018-SLLR-SLLR-1987-2-THIYAGARASA-v.-ARUNODAYAM.pdf
184
Sri Lanka Law Reports
[1987] 2 Sri L.R.
THIYAGARASA
– v.
ARUNODAYAM
COURT OF APPEAL.
G. P. S. DE SILVA, J. (PRESIDENT, C/A) AND, GOONEWARDENA. J.
A. 642/76 (F).
C. JAFFNA L/5261.
MAY 18, 19 AND 20, 1987.
Deed-Validity-Requirement of due execution of deed-Wrong date ofexecution-Notaries Ordinance s. 31 -Deed executed pending partition case-PartitionAct. s. 67(1).
Held-
11) The essential elements of due executi on of a deed ass set out in section 2 of thePrevention of Frauds Ordinance are:
The deed must be signed by the party making it.
It must be signed in the presence of a ,'icensed notary public and two or, morewitnesses.
The notary public and the witnesses must be present at the sar.ne time.
The execution of the deed must be duly attested by the notary t'nd the witnesses.
The notary is as much an attesting witness as the two witnesses t hemselves.
Where the requirements of the Prevention of Frauds Ordinance have iheen complied 'with the mere fact that the notary has inserted a false or wrong date of ,'ts executiondoes not render the deed void.
CA
1 hiyagarasa v. Arunodayam
I
The lapse of the notary may render him liable to be prosecuted for contravention ofthe provisions of the Notaries Ordinance.
The prohibition against alienation pending partition contained in s 67(1) of thePartition Act applies only to a partition action which "is duly registered as a lis pendensunder the Registration of Documents Ordinance".
Where the purchase pending partition was by the plaintiff himself the plaintiffcannot be permitted to take advantage of his own wrongful act.
Cases referred to:
Kiribanda v llkkuwa-1 SCR 216
Subaseris v Prohs-I 1913) 16 NLR 393.
APPEAL from judgment of the District Court of Jaffna.
Dr H. W Jayewardene. Q C with K Kanag Iswaran and Miss Keenavmne fordefendant-appellants
H. L. de Silva. P.C. with S. Mahenthiran for plaintiff-respondent.
July 3, 1987.
G. P. S. DE SILVA, J..
The plaintiff instituted this action seeking a declaration that deed No.962 dated 14th January 1973 attested by K. Somaskandan, NotaryPublic, (P3) is invalid and is of no force or avail in law. The impugneddeed P3 was a deed of transfer of a divided extent of a land called“Karaiyantoddam and Mutatikinattodi" executed by the plaintiff and herdeceased husband in favour of the 2nd defendant. The grounds uponwhich the plaintiff sought the declaration were:-(i) that the landpurported to be conveyed on the deed was not the land that wasintended to be conveyed by the vendors; (ii) want of due execution asrequired by law; (iii) that the deed was in fact executed on 7th October1972 when partition action No. P/1418 of the District Court of Jaffnawas pending in respect of the larger land.
After trial, the District Judge held with the plaintiff on grounds (i) and(ii) above and against the plaintiff on ground (iii). He accordinglyentered judgment for the plaintiff. The defendants (husband and wife)have now lodged this appeal against the judgment and decree of theDistrict Court.
Mr. H. L. de Silva, counsel for the plaintiff-respondent, did not seekto support the finding of the trial Judge on ground (i). Counsel,however, supported the finding in his client’s favour on ground (ii) andfurther contended that the trial Judge was in error when he found
uanAa low nefjuns
l i&o/j z on L.n.
against the plaintiff oh the third ground. In this appeal, therefore, weare concerned only with the second and third grounds of avoidancerelied on by the plaintiff.
Considering first the question whether P3 was void by reason ofwant of due execution as required by law, it is relevant to note that thetrial Judge reached the finding that although the deed, on its face bearsthe date 14th January 1973 as the date of its execution, yet in truththe actual date of execution was 7th October 1972 as claimed by theplaintiff. This finding, which was amply supported by the evidence,was not challenged at the hearing before us by Dr. Jayewardena,counsel for the defendants-appellants. Dr. Jayewardena, however,submitted that P3 was a valid deed of transfer inasmuch as there wasno failure to comply with the imperative provisions of section 2 of thePrevention of Frauds Ordinance and that the fact that the date ofexecution given in the deed was false or incorrect does not render thedeed of no force or avail in law. On the other hand, Mr. H. L. de Silvafor the plaintiff-respondent relying on rule (20) in section 31 of theNotaries Ordinance contended that it was. the duty of a notary to “dulyattest’ every deed executed before him 'without delay". Mr. de Silvaargued that the expression "without delay" meant "promptly" and thatin the present case there was a delay of three months between thedate of. actual execution (7.10.72) and the date of attestation(14.1.73) by the Notary. In short, Mr. de Silva's submission was thatdue attestation by the Notary contemplated in section 2 of thePrevention of Frauds Ordinance and the formal attestation stipulated inrule (20) of section 31 of the Notaries Ordinance constitute onecomposite legal act.
Before I deal with the provisions of law, it is not inappropriate torefer briefly to certain facts pertaining to the impugned transactionembodied in P3. Admittedly, the plaintiff received from the defendantsthe entire consideration agreed upon between the parties. Althoughthere was an allegation in the plaint that "a fraud had beenperpetrated" on the plaintiff and her late husband by the defendantsthere was no evidence whatsoever on record to support Such anallegation. Moreover, the land which was the subject matter of thesale was subject to two mortgages which were redeemed with the .moneys received by the plaintiff from the defendants on account ofthe sale. Thus it is clear that the plaintiff received the' full benefit of thetransaction and it would appear that this action was instituted on
account of a dispute between the parties over the correctness of oneof the boundaries of the land. Here again, it is to be observed that theschedule to P3 describes the land not only by its extent and metes andbounds but also with specific reference to a plan. The sale was bothad corpus and ad quantitatem.
So much in relation to the facts; the question then is whether in lawthe deed is void by reason of the fact that it bears a false or wrongdate of its execution. It may not be irrelevant to observe that the date,of execution is something which the notary inserts in the deed and isnot a matter within the control of the parties to the transaction. This isa matter which has some bearing on the question whether the rulesrelating to due execution contained in section 31 of the NotariesOrdinance are imperative or hot.
The governing provision of law is contained in section 2 of thePrevention of Frauds Ordinance and the essential elements of ‘dueexecution" relevant for present purposes are (a) that the deed must besigned by the party making,the same; (b) it must be signed in thepresence of a licensed notary public and two or more witnesses; (c)the notary public and the witnesses must be present at the same time ;
the execution of the deed must be duly attested by the notary andthe witnesses. Admittedly, the requirements set out in (a), (b) and (c)above were satisfied in the instant case. There remains the questionwhether there was compliance with the requirement stipulated in (d).
It is not in dispute that the notary himself placed his signature in thepresence of the executants (plaintiff and her deceased husband) andthe two' witnesses. This fact, in my view, is sufficient for what iscontemplated by the law is that just as the witnesses must bearwitness to the fact of execution of the deed, the notary too must bearwitness to the same fact, i.e. the fact of execution of the deed by theexecutant. The collocation of the words ‘by such notary andwitnesses' in section 2 supports the view that the notary is as muchan attesting witness as the two vyitnesses themselves.
This question has received judicial consideration in Kiribanda v.Ukkuwa.Cl). Said the learned Chief Justice Burnside 'The lawapplicable to the .deed before us requires that the same shall be signedby the party making the same in the presence of a licensed notarypublic, and two or more witnesses present, and the deed 'shafl be dulyattested by such notary and witnesses'. Now to this deed is appendedthe word 'witnesses' and under it there are the signatures of two
witnesses and of the notary J. H. E. Mudiyanse, Notary Public. This
seems to me to be all that the law requiresThe learned District
Judge has said that the 'first signature below that of the witnesseswas surplusage'. I cannot subscribe to that position ……. .1
emphatically hold that it was all that was necessary to do insatisfaction of the provisions of the Frauds Ordinance requiring the
attestation by a notary and two witnessesIt is not only not
superfluous but, to say the least of it, standing alone it satisfies theFrauds Ordinance and becomes the sighature of an attesting witness,although of a designated and requisite character and calling"
Moreover, in view of Mr. de Silva's submission, it is relevant andsignificant to note that in the same judgment Burnside C.J. draws adistinction between due attestation by the notary contemplated insection 2 of the Prevention of Frauds Ordinance and the formalattestation of the notary which is provided for in the rules "laid downfor the guidance of notaries" in the then Notaries Ordinance 16 of1852. The learned Chief Justice concludes that the failure to complywith the latter does not "make the deed invalid".
Certain passages in E. R. S. R. Coomaraswamy's The Conveyancerand Property Lawyer, Vol. I, Part I which appear to run counter to thecase for the plaintiff may be usefully cited here. "The NotariesOrdinance requires the notary attesting a deed to append a formalattestation to the deed. The absence of this attestation clause will notinvalidate the deed but will render the notary liable to a statutory
penaltyOnly the formalities required by section 2 (of the
Prevention of Frauds Ordinance) are absolutely essential. If theserequirements are fulfilled the failure to observe the other requirementsof the Ordinance or any other Ordinance, such as the Notaries
Ordinance, will not invalidate the deed■" (Page 12). In the
same work, at page 94 the learned author states "The formalattestation by the notary is not part of the deed but it is the duty of thenotary to append it". I
I accordingly hold that once it is established that the requirements ofsection 2 of the Prevention of Frauds Ordinance relating to theexecution of the deed have been complied with, the mere fact that thenotary has inserted a false or wrong date of its execution does notrender the deed void. The lapse on the part of the notary does nottouch the validity of the deed but may render the notary liable to beprosecuted for contravention of the provisions of the Notaries
CAThiyagarasa v. Arunodayam (G. P. S. De Sitva. J.J189
Ordinance. This seems reasonable and just for the parties to thetransaction have no control over the act of the notary who is a .professional man. I am therefore of the opinion that P3 is valid andeffective to transfer the legal title to the property and is not bad forwant of due execution.
I now turn to the issue whether P3 was invalid as it was executed on07.10.72 when partition action P/1418 was pending in the DistrictCourt of Jaffna. The District Judge took the view that this matter wasgoverned by the provisions of the Administration of Justice(Amendment) Law No. 25 of 1975 but, at the hearing before us,counsel on both sides agreed that this was an erroneous view and therelevant law was-found in section 67 of the Partition Act (Chap. 69).
It is common ground that (a) the plaintiff and her late husbandinstituted partition action P/1418 in the District Court of Jaffna on 6thMarch i 971; (6) the plaintiff was entitled to an undivided 5/6th shareof the land while the remaining 1 /6th share was owned by one J.Rasanayagam; (c) that on deed No. 954 of 26th October 1972 .(P4)the plaintiff bought the 1/6th share from Rasanayagam; (d) that thepartition action was withdrawn by the plaintiff and her late husbandand was dismissed on 1st November 1972. On these facts Mr. deSilva argued that the deed P4 was invalid as it was executed pendingthe partition action and that the impugned deed P3 which was alsoexecuted pending the partition action was invalid, for what wastransferred on P3 was in effect an undivided share although the deedpurports to transfer a divided extent. I am afraid this contention is notwell-founded for, as rightly submitted by Dr. Jayewardene, theprohibition against alienation contained in section 67(1) of thePartition Act applies only to a partition action which 'is duly registeredas a lis pendens under the Registration of Documents Ordinance". Thisis an essential element of the section and on a scrutiny of P2 (certifiedextract of the entries under Registration of Documents Ordinance) itwas clear that there was no proof that the lis pendens was registeredin, or in continuation of the folio in which the first registered instrumentaffecting this land was registered. I did not understand Mr. de Silva tocontend that there was proof that the partition action was dulyregistered as a lis pendens. A party relying on a provision such as thismust establish the elements postulated in the section for, as observedby Wood Renton ACJ in Subaseris v. Prolis,{2) with reference tosection 17 of the Partition Ordinance;- "It must be remembered thatsection 17 of the Partition Ordinance imposes a fetter on the free
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Sri Lanka Law Reports[1987] 2 SnL.R.
alienation of property and the courts ought to see that that fetter is notmade rfiore comprehensive than the language and the intention of thesection requires."
Dr. Jayewardene further contended .that there was a broaderground which militated against the plaintiff relying on section 67 of thePartition Act. The partition action itself was one filed by none otherthan the plaintiff and her late husband. They themselves bought 1 /6thshare of the land on P4 and sold a divided extent on P3, being fullyaware that the partition action was pending. In these circumstances itseems to me that the principle that a party to a suit cannot be permittedto take advantage of his own wrongful act and that a court would notlend its assistance to such a party to obtain relief is applicable. On thisbasis too the plaintiff’s reliance on section 67 of the Partition Act ismisconceived.
I therefore hold that both grounds of avoidance relied on by theplaintiff fail. In the result, I would allow the appeal, set aside thejudgment and decree of the District Court, and dismiss the plaintiff'saction with costs. The defendants are entitled to the costs of appealfixed at Rs. 210.
GOONEWARDENE, J.-l agree.
Appeal allowed.