ASLIYA UMMA v. THINGAL MOHAMED

015-SLLR-SLLR-1999-V-2-ASLIYA-UMMA-v.-THINGAL-MOHAMED.pdf


152
Sri Lanka Law Reports
[1999] 2 Sri LR.
ASLIYA UMMA
v.THINGAL MOHAMED
SUPREME COURTDHEERARATNE, J.,
PERERA, J. ANDGUNASEKARA, J.
S.C. APPEAL NO. 127/96
A. NO. 178/84(F)
C. KALMUNAI NO. 925/LFEBRUARY 11, 1999
Vindicatory action – Claim for cancellation of ‘fraudulent* deeds – Proof ofexecution of the plaintiff's deed – Section 68 of the Evidence Ordinance – Thelegal effect of the failure by the Notary to observe statutory provisions applicableto the extension of a deed – Sections 31 and 33 of the Notaries Ordinance.
The original plaintiff and his wife gifted their daughter the 1st defendant, 5 acresof paddy land by a deed dated 5.9.1966. The gift was stated to be irrevocable.On 8.2.1968 the 1st defendant married the 2nd defendant. The plaintiff statedthat by a deed of revocation executed on 9.6.1969 to which the plaintiff, his wifeand the 1st defendant were parties and attested by V. Sandrasegara, Notary Public,the earlier gift was revoked. However, it was later found that the deed of revocationbore the date 19.6.1969; and that by a deed dated 11.6.1969 the 1st defendantpurported to gift the said 5 acres of land to the 2nd defendant who by deeddated 4.3.1970 purported to transfer it to the 3rd defendant. The plaintiff filedaction for a declaration of title to the land and for cancellation of the deeds dated11.6.1969 and 4.3.1970 and further prayed that he be quieted in possession ofthe land. Only the 3rd defendant contested the action.
One Abdul Gafoor the clerk to the Notary Sandrasegara in whose handwritingthe deed of revocation was prepared and who signed it as an attestingwitness and also knew the parties well was called as a witness. In thecourse of his testimony he said that it was the practice of Notary Sandrasegarato get him to first write the protocol in full and obtain the signatures of the partiesto the fully written protocol and the other two copies in blank.
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The plaintiff alleged that the 1st to the 3rd defendants acting collusivelyinfluenced Notary Sandrasegara to 'alter the date in the deed of revocation toread as 19.6.1969. The District Judge gave judgment for the plaintiff.
Held:
1.
2.
3.
The question of due execution^ of the deed of revocation did not ariseat the trial. In any event at the iime of the trial the Notary was dead andthe execution of the deed was proved in terms of section 68 of the EvidenceOrdinance by calling Gafoor.
There was no issue raised at the trial on the question of the 1st defendant'sconsent to the deed of revocation. In any event the evidenceof the plaintiff and Gafoor as well as a document .signed by the 1stdefendant before the Assistant Commissioner of Agrarian .S.ervjces agreeingto enter the plaintiffs name in the paddy lands register .as the .owner ofthe land in dispute established her consent to the r.eyo.catipn.
The failure of the Notary to observer the provisions pf section 31 of theNotaries Ordinance in executing the deed pf /pypcatiqn did notmake it invalid; for in terms of sectioin 33 of .the ©.rdtriance, -the deedshall not be deemed to be invalid by treason pflly pf .such .failure.
4. me evidence established that the deed of revocation was executedora 9.6.1969.'
Per Dheeraratne, J.
“It was quite clear that words and figures indicating nine in the protocolhad jbeen altered to read as nineteen. The alterations were not in the hand-writing of Abdul Gafoor"
Case referred to:
1. Solicitor-General v. Ava Umma (1968) 71 NLR 512 at 575.
APPEAL from the judgment of the Court of Appeal reported in (1996)2 Sri LR 62.'
Faiz Musthapha, PC with Sanjeewa Jayawardena for the appe'llant.
,S. Mahenthiran with MCM Muneer tor the respondent.
Cbr. adv. vuit.
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[1999] 2 Sri LR.
March 26, 1999.
DHEERARATNE, J.
The plaintiff was the owner of a paddy-field called Puddiyadivayal,in extent 10 acres and 2 roods. He, upon deed No. 690 dated 5.9.1966attested by A. A. Majeed, Notary Public, in which his wife toojoined, gifted the divided southern portion in extent 5 acres of thesaid field (the 5-acre field), to their daughter Nafeela Umma the 1stdefendant. The gift was stated to be irrevocable. On 8.2.1968, the1st defendant married Uthuma Lebbe Mohammedthambi the 2nddefendant. By deed No. 557 (the deed of revocation), attested by
Sandrasegara, Notary Pubic, to which the plaintiff, his wife andthe 1st defendant were parties, the earlier deed of gift No. 690 wasrevoked. The plaintiff stated that this deed of revocation was in factattested on 9.6.1969, although it bore the date 19.6.1969.The 1st defendant, upon deed No. 20722 dated 11.6.69 attested by
S.Gnanamuttu, Notary Public, purported to gift the said 5-acre field,to her husband the 2nd defendant, who in turn, purported to transferthe said 5-acre field upo.y(feed No. 21162 dated 4.3.1970 attestedby the same Notary to Ismail Lebbe Thingal Mohamed the original3rd defendant.j
The plaintiff filed this action on 31st January, 1973, seeking,inter alia, a declaration that he was the owner of the said 5acre field; for cancellation of deed No. 20722 of 11.6.1969 anddeed No. 21162 of 4.3.1970, both attested by S. Gnanamuttu,Notary Public; and that he be quieted in possession of the saidfield. The case of the plaintiff was that the 1st to 3rd defendants,acting fraudulently and in collusion, influenced V. SandrasegaraNotary Public, illegallj', to falsify the deed of revocation by post-dating it to read 19.6.1969 instead of 9.6.1969. It could be seenthat if the deed of revocation was attested on 9.6.1969 as contendedby the plaintiff, the 1st defendant had no title in the 5-acre field togift to her husband thp 2nd defendant, and consequently no interestswould pass on to the 3rd defendant. The original plaintiff's action wascontested only by the 3rd defendant. The learned trial judge in anadmirably well-considered judgment, having held that the deed of
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revocation was in fact attested on 9.6.1969 and not on 19.6.1969,gave judgment in favour of the plaintiff as prayed for. The Court ofAppeal set aside the judgment of the learned District Judge primarilyon the basis that – (1) the plaintiff had failed to prove due executionof the deed of revocation by calling the Notary; (2) that the 1stdefendant had not consented to the revocation of the gift; and (3)that the deed of revocation was invalid. The present appeal to thisCourt is the sequel.
As I have mentioned earlier, the 1st and 2nd defendants did notcontest the action. In view of what the Court of Appeal said aboutthe failure to prove due execution of the deed of revocation,I would refer to some averments in the answer of the 3rd defendant.In paragraph 2 he stated "… the said deed of revocation No. 557dated 9th June, 1969 and attested by V. Sandrasegara, NotaryPublic, is bad in law and in fact. . . ". Again in paragraph 3 hestated ". . . the averments contained in paragraph 6 of the plaintis wrong and misleading since the revocation of the donation wason 19.6.1969 but the donation made by the 1st defendant AhamedLebbe Nafeela Umma to her husband the 2nd defendant was on11.6.1969 . . . ". The question of due execution of the deed ofrevocation did not arise and the trial proceeded on the issuesmentioned below; I have indicated the answer to each of those issuesgiven by the learned District Judge, within brackets.
Plaintiffs A :
Did the plaintiff execute the deed of revocation No. 557 attestedby V. Sandrasegara with the concurrence of Nafeela Umma?(Yes).
Was that deed executed on (a) 9.6.69 or (b) 19.6.69? (On9.6.69).
If issue No. 2 (a) is answered in the affirmative was the 2nddefendant aware of the said execution on 11.6.69? (Yes).
If issue No. 3 is answered in the affirmative, was the 3rddefendant also aware of deed No. 557 of 9.6.69? (Yes).
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If issue No. 4 is answered in the affirmative, did the 3rddefendant obtain a transfer of the property in dispute by deedNo. 21162 of 4.3.70 attested by S. Gnanamuttu NP well knowingthat the 2nd defendant fraudulently obtained the deed ofdonation from Nafeela Umma? (Yes, but not necessarilyfraudulently).
If the deed of revocation referred to had been executed on9.6.69, has the date thereon been subsequently altered toprevent the plaintiff from gaining prior registration in terms ofthe Registration of Documents Ordinance ? (Yes).
If the above issues are answered in the affirmative is the plaintiffentitled in law to have the deed of gift bearing No. 20722 of11.6.69 attested by S. Gnanamuttu NP set aside? (No).
If issue No. 7 is answered in the affirmative, is the plaintiff alsoentitled to have the deed of transfer in favour of the 3rddefendant bearing No. 21162 of 4.3.70 also attested byS. Gnanamuttu set aside on the ground of fraud? (No).
If the above issues are answered in the affirmative, is theplaintiff entitled to judgment as prayed for in the plaint? (Theplaintiff is entitled to judgment as prayed for in the plaint).
3rd defendant's :
Is the deed No. 690 of 5.9.66 deed of donation, a deed of giftirrevocable? (Yes).
If issue No. 10 is answered in the affirmative, did the deed ofrevocation convey any title to the plaintiff? (Yes).
Did deed No. 20722 of 11.6.69 convey the landdescribed in the schedule B to the plaint to Uduma LebbeMohamedthambi? (No).
Has the 3rd defendant bought the said land by deed No. 211162of 4.3.70 from the 2nd defendant? (No).
If issue is answered in the affirmative, has the plaintiff a causeof action against the 3rd defendant? (Yes).
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Plaintiff's :
Even if issue No. 10 is answered in the affirmative was theplaintiff entitled to have the deed of gift revoked with theconcurrence of the donee Nafeela Umma? (Yes).
Even if due execution of the deed of revocation was required,section 68 of the Evidence Ordinance provides : "If a document isrequired by law to be attested, it shall not be used as evidence untilone attesting witness at least has been called for the purpose ofproving its execution, if there be an attesting witness alive, andsubject to the process of the Court and capable of giving evidence'1.The Court of Appeal overlooked the fact that the evidence in the casedisclosed that the V. Sandrasegara NP was dead at the time the trialcommenced and his clerk Abdul Gafoor, in whose hand-writing thedeed was, and who signed the deed as a witness, gaveevidence identifying the signatures of the plaintiff, his wife, the 1stdefendant, and of the Notary, all of whom he undoubtedly knew well.As observed by T. S. Fernando, J. in Solicitor-General v. Ava Ummafnthe proof of the execution of the documents mentioned in section 2of the Prevention of Frauds Ordinance No. 7 of 1940 means proofof the identity of the person who signed as maker and proof that thedocument was signed in the presence of the Notary and two or morewitnesses present at the same time who attested the execution.
According to the evidence of Abdul Gafoor which the learnedtrial judge accepted, Notary Sandrasegara was in the habit of gettinghim first to write the protocol in full and obtaining the signatures ofthe parties in the fully written protocol and in the other 2 copies inblank. Although none can grant sanction to such wayward ways,that in fact was what occurred in the notarial practice ofNotary Sandrasegara. Section 33 of the Notaries Ordinance (chap.110 NLE) reads : "no instrument shall be deemed to be invalid byreason only of the failure of any Notary to observe any provisionsof any rule set out in section 31 in respect of any matter of form",(proviso omitted).
It was quite clear that words and figures indicating nine inthe protocol had been altered to read as nineteen. The alterations
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were not in the hand-writing of Abdul Gafoor. In addition, the documentdated 16.6.69 (P12A) signed by the 1st defendant and sent tothe district registrar, Batticaloa, objecting to registering a deed, ob-viously a reference to the deed of revocation, supported the positionthat the deed of revocation was in fact executed on 9..6.69. Thisdocument P12A was received in the office of the district registraron 17.6.69. This document clearly shows that the deed of revocationwas not executed on 19.6.69. As the learned trial judgecorrectly observed the 1st defendant was both a dutiful daughterand a plaiant wife.
Although the Court of Appeal thought that the 1st defendant didnot give her consent to the deed of revocation there was no issueraised at the trial in that respect. The evidence of plaintiff andAbdul Gafoor was to the contrary. Moreover, the documentdated 14.6.72 (marked P8) signed by the 1st defendant before theAssistant Commissioner of Agrarian Services, shows that she wasagreeable to enter the name of her father in the paddy landsregister as the owner of the land in dispute.
There is no doubt that the plaintiff could not have revokedthe gift given to his daughter' unilaterally. The learned trial judgerightly thought that the intention of the parties to the deed ofrevocation must be given effect to. According to the evidence led attrial coming principally from the plaintiff and witness Abdul Gafoor,both of whom the learned trial judge believed, the learned trial judgecame to the conclusion that the 1st defendant voluntarily divestedherself of the interests in the said paddy-field, in favour of her father.
For the above reasons we allow the appeal, set aside thejudgment of the Court of Appeal and affirm the judgment of theoriginal Court. The appellant will be entitled to a sum of Rs. 10,000as costs.
PERERA, J. — I agree.
GUNASEKERA, J. – I agree.
Appeal allowed; judgment of the District Court affirmed.