Senanayaka’s contention was that he had only to prove that theDeed No. 262 which was a deed required to be attested had beenexecuted by Y. L. George de Silva. In terms of Section 68 of theevidence Ordinance, one witness at least had to be called to provethe Deed. The Notary was called, he testified that the deed wasexecuted before him and attested by him. He did not know theexecutant. One witness who testified that he knew the executantgave evidence of the signing of the Deed by Y. L. George de Silva.So as far as Section 68 of the Evidence Ordinance was concernedthere was proof of execution if the evidence of this witness wasbelieved, which permitted the deed to be used as evidence. The twowitnesses have signed a declaration that they were well acquaintedwith the executant and that they knew his proper name, occupationand residence. What the Notaries Ordinance Section 31(9) states isthat a Notary had to satisfy himself that the witnesses werepersons of good repute and that they knew the executant’sproper name, occupation and residence. Not a single questionwas put to Mr. A. E. Seneviratne, the Notary in examination or incross-examination to find out whether he had complied with Section31(9) strictly as there was no issue on this matter.
We are satisfied that the Deed No. 262 was correctly used asevidence of title as it had been proved in terms of the EvidenceOrdinance and we agree with the District Judge’s finding that Deed262 was in fact executed by Y. L. George de Silva.
In the result we set aside the judgment and decree of the DistrictCourt and direct that judgment and decree be entered for theplaintiff-appellant as prayed for with costs.
The appeal is allowed with costs.
L. H. de ALWIS, J. -1 agree.
Appeal allowed.