BASNAYAKE, C.J.—Emalia Fernando v. Caroline Fernando
1958Present: Basnayake, O.J., and de Silva, J.EMAI/EA FERNANDO, Appellant, andCAROLINE FERNANDO and others, Respondents
S. O. 454-—D. G. Panadura, 3,795
Deeds—Prevention oj Frauds Ordinance—Section 2—“In the presence of”—“Duly
attested ”—Notaries Ordinance, s. 30 (12) and (20)..
An instrument -which is required by sect ion 2 of the Prevention of Frauds' Ordinance to bo notarialiy attested must bo signed by the Notary and thewitnesses at the the samo time ns tho maker and in his presence.
Cortain doeds of gift convoying lands were signed by tho executant in aroom in a hospital in the presence of tho Notary and tho witnesses, but weresigned by the Notary and witnesses in a different room out of tho view of theexecutant.
Held, that the deeds were of no force or avail in law.
-^^-PPEAL from a judgment of the District Court, Panadura.
II TP. Jayewardene, Q.G., with S. D. Jayasundera, for Plaintiff-Appellant.
Walter Jayaicardene, with D. R. P. Goonelilleke and L. Miitulantri, for1st, 4th, 5th, 6th and 7th Defendants-Respondents.
D. It. P. Goonelilleke, for 2nd and 3rd Defendants-Respondents.
■Cur. adv. vull.
February 14, 195S. Basnayake, C.J.—
The only question that arises for decision in this appeal is whethersection 2 of the Prevention of Frauds Ordinance requires that the notaryand the witnesses should sign an instrument requiring their attestationat the same time as the maker of the instrument and in his presence.
Shortly the facts are as follows : Boniface Fernando, who died onISth June 1953, executed on 13th June 1953 three deeds of gift No. 6430,6431, and 6432, conveying certain lands to the plaintiff his wife. Thodeeds were"executed by the deceased in room No. 14 in the FernandoMemorial Hospital in Wellawatte in the presence of the notary and thowitnesses, but they did not sign them in his presence. – After the deceased 'signed the deeds the notary and the witnesses went to the residentdoctor’s consulting room which was a little distance away from the* roomof the deceased and out of his view and there the notary and the witnesses
' BASNAYAK.B, C.J.—Emalia Fernando v. Caroline, Fernando
• t signed the deeds. The doctor describes the situation of the consultingrooms thus : " You get out of Room No. 14,' turn left along the corridor,. walk 3 or 4 steps, and turn right and enter my consultation room. It ison the other side of the passage. It is an independent room. Anybodyin my room is not visible to people in Room No. 14.”-■.'
All the copies of the deeds were, between the date, of their executionand 5th July 1953, lost from the notary’s office before the duplicateswere sent to the Registrar of Lands and before they were tendered forregistration…
Admittedly the deeds were not signed by the witnesses and the notaryin the presence of the deceased. Learned counsel for the appellantcontended that there was no legal requirement that the notary and thewitnesses should sign in the presence of the maker of the instrument ;but he was unable to cite any decision of this Court in support of hiscontention..
The material portion of section 2 of the Ordinance reads as follows :—
“ No sale, purchase, transfer, assignment, or mortgage of land orother immovable’property, …. shall be of force or avail inlaw unless the same shall be in writing and signed by the party makingthe same, or by some person lawfully authorised by him or her in thepresence of a licensed notary public and tioo or more witnesses present atthe same time, and unless the execution of such writing, deed, or instrumentbe duly attested by such notary and witnesses.”
An instrument for effecting a sale, etc. of immovable property to be offorce or avail in law must be—. .
(a) in writing, and
signed by the party making it, or by some person lawfullyauthorised by him,
in the presence of a licensed notary public and two or more witnesses
present at the same time, and .
its execution must be duly attested by the notary and the witnesses.
(a) and (b) need not be considered for the purpose of the instant case.
requires that the-person signing the deed should do so in the presenceof the notary and the witnesses who shall be present at the same time.
It is necessary that the witnesses and the notary should not only bopresent but should also see the party making the instrument sign it andhe conscious of the act done (see Hudson v. Parker1). The effect of thewords “ irf the presence of ” is that they should be present not only in.body but also in mind. – As the effect of the words “ in the presence of alicensed notary public and two or more witnesses present at the sametime” is that witnesses should not only be bodily present but shouldalso see the party making the instrument sign it and be conscious of thatact, the statute is hot satisfied if the witnesses are intoxicated or are ofunsound mind or are blind or asleep (Hudson v. Parker (supra) ).”''
– – — – 1 163 E. R. 9JS. 1 Rob Eca. 12.-• •
CASXAYAKE, C.J.—Em alia Fernando i Caroline Fernando
If as learned counsel contends the section requires no more than that•the party executing the deed should sign it in the presence of the witnesses-and the notary and that witnesses and notary may sign the deed in proof-of their presence at any time thereafter and at any place and notnecessarily in the presence of the party signing the deed, it would havebeen sufficient for the legislature to have said " in the presence of a licensednotary public and two or more witnesses present at the same time ” and-it was unnecessary to enact the words “ and unless the execution of suchwriting, deed, or instrument be duly attested by such notary andwitnesses.”
The words “ and unless the execution of such writing, deed, orinstrument be duly attested by such notary and witnesses ” must surelyimpose an additional requirement. In construing a statute effect mustbe given to every word in it and no words are to be treated as surplusageunless in attempting to give a meaning to every word we should make-the enactment unintelligible. The words “ and unless ” indicate theimportance attached to the attestation by the notary and the witnesses.What is the true meaning of tliis requirement ? The instrument must be“ duly attested ” by the notary and the witnesses. Now what is themeaning of the word “ attest ” ? It is defined in Sweet’s Law Dictionary<1SS2) thus :
“ To attest is literally to witness any act or event, but the term isnow exclusively applied to the signature or execution of a document.When A executed a deed in the presence of B, and B signs his name■on the document as a token of his having witnessed A’s execution, B issaid to attest the execution. The term is even more commonly appliedto wills than to deeds. A clause called an attestation clause is generallywritten at the foot of the instrument as a declaration by the attesting .witness that the instrument was signed or executed in his presence”.
The word " duly ” must also in this context bo given its force and•effect. It means in due maimer, order, or form. Its effect is that thenotary and the witnesses must at the proper time and place sign theinstrument as proof of the fact that they were present and saw its maker-sign the instrument. The requirement of the section is not satisfied ifthe notary- and the witnesses sign the deed at another place and at some-other time. They must sign it then and there in the presence of the maker.The signing by' the maker in the presence of the notary and the witnessesand the attestation by the notary and the witnesses are one and the same-transaction to be carried out at one. and the same time and place.
I find support for tho view I have formed in the English case of IVrightv. Walcefordl. It was there held that the signing of the instrument bytho attesting witnesses must bo contemporaneous with the signing bythe person executing it and part of the same transaction. In that casethe words the Court was called upon to construe are “attested by twoor more credible witnesses..
■1 4 Taunt. 213, 12S B. R. 310. –
344'- '. – , Appuhamy v. Jtcmasinghe
I am reinforced in my view by the fact that any other constructionof this section will promote and not prevent fraud. The declared object-of the Ordinance being “to provide more effectually for the preventionof frauds and perjuries ” its provisions should be so construed as to give-effect to that object and not so as to defeat it..
Learned counsel for the appellant contended that the requirement-of the Notaries Ordinance in regard to the attestation of documentsis not relevant to a consideration of the true meaning of the section.I am unable to agree that the provisions of the Notaries Ordinance areirrelevant to a consideration of the meaning of section 2 of the Preventionof Frauds Ordinance. I think in giving effect to the word “ duly ” ire-should take into account provisions of law which regulate the executionof documents required to be notarially attested. Section 30 (12) of theNotaries Ordinance provides that a notary “ shall not authenticate orattest any deed or instrument unless the person executing the same andthe witnesses shall have signed the same in his presence and in thepresence of one another, and unless he shall have signed the same in thepresence of the executant and of the attesting witnesses Section 30 (20)requires the notary to state in his attestation that the deed was signedby the party making it and the witnesses in his presence and in the:presence of one another.' ■
The view I have expressed above is in accord with the decision of thisCourt in the case of JPunchi Baba v. Ekanayakex, in which this Courtexpressed the .view that section 2 of the Prevention of Frauds Ordinancerequired that the notary and the witnesses should sign' in the presenceof the maker and at the same time and that a deed not so signed wasnot valid.
Xn my opinion the learned District Judge is right in holding that th&deeds are of no force or avail in law.
The appeal is therefore dismissed with costs.
de Silva, J.—I agree…
EMALIA FERNANDO, Appellant, and CAROLINE FERNANDO and others, Respondents
BASNAYAKE, C.J.—Emalia Fernando v. Caroline Fernando