BASNAYAKE, C.J.—Wijegoonetilleke v. Wijegoowtttteke
1956Present: Basnayake, C.J., and Pnlle, J.N.U. WIJEGOONETILLEKE aad others, Appellants, and BWIJEGOONETILLEKE and another, Respondents
8. C. 640—D. C. Kalutara, 29,631
Deed—Proof of execution—Notary's position as “ attesting witness ”—■ BittilenceOrdinance, ss. fS, 69.
A Notary who attests a deed is an attesting witness within the meaning ofthat expression in sections 68 and 60 of the Evidence Ordinance.
da-PPEAL from a judgment of the District Court, Kalutara.
iV. E. Weerasoona, Q.C., with A. C. Gunaratne, for the Plaintiff-Appellants.
No appearance for the Defendant-Respondents.
July 6,1956, Basnayake, C.J.—
The only question that arises for decision on this appeal is whether aNotary who attests a deed comes within the ambit of the expression“ attesting witness ” in section 68 of the Evidence Ordinance.
The document relied on by the defendants, Dl, a certified copy of adeed executed by one Samarasundera AratchigeHenry Wijegoonetilleke,was produced by the attesting Notary who gave evidence without anyobjection being taken to its production. In his attestation the Notarysays that he did not know the person who executed the deed, but in thecourse of his evidence he indicated that he knew that the person whoexecuted the deed was a deaf and dumb person who knew English, aboutwhom he had heard and whose family he knew. He had taken all theprecautions necessary to make sure that the donor was no impostor andthat he was quite aware of the fact that he was making a gift of a numberof his lands.
BASNAYAKE, C.J.—WijegoomtiUeke v. Wijegoonetillelce561
At the conclusion of the case it was submitted by learned counsel for theplaintiffs that as the deed had not been proved in the manner requiredby section 68 of the Evidence Ordinance it was not in evidence and couldnot be acted on for the purpose of this case.
In the replication the plaintiffs had alleged that the deed was of noforce or avail in law inasmuch as the executant to the said deed, HenryWijegoonetilleke, had no capacity to understand the nature and contentsof the deed and that he was prevailed upon by the exercise of undueinfluence by the defendants to sign the deed. There is no evidence tosupport these allegations, and the Notary’s evidence shows beyond doubtthat the donor knew what he was doing.
Learned counsel for the appellant contended that a Notary was notan attesting witness for the purpose of section 68 of the Evidence Ordi-nance. He cited the case of Don Carolis v. Don Bastian1. In that caseone of the defendants denied that he executed a deed on which the plain-tiff relied. It was contended that as the defendant in question hadsigned the deed with a cross or mark it need not be proved in the mannerrequired by sections 68 and 69. The Notary was not a witness at thetrial.
Learned counsel also referred us to the case of Seneviratne v. Mendis 2.In that case Schneider A.J. dealing with a similar argument stated :
“ The language of section 2 of the Ordinance No. 7 of 1840 and inparticular the words ‘ the execution of such writing, deed or instrumentbe duly attested by such notary and witnesses’ to my mind leave noroom for doubt or contention that the notary is an attesting witnessin precisely the same sense as the other two witnesses mentioned in thatsection.”
In the case of Kiri Banda v. Ulckuwa3 Burnside, C.J. said :
“It is quite true that the rule of evidence is that if you desire toprove a written instrument, to which the attestation of witnesses isnecessary to give it validity, you must first call the witness or witnessesto it or account satisfactorily for not doing so; but the learned DistrictJudge has erred in holding that a notary, who attests an instrumentunder our Ordinance against Frauds, is not an attesting witness so asto bring his evidence within the above rule of evidence. I do notdoubt that he must be considered an attesting witness.”
It was held in the earlier case of Somanader v. Sinnatamby et al.* thatby proving the signature of the Notary the requirements of section 69of the Evidence Ordinance were fulfilled.
In our opinion a Notary who attests a deed is an attesting witnesswithin the meaning of that expression in sections 68 and 69 of the Evi-dence Ordinance. We are in respectful agreement with the decisions wehave cited above. The appeal is dismissed without costs.
Pulle, J.—I agree.
1 (1913) 2 Matara Gasss 131.*(1919) 6 O. W. B. 211.
(1892) 1 S. 0. B. 216.
* (1899) 1 Thambyah’s Bepo ts 38.
N. U. WIJEGOONETILLEKE and others, Appellants, and B. WIJEGPOONETILLEKE and an