Jayasekere v. Jayasekere.
Present : Soertsz S.P.J. and de Kretser J.
JAYASEKERE v. JAYASEKERE.
231—D. C. Galle, 36,317.
Deed—Execution of three gifts at the same time—Property donated by one giftincluded in another—Earlier deed entitled to priority.
Where a person executed three deeds of gift in favour of three sons onthe same day and where certain lands donated by one deed were includedin another,—
Held, that the earlier deed must prevail and that there was a presump-tion that the Notary did his duty properly and that he numbered themin the order in which they were executed.
DE KRETSER J—Jayasekere v. Jayasekere.
^ PPEAL from a judgment of the District Judge of Galle.
5 N. E. Weerasooria, K.C. (with him H. A. Wijemanne), for first defend-ant, appellant.
H. V. Perera, K.C. (with him L. A. Rajapdkse, E. B. Wikremanayakeand H. A. Chandrasena), for plaintiff, respondent.
March 30, 1939. de Kretser J.—
This is an unusual type of case. One Dona Gimara GunasekereHamine, whom I shall call Dona Gimara, was entitled on three Crowngrants to three allotments of land called Wahugalahena and Wahugala-kandedeniya. These three allotments formed part of an estate calledWeihena Estate in Baddegama. Dona Gimara lived on the estate. Shehad three sons, namely, Edwin, the plaintiff, Alexander whose estate isbeing administered by his widow the first defendant, and Francis.
Edwin had contracted a marriage which his mother disapproved of, andat one stage she had made a last will cutting him off from her propertyand only providing for an allowance. Thereafter Edwin divorced hiswife and became reconciled to his mother and took up his residence withher, and after her death is still on the land. Alexander was her eldest son,and seems to have attended to her business affairs.
On October 3, 1929, Dona Gimara executed three deeds of gift in favourof her three sons. Of these the one in favour of the plaintiff bears theearliest number. The three deeds of gift were registered but no questionarises with regard to some irregularity in the registration of Alexander’sdeed as these were deeds of gift.
It seems to have been common ground at the trial that the deed of giftconveyed to Edwin the extents shown in the three Crown grants, whichwould amount to 22 acres and 4 perches, and that the deed of gift in favourof Alexander conveyed almost 20 acres from this very extent, leavingtherefore only about two acres for Edwin the plaintiff.
It would appear that at one time Dona Gimara had occasion to mortgageher property and that for the purpose of the mortgage a survey had beenmade.
The deed of gift in favour _of Edwin recited the Crown grants andplaced these three allotments in the forefront of the deed, whereas thedeed in favour of Alexander placed the two allotments he claims asnumbers 13 and 14 in a gift referring to 16 allotments, and his deed of giftlreferred to the plan made in 1922 for the purpose of mortgage and in $general way referred to the title as being by virtue of purchase from theCrown and by virtue of a certain last will.
It would appear that after Dona Gimara’s death, it was Edwin whopossessed the property now in dispute. The defendant claimed teacoupons and was issued coupons, and plaintiff therefore brought thisaction.
The Notary who attested the deeds of gift is dead and no attempt hasbeen made to prove the instructions given to him. The defendant seemsto have realized that the order of numbering the deeds was of importanceand accordingly alleged that a mistake had been made and claimed arectification of the numbers.
DE KRETSER J.—Jayasekere v. Jayasekere.
Francis gave evidence for the plaintiff. The defendant gave evidencefor herself and called the Notary’s clerk. The clerk’s evidence was to theeffect that he did the numbering of these deeds and that he could not saythat he numbered them in any particular order. He says the deeds werebrought tied together, one upon another, and he could not remember asingle instance where he had numbered deeds at random or taken a deedfrom the bottom and given it the first number.
It so happens that all parties are agreed that the deed in favour ofFrancis was executed last, and it does bear the last of the three numbers.The defendant s theory is that as Alexander was the eldest, therefore hisdeed was executed first. But though Alexander was the eldest, he gotlands to the value of Rs. 24,000, whereas the other two got lands to thevalue, of Rs. 34,000 each, and besides, it was the most natural thing todeal with the lots on which the residential bungalow stood before dealingwith lots which were farther away.
The defendant alleges that she was present and personally aware thatthe deed in favour of Alexander was executed first. On the other hand,Francis is sure that the deed in favour of Edwin was executed first.
Now, with regard to the presence of Francis there can be no manner ofdoubt, and Francis had reason to be specially interested in the deed toEdwin because that deed provided that no Edwin’s death the propertygifted should pass to Alexander and Francis. Francis is more likely alsoto be a much less interested party than the defendant.
The defendant seems to have been satisfied with the clerk’s unsatis-factory evidence because it was felt that in the event of the numberingbeing no reliable guide the plaintiff would fail because he was plaintiff.It seems to have been forgotten that the plaintiff was in actual occupationand that the burden of proof would really be on-the first defendant. Herobtaining of the coupons would not affect the situation, both becausecoupons are not actual produce and because she obtained them throughthe judgment of the Tea Controller with which judgment the Court is notconcerned.
But the plaintiff’s case rests on higher grounds, for there is a presump-tion that the Notary did his duty properly and numbered his documentscorrectly as he is required to do by the Notary’s Ordinance. Even if heleft the numbering to be done at the time when he completed the deed byattestation, one may assume that he would see to it that the deeds hadbeen properly numbered before he handed them over.
There is thus in favour of the plaintiff more than one circumstance thatshows that the gift to him was prior in fact and was intended to beeffective. None of the parties could have failed to be interested in theirown home and none of them could have failed to realize to whom that wasgoing. That was dealt with in the first instance, and Dona Gimara notonly reserved a life-interest to herself but she provided a life-interest forEdwin and it was after his death that the other two sons were to have it.
The learned District Judge treated the case on the footing that it wasimpossible to decide which deed had been executed first and treated allthe dispositions as if they were contained in one document but in no
DE KRETSER J.—Kamala v. Andris.
particular order, and he attempted to ascertain what Dona Gimara’sintentions had been. He further stated that as Alexander had themanagement of her affairs and was the person who selected and instructedthe Notary, it was not likely that he would have given to Edwin the allot-ments which he was himself going to have. He believed that Alexanderhad been guilty of fraud and probably thought that Alexander, beinganxious to have those particular lots and finding he could not get them,let everyone into the belief that Edwin was getting them and thensmuggled in the lots into his deed in such a way and at such a time thatall parties, including the Notary, would not have realized what washappening. That, of course, is possible, but it is not necessary to go so'far, for it is equally possible that a mistake was made owing to confusionin the course of dealing with a very large number of lands.
That Dona Gimara intended to give the plaintiff the allotments is plain,but the case can be decided on the footing that the transfer to Edwin wasprior and therefore must prevail.
The appeal is therefore dismissed with costs.
Soertsz S.P.J.—I agree.
JAYASEKERE v. JAYASEKERE