011-SLLR-SLLR-2002-V-1-WIJEYARATNE-AND-ANOTHER-v.-SOMAWATHIE.pdf
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Wijeyaratne and Another v. Somawathie
93
WIJEYARATNE AND ANOTHER
v.SOMAWATHIE
COURT OF APPEALTILAKAWARDANE, J. ANDUDALAGAMA, J.
CA NO. 736/86 (F)
DC GALLE NO. 9795/LAPRIL 03, 2001 ANDMAY 17, 2001
Rei vindicatio action – Due execution of a deed – Proof of due execution -Balance of probability – Notaries Ordinance, s. 31(15) ands. 33 – Placing of thumbimpression without a mark by the executant – Validity – Prevention of FraudsOrdinance, s. 2.
Held:
Proof of due execution would be on a balance of probability.
Non-compliance of the Rules in section 31 of the Notaries Ordinance doesnot invalidate a deed. Section 33 protects a deed.
The absence of a mark by the executant at most would be non-observanceby the Notary of the Rules specified in section 31.
Per Udalagama, J.
"It is my view that the essential element of due execution is to complywith the provisions of section 2 of the Prevention of Frauds Ordinance."
APPEAL from the judgment of the District Court of Galle.
P. A. D. Samarasekera, PC with Keerthi Sri Gunawardena for defendant-appellants.
N. R. M. Daluwatte, PC with Gamini Silva for plaintiff-respondent.
Cur. adv. vult.
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June 08, 2001UDALAGAMA, J.
The plaintiff by his plaint dated 31. 08. 81 in District Court of Galle 1case No. 9795/L complained to Court that the defendant forciblyentered the land, morefully described in paragraph (2) of the plaint,on 29. 07. 81 and was in unlawful possession of same and claimeddeclaration of title to the land, for ejectment of the defendantsand for damages. Reciting title to the corpus called Mahawatte, LotNo. (2) . depicted in plan No. 1355 and described as an extent of06 perches the plaintiff stated as follows: That by final decreein partition case No. 4665/P of the District Court of Galle that the2nd defendant in that case, namely, Samaraweera Dona Elsina, 13whilst the said case was pending on deed No. 986 dated11. 03. 70 transferred all her rights, title and interest to one HendrickAppuhamy who by his deed No. 16127 dated 26. 03. 86 transferredthe said corpus to the plaintiff.
The 1st and 2nd defendants in their answer stated that they wereunaware of the aforesaid transfer by Elsina on deed No. 986 aforesaidand that the plaintiff had no possession and that the defendantswere in lawful possession. The defendants also stated that Elsinaaforesaid who was entitled to lot (2), vide final decree in 4655/Lof the District Court of Galle by deed No. 3511 dated 17. 10. 79 20transferred same to the 1st defendant and that from that datethe 1st defendant became entitled to lot (2) and entered intopossession thereof. The defendants also stated that they continueto be in possession.
When the case was taken up for trial it was admitted that Elsinareferred to above was at one time entitled to the corpus. The casewent to trial on 9 issues and the dispute centered around the twocontesting deeds said to have been executed by Elsina aforesaid. Videissue No. 5. It appears that the validity of deed 986 referred to abovehad also been questioned.30
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Wijeyaratne and Another v. Somawathie (Udalagama, J.)
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The evidence commenced with one Suraweera who gave evidenceon behalf of the plaintiff. He was the husband of the plaintiff. Itmust be noted that evidence commenced on 7th February, 84and that deed No. 986 referred to above was dated 11. 03. 70. Thus,evidence was recorded approximately 14 years after the executionof the said deed. It was the position of this witness that the vendeeon deed 986 aforesaid was his brother and the latter was not informedof the said deed No. 986. It was also his position that since hewas a Government servant he was precluded from buying immovableproperty without Government sanction, and that he purchased 40same in his brother's name, who by deed No. 16127 dated
03. 81 transferred same to the plaintiff, his wife. In the courseof his evidence he explained the incident of the attestation of deedNo. 986 referred to above on 11. 03. 70 before the Notary andin the presence of witnesses stating further that Elsina thevendor referred to above placed her thumb impression before theNotary and the two witnesses. He also stated that on29. 06. 81 approximately ten years later when he attempted toput up a parapet wall on the property the Police, on a complaintmade by the defendants prevented him from completing building sothe parapet wall. This witness admits in cross-examination thathe bought this property in the name of his brother as he wasa Government servant, but later states that he, in fact, was a retiredGovernment teacher and admits that there was no bar to buyingthe property in his own name even with the permission of theGovernment. However, he did concede that an application to theGovernment seeking the necessary permission would have takentime and that in all probability by the time he obtained suchpermission, the land could very well have been sold. He alsoadmits that he did not state to the Notary that he was purchasing 60the property in the name of the brother. Significantly, he alsostates that Elsina signed this deed as the vendee before herown son Suriaarachchi who was also a witness to the deed. Itwas also the position of this witness that although he did not knowthe Notary, he knew the Notary's clerk and further explained the
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incident of attestation which he states took place at about 4 of4.30 p.m. and that by that time the clerk to the Notary had preparedthe deed for signature and that he paid Rs. 100 to Elsinabefore the Notary. However, in cross-examination he was made toadmit that he had previously paid Rs. 50/- and the balance 70Rs. 50/- was paid before the Notary, in re-examination his positionwas that Elsina is still alive but sick and bedridden and that ifneeded the thumb impression placed on the deed could be verifiedat any time.
Piyadasa, the Notary's clerk, referred to above, stated that Elsinacame to the office and signed the deed before the Notary,
Mr. Tissa Disanayaka and the two witnesses. Of the witnesseshe was one of them and the other was Elsina's son Suriaarachchireferred to above. It was also his position that the Notary read outthe deed to the persons present. In cross-examination it was elicited 80that the aforesaid Disanayaka was also an Attorney-at-law apartfrom being a Notary. Elsina's son who subsequently gave evidenceadmitted and confirmed the fact that his mother had been paralysed.
It was also his position that his mother Elsina consented to the transferand that the deed was signed before him and the other witnessand the vendor and that the Notary read out the contents of thedeed before attestation.
The aforesaid Disanayaka, Notary Public, and Attorney-at-law alsotestified explaining the procedure that was followed when executinga deed and he further testified to his coming to his office, reading 90the contents of the deed to the parties which was signed by thewitnesses and the vendor before attestation by him. He was unableto say the exact time at which the deed was so attested but admittedthat the deed was prepared by his clerk. The plaintiff having closedhis case, the defendant Punchibanda who testified subsequently statedthat he purchased the corpus from Elsina aforesaid, on deed No. 3511dated 17.10. 79 in his son's name and that he entered into possessionthereof. This being the only evidence on behalf of the defendants,
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Wijeyaratne and Another v. Somawathie (Udalagama, J.)
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subsequent to the closure of the case for the defence the learnedDistrict Judge proceeded to enter judgment in favour of the plaintiff 1°°against which judgment dated 22. 11. 85 the defendants-appellantsseek to appeal.
It is common ground that Dona Elsina was entitled to the landwhich is described in paragraph (2) of the plaint under the final decreein DC Galle case No. 4665/L. It was also admitted that she hadby deed No. 3511 dated 17. 10. 79 conveyed the said lot (2) tothe said defendant. Thus, as stated earlier the dispute in this casewas whether the deed 986 dated 11. 03. 70 attested nine yearsearlier was duly executed. As stated above it is apparent that thepetitioner is contesting the validity of deed 986 referred to above 110on the basis that same was not duly and properly executed. In thisregard, proof of due execution would be on a balance of probability.
The evidence of the witnesses must also be considered and evaluatedtaking into account the fact that deed 986 referred to above hadbeen executed 14 years before the evidence was recorded.
As the learned District Judge had correctly stated contradictionsof a minor nature would be natural considering the mentalcapacity, age, recollection powers of witnesses and as stated abovethe lapse of time.
The learned President's Counsel for the appellants queried the 120absence of the signature or mark of the executant in deed 986referred to above, as provided for by section 31 (15) of the NotariesOrdinance. Apart from the fact that even the petitioners deed, bearingNo. 3511 referred to above also executed by Elsina, not havingthe latter's signature or mark and not even been proved, the placingof the thumb impression without a mark by an executant wouldnot invalidate a deed. Non-compliance of the Rules in section 31 ofthe Notaries Ordinance does not invalidate a deed as providedfor by section 33 of the same Ordinance. That section protects thedeed. The absence of a mark by the executant at most would be 130non-observance by the Notary of the rules specified in section 31aforesaid. As stated by the learned Counsel for the appellants,although a possibility exists for obtaining a thumb impression of aperson who is dead, unconscious, asleep or when intoxicated inthe instant case the person who accompanied the executant was
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no other than the executant's own son who later testified to aconscious act of her mother when describing the incident of attestationreferred to above. It is my view that the essential element of dueexecution is to comply with the provisions of section (2) of thePrevention of Frauds Ordinance and as stated by E. R. S. R. 140Coomaraswamy in The Conveyancer and Property Lawyer', vol. 1,part 1 (1945) "Non-compliance with the provisions of the NotariesOrdinance will not invalidate a deed as long as the provisions ofsection 2 of the Prevention of Frauds Ordinance are complied with".
It was not the position of the appellants that section (2) of thePrevention of Frauds Ordinance was violated.
The contention of the appellants that the vendor and the vendeealthough alive, were not called to give evidence thereby causing doubtsas to the validity of deed 986 referred to above is not tenableas the execution of the said deed had been adequately proved, 150on a balance of probability. Considering the evidence led in the lowerCourt, I see no reason to interfere with the learned District Judge'sfinding of fact. Having given my mind to the lapse of time betweenthe execution of the impugned deed and the date of testimony,age of witnesses and other relevant material, I hold that the learnedDistrict Judge has on a balance of probability, come to a correct findingthat deed No. 986 dated 11. 03. 70 was the act and deed of YasineSamaraweera Dona Elsina and that the deed was duly executed.Contradictions referred to in the testimony of witness for the plaintiffare not material to cast doubts as to due execution and the validity 160of deed 986 aforesaid.
As stated above, I find no reason to interfere with the judgmentof the learned District Judge dated 22. 11. 85 and proceed to dismissthis appeal with taxed costs.
TILAKAWARDANE, J. – I agree.Appeal dismissed.