Hilda Jayasinghc v. Samarawickrema
COURT OF APPEALHilda JayasinghcV.Francis Samarawickrema
CA 469178 (F) — DC Kalutara 24431L
Deed fraudulently executed – Necessary witnesses to prove execution — section 6(1and 69 of Evidence Ordinance
The Defendant-Appellants were Mother. Son and Daughter.
By Deed No. 4753 dated 12.8.75 the Defendant-Appellants transferredtheir ancestral home to Ajith minor son of Mr. Kahatapitige Attorney atLaw and Notary Public for a sum of Rs. 3.5IXV- on condition that theproperty be transferred back to Defendant-Appellants on the expiry ofthree years on payment of Rs. 3,500/- with 8% interest. By Deed No.
of 24.3.76 Ajith the minor son of the Notary Public re-transferredthe property to defendant-appellants on payment of Rs. 3.500/-. By Deed
of 24.3.76 the Defendant-Appellants sold the same land to Plaintiff' Respondent for Rs. 8,000/-. These two deeds too were attested by Mr.
Kahatapitige Attorney at Law and Notary Public.
Defendant Appellants alleged that through the machinations of the Attorneyat Law and Notary.. Public both Deeds Nos. 4879 and 4880 of 24.3.76were fraudulently executed ^y obtaining the signatures of the DefendantAppellants by misrepresentation of facts and by obtaining their signaturesand thumb impression on blank sheets of paper. They also alleged thatno consideration passed and that the two-attesting .witnesses were notpresent at the time they placed their signature and thumb impression.
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Mr. Kahatapitige the Notary gave evidence but no attesting-witness was called.
Held that the circumstances of this case required that one of the twoattesting witnesses be called to prove execution of the deed
Appeal from Judgment of the District Court of Kalutara,
Ranasinghe, J. (President, Court ofAppeal), &Tamhiah,J.
Miss Maureen Seneviratne with K. V.P. Jayatilleke,
Hilton Seneviratne and Miss W.D.U. Wcerasinghe
for the Defendant-Appellants
J.W. Subasinghe, Senior Attorney, with D.j.C.
Nilanduwa for the Plaintiff-Respondent
17th 19th, 20th and 1st 30th November, and 1st
December, 1981, and 1st March, 1982.
Cur. adv. vult.
3rd May, 1982.
The 3 defcndants-appellants are mother (3rd defendant) son (2nddefendant) and* daughter (1st defendant). The subject matter of thisaction is their ancestral and residential property called“Pokunuwattekattiya”, situated in the Kalutara District, in extent11.94 perches and containing plantations, fruit trees and tiled house.
Mr L.G. Kahatapitiya,' Attorncy-at-Law and Notary, lives in thepremises adjoining the defendants-appellants’ land. Mr Kahatapitiyahimself says in evidence that he had known the defendants-appellantsfrom their birth; that he had in the past attested 2. deeds for themand they have trust in him.
Deed No. 4753 of 12.8.75 (P2) is a conditional transfer by thedefendants-appellants of their property in favour of Yasaptha AjithKahatapitiya, a son of Mr Kahatapitiya, who was then a minor ofabout 11 years and 4 months old. The consideration was Rs. 3,500/-and the property was to be re-transferred on payment .of the principalsum of Rs. 3.500/-, with 8% interest, before the lapse of 3 years.The deed was attested by Mr Kahatapitiya.
Hilda Jayasinghc v. Samarawiekrrma (Tnmhiah. J.)
According to Deed 4879 dated 24.3.76 (P3), long before the expiryof the said 3 years, the son Ajith re-transferred the property to thedefendants-appellants on payment to him of Rs. 3,500/-. He hassigned this deed. It was attested by Mr Kahatapitiya and in hisattestation he says the consideration was paid before him. The twoattesting witnesses are Mr Kahatapitiya's clerks. i.A. Dharmascnaand ID.A.S. dc Silva.
By Deed 4880 of 24.4.76 (P4) the defendants-appellants sold theirproperty to the plaintiff-respondent for Rs. 8,000/-. This deed toowas attested by Mr Kahatapitiya and he says in his attestation thatthe consideration has been paid in' full in his presence. The twoattesting witnesses are the same two clerks. This deed contains thesignatures of the 1st two defendants-appellants. and the 3rddefendant-appellant has placed her thumb impression on the deed.Deed (P4) was registered on 30.6.76 and deed (P3) was registeredon 8.7.76.
The document (P6) is a protocol of deed (P4) and bears anendorsement – “Acknowledge full consideration. Complete possessionwould be handed over before the lapse of 2 months from datehereof.” Below the endorsement is the signature of the 2nddefendant-appellant.
The plaintiff-respondent filed this action under the Administrationof Justice (Amendment) Law No. 25 of 1975 for a declaration oftitle, ejectment, possession and damages. He claimed title to theland on Deed (P4). In the summary of facts relied upon by him,he stated that on the day deed P4 was executed .the defendants-appcl lantspromised to hand over possession in 2 months: they have not doneso and they arc in unlawful possession. In his list of witnesses, helisted himself, Mr Kahatapitiya and the two attesting witnesses.
In their answer, the defendants-appellants stated that they obtaineda loan of Rs. 3,500/- from Mr Kahatapitiya by transferring theirproperty on a deed of conditional transfer (P2) and that Mr Kahatapitiyahad entered his son’s name on the deed without their knowledge;that they signed blank sheets of paper intending to assign theconditional transfer to the plaintiff, and they did so because of theimplicit trust they had in Mr Kahatapitiya; that they did not giveinstructions to Mr Kahatapitiya to prepare a deed of sale in favour
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of the plaintiff-respondent. They accused Mr Kahatapitiya and theplaintiff-respondent of acting in collusion and effecting a fraud. Theysought to add Mr kahatapitiya as a defendant. They prayed for adismissal of the action and invalidation of the deed (P4). They toolisted the plaintiff-respondent and Mr Kahatapitiya as their ownwitnesses.
Before the trial commenced, on an application on behalf of thedefendants-appellants, the son Ajith Kahatapitiya was added as the4th defendant and Mr Kahatapitiya was appointed as guardian-ad-Iitem.
At the trial, parties raised the following issues:-
Did the plaintiff become owner of the land 'mentioned inthe Schedule to the Plaint oh Deed No. 4880 of 24.3.1976?
Have the defendants undertaken to hand1 ovier possession
by leaving the premises in two months'time? ".'
Are the defendants presently occupying the said propertyunlawfully and without permission?
If so, what damages can be claimed from 1.6.1976?
Is the plaintiff entitled to theteliefs claimed in the plaint?
Was a Sum of Rs.'3;5007- obtained bn' Deed of conditionaltransfer No. 4753of 12.8.1975, attested by L.P. Kahatapitiya,Notary?
Is the buyer on Deed No. 4753, Asantha Ajith Kahatapititya,a minor?
Is it lawful for the said minor to retransfer the rightsacquired on Deed 4753?
If the answer to issues 7 & 8 is in the negative, is theplaintiff entitled to rights on Deed 4880?
Was Deed No. 4880 a fraudulent transfer?
Did the defendants receive the 'amount mentioned inDeed 4880?
If the answer to issues lO”and 11 is in the affirmative,■ is Deed 4880 an invalid ori£? ”
: ff the answers to these issues are in' favour of the- defendants, can the plaintiff maintain this action?
Issues 1 to 5 were raised on behalf of the plaintiff-respondent;issues 6 to 12 were raised on-behalf of the defendants-respondents.
SCHilda Jayasinghe <•. Sanwrawickmna (Tainbiah. ).)353
The surveyor Premaratnc and Mr. Kahatapitiya wefe the onlywitnesses for the plaintiff-respondent. The surveyor produced tiis plan(PI) which was prepared for the purpose of executing Deed (P4)and he stated that at the survey, he informed the* defendants-appellantsthat Mr. Kahatapitiya was making a.plan to sell the land. In Court,however, he was unable to identify the defendants-appellants.
In regard to Deed (P2). Mr. Kahatapitiya stated that he informedthe defendants-appellants that he was writing the deed in his son'sname; he had 3 sons. He withdrew the money from'his son Ajith sbook and paid Rs. 3.5(H)/- to' the defendants-appellants.
Mr. Kahatapitiya testified to the circumstances in which the deedsP3 and P4 came to be executed. Before the expiry of 3 yearsmentioned in Deed (P3), the defendants-appellants wanted him tobuy the property; he replied, it was rtf'no use to him and to sell itto the plaintiff-respondent, .who-had already bought 7 perches of aland, adjoining this land; from a sister of the 1st and 2nddefendants-appellants. The defendant-appellants spoke to theplaintiff-respondent and thereafter the plaintiff-respbhdent informedhim that he had decided to buy the property for Rs. 8.000/- andinstructed him to prepare the deed. He prepared two deeds, P3 andP4.' Both were executed on the same day at the same time, at hishouse. The full 8000/- rupees was paid to the 2nd defendant-appellant1,who accepted the money and gave his son Ajith his money. Thedefendants appellants promised to hand over possession in 2 months'1time. Ajith was a minor, at the time P3 was executed and: he didnot gef* the Court’s permission to retransfer the land on P3. as itwas not necessary, he stated.
The deed (P4), however, bears the date 2.4.76. According to-Mr:Kahatapitiya it is a typing mistake and it should be 24.3.76. Heproduced a photostat copy (P6) of the protocol of deed P4 in whichthe correction has been made and his Register of Deeds (P5) whereinthe date 24.3.76 has been entered. Obviously, the date 24.4.76 is amistake. Even the defendants-appellants do not dispute that it wason 24.3.76 that they signed the blank papers.
Mr Kahatapitiya denied the following suggestions made undercross-examination (1) the defendants-appellants knew nothing aboutDeed P3. (2) that he sent the deeds P3 and P4 frtr registration, after
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the 2nd defendant-appellant’s complaint to the Police on 29:6.76. (3)that he ' obtained the signatures and thumb impression of thedefendants-appellants on blank : papers and then prepared Deed P4.
that he obtained- the 2nd defendant-appellant's signature on ablank sheet of paper and then made the endorsement on documentP6. (5) that he gave the impression to'the defendants-appellants thatwhat they were signing was an assignment of the conditional transferto the plaintiff-respondent. (6) that no consideration passed on P4.
Mr. Kahatapitiya admitted in evidence that there were 6 pendingcases against him for failure to send the duplicates of deeds to theRegistrar-General’s office, for registration.
The 2nd defendant-appellant gave evidence. He did not deny theexecution of Deed P2 and its genuineness except to say that MrKahatapitiya did hot tell them in which of his son’s name the deedwas being executed. He admitted receiving Rs. 3,500/- on Deed P2.He was not aware of Deed P3. According to him, 7 months afterthe execution of deed P2, Mr. Kahatapitiya wanted the money backand the defendants-appellants told him there was time to redeemthe land. Mr. Kahatapitiya said he needed the money and he wouldassign the conditional transfer to the plaintiff-respondent. On thenight of the 24th, the plaintiff-respondent informed them that Mr.Kahatapitiya wanted them; the 1st and 3rd defendants-appellantswent and on their return told him that they had signed some blartkdeed papers. He went thereafter; he too was asked to sign sbiheblank deed papers. He asked “why blank papers’’, and Mr. Kahatapitiyasaid “it is night, getting late, for me to go back, and that he wouldwrite those deeds.” When he signed there was nothihg Written onthe deeds. He was under the impression that Mr. Kahatapitiya wasassigning the conditional transfer to the plaintiff-respondent and wouldget the money from him. He was not aware when he signed thatthe land was being sold to the plaintiff-respondent. No money wasgiven. Because of the trust they had in Mr. Kahatapitiya they signedblank sheets. At the time they signed, both clerks of Mr. Kahatapitiyawere not there. He admitted his signature' on the protocol P6, butsaid that at the time he signed, it was a blank sheet. Deeds P3 andP4 were prepared without their knowledge; the blank sheets theysigned have been transformed into the deed P4.
The 2nd defendant-appellant, under cross-examination, stated thaton 29.6.76, he complained to the Police (D3) because the
Hilda Jayasinghe r. Samarawickrema (Tambinh. J.)
plaintiff-respondent wanted possession of the land and was worryingthem to quit. In the complaint D3. he stated that on 24.3.76, theywere taken to the house of Mr. Kahafa'pitiya and Mr. Kahatapitiyatold them that it was necessary tb as'sigff the conditional transfer tothe plaintiff-respondent and obtain- money and they were asked toplace their signatures. They have been deceived.
The 2nd defendant-appellant admitted that he worked at thel^alutara Bodhiya and was dismissed, as an electrician was notnecessary. Earlier he went to Hingurakgoda and did farming: he hadno intention of going there again in March '76 and doing farmingagain. He denied he told Mr. Kahatapitiya to take the land and givehim money as he had lost his job and wanted to go to Hingurakgoda.He admitted his signature on Deeds P3 and P4 and identified thesignature of the 1st defendant-appellant and the thumb impression of the3rd defendant-appellant, on Deed P4. He denied that they agreed to leavethe premises in 2 months.
The 1st defendant-appellant in her evidence accepted tjiegenuinenessof deed P2 and admitted receipt of Rs. 3,500/-. In regard, to deedP4, she admitted her signature on it but said that nothing was writtenon the documents when she signed. Her mother too affixed herthumb impression. The plaintiff-respondent was present when shesigned. On deed P4r they did not intend to sell the property; it waswritten fraudulently. Mr. Kahatapitiya said he was assigning theconditional transfer to the plaintiff-respondent as he wanted themoney. They had confidence in Mr. Kahatapitiya and they agreed.
The learned District Judge accepted Mr. Kahatapitiya's version andrejected the evidence of 1st and 2nd defendcnts-appellants; he enteredjudgment for the plaintiff-respondent as prayed for. He has answeredissues 1 to 8 in plaintiff-respondent’s favour and issues 10 and 11against the defendants-appcllants. He has given reasons for rejectingthe defendants-appcllants’ version. I
I find that 2 matters which weighed with the learned District Judge,in rejecting the defendants-appcllants’ version, are not borne out bythe evidence in the case. He observed – “It is difficult to think thathowever much confidence they had in Kahatapitiya. that they wouldhave gone suddenly in the night 'and signed a few blank sheets ofpaper without any question.” The 2nd defendant-appellant’s evidenceon this matter is that he questioned Kahatapitiya “why blank papers”he was given a reply.
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The learned trial Judge also stated – “The defendants themselveshave given a certificate to say that Kahatapitiya could be trusted.They have not shown cause for him to change suddenly. I thinkthese defendants wanted to sell all these properties and get moneyto go to Hingurakgoda. I think they changed this plan as they spent
this money ” Mr. Kahatapitiya in his evidence did not
mention a word about any plans by the defcndants-appcllants to selltheir property and go away to Hingurakgoda. Only a suggestion wasput to the 2nd defendant-appellant in cross-examination that he toldMr Kahatapitiya to take the land and give him money as he hadlost his job and wanted to go to Hingurakgoda and this was deniedby the witness. He added that they have no place to go to, afterselling their land and that if they were to sell the land they wouldnot have mortgaged it. In regard to these 2 matters, the learnedtrial Judge has misdirected himself on the facts.
Learned Attorney for the defendants-appellants relied strongly onthe case of Baronchy Appu v. Poidohamy (2 Browns’s Reports 221)and submitted that it was necessary for the plaintiff-respondent tohave called the two attesting witnesses to the deed P4 to testify.Learned Senior Attorney for the plaintiff-respondent, on the otherhand, cited to us the cases of Kiribanda v. Ukkuwa (1892, 1 S.C.R.216). Somanather v. Sinnetamby (1899, 1 Tambiah 38), and Seneviratnei’. Mendis (6 C.W.R. 211) where the two earlier cases were citedwith approval, and submitted that the notary is an attesting witnessand is competent to prove the execution of the deed where thegrantor was known to him.l In this case the defendant-appellantswere well known to Mr Kahatapitiya and there was no need to callthe two attesting witnesses.
In Baronchy Appu's case (supra) the defendant alleged that shedid not execute the document sued on and that she signed blanksheets of paper on which there was nothing written. The plaintiffhimself tcstifed and also called the notary. 1 reproduce a good portionof the judgment of Lawrie, A.C.J. (at P.222)
“It has, I think, been.decided that when a deed is impeachedas having been obtained by fraud it is not necessary to proveits execution by calling the attesting witnesses. The bareexecution of the deed is held to be admitted by the party whoseeks to avoid the effect of the signature by alleging that it
Hilda Jayasinghe v. Samara nickrema (Tambiah, J.)
was obtained by fraud. I felt doubtful whether this was a casefalling under that rule: for here the defendant says that shedid not execute the document sued on; that she signed blanksheets of paper on which there was nothing written. If shedid so, she did not bind hercself in any way; for. though thelaw rccognisess the right of the holder of a signed stampedpiece of paper to fill it up, as a bill of exchange or promissorynote. I have not heard (query) that the law recognises thevalidity of a deed which was signed before it was written, andI am inclined to think that the evidence of at least one of theattesting witnesses was necessary to prove that it was a documentwhich was signed, and not a blank sheet of paper.
The defendant undertook to prove that she did not sign thedocument. She led some evidence to that effect, which doesnot seem to me wholly worthless. The plaintiff gave evidencehimself. He called the notary. I do not know why he did notcall the attesting witnesses.
I feel that the case is incomplete without them, and wouldset it aside and remit it for further investigation."
Moncrciff, J. agreed with the judgment.
In Arnolis v. Mutu Menika (2 NLR 199) the defendant impeachedthe mortgage bond sued on as a forgery. The plaintiff called thenotary and one of the two attesting witnesses to prove the bond.Bonser, C.J. said “Mr. Drieberg, the acting District Judge of Ratnapura,held that as a matter of law it was necessary to call both the attestingwitnesses. I am unable to agree with that statement of the law. Adeed can be proved by the evidence of one witness, though as amatter of precaution it may be advisable in many cases to call allthe witnesses.”
In Seneviratne's case (supra) Schneider, A.J. observed (at pgs 212,213)-
“But as a long argument took place upon the point whetherthe notary is an attesting witness, I should like to make a fewobservations upon that point. The language of Section 2 ofthe Ordinance No. 7 of 1840 and in particular the words “the
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execution of such writing, deed or instrument be duly attestedby such notary and witnesses” to my mind leave no room fordoubt or contention that the notary is an attesting witness inprecisely the same sense as the other two witnesses mentionedin that section. This was the view taken in Kiri Banda .v.Ukkuwa and in Somanather v. Sinnetamby. It was argued thatwhen it is enacted in section 68 of the Ceylon EvidenceOrdinance 1985 that a document required by law to be attestedis not to be used in evidence Until one attesting witness atleast has been called “for the purpose of proving its execution”,the witness meant was not the notary but one of the otherattesting witnesses. I do not quite agree with this contention.It would be correct if qualified. The object of calling thewitness is to prove the execution of the document. Proof ofthe execution of1 the documents mentioned in Section 2 of No.7 of 1840,means proof 'of the identity of the person whosigned as: maker and’ proof that the document was signed inthe presence of a notary and two or more witnesses presentat the same time who attested the execution. If the notaryknew the person signing as maker he is competent equallywith either of the attesting witnesses to prove all that the lawrequires in Section 68 – if he did not know that person, thenhe is not capable of proving the identity as pointed out inRamen Chetty v. Assen Naina (1909) 1 Current Law Reports256) and in such a^case it would be necessary to call one ofthe other attesting witnesses for proving the identity of theperson. It seems to me that it is for this reason that it isrequired in Section 69 that there must be proof not only that“the attestation of one attesting witness at least is in'his handwriting” but also “that the signature of the person executingthe document is in the hand writing of that person.” If thenotary knew the person making the instrument he is quitecompetent to prove, both facts – if he did not know the personthen there should be other evidence.”
Baronchy Appu’s case (supra) was decided on 12th August, 1901.Learned Senior Attorney submitted that the judgment in this casemust be regarded as given per incuriam, since the earlier decisionsin the cases of Kiri Banda (supra) and Somanather (supra)1 were notreferred to and the provisions'of i:!<2 of the Prevention of FraudsOrdinance have not been considered. '
Hilda Jayasinghe v. Samarawickrema (Tamhiah. J.)
S. 68 of the Evidence Ordinance lays down that documents requiredby law to be attested shall not be used.. as' evidence; i unless – at: leastone attesting witness is called to prove :itssexecution,.<iv: he- is-alivejand subject to. the process of the Court.
“This. is not the same thing as saying that a documentrequired , to be attested by more Mhan one witness, shall beproved by the evidence of. only ohe-fwitness. S.. 68.-only.-laysdown the mode of proof and; not the quantum of *evideracerequired. More-than one-attesting witness may be necessaryto prove a document according to the circumstances of a case"’(Sarkar’s Law of Evidence, 10th Edn. p. 591).
The two cases (Baronchy Appu and Seneviratne, supra) illustrate■the distinction drawn by Sarkar- in the passage cited, between -themode of proof of a document required to be attested and the-quantumof evidence required to prove such a document. The principles laiddown in both cases are not in conflict with each other and can'bereconciled. Seneviratne's case was concerned with the mode'of proof;it decided' that the notary is an attesting witness and is competentto prove the execution of the document if he knew the maker ofthe document. Baronchy Appu’scase was concerned – more with thequantum , of evidence required. The principle to be'.discerned fromthe judgment of Lawriev A.C.J. is. that where the; execution of;adeed is challenged on the ground that it- had been signed before itwas written, then, where.at least one' of the two attesting witnessesis alive, the evidence of. the notary alone, even where he knew theexecutant is not sufficient; at least one of the two attesting witnessesshould also be called.
The case of the deferidants*appellants is that Mr Kahatapitiya. hadfraudulently obtained their signatures and thumb impression on blankpapers which were subsequently filled up in the form of a deed- ofsale (P4); that no consideration passed and that the two- attestingwitnesses were not present at the time of the execution. Thecircumstances of this case require that one of the two attestingwitnesses be called, in addition to the notary. To use the words ofLawrie, C.J., “the case is incomplete” without him.
There is a further circumstances in this case which has to-beconsidered. In the course of his submissions learned Senior Attorney
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noi only submitted that Mr Kahatapitjya, as notary, is an attestingwitness and therefore competent to prove the execution of the deed(P4), he also stated that the plaintiff-respondent had called his bestwitness, viz., Mr Kahatapitiya, and his testimony should be acceptedbecause he is not only a notary, but an attorney-at-law. Justice ofthe Peace, an Unofficial Magistrate, and one who frequently actedfor the official Magistrate. Learned . Counselfor the
defendants-appellants made an application to this Court to admitnew evidence touching his conduct as Notary Public. The new evidencerelates to 5 cases in the Magistrate’s Court of Kalutara, bearingnumbers 43613, 7320, 32243, 43614 and 7321. In 4 of these cases,Mr Kahatapitiya was charged and fined for offences committed byhim, under the Notaries Ordinance, after he concluded his evidenceat the trial in this case, on 1st March 1978. In case No. 32243, theoffence was committed earlier4, but the case was concluded and hewas fined after the conclusion of his evidence. The offences relateto his failure to send duplicates of deeds executed and attested byhim, to the Registrar of Lands, Kalutara. Mr Kahatapitiya had himselfadmitted in evidence that there were cases pending against him.
We allowed the application of learned Attorney for thedefendants-appellants to admit this new evidence. These items ofevidence could have an important bearing on the credibility of MrKahatapitiya, particularly because the conduct of Kahatapitiya whichis being impugned in this case, is also his conduct as a Notary. Itis only fair and justice requires that Mr Kahatapitiya be afforded anopportunity to explain his conduct arid the circumstances in whichhe came to be charged and fined in these cases.
For reasons stated, I set aside the judgment of the learned DistrictJudge and remit the case for a fresh trial. Costs to abide the result.There were several other matters that were raised at the hearing ofthis appeal. It is unecessary to decide them, in view of the order Ihave made for a fresh trial.
RANASINGHE. J. — I agree.
Judgment set asideand case sent backfor re-trial.
Hilda Jayasinghe V. Francis Samarawickrema