021-SLLR-SLLR-2003-V-2-HEMATHILAKE-v.-ALLINA-AND-OTHERS.pdf
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HEMATHILAKE
v
ALLINA AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A NO. 81/89 (F)
C. NEGOMBO 3410/LFEBRUARY 12 ANDMARCH 5, 2002
Deed of sale allegedly not duly executed – Validity – Prevention of FraudsOrdinance, section 2 – Notaries Ordinance, sections 31(16) and 33 – Partynot giving evidence – Inference – Evidence Ordinance, section 114.
The plaintiff-appellant instituted action seeking a declaration that a particulardeed is null and void. It was alleged that the deed was not a deed executed inconformity with the provisions of the Notaries Ordinance and the Prevention ofFrauds Ordinance. It was also contended that the trial court did not considerthe importance of section 114 of the Evidence Ordinance.
The plaintiff-appellant gave evidence; none of the defendants-respondentsgave evidence but called the notary and attesting witness, an attorney-at-law.
The trial court dismissed the plaintiff’s action.
On appeal –
Held:
By calling the notary and the attesting witness the defendants-respon-dents have led the best possible evidence, and that too coming fromindependent witnesses and in the circumstances there was no neces-sity to call the 2nd defendant-respondent.
PerSomawansa, J.
“What section 144 of the Evidence Ordinance provides for is the com-mon sense advice that court may from a proved fact infer another factwhich it thinks is likely to be true regard being had to human conductand common course of natural events.”
The defendants-respondents’ position that the deeds were signed bythe parties in the presence of the notary and witness is more probable.
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Even if in fact the notary has failed to comply with any provision in sec-tion 31 of the Notaries Ordinance, it is well settled law that the validityof the deed is not thereby affected (section 33).
APPEAL from the judgment of the District Court of NegomboCases referred to:
Weeraratne v Ran Menike – 21 NLR 286 at 287
D.C. Kandy 1986 – Austin’s Reports 113
K.S.Tillakaratna for plaintiff-appellant
S.F.A. Cooray with C. Wijesooriya for defendants-respondents.
Cur.adv.vult.
July 19, 2002SOMAWANSA, J.
The plaintiff-appellant instituted action No. 3410/L in the 01District Court of Negombo seeking for a declaration that deed No.
983 dated 07.06.1982 marked P1 is null and void for one or morereasons stated in paragraph 9 of the plaint and for cancellation ofthe said deed. It is common ground that the plaintiff-appellant andthe defendants-respondents agreed to exchange some of theirproperties by executing two deeds. The plaintiff-appellant’s positionwas that for this purpose he, the two defendants-respondents andone Kumarathilaka went and met P.P.S. Fernando, attorney-at-lawwho took out 6 blank deed forms and got the plaintiff-appellant to 1osign 3 and the two defendants-respondents to sign 3 others and thesaid Kumarathilaka who had accompanied them to sign all 6 formsas a witness.
When the plaintiff-appellant went to collect the deeds fromP.P.S. Fernando, attorney-at-law he was asked to collect them fromone Anula Indrasiri, a Notary. When the deeds were collected theplaintiff-appellant found that the two deeds had been attested notby P.P.S. Fernando but by the said Anula Indrasiri and he alsofound that in deed No. 983 marked P1 by which plaintiff-appellant’srights were to be conveyed to the defendants-respondents also 20purported to convey in addition to what he agreed to convey, all the
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rights the plaintiff-appellant would become entitled to by the finaldecree in two partition actions. It was his contention that at no timedid he agree to part with rights he would become entitled to in thesaid partition actions. He also^averred that in any event deedmarked P1 was not a deed.executed in conformity with the provi-sions of the Notaries Ordinance and also was contrary to provisionsof section 2 of the Prevention of Frauds Ordinance in that it was notduly attested.
The defendants-respondents, position was that deed marked 30P1 was a valid document executed by plaintiff-appellant and attest-ed by Anula Indrasiri, Notary Public in accordance with the instruc-tions. given by the plaintiff-appellant. In the circumstances theyprayed for a declaration that the two deeds executed by the plain-tiff-appellant and the defendants-respondents’ marked P1 and P2are valid documents and for the dismissal of the action.
At the trial two issues were raised on behalf of the plaintiff-appellant while two issues were raised on behalf of the defendants-respondents and at the conclusion of the trial the learned DistrictJudge by his judgment dated 29.03.1989 held with the defendants- 40respondents and dismissed the action of the plaintiff-appellant. It isfrom the said judgment that the plaintiff-appellant has lodged thisappeal.
At the hearing of this appeal, it was contended by the coun-sel for the plaintiff-appellant that the learned District Judge erredwhen he failed to act under section 114 of the Evidence Ordinanceand draw an adverse inference from the fact that the 2nd defen-dant-respondent refrained from giving evidence at the trial. It isconceded that though the plaintiff-appellant himself gave evidencein support of his averments none of the defendants-respondents 50gave evidence; instead they have called the Notary who attestedthe deed marked P1 and an attesting witness who is an attorney-at-law.
The plaintiff-appellant’s allegation is that deed marked P1does not contain correctly the exchange of lands agreed uponbetween the plaintiff-appellant and the defendants-respondents. Inproof of this allegation the plaintiff-appellant did not produce anydocumentary evidence and even the oral evidence is confined to
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his own evidence. As against this evidence the Notary Public who
attested both deeds marked P1 and P2 has given evidence thatdeeds were prepared according to the instructions given to her bythe plaintiff-appellant as well as the defendants-respondents andthat she prepared them in her own handwriting in the presence ofall the parties while they waited for about two hours or so in heroffice room at her residence and that the two deeds were read overto the parties including the plaintiff-appellant and without any objec-tions both plaintiff-appellant and the two defendants-respondentssigned the deeds. This evidence is entirely corroborated by the evi-dence of one of the two attesting witnesses P.P.S. Fernando, attor-ney-at-law. In fact it appears that the 1st defendant had died beforethe trial started and in any event even though the 2nd defendant-respondent did not give evidence, by calling the Notary and theattesting witness the defendants-respondents have led the bestpossible evidence and that too coming from independent witness-es have been placed before court by the defendants-respondents.In the circumstances there was no necessity to call the 2nd defen-dant-respondent to give evidence. What section 114 of theEvidence Ordinance provides for is the common sense advice thatcourt may from a proved fact infer another fact which it thinks islikely to be true regard being had to human conduct and the com-mon course of natural events. The particular facts of each casemust be carefully considered before any inference is drawn undersection 114 of the Evidence Ordinance. I am inclined to think thatmuch better evidence than the 2nd defendant-respondent himselfcould have given has been led on behalf of the defendants-respon-dents. Therefore the plaintiff-appellant’s argument that court mustact under section 114 of the said Ordinance and draw an adverseinference from the fact that the 2nd defendant-respondent did notgive evidence is misconceived and without substance on the factsof this case.
It is also contended by the counsel for the plaintiff-appellantthat although the plaintiff-appellant has proved his case on a bal-ance of probability the learned District Judge has held against himby taking into consideration extraneous matters. It was the allega-tion of the plaintiff-appellant that the deed marked P1 was not pre-pared in accordance with the instructions given by him. Howevereven the plaintiff-appellant in his evidence has not clearly disclosed
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to court what instructions he gave. The plaintiff-appellant alonegave evidence and did not call any other witness. If as he says thatthe instructions given were not properly embodied in the deed he 100should have called Kumarathilaka who signed as an attesting wit-ness. In the alternative he could have called the chief priest who ittranspired in the plaintiff-appellant’s evidence to be equally knowl-edgeable about the transaction. On the other hand, the Notary whowrote and attested the deeds and one of the attesting witnesses tothe deeds were called by the defendants-respondents and their evi-dence shows that the instructions of the plaintiff-appellant were cor-rectly embodied in the deed marked P1. It appears these two wit-nesses called by the defendants-respondents had no interest what-soever to favour one side at the expense of the other or to give nofalse evidence. They were independent witnesses on whose evi-dence much reliance should be placed. It is conceded that thelearned District Judge in his judgment has touched upon certainextraneous matters. However on an examination of the evidenceled by both parties he has on a balance of probability come to a cor-rect finding that the plaintiff-appellant has failed to prove his case.
Another matter raised by the counsel for the plaintiff-appel-lant is that the said two deeds are not in conformity with the manda-tory provisions of the Notaries Ordinance as well as section 2 of thePrevention of Frauds Ordinance and accordingly the said deeds 120should have been set aside by the learned District Judge.
Section 2 of the Prevention of Frauds Ordinance provides
that –
“No sale, purchase, transfer, assignment, or mortgageof land or other immovable property, and no promise,bargain, contract, or agreement for effecting any suchobject, or for establishing any security, interest, orincumbrance affecting land or other immovable proper-ty (other than a lease at will, or for any period notexceeding one month), nor any contract or agreement 130for the future sale or purchase of any land or otherimmovable property, and no notice, given under theprovisions of the Thesawalamai Pre-emptionOrdinance, of an intention or proposal to sell any undi-vided share or interest in land held in joint or common
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ownership, shall be of force or avail in law unless thesame shall be in writing and signed by the party mak-ing the same, or by some person lawfully authorized byhim or her in the presence of a licensed notary publicand two or more witnesses present at the same time,and unless the execution of such writing, deed, orinstrument be duly attested by such notary and wit-nesses.”
To examine whether the two deeds have'been executed inconformity with the provisions of section 2 of the Prevention ofFrauds Ordinance, we are once again called upon to examine theevidence led in this case by both parties, the evidence of the plain-tiff-appellant and the notary and one of the attesting witnessescalled by the defendants-respondents.
It is common ground that the plaintiff-appellant and thedefendants-respondents along with Kumarathilaka went to meetP.P.S. Fernando, attorney-at-law. According to the plaintiff-appel-lant the said P.P.S. Fernando took out 6 blank deed forms and gotthe plaintiff-appellant to sign 3 of them and the defendants-respon-dents to sign the other 3. Kumarathilaka was made to sign all 6deed forms. Subsequently the plaintiff-appellant was asked to col-lect the deed in suit from one Anula Indrasiri, Notary who hadattested the said deeds.
If the evidence of the plaintiff-appellant were to be believedthen certainly there is no compliance with section 2 of thePrevention of Frauds Ordinance. However according to the defen-dants-respondents when they went to meet P.P.S. Fernando heinformed them that he has no notarial licence and on the followingday he directed them to the said Notary Anula Indrasiri at whoseresidence the deeds were prepared by her in her own handwritingand signed by the parties in the presence of the said Notary andwitnesses. The Notary and one of the attesting witnesses spoke tothese facts. The learned District Judge having analysed the evi-dence of the plaintiff-appellant, the Notary and the witness has ona balance of probability correctly preferred to accept the evidenceof the Notary and the attesting witness to that of the plaintiff-appel-lant.
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It is also contended by the counsel for the plaintiff-appellantthat the Notary has failed to comply with the mandatory provisionsof the Notaries Ordinance. Though what the mandatory provisionsare not elaborated in the written submissions tendered on behalf ofthe plaintiff-respondent it appears that the reference would be toprovisions contained in section 31(16) of the Notaries Ordinance.Section 31 (16) of the said Ordinance provides that –
“(a) He shall not authenticate or attest any deed orinstrument other than a will or codicil affecting land orother immovable property, unless the deed or instru-ment embodies therein or in a schedule annexedthereto a description of the said land or other propertyshowing its boundaries (which shall include wheneverpracticable the names of the lands adjoining it and oftheir owners), its probable extent and situation (withrespect to the town or village, pattu, korale, adminis-trative district, and province), and its name, assess-ment number, if any:
if such property consists of a share of a land orother property, the deed shall state whether it is a divid-ed or undivided share, and the fractional part which itis of the whole. If it be a divided share, such share shallbe clearly and accurately defined by its particularboundaries and extent; if it be an undivided share, theboundaries and extent shall be stated of the land ofwhich it is a share:”
Contention of the counsel for the plaintiff-appellant appearsto be that the Notary has failed to comply with the provisions con-tained in section 31 (16) of the Notaries Ordinance in that the Notaryhas violated the rule that the Notary shall not attest a deed affect-ing land unless the deed ‘embodies therein or in a scheduleannexed thereto a description of the said land showing its bound-aries, probable extent, situation and its name.’
On an examination of the deed No. 983 marked P1, it isapparent that it does embody a schedule containing a sufficientdescription of the three lands dealt with by the deed. But there is noreference in the body of the deed to the schedule to the deed.
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However one could presume that the lands dealt with by the saiddeed are none other than the lands described in the schedulethereto. In any event if in fact the Notary has failed to comply withany provisions in section 31 of the Notaries Ordinance, it is well set-tled law that the validity of the deed is not thereby affected in viewof section 33 of the Notaries Ordinance. Section 33 of the NotariesOrdinance provides that –
‘‘No instrument shall be deemed to be invalid by reasononly of the failure of any Notary to observe any provi-sion of any rule set out in section 31 in respect of anymatter of form:
Provided that nothing hereinbefore contained shall bedeemed to give validity to any instrument which maybe invalid by reason of non-compliance with the provi-sions of any other written law.”
In Weeraratnev Ranmenika1 De Sampayo, J observed.:
“It is well settled that a Notary’s failure to observe hisduties with regard to formalities which are not essentialto due execution, so far as the parties are concerned,does not vitiate a deed. For instance, the absence ofthe attestation clause does not render a deed invalid.
D.C. Kandy, 19,866; D.C. Negombo 575. Similarly, Ithink the failure on the part of the Notary to have adeed executed in duplicate does not affect its operationas a deed. The case D.C. Kandy 22,401 is an authori-ty on this point. I therefore think that the decision of theCommissioner in this case is erroneous.”
In D.C. Kandy 19,886 reported in Austin’s Reports 113 –
“This was an action brought in 1846 upon a deed dated1938, which deed did not contain the signature of thegrantor but merely his mark, and was attested by aNotary of the District of Four Korales whereas the landmentioned in the deed was situated in the District ofMatella, and ought therefore to have been attested(according to the Ordinance, No. 7 of 1834) by aNotary of the District wherein the land was situated.
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The court below non-suited the plaintiff, but in appealreversed and case remanded to proceed in duecourse. It appears from the deed that it is signed by thegrantor by a mark, and the mere fact of a deed notbeing attested &c., by a Notary of the District does notinvalidate the deed by the Ordinance, No. 7 of 1840,sec. 14”. Per Stark, December 7, 1848".
For the above reasons, I see no reason to disturb the judg-ment of the learned District Judge. Accordingly I dismiss the appealwith costs.
DISSANAYAKE, J. – I agree.
Appeal dismissed.
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