( 314 )
ARMUGAM el al. v. SANMUGAM.
D. C„ Jaffna, 1,360.
Validity of a deed duly attested by a notary—Presumption in favour of it, if exfacia regular—Evidence of witnesses that formalities were not observed.
Per Bonser, C.J.—It is a dangerous doctrine that a deed, on theface of it regular, executed before a notary, who is a public officer, andbearing his attestation that everything was done in due form, should beset aside on the statement of one of the witnesses that the formalitieswere not obseived. It is only by very cogent evidence that the pre-sumption of law, that all its requirements have been complied with, canbe reb tted.
'T'HE second plaintiff, wife of first plaintiff, 'alleging herselfto be the owner of certain lands, complained that thedefendants had wrongfully ousted her, pretending title theretoupon a deed No. 6,228 dated 8th January, 1891, which the secondplaintiff alleged was never granted by her to the father of thefirst, second and fourth defendants. Plaintiffs prayed that the saiddeed may be declared a forgery, and cancelled and set aside asnull and void; that second plaintiff may be declared the ownerof the said lands; and that the defendants be ejected therefromand condemned to pay damages and costs.
Defendants pleaded, intci alia, that the deed in question wasthe act of the second plaintiff, and one of the issues framed wasas to the genuineness ot the deed.
At the trial the notary was not called by the plaintiffs, as he wasdead. Though the attestation of the notary declared that the deedwas duly signed by the grantor in the presence of the witnessesand of each other, two of the three attesting witnesses denied that,at the time each of them put his signature, the other was present,while the third witness denied his signature altogether.
( 315 )
The District Judge found that the deed was genuine, but asthe witness said that they did not sign in the presence of eachother, he held, on the authority of Pun chi Baba v. Ekanayaka(4 S. C. C. 119), the deed to be invalid, and gave judgment for thesecond plaiutiff.
Tambayali, for appellants.
Sampayo, for respondents.
14th November, 1899. Boxsbr, C.J.—
The question raised by this appeal is as to the validity of a deedpurporting to have been executed by the second plaintiff on the11th January, 1891. The deed is attested by a notary and threewitnesses, and the attestat’on clause is in the ordinary form. Itstates, amongst other things that the witnesses subscribed to it inthe presence of the grantor and each other. The second plaintiffdenied the execution of the deed. The notary is dead; but thethree attesting witnesses were called, one of whom denied his sig-nature. The other two witnesses admitted their signatures, butthey stated that when they respectively signed they did not seethe other witnesses present. The District Judge believed that thedeed was a genuine need, and v as actually signed by the secondplaintiff; but he was of opinion that the evidence of the attestingwitnesses showed that they had not signed it in each other’spresence, and accordingly he held the deed was invalid, followinga decision of this Courf (Punchi Baba v. David Ekanayaka,4 S. C. C., 119).
Now, it seems to me a vc.y dangerous doctrine that a deed, onthe face of it regular, executed before a notary, who is a publicofficer, and bearing his attestation that everything was done in dueform, should be set aside on the statement of one of the witnessesthat the formalities were not observed. -The presumption of lawis that the requirements of the law were complied with. Of coursethat presumption may be rebutted, but in my opinion only byvery cogent evidence, especially when, as in this case, the deedhas been acted upon, a., the District Judge finds, for seven oreight years. If this deed be held invalid on the evidence in thiscase, hardly any deed will be safe. In my opinion it is safer toassume that the memory of the witness was defective. Theevidence that the requirements of the law were not complied within the present case is not sufficiently strong to rebut the presump-tion of the regularity of the deedWithers, J.—
I agree for the same reasons, and have nothing further to add.
AEMUGAM et al. v. SANMUGAM