052-SLLR-SLLR-2004-V-1-RAOHAN-DE-SOYZA-v.-JINENDRADASA.pdf
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Rohan de Soyza v Jinendradasa (Dissanayake, J.)
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ROHAN DE SOYZAvJINENDRADASACOURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
A. 1114/95 (F)
C. KANDY 15254/LNOVEMBER 20, 21, 26 AND 27, 2003
Prevention of Frauds Ordinance, section 2 – Registration of DocumentsOrdinance, section 31 – Deed fraudulent – Maxim falsus in uno, falsus inomnibus – Is it an absolute rule? – Civil Procedure Code, section 440A -Notaries Ordinance, section 27(2).
The plaintiff-appellants instituted action seeking a declaration that a certaindeed of transfer is a forgery and a fraudulent deed and an order cancelling theregistration of the said deed in terms of section 31.
The District Court dismissed the action.
Held
The evidence shows that the impugned deed has been attested inviolation of section 2 of the Prevention of Frauds Ordinance in that,it has been signed by a Notary who did not have a license to offici-ate as a Notary Public for the year 1985.
The evidence also reveals that the deed has not been signed by theexecutant, the attesting witness and the Notary all being present atthe same time and place and therefore it has not been signedbefore one another.
Evidence of witness S with regard to the Notary’s state of health,with regard to the fact that he was paralysed and was unable towrite from about 1984, and that the impugned deed did not bear hissignature has not been challenged; it has not even been suggestedthat he was an untruthful witness.
'The maxim falsus in uno, falsus in omnibus is not an absolute rule whichhas to be applied in every case where a witness is shown to have given falseevidence on a material point.
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APPEAL from the judgment of the District Court of KandyCases referred to:
Aresakularatne v Perera – 29 NLR 342
Francis Appuhamy v Q – 68 NLR 439
Q v Julis – 65 NLR 505
P.A.D.Samarasekera, P.C., with Keerthi Sri Gunawardena for plaintiff-appel-lant.
Dr. Jayatissa de Costa with D.D.P. Dassanayake and K.D. Epitawela for defen-dant-respondent.
Cur.adv.vult
February 20, 2004.
DISSANAYAKE, J.The plaintiff-appellant instituted this action seeking a declaration 01that the deed of transfer No. 2007 dated 19th July 1985, purported tohave been attested by Loku Banda Ratnayake is a forgery and is afraudulent deed and an order cancelling the registration of deed No.2007 on the aforesaid grounds and registered in the Land RegistryKandy without due authority, in terms of section 31 of the Registrationof Documents Ordinance (chapter vi of C.L.E.)
The defendant-respondent by his answer whilst denying the aver-ments in the plaint prayed for dismissal of the action.
The case proceeded to trial on 24 issues and at the conclusion of 10the trial learned district judge dismissed the action.
It is from the aforesaid judgment that this appeal is preferred.
Learned President’s counsel who appeared for the plaintiff-appel-lant contended that the learned District Judge had erred in dismiss-ing the action of the plaintiff-appellant. His aforesaid contention wasbased on the ground that the learned District Judge has failed toembark on a proper evaluation and analysis of the evidence in thecase.
It is interesting to note, that despite the fact the learned DistrictJudge had raised 24 issues on the suggestion of learned counsel 20
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who appeared at the District Court the crucial issues in the case areas follows:-
whether deed No. 2007 was executed in the mannerrequired by law – i.e. whether it had been executed inaccordance with the provisions of section 2 of thePrevention of Frauds Ordinance; and
whether it had in fact been executed (i.e. signed) in thepresence of L.B. Ratnayake who is said to have attestedsame.
The aforesaid 2 issues have been crystallized in issues numbers 301 and 21 framed at the District Court.
The following facts that had transferred in the evidence at thecourt below will shed light to the background on which the presentdispute revolves round, of which the following matters are undisput-ed:-
that the. plaintiff-appellant’s father Ricardo Don Alonzo deSoyza was the owner of the land and premises situated inDalada Weediya Kandy in which premises called the “MuslimHotel” was being run by five Muslim gentlemen.
The plaintiff-appellant’s father had died in 1974, leaving as his 40heirs, his widow and two children, the plaintiff-appellant and hissister.
The “Muslim Hotel” premises was left by the said Ricardo deSoyza, in his last will to his son the plaintiff-appellant reservinga life interest in it to his widow,
The “Muslim Hotel” premises was occupied by the aforesaidfive brothers carrying on the said business in partnership asmonthly tenants.
After Ricardo de Soyza’s death, the monthly rent was paid bythe tenants to the plaintiff-appellant’s mother as she had the solife interest.
Probate of Ricardo de Soyza’s last will was given in DistrictCourt Colombo case No. 1161/PO.
The plaintiff-appellant’s testimony in brief was as follows:-
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the five brothers who ran the “Muslim Hotel” business wereanxious to purchase the said premises from the plaintiff-appel-lant. They having negotiated with the plaintiff-appellant, hadentered into agreement to purchase by agreement NO. 2661of 04.07.1983 attested by C.Viknarajah, Notary Public (P9).
The plaintiff-appellant’s case is that he was accustomed to call at 60the “Muslim Hotel” premises to collect the monthly rental on behalf ofhis mother. In the month of August 1985, when he called on as usualto collect the rent, he was told by Hassan the eldest of the 5 broth-ers, that he could not be paid the rent as the defendant-respondenthad already called on them and had claimed that the propertybelonged to him and had wanted them to deliver the property to him.
On being asked to establish his ownership, the defendant-respon-dent has given him a photocopy of a deed which was purported tohave been signed by the plaintiff-appellant and purported to havebeen attested by L.B. Ratnayake, Notary Public of Kandy by which 70the property was alleged to have been transferred and conveyed tothe defendant-respondent.
The plaintiff-appellant denied that he executed any such deed. Onhearing of this story the plaintiff-appellant lodged a complained at theKandy Police Station. His complaint to the Kandy Police was pro-duced by the defendant-respondent marked V16.
The Kandy Police filed charges against the defendant-respondentfor committing forgery by the purported execution of deed No. 2007alleged to have been executed by L. B. Ranayake, Notary Public.Certified copy of Magistrate’s Court Kandy was produced marked soV30.
The defendant-respondent instituted action No. 14917/L in theDistrict Court of Kandy against the plaintiff-appellant and a personcalled Yahampath, alleging that he had purchased the said “MuslimHotel” premises by deed No. 2007 and that he had failed to deliverpeaceful possession of the premises. He sought a declaration of titleand ejectment and delivery of property to him. The five brothers whowere running the “Muslim Hotel” business filed papers and sought tointervene in that action.
QARohan de Soyza v Jinendradasa (Dissanayake, J.)333
No sooner they had filed papers to intervene the defendant-respondent who was the plaintiff-appellant in that case had with-drawn that action.
The plaintiff-appellant’s position as to the reason why he had toinstitute this action was that in July 1985 he was urgently in need ofsome money to pay an advance as rent to a house he was intendingto rent out. He had gone to Kandy intending to meet Hassan, theeldest brother of his tenants at “Muslim Hotel” premises. As Hassanhad gone out, he had tried to obtain some money from a personcalled Samarasekera. Samarasekera had not been able to help him.Samarasekera had taken him to one Yahampath, who too had beennot able to help him. However, Yahampath had taken him to thedefendant-respondent who had agreed to help him. On the sugges-tion of the defendant-respondent they had partaken in lot of drink andmeat. After they had consumed a lot of liqour the plaintiff-appellantasserted that he was taken to a place at Pilimatalawa and givenabout 10 to 15 papers which were partly printed and partly blank andhad been asked to place his signature on the said papers if he hadwanted the money. The plaintiff-appellant stated that he had signedthe blank papers and he had been given Rs. 6000/- .The plaintiff-appellant had gone onto state that according to his recollection theblank papers that he had signed had been similar to the documentwhich was a photocopy of the impugned deed given to him byHassan.
The main plank of the defendant-respondent’s case is that he haspurchased the “Muslim Hotel” premises from the plaintiff-appellantfor good and valuable consideration and the plaintiff-appellant exe-cuted deed No. 2007 and had confirmed the said transfer deed byutilizing or disposing of the lands which he had given to the plaintiff-appellant by deed No. 2008 (V18) as part of the consideration.
I shall now deal with the crucial issues in the case, namely firstlythe question whether deed No. 2007 was executed according to therequirements of the law and secondly whether L.B.Ratnayake has infact attested the said deed.
It is pertinent to refer to section 2 of the Prevention of FraudsOrdinance, which provides that no sale, transfer, etc. of land or other
immovable propertyshall be of force or avail in law
unless the same shall be in writing and signed by the party making
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the samein the presence of a licensed notary and two or
more witnesses present at the same time, unless the execution ofwriting deed or instrument be duly attested by such notary and wit- 130nesses, (emphasis added).
The evidence of Mihindu Ratnayake, Assistant Registrar of LandsKandy, Ranaweera clerk of the Land Registry, Kumarihamy clerk ofthe High Court Kandy were the official witnesses who had given evi-dence at the District Court. Their evidence clearly established the fol-lowing matters;
that L. B. Ratnayake, attorney-at-law and notary public hadceased to practice as a notary from or about November 1984.
that the disputed deed is said to have been attested on the
19th July 1985 (vide deed 2007, P3)uo
that L.B. Ratnayake had not obtained a licence to practice asa notary for the year 1985 and he had not even applied forsuch a licence as required by section 27(2) of the NotariesOrdinance. Under section 30 of the said Ordinance it is anoffence for a notary to practice without such licence.
documents produced by defendant-respondent V10, 12, V13and V14 show that he had applied for such licences upto theyear 1984. However the defendant-respondent had beenunable to produce such a licence or an application for a licence
for the year 1985.150
notary Ratnayake had died on 25.07.1986. After his death allhis deed registers and protocols of his deeds have been hand-ed over to the registrar of lands. The last protocol so handedover is in respect of deed No. 1993 attested in November1984, there had been no protocols handed over after deed No.1993 in November 1984.
every notary has to send a monthly list showing the deedsattested by him in the previous month on or before the 15th ofthe following month. If the notary had not attested any deed in
a month then he is required to send a nil list. According to the 160land registry officials, in respect of the months December1984, January, February and March 1985, L. B. Ratnayakehas sent nil lists. After March 1985 he has not sent any list at
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all, probably because he was not a notary licensed to practice,in the year 1985 as he had not applied for a licence on orbefore 1st March 1985.
together with the monthly list a notary has to forward to theland registry the duplicates of deeds attested in the previousmonth. It is the duplicates that carry the stamp duty payable onsuch deeds. The land registry has received such duplicatesalso upto deed No. 1993, attested in November 1984, but ithad not received duplicates of any deed attested after deed1993.
Mihindu Ratnayake who had been Assistant Registrar ofLands, Kandy had given evidence from his personal knowl-edge of many relevant matters. Documents V2, V3, V6 and V7produced by the defendant-respondent show that theAssistant Registrar of Lands, Mihindu Ratnayake had in facttaken action against L. B. Ratnayake, for not sending monthlylists and duplicate's and that Suraj Ratnayake L.B.Ratnayake’s son, has written to the Registrar-General and hadexplained how his father had fallen ill had been bed ridden. Hehad stated that his father had been unable to sign. This expla-nation has been accepted by the Registrar-General who haddirected Mihindu Ratnayake, the then Assistant RegistrarGeneral of Lands, Kandy to treat Notary L.B. Ratnayake ashaving ceased to practice and accordingly no further actionhas been taken against the notary for not submtting the month-ly returns.
This correspondence appears to have started with letter dated22.3.1988 (V7) sent by Suraj Ratnayake explaining the failureof his father L.B.Ratnayake sending the monthly list forFebruary 1985. When that correspondence started in March1985 the plaintiff-appellant has not yet made any complaintagainst the defendant-respondent regarding deed 2007 (P3)and that correspondence had nothing to do with the deed inquestion, but it was concerned only with the notary’s failure tosend monthly returns. This is further confirmed by letter dated15.8.85 (P1) which had been produced from the file of theLand Registry and specifically the endorsement at the bottomof the document in ink, which reads as follows:-
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Registrar of Lands,
“He had attested his last duplicate on 27.11.1984.Thereafter upto March 1985 he had furnished nil lists. Forthe months of April, May, June and July he has not fur-nished neither duplicates nor nil lists.”
Below there is a further endorsement to forward this document tothe Registrar-General for further directions. That correspondencehad ended with the letter V3 from the Registrar-General’s Office,directing the Registrar of Lands Kandy, to treat L.B. Ratnayake as a 210■ notary who had ceased to practice. It had been on that basis that fur-ther action against L.B. Ratnayake has come to a standstill.
h) The aforesaid documentary evidence and the oral testimony ofMihindu Ratnayake, Assistant Registrar of Lands Kandy estab-lishes that L.B. Ratnayake has ceased to practice after27.11.194 and that he was not a notary public licensed to prac-tice as at 19.7.1985, the date on which the disputed deed issaid to have been executed.
Evidence of Kumarihamy clerk of the High Court had clearlyestablished that the last licence issued to L.B. Ratnayake was in the 220year 1984 and after 1984 L.B. Ratnayake has not made any appli-cation for a licence nor has he been issued any licence to practice asa notary.
The learned District Judge had in his judgment erroneously stat-ed that the letters that had been written by Suraj Ratnayake havebeen sent, at or about the time the dispute has arisen regarding theexecution of the deed in question.
It is to be observed that the correspondence with the Registrar ofLands has started from letter V7 dated 22.03.1985 regarding notsending the monthly list for February 1985 which was long prior to 230the start of the dispute regarding deed 2007 (3) with the complaintmade by the plaitniff-appellant to the Kandy police on 30.08.1985(V18) regarding the purported execution of the deed in question on19.07.1985.
It is of significance to note that in the light of the evidence withregard to the last licence that had been issued to L.B. Ratnayake hadbeen for the year 1984; and that he has not made any application for
QARohan de Soyza v Jinendradasa (Dissanayake, J.)337
a licence to practice after 1984; L.B. Ratnayake has ceased to prac-tice as a notary after 27.11.1984; Further he was not licensed to prac-tice for the year 1985; he had no licence to practice as a notary pub-lic specifically on 19.07.1985 the day on which the deed in question(P3) is said to have been signed by L.B. Ratnayake; thus the con-clusion is irresistible that deed No. 2007 (P3) is not a deed which canbe of any force or avail in law as it has been attested in violation ofsection 2 of the Prevention of Frauds Ordinance, in that it has beensigned by a notary who did not have a licence tp officiate as a notarypublic for the year of 1985.
It is pertinent to refer to Arsecularatne v Perera<1) where at page345 it has been held “both cases last cited and the doctrine of partperformance have reference to section 4 of the English Statute ofFrauds and they have no application to the more stringent provisionsof clause 2 of the Ordinance by which an agreement not clearlyattested by a notary and two witnesses is of no force or avail in law.”
Now I move on to the next question whether the deed bearing No,2007 (P3) had been signed before L.B. Ratnayake at all.
It.is of significance to refer to the evidence of the son-in-law of
B.Ratnayake, who is married to his daughter and with whomL.B.Ratnayake had been living since 1981. With regard to the healthof L.B. Ratnayake, his son-in-law who is a senior attorney-at-law atthe Kandy bar has testified that L.B. Ratnayake had suffered a strokein 1981 and had undergone surgery and had reduced his practice.He was emphatic that towards the end of 1984 he had got paralyzedand had been unable to read and write.
His evidence is consistent with what the documents of the officeof Registrar of Lands, Kandy had revealed. His evidence was con-sistant with the evidence of Mihindu Ratnayake and the officer of theLand Registry who had testified in relation to the material that wasbefore them like the protocols, deed register, monthly lists and theother correspondence they have had with L.B. Ratnayake and hisson Suraj Ratnayake. They all pointed to the fact that the last deedattested by L.B. Ratnayake had been deed No. 1993 on 27.11.1984.And that after the said deed, no deeds have been attested. Themonthly nil lists submitted have been continued upto February 1985.N<? lists at all have been sent from the month of March 1985onwards. And it is revealed by letter dated 15.08.1985 (P1) that the
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last deed attested by him was on 27.11.1984 and thereafter he hasfailed to furnish monthly lists or duplicates from 1985 March to July.
It is to be observed that from the aforesaid endorsements that appearin the said document of the District Registrar of Kandy revealed thatthe matter has been referred to the Registrar-General for directions. 28cThe Registrar-General by letter V3 has directed the District RegistrarKandy to treat L.B. Ratnayake as a Notary who has ceased to prac-tice.
Kithsiri Seneviratne’s evidence with regard to L.B.Ratnayake’sstate of health, with regard to the fact that he was paralyzed and wasunable to write from about 1984 and that deed No. 2007 (P3) did notbear his signature has not been challenged. It has not been evensuggested that he was an untruthful witness.
The only discrepancy that was found in his evidence was withregard to trivial matters like the address at which L.B. Ratnayake’s 290office was situated.
The learned District Judge had considered this trivial contradictionas a material contradiction and had decided to disbelieve KithsiriSeneviratne’s evidence solely based on this minor contradiction.
Learned counsel for the defendant-respondent sought to justifythe rejection of the evidence of Kithsiri Seneviratne on the basis thatif a witness has been untruthful on one matter whole of his evidencemust be considered untruthful. He cited the case of FrancisAppuhamy v Queen <2> in support of his contention. That case was acriminal case where a higher degree of proof was required than in a 300civil case.
In this context it is necessary to refer to the observation ofWeerasuriya S.P.J. at page 524 in the case of Queen v Julis (65 NLR505) “the maximum falsus in uno, falsus in omnibus is not anabsolute rule which has to be applied in every case where a witnessis shown to have given false evidence on a material point."
Furthermore the only attesting witness who was called to give evi-dence J. George Silva who was an employee of the defendant-respondent on being questioned with regard to the time when L.B.Ratnayake signed the deed, answered in the following manner; 310
Q. Was it after or before the deed was readover and explainedthat Ratnayake signed?
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A. Ratnayake did not sign at that time. I do not know whether hesigned before. I am not aware of those matters.
Q. When the signatures were placed on this was Ratnayake look-ing at it?
A. No.
This witness had tesified to seeing Hewage, the other attestingwitness explaining the deed and placing his signature. However hehad stated that he did not see Ratnayake signing.320
In the cross-examination of the defendanKrespondent he hadbeen confronted with his statement to the Police, a cetified copy ofwhich had been produced marked P33.
The defendant-respondent was asked whether he stated in hisstatement to the Police the following:
“However I fully well know that this deed was not signed beforeL.B. Ratnayake" which was denied by him. It was marked as P33 (^)
Again he was asked whether he stated in his statement to thepolice:-
“I did not go before Ratnayake” which was denied. It was marked 330as P33 (31)
Learned counsel tried to make out that since P33 has beenmarked subject to proof and since no steps have been taken to proveit, that it cannot be accepted in evidence.
It is to be observed that in terms of section 440A of the CivilProcedure Code, a certified copy of a statement made to the policeis admissible in evidence without calling the Police Officer to whomthe statement was made.
Therefore I am of the view that the deed in question has not beenexecuted according to section 2 of the Prevention of Frauds 340Ordinance, for the reasons that firstly it was attested if at all by a per-son who was not a licensed notary and secondly the deed has notbeen signed by the executant, the attesting witnesses and the Notaryall being present at the same time and place and therefore it has notbeen signed before one another.
Therefore deed No. 2007 (P3) had not only not been signed byL.B. Ratnayake and it is not a deed that has been executed in accor-dance with section 2 of the Prevention of Frauds Ordinance andhence it shall be of no force or avail in law.
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Thus the plaintiff-appellant is entitled to judgment as prayed for in 350the plaint.
I set aside the judgement of the learned District Judge and directthe learned District Judge to enter judgment for the plaintiff-appellantas prayed for in the plaint.
The appeal of the plaintiff-appellant is allowed with costs fixed atRs. 10000/-
SOMAWANSA, J.I agree
Appeal allowed.