029-SLLR-SLLR-1985-V2-KANDASAMY-v.-SINNATHAMBY.pdf
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Kandasamv v. Sinnathamby
249
KANDASAMY
v.
SINNATHAMBY
COURT OF APPEAL.
H. A. G. DE SILVA. J. AND T. D. G. DE ALWIS. J.
A. 647/76.
C. POINT PEDRO No. 9703.
APRIL 1 AND 2, 1985.
Partition action – Deed of gift – Secondary evidence of contents of deed and fact ofregistration – Priority of registration – Acceptance of gift – Failure to raise it in theissues – s. 65 of Evidence Ordinance.
In his suit for partition of a land, plaintiff claimed his interests by inheritance from oneSellammah who he claimed held half share of the corpus by virtue of a deed of gift PIexecuted in 1948 by one Eliyathamby who admittedly at one time owned the wholeland. The 1 st defendant claimed the whole land in opposition to the plaintiff on thefooting of a transfer of the entire corpus by Eliyathamby in 1967. The questions arguedwere whether the deed of gift P1 was a genuine deed and whether it yielded to the 1 stdefendant's transfer deed from Eliyathamby by virtue of prior registration. The questionwhether there had been a valid acceptance of the gift Pi was also raised.
The original and duplicate of P1 were not available but the plaintiff placed the evidenceof the attesting Notary who testified to the due execution of the deed and alsoproduced his protocol before Court.
Held –
(1) The Notary's evidence which was accepted by the trial Court establishes the dueexecution of the impugned deed of gift. As the original and duplicate of the deed werenot available, secondary evidence including the protocol was admissible under s. 65 ofthe Evidence Ordinance.
<2) In regard to the registration of the impugned deed of gift although the registrationentries and several other relevant documents in the Land Registry were missing stillparticulars in the Day Book maintained under the Registration of Documents Ordinanceby the Land Registry of deeds tendered for registration and deeds registered and theentry of the grantee's name as owner in the Index are admissible as secondary evidencein proof of the contents of the lost or missing folio in the continuation of which the 1 stdefendant's own deed was registered and of the fact of registration of the deed PI inthe missing folio.
Accordingly the deed of gift relied on by the plaintiff prevails over the deed relied onby the 1st defendant both by priority of execution and priority of registration.
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Alihough lack of acceptance of the deed of gift was pleaded in the answer no issueon it was raised at the trial There was acceptance on the face of the deed Thequestion that acceptance has not been proved was raised when written submissionswere filed but this is too belated to be entertained
Quaere : Is the protocol of a deed kept by the attesting Notary an original document interms of the Evidence Ordinance ?
Case referred to :
(1! Hemapala v. Abeyrame /1978-79] 2 Sn LR 222
APPEAL from the District Court of Point Pedro
A Mahendrarajah, P.C. with S. Mahenthtram for 1st defendant-appellantK Rajaratnam lot plaintiff-respondent.
Cur adv volt
June 18, 1985.
T.0. G. DE ALWIS, J.
The plaintiff filed this action for the partition of the land calledPalavadai described in the schedule to the plaint. The plaintiff set outtitle to this land as follows
By virtue of deed No. 21 593 dated 20.8.1930 oneThangatchipillat widow of Kathiripillai was the original owner of thisland. She by deed No. 1 1672 dated 4 7.1932 (P 6) transferred thesame to Kathiripillai Eliyathamby and wife Sellammah, Sellammah ondeed No. 1403 dated 14 1 1.1945 (1 D 3) donated her half shareto her husband Eliyathamby Thereafter the said Eliyathamby bydeed No. 1 735 dated 13.31948 (P 1) donated a half share to hiswife Sellammah. Sellammah died leaving as her heirs two brothersand a sister, namely Sathasivam the 2nd defendant, andPonnampalam and Sellatchipillai. Ponnampalam and Sellatchipillaiby deed No 4985 dated 15.7.1967 (P 7) transferred theirinterests to Sinnathamby the plaintiff. Eliyathamby by deed No. 124dated 29.3.1967 {1 D 8) transferred his interests to Kandasamythe 1st defendant. Accordingly the plaintiff allotted 2/6 share tohimself. 3/6 share to the 1st defendant, and 1/6 share to the 2nddefendant.
CAKandasamy v. Sinnatbamby (T. D. G. OeAlwis. J.)251
The 1st defendant whilst admitting that Kathiripillai Eliyathambybecame entitled to the entirety of the land by virtue of deed No.
1 1672 (P 6) and deed No. 1403 (1 D 3), as stated in the plaint,denied that deed No. 1735 (1) by which the plaintiff states thatEliyathamby gifted a half share to his wife Sellammah was a genuinedeed, and hence as stated in deed No. 124 (1 D 8) the entirety of theland passed to the 1 st defendant.
Thus the main question that came up for adjudication was whetherdeed No 1735 was a genuine deed. When the defendant pleadedthat deed No. 1735 was not a genuine deed, I believe that what thedefendant meant was that it was not a deed executed by Eliyathamby.The 1 st defendant pleaded a further matter, namely, that deed No.1 735 was void as against deed No. 124 by virtue of priority ofregistration. The other matter pleaded in the 1st defendant's answerwas that Sellammah left an administrate estate, and that the plaintiffcould not maintain this action without administering her estate. Issueswere raised to cover these three positions, and these three positionsonly, and the learned District Judge held with the plaintiff on all thesethree points. In appeal the question of non-administration ofSellammah s estate was not pursued, and no arguments in that behalfwere addressed to us.
The evidence is that Sellammah died in 1959, and till her death shelived on this land with her husband Eliyathamby. The obvious likelihoodis that the original of deed No. 1735 would have been in the houseand in the control of her husband Eliyathamby. Eliyathamby whopurported to transfer the entirety of the land after his wife's death tohis nephew the 1 st defendant, who now lives with him in the house onthis land would not make available to the plaintiff the original of deedNo 1735. The plaintiff applied to the Land Registry for a certifiedcopy of this deed, but found that the duplicate of this deed whichwould be in the Land Registry if it was tendered for registration wasnot available there. The plaintiff hence sought to prove the executionof deed No. 1735 by the production of the protocol kept by theNotary. The Notary Mr. Kananpathipillai gave evidence regarding theexecution of deed No. 1735, and he stated that instructions to draw upthat deed were given to him by Eliyathamby whom he knew by thattime, having done some professional work for him earlier, and he alsotestified that Eliyathamby signed that deed as the donor. Thisevidence has been accepted by the learned District Judge. Learned
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counsel for the defendant-appellant has not been able to adduce anysubstantial grounds for us to differ from the findings of the learnedDistrict Judge regarding the evidence of the Notary Mr.Kanapathipillai. Thus it has been established that the original and theduplicate of deed No. 1735 have been destroyed or lost. That such adeed was executed has been proved by the evidence of the Notaryand by the production of the protocol of that deed. Arguments wereaddressed to us that the protocol kept by the Notary cannot beconsidered an orginal document, and hence the execution of the deedcannot be proved by the production of the Protocol. It is the standardpractice in this country that a notary executes a deed in triplicate, andall three copies are attested by him. Usually, as in the case of thisdeed, the executant declares that he has set his hand to three copiesof the same tenor. The question would then arise whether in terms ofsection 62 of the Evidence Ordinance read with explanation 1 thereto,all three copies of a deed including the protocol are not originaldocuments in terms of the Evidence Ordinance. But however it is notnecessary to decide that question in this case because in any eventthe original and the duplicate contemplated in the Notaries Ordinancehave been lost or destroyed, and hence secondary evidence, in factany secondary evidence, of its contents is admissible under theprovisions of section 65 of the Evidence Ordinance. Thus the protocolof deed No. 1735 is admissible as secondary evidence of thecontents of deed No. 1735. The defendant produced two deedsnamely deed No. 1225 dated 15.8.1955 (1 D6) and deed No.1409 dated 21.4.1956 (1 D 7), both of which are mortgage bondsfor this very same land given by Eliyathamby and his wife Sellammahwherein np title is pleaded from deed No. 1735. Those deeds wereproduced to show that deed No. 1735 was not a genuine deed. It isnow sought to be argued that these deeds show that there was noacceptance of deed No. 1735 by Sellammah. I shall refer to thequestion of acceptance later. But the fact remains that at the time ofthe production of these two deeds 1 D 6 and 1 D 7, the question ofacceptance was not in the contemplation of the parties. But if theintention of the defendant at the time he produced these two deedswas to show that deed No. 1735 was not a genuine deed, he hasfailed by their production to dislodge the learned District Judge'sconfidence in the evidence of the Notary Mr. Kanapathipillai. Theexecution of deed No. 1735 has therefore been proved.
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Kandasamy v. Sinnathamby (T. 0. G. De Atwis. J )
253
On the question of registration all the relevant extracts ofencumbrances from the Land Registry have been produced. Theearliest registration in respect of this land is in Volume A 57. folio255. which is continued at A 126/293. which is continued atA 211/175, which is continued at A 431/144, which is continued atA 206/175.
The first deed in the chain of title proved in this case, namely deedNo. 21593 dated 20.08.1930 is registered at Volume A 211, folio175, which is a due continuation from the original registration. Thenext two deeds m the chain of title, namely, deed No. 11672(P 6) anddeed No. 1403 (1 D 3) are registered in the same folio. This folio iscontinued at A 371 /144. But the original of this folio like the duplicateof deed No. 1735 (P 1) and several other documents in the LandRegistry pertaining to this case is missing. These documents havemost probably been destroyed by an interested party. FoliqA 371/144 is continued at folio A 206/175. This is the folio in whichdeed No. 124 dated 29.03.1967 (1 D 8) is registered. This is thedeed by which Eliyathamby transferred the entirety of the land to the1st defendant. In these extracts of encumbrances which have beenproduced from the Land Registry deed No. 1735 in favour ofSellammah does not appear. On the strength of these documents ofregistration the first defendant has sought to claim title by virtue ofpriority of registration.
This claim of the 1 st defendant could have been met by the plaintiffonly if deed No. 1735 (P 1) had been registered in the missing folioA 377/144. This deed was executed by the Notary, Mr.Kanapathipillai on 13.03.1948. But however the Notary did notsubmit it for registration that month because by the time he sent hisduplicates for that month for registration this deed, being a deed ofgift, had not yet been accepted.
When a deed is presented for registration, the first thing that theRegistrar does is to enter the particulars of that deed in a Day Bookmaintained under the Registration of Documents Ordinance. In theDay Book the date and the time of receipt of a deed are entered inserial numbers. This is to prevent the registration of deeds submittedfor registration later than the deed submitted earlier passingundetected The other particulars entered in the Day Book are thenature of the deed, its number and date, the name of the attesting
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Notary, and the value on the deed. After registration there is provisionin the Day Book to enter the Division, Volume and Folio in which thedeed has been registered. The Day Book entry will thus be verysatisfactory secondary evidence to establish the contents of a lost ordestroyed folio of the Register of Lands.
The plaintiff has been able to produce a certified extract of the DayBook relevant to the deed P 1. This document has been producedmarked P 2 In P 2 the time of receipt of deed No. 1735 is given as
45 p m., the serial number is given as 10049, the nature of thedeed is given as ’gift', the number and date of the deed are given as1735 dated 13.03.1948, and the name of the Notary is given as P.Kanapathipillai. Thus this Day Book entry is proof of the fact that deedof gift P 1 has been sent for registration. There is also an entry in theDay Book extract P 2 that this deed has been registered at folioA 377/144. That is the missing folio from which the folio in which thedeed in favour of the defendant is registered is a continuation.However P 2 does not contain the date of the Day Book entry. It wassubmitted by counsel for the appellant that it may be possible that thisDay Book relates to a later date, and some interested party got deedP 1 registered in some vacant space in 'the register at folioA 371/144. and thereafter had that folio and the page carrying thedate of the Day Book entry destroyed in order to prevent the detectionof his fraud, and to claim due registration. But there is ampledocumentary evidence that belies such a possibility. The 1stdefendant himself produced marked 1 D 20, pages 112 to 118 of theDay Book for the period 21.05.1948 to 25 05.1948. This documentshows that first the date is entered across the page, and under thatdate all the entries for the day are entered ; thereafter the next date isentered also across the page and under that date all the entries forthat day are entered, and so on. Document 1 D 20 ends at25.05.1948, and the evidence of the officer from the Land Registry isthat some pages of the Day Book prior to the entry of deed No. 1735have been removed. The last serial number under date 25.05.1948 isNo. 10001. The Day Book extract P 2 begins at serial No. 10040,and deed No. 1735 itself is at serial No. 10049. Hence it appearsthat the date of P 2 must be just a few days after 25.05.48. Thedonee on P 1 signed the acceptance on 19.05.48, and the deed hasbeen sent for registration shortly after 25.05.48. The registration ofthe 1st defendant s deed is in 1967. nineteen years later.Furthermore the plaintiff produced marked P 4 an extract to the index
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Kandasamy v. Smnathamby (T. D. G. DeAlwis, J.)
255
to the land register in respect of this land. That is the index for theperiod 29.10.38 to 1 7.07.51. There it is shown that Sellammah hasbeen registered as the owner of this land and that the registration is atfolio A 377/144, and that was long before the defendant's deed wasexecuted. It is patently clear that in spite of all the obstacles placed inhis way, the plaintiff has proved the due execution and due registrationof deed P 1. Deed P 1 prevails over deed 1 D 8 both by priority ofexecution and priority of registration.
After the trial was concluded counsel for the parties filed writtensubmissions. There for the first time counsel for the 1 st defendantsubmitted that the plaintiff had failed to prove that the deed of gift hadbeen accepted. It should be observed that in the course of the trial thisquestion was never raised. The only question raised by the 1stdefendant regarding the deed of gift P 1 was whether it was a deedexecuted by Eliyathamby. The only issue raised by the 1 st defendanton deed P 1 is :
“Did K. Eliyathamby execute deed No. 1 735 dated
02 12 1948 V
There is acceptance on the face of deed P 1, and the only challengeby the defendant to the plaintiff was to prove the execution of deedP 1 By Eliyathamby. This the plaintiff has done, and I do not think that itis open for the defendant thereafter to raise any other matter aboutdeed P1. My view on this matter finds support in the judgment in thecase of Hemapala v. Abeyratne (1). There it was held that where adefendant had put the plaintiff to proof of a deed in the answer, but noissue was raised at the trial as regards its due execution and the deedwas marked in evidence, and when the case for the plaintiff wasclosed his counsel read the deed in evidence with other documents, itwas too late to raise the plea in appeal that no evidence has beencalled to prove the due execution of the deed in terms of sections 68of the Evidence Ordinance.
In this case the evidence of the Notary, Mr. Kanapathipillai and theevidence of the officers of the Land Registry were led first, andthrough them the protocol of deed No 1735, and the certified copiesof the Day Book, the Extracts of encumbrances, and the copy of theIndex of the Land register had been produced. The 1st defendant thenhad the opportunity of raising the only other defence available to him,namely the defence of acceptance as an issue This he has not done.
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and thereafter he cannot be allowed to do so without notice to theplaintiff. For these reasons I hold that the 1st defendant cannot bepermitted to raise this belated plea that the plaintiff has failed to provethe signature of Sellammah as the acceptor on deed P1.
In the result the appeal of the 1 st defendant is dismissed with costsfixed at Rs. 525.
A. G. DE SILVA, J. – I agree.
Appeal dismissed.