GUNERIS v. KARUNARATNE

011-NLR-NLR-V-18-GUNERIS-v.-KARUNARATNE.pdf


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Present: Pereira J. and De Sampajo AJ,
GUNEBIS a. KABUNABATNE.
228—D. C. Negombo, 9,696.
Omission on the part of notary to search for registration of seizures
before drawing up conveyance—A ction for damages against notary.
Where a notary follows a general practice and makes a mistakeregarding the strict requirements of the law as to which there is* areasonable doubt, orwherehecommits anerror of judgment, he is
not guilty of such negligence ae would make him liable in damagesto bis client.
Defendant, a notary, was sued by plaintiff for damages sustainedbyhim byreason of omission onthe partof defendanttosearch for
registrationsof seizures before drawing a conveyanceofa certain
parcel of land in plaintiff's favour.
Held, per PkrkibaJ.—Thatundersection29 (16a) ofthe Notaries
Ordinance, 1907, itwasthedutyof anotary, beforea deed or
instrument affectinglandorotherimmovable propertywas drawn
byhim, tosearch or cause to besearchedthe registersinthe Land
Begistry, to ascertain, inter alto, whether there were registrationsofseizures(in execution) of thepropertydealt withbythe deed
or instrument, but that* in the present case the defendant was not
1914.
1814.
<3‘neri# r.
Kmmmutne
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liable, became the evidence showed that the omission to searchthe registers for registrations of seizures was due to an error ofjudgment.
Per Db Sampayo A.J.—The defendant was not bound to searchfor registrations of seizures under section 29 (16a) of the NotariesOrdinance. 1907.
I
N this action the plaintiff sued the defendant, who is a notary,to recover a sum of Bs. 1,000 as damages for drawing a deed
of transfer, No. 44 of October 18, 1912, in his (plaintiff’s) favourwithout properly searching for encumbrances, with the result thata duly registered seizure of one-third of the property transferredexisting at the execution of the transfer deed was not discovered,and this transfer deed was rendered void to such extent, andplaintiff lost title to one-third of this land sold to him. The plaintiffalleged that the loss of the one-third share was due to the defendant'snegligence. The defendant filed answer denying liability.
The learned District Judge after trial dismissed plaintiff's actionwith costs*'
The plaintiff appealed.
8t. V. Jayewardene, for the plaintiff, appellant.—Th notarydid not search for registrations of seizures. It was necessary tohave searched that register as well to find out the state of thevendor’s title. Section 29 (16a) of the Notaries Ordinance, 1007,requires the notary to ascertain the state of the vendor's title.Seizure is an encumbrance; under the Civil Procedure Code allalienations by the debtor pending the seizure are void, as againstclaims enforceble under the seizure* The notary was guilty ofnegligence for not making the search, and he is liable in damages,as this was a gross neglect of duty. The section of the NotariesOrdinance made his duty very clear. If there was a wrong practice,it should not be allowed to over-ride the law.
Counsel cited 3 Nathan, p. 1747, paras. 1706, 1709; Williamson Vendors and Purchasers 579, 604; 25 Halsbury 357; Ramanathan(1820) 4; Van ZyVs Judicial Practice 735; 4 C. P. 13; 7 L. T. R. 781;21 L. J. Q. B. 292.
Bawat K.C. (with him Bamarawichreme and Dias), for therespondent (not called upon).
Cur. adv. vult.
September 3, 1914. Pebbiba J.—
The primary question in this case is whether the defendant can besa?d to be guilty of negligence in omitting to search for registrationsof seizures in execution of the properly sold to the plaintiff on thedeed attested by him, that is to say, deed No. 44 of the 18th October,1912. I think it is clear law that a notary, like a solicitor, is notliable to his client in damage for loss caused to him by an error of
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judgment on the part of the notary, nor would he be chargeablewith negligence if he make a mistake on a point of law or practicens to which there was reasonable doubt-. (See Kemp v. Burt,1Elkington v. Holland.*) In the present case it is contended thatit was the defendant’s duty to search for registrations of seizuresunder section 29 (16a) of the Notaries Ordinance, 1907. I am inentire agreement with the counsel for the appellant here. Thesection referred to provides that before any deed or instrument(other than a will or codicil) affecting any interest in land or otherimmovable property is drawn by a notary, he shall search or causeto be searched the registers in the Land Registry to ascertain thestate of the title in regard to such land, and whether any priordeed affecting any interest in such land has been registered. Ithas been said that the provision really means that the object ofthe search should be no more than to ascertain whether there areregistered deeds relating to the land. This construction wouldbe tantamount to sweeping away from the section the words “ toascertain the state of title in regard to such land. ” These wordsdid not occur in the old Notaries Ordinance, and they have beenadvisedly inserted in the new to enlarge the scope of the section,and there is no reason that I can think of why they should be givenno meaning or effect. Rules of sound construction require thateffect should be given, wherever possible, to every word of alegislative enactment. Now, a seizure in execution of a parcel ofland, especially a registered seizure, is undoubtedly an encum-brance on the land, and therefore a search to ascertain the stateof the title must necessarily involve a search for registrations ofseizures. At the same time there can be no question that thesection of the Ordinance is very unhappily expressed. Had itbeen proved by the appellant that the section was generallyunderstood to mean that registrations of seizures should be searchedfor, I should not have hesitated to condemn the defendant indamages; but the evidence is all the other way. The defendanthimself has pledged his word to the effect that the words “ state oftitle ” he understood to mean “ claim of title or legal title, ” whateverthat may mean. It is manifest that he intended to convey thathe did not understand the expression to indicate the necessity fora search of registrations of seizures, and I think that, in view of theunsatisfactory way in which the provision of the Ordinance isexpressed, he may well be excused if he did not. There is then theevidence of D. C. Jayasundere, the daybook clerk of the Registrar’soffice, Negombo, who speaks of the practice among notaries as tosearches in the Registrar’s office. He says that the register ofseizures is not searched by notaries. In these circumstances, I amnot prepared to say that the defendant can be deemed to have beenguilty of negligence, and I would dismiss the appeal with costs.
1 4 Barn. A Adolp. 442* 9 M. k W. $59.
1*14.
PbbkibaJ.
Guneri# ©.
Kantnm.itns
( » )1W*. X>k Sampaio A .5.—
Ounerie v. I entertain some doubt as to whether rule 16 under section 29 ofBonmaratne ^ Notaries Ordinance, No. 1 of 1907, whatever its intention mightbe. has effectively imposed on notaries the duty of searching theregister of seizures. Beading as a whole the two paragraphs andthe proviso comprising rule 16. I am inclined to think that a notaryla thereby only required to search for prior deeds, if any, relatingto the land for which he is instructed to draw a deed himself. Itis true that the rule says that he shall search the registers in theLand Registry ’* to ascertain the state of the title in regard to suchland.1' But .these words are inaptly wedged in among provisionshaving to do purely with the register of deeds, and I find it difficultto understand them in the sense that it is the general duty of anotary as such to examine the title. He may indeed do so, apartfrom the rules in the Notaries Ordinance, if he is requested by hisclient, and the schedule of fees in the Ordinance authorizes a feeto be charged for examining, at the request of any party, the titleof any property to be transferred, &c. But if he is not so requested,the notary is not, in my opinion, bound to satisfy himself as to title,and if not, why should he search for such encumbrances as seizures,which are only relevant to the examination of the title ? I hesitateto hold that .the words above quoted have a larger significationthan that the notary is required to ascertain the state of the titlein so far as it is disclosed by registered deeds, which belong to thespecial province of notaries. The practice officially recognized isin accordance with this view, and, on the principle that use is thebest interpreter of laws, appears to me to throw considerable lighton the meaning of the rule. For it is proved by the officer of theRegistrar’s Department, who was called as a witness, that, when anotary makes an application to search the registers, he searches,and can only search, the register of deeds, and that for the purposeof searching the register of seizures a special application mustbe made, and, as the District Judge observes, the printed formsfor application for search ” issued by the Registrar-General’sDepartment bear out that evidence. It is, however, no.t necessaryfor the purposes of this appeal to decide the question; it is sufficientto say that even if rule 16 imposes on a notary the absolute duty ofsearching the register of seizures, the defendant in this particularcase has not been proved to have been guilty of such negligenceas would entitle the plaintiff to maintain an action against him fordamages. I also share the suspicion expressed by the DistrictJudge that the plaintiff's claim is not 6ona fide, that he has reallysuffered no damage, and that this action is engineered by partieswho are not before the Court. I agree .that the appeal should bedismissed with costs.
Appeal dismissed.
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Present: Wood Reuton C.J.
In re—, a Proctor.
Contempt of Court—Impertinent language used in the petition of appeal.
Aproctorforan accusedmodsuseof the .following words in lbs
petition of appeal:—
** The Judge was wrong in rushing to the conclusion" ; "theJudge seems tohavebeen waitingforanopportunity, which,
according to him, is rare, to convict a process server ; " in hishurry to convict the accused."
Held, that the proctor was guilty of contempt of Court.
JN this matter the following rule was served on the defendant
Uponreadingthepetition ofappeal ofBomel Ludowyke, the accused-
appellant inDistrictCourt,Chilaw, caseNo. 3,128,appearing by—,
Idsproctor, itisordered thatthesaid— ■ — do appear hi person
before this Honourable Court at ' HuUtsdorp on Monday,, the 8econdday of November, 1914, aft 11 o'clock in the forenoon, and show causewhyheshouldnotbe punishedforan offence of contempt of the said
District Court of Chilaw, in that he, the said——, made in the saidpetition of appeal the following statements:—
“ The accused-appellant submitsthat thelearned District
Judge was wrong inrushing totheconclusion that the two
forms that the proctor had in his hand were two blank formesigned by the Fiscal's Marshal;
" The District Judge has rushed to a conclusion which has
prejudiced his mind entirely against the aocused-appellant;
" ThelearnedDistrictJudge alsoseemstohave been1 waiting
foran opportunity,which, accordingtohim, is rare, to
convict a process server;
“ The learned DistrictJudge in hishurryto convict the
accused-appellant hasblunderedinpassingsentence under
each of the sections 179, 190. and 198 of the Penal Code **;.
and did thereby convey offensive and improper insinuations in dis-respect of the authority of the said District Court of Chilaw.
It is farther ordered that this rule be served by the Fiscal of theNorth-Western Province.
The defendant tendered an apology.
Bawa, K.C. (with him A. 8L F. Jayewardene andC. H. Z
Fernando), for the proctor, tendered an affidavit explaining thecircumstances, and withdrew unreservedly the words referred to.
Obey$8ekere, C.C. in support of the rule.
1914.
9
( )1614. November 2, 15)14. Wood Renton C.J.—
Mr.:: you have clearly committed- a contempt of the
authority of the District Court, and all that I have to do is .tooonsider how far the circumstances stated in your affidavit, togetherwith your letter of apology to the Additional District Judge, canbe held to extenuate it. 1 con readily see that you may have feltserious vexation at the conclusion which you considered that the, District Judge had too hastily drawn from the presence of the twoblank forms in your hand. But you were entirely wrong in themethod in which you sought redress. All courts of justice areliable to make mistakes, and no Judge, least of all a Judge who, bofar as I can gather from the record, tried the case in question withconspicuous fairness, would have hesitated to correct at once andunreservedly any error of fact into which he had been betrayed.Nothing would have been easier for you than to have moved himin open Court, to have called his attention to the mistake whichyou thought .that he had committed, and to have asked him torectify it. You took, however, a different course, and you notmerely made use of language which was disrespectful and con-temptuous in regard to the District Judge, hut did so with a certaindegree of deliberation, which 1 cannot altogether exclude fromconsideration. This is not a case of a hasty word or a hasty letteruttered or written and despatched and then at once regretted. Itis a legal document, drafted, typed, and handed in to the DistrictCourt for transmission to the Court of Appeal. Moreover, thedocument itself discloses what I must call a descending scale ofimpertinence. It proceeds from the veiled impertinence of the firsttwo paragraphs to .the open impertinence of the suggestion thatthe District Judge had been “ in a hurry to convict the accused. ”I have tried to place before my own mind in dealing with this case,and to place before you, the considerations that strike me as beingrelevant on both sides. I make full allowance for your momentaryirritation, and take the utmost account of your apology to this Courtand to the District Judge. But the offence is one which cannot bealtogether excused. Although you have been for some years in prac-tice, and I have no reason to doubt that you have deserved what yousay has been tbe feeling of the various courts of justice before whichyou have appeared towards you, you are still a young practitioner,and I wish to impress upon you as earnestly and soberly as I can thatthe use of language of this kind is cowardly, is demoralizing to thepractitioner who stoops to make use of it, and is utterly inconsistentwith the attitude of respect and reserve which ought to subsist, andwhich must subsist, between every Judge and the lawyers whopractise before him. With these words I convict you, on what ispractically, although not technically, your own plea, of contempt ofCourt, and impose a nominal punishment of a fine of Bs. 75.