078-NLR-NLR-V-59-L.-MARIAN-Appellant-and-S.-JESUTHASAN-et-al.-Respondents.pdf
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SINNETAMBY, J.—Marian v. Je&uthasan
1956Present :Sanson], J., and Sinnelamby, J.'
Lt. MARIAN", Appellant, and S. JESUTHASAN et al.,
– Respondents.
S. C. 282—D. C. Jaffna, 11,447jL
Evidence Ordinance—Section OS—Deed—Proof of execution—Notary's position a.
“ attesting witness ”—Requirement of his personal knowledge of executant—Prevention of Frauds Ordinance, s. 2.
Where a deed executed before a notary is sought to be proved, the notaj-jcan bo regarded as an attesting witness within the meaning of section 68 of th<Evidence Ordinance provided only that ho know the executant personally anccan testify to the fact that the signature on the deed is the signature of theexecutant.
■/^. pPE AT. from a judgment of the District Court, Jaffna
C. Ranganathan, with V. K. Palasundaram, for the defendant-appellant.
Chellappah, for the plantiffs-respondents.
Cur. adv. vull.
July 20, 1936. Sewetamby, J.—
This was an action rei vindicatio instituted b}r plaintiff in respect of a2/3 share of the land described in the plaint. The defendant claimed tobe the absolute owner of the entire land on deed bearing No. 311 dated2/S/39 executed by his mother, marked Dl. Plaintiff’s claim was basedon inheritance from the same source. The only issue therefore foradjudication was whether the deed Dl was duly executed and the casewent to trial on this issue.-..
The defendant gave evidence to the effect that he went with his motherand the attesting witnesses to the notary to get Dl executed. Headmitted that one attesting ’witness was alive and the other dead. Hewas questioned as to whether Iris mother placed her thumb impression inthe deed Dl but on objection being taken this question was disallowed.One of the grounds urged at the argument was that this order was awrong order though this point was not specifically raised in the petitionof appeal. Por the purpose of this decision I shall proceed on theassumption that the answer to this question is in the affirmative.
One ground of appeal was that the learned Judge refused apostponement to enable the plaintiff to call the attesting witness. Thereis nothing in the record to suggest that any such application was madeAnd the iudee himself has assured us that if such an application had been
SINNETAJIBY, J.—Alarian v. Jesulhasan
319
made he would have recorded it. Both proctors in this case have filedconflicting affidavits on this question and in the circumstances we are ofopinion that this appeal should proceed on the basis that no such appli-cation was in fact made. Learned Counsel appearing for the appellant atthe trial presumably took the view that he had available sufficient proof,of the due execution of the deed ; otherwise, it is difficult to understandwhy he chose to proceed with the trial without first making sure thatthe application for a postponement which it is alleged he made wasduly recorded.•
It was argued at the healing of the appeal that there.would be sufficientproof of execution if the notary before whom a deed is executed was calledcoupled with proof that the executant it was who signed it. Xn this casethe executant placed her thumb impression. It was urged that in thiscase there was a sufficient compliance with the provisions of Sections 67 .and 68 of the Evidence Ordinance as the notary was called and there wastendered proof aliunde of the executant’s signature or thumb impression.
It was contended that the notary was an attesting witness within themeaning of Section 68 irrespective of wiiether he knew the executant ornot. Reliance was placed on the decision of this Court in Seneviratne v.Mend is1. Rumen Chetty v. Assen Naina2 was differentiated on the groundthat in that case there was no evidence that the executant set hissignature to the impugned deed. It was contended that the effect ofSection 67 read in conjunction with Section 68 rendered it sufficient forproof to be established by calling the notary irrespective of whether heknew the executant or not and proving the signature of the executant byother evidence. This in my view is a fallacy. The signature to a docu-ment can be attested without a notary. “ To attest ” means to“ bear• witness to a fact ’’—vide Velupillai v. Sivakamipillai3. The notary there-fore to become an attesting witness within the meaning of Section 68 of! the Evidence Ordinance must he able to bear witness to the fact that it wasj the executant who set his signature to the document. A documentaffecting land is executed before a notary to comply with the provisionsV'of Ordinance 7 of 1840 and that fact alone does not make the notary anattesting witness. To become an attesting witness a notary mustpersonr.tiy know the executant and be in a position to bear witness to thefact that the signature on the deed executed before him is the srgnatiu eofthe executant.
In the present case the notary says he did not know the executant.
No attesting witness has been called and the defendant’s evidence evenif admitted to the effect that it was his mother who set her thumbimpression to DI would not establish proof of due execution. For thesereasons I would dismiss the appeal with costs. -'.
SiXSONi, J.—I agree.''-
'‘ .•' Appeal dismissed.
1 (1919)1 G.L. Bee. 47.* {1909) 1 Curr.L.B. 256.
{1907) 1 A.O.B. ISO.