Sri Lanka Law Reports
 3 Sri L.R
NANAYAKKARA & ANOTHERSUPREME COURT.
TISSA BANDARANAYAKE. J.
CA 349-350/79 (F).
DC COLOMBO 1949/L.
MAY 18, 1994.
Land Development Ordinance No. 19 of 1935 as amended by Act, No. 16 of1969 – sections 2, 162, 162(1)- Protected holding – Disposition with consentof Government Agent (G.A.) – Attestation – Should it be in conformity withsection 162- Implication of the amendment – Earlier attestation – Should referto consent – Amendment silent? – Conforming to spirit of section 162.-exceptio doli.
The plaintiff sought to avoid a certain deed executed in 1965 (prior to theamendment) on the basis that it was attested by a Notary in violation of section162. It was contended by the plaintiff that the impugned deed was void asthere was no written consent of the Government Agent and such consent wasnot referred to by the Notary in the attestation of such deed. The District Courtheld with the plaintiff, the Court of Appeal took the same view, but upholdingthe equitable plea of exceptio doli – dismissed the plaintiffs action.
On appeal –
The prior consent given by the Government Agent is referred to by theNotary in the recital but not in the attestation.
The execution and attestation of the impugned deed have reasonably andsufficiently conformed to the spirit of section 162 though not to the veryletter of section 162 as it stood then.
Jayasooriya v Nanayakkara & another
Per Dheeraratne, J.
"Prior consent given by the G.A. is referred to by the Notary in the recitalbut not in the attestation, one may wonder what extra sanctity wasexpected to be achieved by the requirement of referring to the G.A.'sdocument of consent in the attestation”.
An APPEAL from the judgment of the Court of Appeal reported in 1989 -1 Sri LR 366.
Case referred to:
Edwin de Silva v Karunadasa de Silva 56 NLR 1.
K.S. Tilakaratne for plaintiff-appellant.
Asoka Abeysinghe with M.C. Jayaratne for defendant-respondents.
June 28, 1994DHEERARATNE, J.
The plaintiff filed this action on 10.2.1975 against the 1stdefendant seeking a declaration that deed No. 422 dated30.12.1965 (P6) executed by him in favour of the 1st defendanttransferring the land called Dambuwemukalana was null and void;a declaration that he was entitled to that land; and for otherconsequential relief. As it was found that the 1st defendant hadtransferred the land in dispute pendente life to the 2nd defendantby deed No. 1618 dated 2.10.1975 (P8), the plaint was amendedadding the 2nd defendant as a party.
The plaintiff became owner of the subject matter of this actionby virtue of a crown grant executed in terms of the LandDevelopment Ordinance No. 19 of 1935 by the State. Thus it wasa protected holding within the meaning of section 2 of thatOrdinance and as such any disposition by the plaintiff required theprior written consent of the Government Agent. The plaintiff didobtain such consent of the Government Agent Puttalam by letterNo. LRO/ LM/67 dated 30.9.1965 to transfer the land to thedefendant. The ground on which plaintiff was seeking avoidance ofthe deed P6 was that it was attested by a notary in violation of theprovisions of section 162 (later amended by Act No. 16 of 1969).That section as it stood at the material time read as follows:
Sri Lanka Law Reports
 3 Sri L.R
A notary shall not attest any deed operating as adisposition of a protected holding unless the writtenconsent of the Government Agent to such disposition shallhave been previously obtained nor unless such deed shallhave attached thereto the document by which theGovernment Agent granted his consent to the dispositionsought to be effected by such deed. Such document ofconsent shall be specifically referred to by the notary in theattestation of such deed.
A deed executed or attested in contravention of theprovisions of this section shall be null and void for allpurposes.
The trial judge gave judgment for the plaintiff on the basisthat the deed P6 was null and void; the Court of Appeal took thesame view on P6 but upholding the equitable plea of exceptiodoli taken up for the first time appeal on behalf of thedefendants, dismissed the plaintiff's action with costs.
The District Court as well as the Court of Appeal in declaringthe deed P6 was a nullity as it contravened section 162 thoughtthat they were bound by the reasoning of the Supreme Court inthe case of Edwin De Silva v Karunadasa De S/'/vaO). Accordingto section 162(1) no notary shall attest any deed operating as adisposition of a protected holding unless: – (a) the writtenconsent of the GA shall have been previously obtained (b) suchwritten consent is attached to the deed; and (c) such documentof consent shall be specifically referred to by the notary in theattestation of the deed. In Edwin De Silva's case (supra) theconsent of the GA was not referred to at all in the impugneddeed. It was alleged that the document of consent was attachedto the deed but the Supreme Court rejected this suggestion asit may well have been obtained and attached subsequent to theexecution of the impugned deed (see page 2). In the presentcase there is no dispute (a) that the written consent wasobtained previously and (b) such document of consent wasattached to the original of deed P6. The prior consent given bythe GA is referred to by the notary in the recital but not in theattestation. One may wonder what extra sanctity was expected
Jayasooriya v Nanayakkara & another
to be achieved by the requirement of referring to the GA'sdocument of consent in the attestation. The purpose of thesection appears to be clear, that is, the prevention of state landmeant to 'provide for systematic development1 (see preamble)falling into undesirable and unsuitable hands. I may furtherobserve that the party who has cause to complain of anyunauthorized alienation by a grantee of State land is the Stateitself. Far from raising any objection regarding the validity ofdeed P6 the State gave permission to 1st defendant, thegrantee on P6, to alienate the land again to 2nd defendant bydeed P8. It is material to note that the legislature in its anxiety toobviate the manifest rigours of the operation of section 162 as itstood, amended it to read as follows:-
"162(1) A notary should not attest any instrument operatingas a disposition of a holding which contravenes theprovisions of this Ordinance.
(2) An instrument executed or attested in contravention ofthe provisions of this section shall be null and void."
I hold that for the foregoing reasons the execution andattestation of deed P6 have reasonably and sufficientlyconformed to the spirit of section 162 through not to the veryletter and that therefore deed P6 is not null and void. In the viewI have taken that P6 was validly executed and attested, theentire foundation of the plaintiff's action collapses and I need notgo into the further question as to whether the plea of exceptiodoli is available to the defendants to resist the action. Theappeal is dismissed; judgments of both the District Court and theCourt of Appeal are set aside. The plaintiff's action is dismissedand in view of the singular circumstances of this action theparties will bear their own costs of litigation in all courts.
TISSA BANDARANAYAKE, J.-I agree.WADUGODAPITIYA, J.-I agree.
Plaintiff's action dismissed.
JAYASOORIYA v. NANAYAKKARA & ANOTHERS