M. P. MUNASINGHE, Appellant, and C. P. VIDANAGE and another, Respondents

022-NLR-NLR-V-69-M.-P.-MUNASINGHE-Appellant-and-C.-P.-VIDANAGE-and-another-Respondents.pdf


Munasinghe «. Vidanage
97
[Privy Council]
1966 Present: Lord Guest, Lord Pearce, Lord Upjohn, Lord Pearson,and Sir Frederic SellersM. P. MUNASINGHE. Appellant, and C. P. VIDANAGE and another,
Respondents
Privy Council Appeal No. 41 of 1964S. C. 346)1962—Application in Revision in D. G. Gcdle, 6177/L
Appeal—i'xridings of fact of trial Judge—Appellate tribunal's proper approach tothem.
Sale of immovable property—Consideration—Statements in attestation clause of deed—Evidential value thereof—Notaries Ordinance (Cap. 107), ss. 31, 38.
Tho jurisdiction of an appellate court to review the record of the evidence inorder to determine whether the conclusion reached by the trial Judge upon thatevidence should stand has to be exercised with caution.
“ If there is no evidence to support a particular conclusion (and this is reallya question of law) the appellate court will not hesitate so to decide. But if theevidence as a whole can reasonably be regarded as justifying the conclusionarrived at at the trial, and especially if that conclusion has been arrived at onconflicting testimony by a tribunal which saw and heard the witnesses, theappellate court will bear in mind that it has not enjoyed this opportunity andthat the view of the trial judge as to where credibility lies is entitled to greatweight. This is not to say that the judge of first instance can be treated asinfallible in determining which side is telling the truth or is refraining fromexaggeration. Like other tribunals, he may go wrong on a question of fact,but it is a cogent circumstance that a judge of first instance, when estimatingthe value of verbal testimony, has the advantage (which is denied to courts ofappeal) of having the witnesses before him and observing the manner in whichtheir evidence is given.”—per Viscount Simon in Watt or Thomas t>. Thomas(1947 A. C. 484 at pp. 485-6).
The question at issue in the present case was whether, in an instrumentwhich purported to be a deed of sale of immovable property, any considerationwas received by the vendors. The first defendant appellant, who was one ofthe two vendors, claimed that there was no consideration for the deed and thatno beneficial interest on the property passed to the vendee (plaintiff-respondent).The deed stated that the property was sold for Rs. 20,500 “ well and truly paidto the said vendors The notary’s attestation stated that the full considerationof Rs. 20,500 was acknowledged before him to have been previously received.The trial Judge, in accordance with his findings of fact, which involvedassessment of the veracity of witnesses, held that no consideration passed, butthe Supreme Court, on appeal, reversed the decision mainly on the basis ofstatements made by the notaries in their attestation of the deed in question andtwo other connected deeds.
LX IX—5
RR 19923-1,914 (12/68)
LORD PEARSON—Munasinghe v. Vidanage
08
Held, (i) that this was a case of rather complicated and difficult facts, andthere was a good deal to be said on each side. The findings, however, of theDistrict Judge were not unreasonable and, as he had had the advantage ofseeing and hearing the witnesses giving their evidence, the Supreme Courtshould not have set aside his findings and consequently should not have reversedhis decision.
(ii) that the statements of the notary in the attestation clause of a deed ofsale are admissible evidence, and may well be important evidence, regardingconsideration, but arc not conclusive.
A.PPEAL from a judgment of the Supreme Court.
T. O. Kellock. Q.C., with lem Baillieu, for first defendant-appellant.
No appearance for the respondents (the plaintiff and the seconddefendant).
June 7, 1966. {Delivered by Lord Pearson]—
This is an appeal, by leave granted by the Supreme Court of Ceylon,from a judgment of that Court whereby in exercise of their powers inrevision they adjudged that (o) a decree of the District Court of Gallein favour of the first defendant (now the appellant) be set aside (6) decreebe entered declaring the plaintiff (now the first respondent) entitled tocertain premises and to the ejectment of the first defendant therefrom(c) no order be made for damages except as from the date of the decreeof the Supreme Court, and that the amount of the damages be fixed atthe authorised rent of the premises to be determined by the District Judge.The judgment of the Supreme Court was given in exercise of their powersof revision after an appeal by the first respondent had been ordered tobe abated because of a small deficiency in payment of fees. The reasonfor not making any order for damages except as from the date of thedecree of the Supreme Court was the family relationship between theparties.
In substance the question arising in this appeal is whether the SupremeCourt were justified in setting aside the District Court’s findings of fact,which involved assessment of the veracity of witnesses. There was noappearance for the respondents before the Board.
The family relationship is this. Adirian Munasinghe, who died in 1922,had a number of children including (a) a daughter, who married, (6) ason Manikpura Peiris Munasinghe, the appellant (c) a daughter ManikpuraLily Munasinghe, who is unmarried. The married daughter, nowdeceased, had four children, namely (i) Bertram Clive Vidanage, thesecond respondent (ii) Cynthia Peariine Vidanage, the first respondent(iii) Geoffrey Malcolm Vidanage and (iv) another son who died. Thusthe appellant is the uncle of the first respondent. The dispute is between
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them. The second respondent, nephew of the appellant and elder brotherof the first respondent, was joined in the action as a second defendantin order that he should have notice of the proceedings (for reasons whichwill appear later) but he has not taken any part in the proceedings.
The premises include the family house, referred to in the evidence as“ the big house ”. Adirian Munasinghe had a business of mining for anddealing in plumbago. At one time the business was prosperous, and hewas a rich man, but afterwards the business ceased to prosper. At sometime before 1922 he mortgaged the premises to Bastian Samaranayake.After the death of Adirian Munasinghe in 1922 the appellant and hissister Lily continued to reside in the premises and are still residing there.The appellant took one-year leases from Bastian Samaranayake in 1924and 1926 and after the death of Bastian, from his son CharlesSamaranayake in 1927. Charles Samaranayake died in April 1928. Afterthat the appellant and his sister Lily apparently remained in possessionwithout any further lease for a number of years. Then in 1943 the fourchildren of Charles Samaranayake, and the Public Trustee as next friendof two of them who were then minors, brought an action against theappellant for a declaration of title to six properties (of which the fifthand sixth were the premises now in dispute) and orders for possessionand damages. The appellant defended the action, and gave evidence in.support of his defence, but he was unsuccessful. On the 20th August 1945the District Court gave judgment in favour of the plaintiffs in that action(the Samaranayakes and the Public Trustee) for the relief claimed by themagainst the appellant.
But a well-to-do relative of the appellant, his cousin Peter Wijetunga,came to the rescue. By a deed of transfer dated the 17th November 1945Peter Wijetunga bought from the widow and the three adult children ofCharles Samaranayake their interests in the six properties to which thechildren's title had been established in the action against the appellant.The price was Rs. 13,125 and the notary attested that a sum of Rs. 3,125was paid in cash and the balance of Rs. 10,000 was paid by cheque. In1946 the Court gave permission for the Public Trustee as curator of theremaining child, Swamalatha Samaranayake, who was still a minor, tosell her interest, and it was sold by the Public Trustee to Peter Wijetungaon the 26th November 1947 for Rs. 4,375. Thus Peter Wijetungaacquired the six properties for a total of Rs. 17,500.
By a deed of transfer dated the 29th August 1948 Peter Wijetunga soldtwo of the properties, those which comprised the family home, to theappellant for Rs. 15,000. The notary’s attestation stated that the fullconsideration was paid in cash in his presence. By another deed oftransfer of the same date Peter Wijetunga sold the other four of the sixproperties to the appellant’s sister Lily for Rs. 5,000. The notary’sattestation stated that the consideration was paid in cash in his presence.Each of the deeds was witnessed by Ukwattege Udenis Wijetunga, acousin of Peter Wijetunga, and Bertram Clive Vidanage, the secondrespondent.
LORD PEARSON—Munatinghe v. Vidanage
ldoOn the 1st November 1948 there was another deed of transfer. Itrelated to the two properties, comprising the family house, which hadbeen sold by Peter Wijetunga to the appellant. The vendors purportedto be the appellant and the second respondent (Bertram Clive Vidanage)though the second respondent did not hold any interest in the property.They purported to sell the two properties to the first respondent forRs. 20,500 “ well and truly paid to the said vendors ”. But the sale wassubject to a proviso which, being obscurely worded, should be set out infull so far as it is material. It is in these terms : “ if the said Vendorsor the survivor of either of them shall be desirous of obtaining a re-transferof the said premises and shall at any time within ten years from datehereof pay to the said Vendee or her aforewritten ” (i.e., her heirs,executors, administrators and assigns) “ the said sum of Rs. 20,500 withinterest thereon at the rate of six per cent per annum from date hereof tillpayment in full . . . the said Vendee or her aforewritten shall sell andconvey back the said premises to the said first-named Vendor or in eitherevent whether the first-named Vendor alone or both Vendors should thenbe alive, or to the survivor of either Vendor if one or the other of themshall then be dead: if both Vendors shall be dead then the heirs, executors,administrators and assigns of the second-named Vendor alone shall be atliberty to claim such re-transfer.” Probably the intention was that theoption to repurchase within the stated period of ten years was intendedto belong (i) solely to the appellant so long as he lived, whether or notthe second respondent was still living (ii) after the appellant’s death, if itoccurred before the end of the stated period, to the second respondentor if he also had died, to his heirs, executors, administrators and assigns.
One of the two witnesses to this deed of the 1st November 1948 wasGeoffrey Malcolm Vidanage, the younger brother of the first and secondrespondents. The notary’s attestation stated that the full considerationof Rs. 20,000 was acknowledged before him to have been previouslyreceived.
The stated period of ten years expired on the 1st November 1958, andthe option to repurchase the two properties had not been exercised. Bya formal notice dated the 19th November 1958 the first respondentpointed out to the appellant and the second respondent that the periodhad expired and called upon the appellant to deliver up possession to thefirst respondent. The appellant remained in possession. On the 28thMay 1959 the first respondent brought the action in the present case,claiming against the appellant a declaration of title and orders forpossession and damages.
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The appellant by his answer dated 28th September 1959 raised severalpleas. One was that there was no consideration for the deed of 1stNovember 1948 and that no beneficial interest on the properties passedto the first respondent. The appellant’s explanation of the deed wasgiven in paragraph 6 of his answer, which alleged :
“ Further answering this defendant states that by the exertion ofundue influence on this defendant by the plaintiff and her husbandand brothers this defendant was induced to sign the document referredto in paragraph 3 of the plaint which was not the act and deed of thisdefendant as he was made to understand that the execution of aninstrument of the nature of the deed referred to was the safest and thesurest step to be taken in order to protect the properties dealt with inthe said document from possible improvident hypothecation or aliena-tion of them by the 1st defendant himself; a step that was necessary,according to the representations of the members of the plaintiff’sfamily to ensure that the 1st defendant and his unmarried and childlesssister Lily will'te able to live in their ancestral house till the end of theirrespective lives.”
On the 7th .March I960 issues were framed. It will be convenient toset out here both the issues and the decisions thereon which wereeventually, after trial, given by the District Judge in his judgment.
IssuesDistrict Jitdge’s decisions
Suggested by counsel for the first respondent(plaintiff)
Is the plaintiff entitled to the premises
described in the schedule to the plaint ?No
Is the defendant in unlawful possession
thereof since 1st November 1958 ?No
If so, what damages is the plaintiff
entitled to ?Nil
Suggested by counsel for the appellant (firstdefendant)
Was the first defendant made to sign docu-
ment 1343 of 1st November 1948 by theexercise of undue influence on him bythe plaintiff, her husband and brother ?No
Was document 1343 of 1-11-48, relied on
by the plaintiff for her title, the act and
deed of the first defendant ?Yes
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LORD PEARSON—Munaainghe v. Vidanage
Was deed 1343 of 1-11-48 executed by thefirst defendant for valuable consider-ation ?No
If issue No. 6 is answered in the negative,did any beneficial interest in theproperty mentioned in the said deedpass to the plaintiff ?No
Does the plaintiff hold the properties dealt Plaintiff has no title towith in the said deed in trust for the the properties or hasfirst defendant ?no beneficial interest
in them.
Is the first defendant entitled to claim are-transfer of the legal title to theproperties dealt with in the said deedfrom the plaintiff ?Yes
Did the plaintiff practise a fraud on the11st defendant ?No
If so, can she take advantage of her ownfraud ?
The real dispute between the parties at the trial was as to whether thefirst respondent had ever in fact paid to the appellant the Rs. 20,500stated to be the consideration for the deed of transfer of 1st November1948. The first respondent’s case was that in about August 1948 sheobtained this money from her husband and paid it over to the appellant,at his request, before Peter Wijetunga by the two deeds of 29th August1948 transferred the two properties to the appellant for Rs. 15,000 and thefour properties to the appellant’s sister Lily for Rs. 5,000. The appellantdenied that he ever received the Rs. 20,500 from the first respondent.
A considerable amount of evidence was adduced at the trial. It is notnecessary to examine it in great detail, but some examination of it isrequired in order to see whether the Supreme Court were justified insetting aside the District Judge’s findings of fact against the first respond-ent and in favour of the appellant.The District Judge, who had seen
and heard the witnesses giving oral evidence at the trial, disbelieved oneevidence of the first respondent that she gave the sum of Rs. 20,500 tothe appellant; and was not satisfied with and impliedly rejected theevidence of the first respondent’s husband that he had provided that sumfor his wife ; and preferred to accept the appellant’s evidence that hetransferred the two properties without receiving any consideration todeprive himself of his right of disposal.
LORD PEARSON—Munasinghe v. Vidanagt
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In reviewing such findings of fact the proper approach of an appellatetribunal is as stated in the speeches of the House of Lords in Watt orThomas v. Thomas [1947] A. C. 484 (H. L.). Viscount Simon said atpp. 485-6.
“ Apart from the class of case in which the powers of the Courtof Appeal are limited to deciding a question of law (for example, on acase stated or on an appeal under the County Courts Acts) an appellatecourt has, of course, jurisdiction to review the record of the evidencein order to determine whether the conclusion originally reached uponthat evidence should stand; but this jurisdiction has to bo exercisedwith caution. If there is no evidence to support a particular conclusion(and this is really a question of law) the appellate court will not hesitateso to decide. But if the evidence as a whole can reasonably be regardedas justifying the conclusion arrived at at the trial, and especially ifthat conclusion has been arrived at on conflicting testimony by atribunal which saw and heard the witnesses, the appellate court willbear in mind that it has not enjoyed this opportunity and thatthe view of the trial judge as to where credibility lies is entitled togreat weight . This is not to say that the judge of first instance can betreated as infallible in determining which side is telling the truthor is refraining from exaggeration. Like other tribunals, he may gowrong on a question of fact, but it is a cogent circumstance that a judgeof first instance, when estimating the value of verbal testimony, hasthe advantage (which is denied to courts of appeal) of having thewitnesses before him and observing the manner in which theirevidence is given.”
In the other speeches there are passages dealing with the same points,e.17., at pp. 4S7-8 (Lord Thankerton) pp. 490-1 (Lord Macmillan) pp. 491-2(Lord Simonds) andp. 493 (Lord du Parcq).
The first witness called for the first respondent was Edwin Wijesurendrawho was the attesting notary on the deed of 1st November 1948. In hisevidence in chief he referred to the statement in his attestation that thesum of Rs. 20,500 was acknowledged to have been received previously.In the course of his cross-examination he said this :
When I went to tho house, I expected the money transaction totake place, and I asked the first defendant as to the consideration asit was a big amount. He said ' put it down as received beforehand ’.At that place I did not ask him anything. All that was relevant I putdown on the deed. At a later stage a conversation ensued, and I askedthe first defendant why he should take this money beforehand andnot pay it at the time of the execution of the deed. That was aftertho deed was signed and when we were going away. He said thathe did not take money on this deed, and I asked him why he transferredthe property. Then he said ; Eka ape vedak ’ (that is our business).I am sure he said that he did not take the money and I asked himwhether it was safe to do that. He said that it was all ri^ht between,relations.”
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LORD PEARSON'—Munasinghe v. Vidanage
It is clear from the judgment of the District Judge that he accepted andwas impressed by this evidence of the notary Mr. Wijesurendra. It washearsay evidence, but it was elicited in cross-examination, and noobjection to it is recorded, and it could be regarded as cogent evidence ofconsistency in the appellant’s version of the transaction.
The first respondent gave evidence on her own behalf.
She gave a history of affectionate family relations in the earlyperiod. When she was small, her mother and she and the brothers usedto live in the “ big house ” (i.e., the premises in dispute). After themother’s death, the children remained there and were looked after bytheir aunt Lily, who was fond of them, and they were sent to school by theappellant. The children’s father paid for their maintenance andschooling. The appellant was fond of the first respondent until thistransaction
Tho first respondent said repeatedly that in August 1948 theappellant asked her to provide him with Rs. 20,500 for the purchaseof the properties ; that the appellant promised to have the propertiestransferred into her name ; that she provided the sum of Rs. 20,500,having obtained it from her husband ; and that in breach of his promisethe appellant did not have the properties transferred into her name.
The first respondent said that her two brothers were present whenshe handed over the money to tho appellant. Later in her evidence shesaid, “ It is my uncle the first defendant who took the money promisingthat he would transfer tho land to me ; that is why I gave the money toredeem the land. I gave him the money and asked him to transfer theland to me. I paid him in notes tied up in a bundle and wrapped in acloth. I handed the money and asked the first defendant to count themoney and take it. The money was counted in the presence of both of us.
C. Vidanage, my elder brother, and my other brother G. M. Vidanage,and the first defendant were counting the money.”
The first respondent said that when she found fault with theappellant, he suggested that a conditional transfer should be given, andthe deed of 1st November 1948 resulted. This deed applied to only twoout of the six properties; and the transfer was subject to the vendors’option to repurchase.
There are difficulties in the first respondent’s version of these events,and the District Judge referred to them in his judgment.
If her version was correct, she was wickedly defrauded by her unclein August 1948, when in breach of his promise he had two of the propertiestransferred to himself and the other four to his sister Lily, instead ofhaving them all transferred to tho first respondent. Such a fraud isinherently improbable and especially in view of the previous history ofaffectionate family relationships. It would be for the District Judge, onconsideration of the appellant’s demeanour as well as the general factsof the case, to decide whether he would be likely to defraud his niece.The conclusion of the District Judge was in favour of the appellant.
.LORD PEARSON—Munasinghe v. Vidanage105
The first respondent’s brother, the second respondent was a witnessto the deeds of 29th August 1948 by which the transfers to the appellantand his sister Lily were effected. On the first respondent’s version herbrother, unless he .was ignorant of the facts, must have been aiding andabetting the supposed fraud.
There was no corroboration of the alleged payment of the Rs. 20,500by the first respondent to the appellant. If her evidence was correct,there could have been strong corroboration, because she said the paymentwas made in the presence of her two brothers and they and the appellantcounted the money. And yet neither of the brothers was called to giveevidence.
The conditional transfer fell far short of a complete redress forthe supposed wrong suffered by the first respondent. On her evidence shehad provided Rs. 20,500 for the purchase of properties in her name, andsix properties were purchased with that money, and so. if the appellanthad carried out his promise she would have had the unfettered ownershipof six properties. In the result she did not have unfettered ownership ofany properties, and her fettered ownership extended only to two out ofthe six properties. The redress for the supposed fraud is so inadequate,that it would have to be supposed that the fraud was being continued byher uncle with active co-operation from her brother.
These difficult ies would not necessarily be fatal to the success of the firstrespondent’s case ; her evidence might possibly have been accepted inspite of them ; but they are factors of improbability, and make itimpossible to say that her case on her own evidence was so strong thatthe District Judge could not reasonably reject it.
The first respondent’s husband gave evidence on her behalf, and it wasdirected to proving that he provided his wife with the Rs. 20,500 for herto hand over to the appellant. The District Judge found his evidenceunsatisfactory and impliedly rejected it. In so far as his reasons werebased on the financial position of this'witness, as showing inability toprovide the money, the Supreme Court’s criticisms of the reasons appearto be well-founded. Also the witness’s failure to produce his books ofaccount is not in the circumstances a strong point against him. Heproduced copies of his balance sheets and profit and loss accounts for1948 and following years, and these were verified by a witness who saidhe was a clerk in a firm of auditors and had personally audited theseaccounts. In the course of the clerk’s evidence counsel for the firstrespondent moved for a date to produce the books of account, but theDistrict Judge refused to name a date for this purpose. There are,however, other reasons for dissatisfaction with the evidence of the firstrespondent’s husband.
. He is a business man carrying on business as a trader in Colombo.If he provided his wife with the sum of Rs. 20,500 for the purchase ofproperties, it is surprising that as a business man he took so little interestin the transaction and acquired so little information as to.its nature and
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progress. These points are brought out and relied upon in the judgmentof the District Judge. Also it can be said that the witness gave threedifferent versions of his understanding of the transaction.
First, he said that in the middle of August he gave a sum of Rs. 20,500to his wife to acquire land, and the land belonged to the appellant andwas to be bought from him. Later in his evidence he said that his wifedid not state the lands were to be bought from Wijetunga, but that a deedwas to be obtained from her uncle ; she wanted to buy some propertyfrom her uncle, and the lands were not then in the name of her uncle ;they had been in the name of a proctor and she wa nted to buy them directfrom the proctor. Still later in his evidence he said that the appellantwas to be the vendor, but there had been a mortgage of the property infavour of a proctor and the mortgage had to be redeemed, and that theprincipal and interest on the mortgage amounted to Rs. 20,500.
Althouth this witness produced a number of documents—copies ofhis trading accounts and balance sheets from 1949 to 1957—none of themshowed when or how or from wiiat source the alleged payment or drawingof Rs. 20,500 was made or that it was made at all. The balance sheet asat the 31st December 1948 contained under the heading “ Assets ” anentry “ C. P. Vidanage (Wife’s A/c) Investment on Mortgage LoanRs. 20,500 ”, and there was a footnote “ The above investment madeWife’s Name. No. 541 High Road, Galle related to Mr. P. Munasinghe ofGalle, taken for a Primary Mortgage by deed No. 17081 on 2nd November,1948 attested by Edwin Wijayasundara, Notary Public, for Rs. 20,500 at6% Interest. (Not recovered) ”. That entry was carried over into sub-sequent balance sheets. Evidently it refers to the deed of 1st November1948. It would be consistent with evidence that money of the firm wasused in making the investment. But such evidence was curiously lacking.There was no receipt, no acknowledgment, no entry or copy of an entryrelating to any such payment produced. If there was such evidence, itis surprising that neither the witness nor the clerk to the auditors nor thelawyers made it available. The only thing the witness had to prove wasthat he made the alleged payment to his wife.
The witness was cross-examined as to the source of the allegedpayment. He said “ I am a trader in a large way. I have several bankaccounts … I gave my wife Rs. 20,500 in cash … I brought this moneyin currency notes. I brought it from Colombo. I have always with meabout Rs. 20,000 to 30,000 in cash. That money is in the safe. I did notget this money from the bank. This sum of money was in my safe, andI gave it to her.” That evidence is on the face of it unimpressive, thoughit might be true. If, however, the money was simply cash taken out of asafe and handed over, there was all the more reason for some documentaryrecord to be kept.
Here again the difficulties would not necessarily preclude acceptance ofthe evidence of the witness. But the evidence does seem unconvincing.It cannot be said that the District Judge acted unreasonably in finding itunsatisfactory and impliedly rejecting it.
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The appellant gave evidence on his own behalf. He said that in 1945he agreed with the Samaranayakes to buy the properties from them forRs. 17,500, and he had some money but not the full amount. He wasable to raise Rs. 11,000, of which Rs. 9,000 would be provided by his sisterLily and Rs. 2,000 by himself from sale*of properties. He and his sisterwent to see Peter Wijetunga in his officelat his Richmond Restaurant inColombo. Peter Wijetunga agreed tc buy the properties, providing thebalance required, and he bought them accordingly. In August 1948 hetransferred them to the appellant and his sister. He had already receivedfrom them the Rs. 11,000 in 1945. For the Rs. 7,000 which he hadprovided out of his own money he was content to receive only an additionalsum of Rs. 4,500, waiving the balance of Rs. 2,500. Then later in 1948the appellant conditionally transferred his two properties to the firstrespondent by the deed of 1st November 1948. He denied that he receivedthe Rs. 20,500 or any money from the first respondent. The appellantsaid : “ Plaintiff and her brother and sister got together and told methat I was getting aged and that I would run through their property bydigging for plumbago and therefore they asked me to write a deed infavour of my niece. Her husband also participated in that matter. ”The appellant said he agreed to this, and so the deed came to be written.
In cross-examination the appellant was confronted with the statementsof the notary (named Kulasooriya) in the deeds of 29th August 1948.thatthe consideration therein mentioned (Rs. 15,000 in the one deed and Rs.5,000 in the other deed) had been paid in cash in his presence. Theappellant’s explanation was that in respect of each deed he handed somecash to Peter Wijetunga in the presence of the notary, and Peter Wije-tunga counted it and said it was correct, and the notary did not count it.
That evidence of the appellant by itself might or might not have carriedconviction, but it was corroborated in important respects by a witnesswho was apparently independent and whose veracity does not seem to havebeen impeached. This witness was Ukwattege Udenis Wijetunga, whowas one of the witnesses to the two deeds of 29th August 1948. He saidhe was a first cousin of Peter Wijetunga and managed for him the Rich-mond Restaurant, -where Peter Wijetunga had his office, and they weregreat friends. This witness said, “ I remember the first defendant and hissister coming to see Peter one day … I went into the office . . . and then Isaw the first defendant and his sister asking Peter to buy the lands asSamaranayakes were requesting them to buy the lands back. The firstdefendant said on that occasion that he had not sufficient money withhim and asked Peter to buy the lands having contributed the balancemoney. The first defendant said he would get the lands back from him.The first defendant gave some money to Peter Wijetunga on that occasion.Later Peter Wijetunga gave those properties to the first defendant and hissister Lily on P.2, and 1D3 ” (t.e., the deeds of 29th August 1948).“ In
both these deeds I have signed as a witness. These two deeds werewritten in the house of the first defendant. Peter Wijetunga came therewith me from Colombo on that occasion. First defendant gave some
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money to Peter. I do not know how much was paid to him.” In cross-examination he said : “ The money was not counted at the time of theattestation of the deed. I did not see anyone counting the money. Iwent away having signed it as a witness. The notary who attested thedeed questioned Peter whether the amount of the consideration wascorrect and lie said “ Yes ”. The notary did not take the money into hishands and give it to Peter. He himself did not count it.”
The District Judge referred to the evidence of this witness.. U. U.Wijctunga, as supporting that of the appellant, and impliedly accepted it.On acceptance of the evidence of YVijetunga, it was plainly open to theDistrict Judge to accept the appellant’s evidence and indeed acceptanceof the appellant’s evidence would be a natural consequence.
The Supreme Court’s reversal of the decision of the District Judge wasbased mainly on statements by the notaries in their attestation of thedeeds. It was not contended or decided that such notarial statementswere conclusive as a matter of law. In paragraph 9 (g) of the first res-pondent’s petition of appeal to the Supreme Court it was contended thatthe notarial statement in the deed of 1st November 1948 was strongprima facie evidence. The Supreme Court in their judgment referred to“ the question of fact which .the learned District Judge had to decide ”,and they treated the acknowledgment referred to in the notary’s statementas evidence of an admission by the appellant. Later in relation to anotherattestation clause the Supreme Court said that the best method of testingthe truth of the appellant’s evidence was to examine the attestationclause. Learned counsel in presenting this appeal did not refer to anyprovision of the law of Ceylon making a statement in a notarial certificateconclusive in law.
The Notaries Ordinance (Chapter 107 in Volume 5 of the LegislativeEnactments of Ceylon, revised in 1956) does not contain any suchprovision, though it does contain in Sections 31 and 38 provisions making' it the duty of a notary to attest deeds, and in the attestation to state" whether any money was paid or not in his presence as the considerationor part of the consideration of the deed or instrument, and if paid, theactual amountrin local currency of such payment”, and also “ to endeavourto ascertain the true and full consideration for the execution of any deedand to insert and set forth the same in such deed.” It is assumedtherefore that such statements are admissible evidence, and may wellbe important evidence, but are not conclusive.
Three notarial statements are referred to and relied upon in thejudgment of the Supreme Court.
(a) In the deed of 1st November 1948 the statement of the notaryE. Wijesundera was “ I certify. . . that the full consideration of Rs. 20,500was acknowledged before me to have been previously received.” There
LORD PEARSON—■Munaeinghe v. Vidanage
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■was, however, as mentioned above, the oral evidence of Wijeaundera thatafter this deed was made, the appellant told him that he had not in factreceived any consideration for it That oral evidence diminishes, thoughit does not wholly destroy, the force of the appellant’s recordedacknowledgment.
(6) In the deed of 1945, whereby Peter Wijetunga was buying from thewidow and three of the children of Charles Samaranayalie their interestsin the properties, the notarial statement was that out of the fullconsideration of Rs. 13,125 a sum of Rs. 3,125 was paid in cash in thepresence of the notary and the balance of Rs. 10,000 was paid by a cheque(which was identified). It is suggested in the judgment of the SupremeCourt that this statement is inconsistent with the appellant’s evidence thathe and his sister provided Rs. 11,000. But there does not seem to be anyinconsistency. If the appellant and his sister had provided or wereexpected to provide Rs. 11,000 towards the price, Peter Wijetunga couldstill make his own payment to the Samaranayakes by cash or cheque orby both inany proportions that were convenient to him.
(c) In the first deed of 29th August 1948, whereby Peter Wijetungatransferred the two properties to the appellant for Rs. 15,000, the notarialstatement was that “ the full consideration herein mentioned was paidin cash in my presence ”. Undoubtedly that is inconsistent with theappellant’s evidence that Rs. 11,000 had already been paid and that thecash sum paid in the presence of the notary was only Rs. 4,000. Theappellant’s explanation was as stated above, and the evidence of
U.U. Wijetunga gave some corroboration.
This was a case of rather complicated and difficult facts, and there wasa good deal to be said on each side. Their Lordships’ conclusion afterexamination of the evidence and the judgments, is that the findings ofthe District Judge were not unreasonable, and as he had had theadvantage (very material in this case) of seeing and hearing thewitnesses giving their evidence, the Supreme Court should not have setaside his findings and consequently should not have reversed his decision.
Their Lordships will humbly advise Her Majesty that the appeal shouldbe allowed, the judgment and decree of the Supreme Court should beset aside and the judgment and decree of the District Court should berestored. The first respondent must pay to the appellant his costs of thisappeal and of the appeal to the Supreme Court.
Appeal allowed.