MEERA SAIBO et al. v. PAULU SILVA.D. C., Kandy, 11,868.
Sale of land—Deed of sale—Principal and attorney—Sale by power of attorneynot nolarially executed — Validity of sale — Ordinance No. 7 of 1840,s. 2—“ Person lawf ully authorized.”
A notarial conveyance of land is not void because the person whopurported to sign it for his principal was not authorized thereto by anotarial power of attorney.
Withers, J.—As an exponent of theRoman-Dutch Law, Mr. BerwickV.J., has had no superior in this Island.
AKJR MOHEDEEN, being owner of the land in suit, giftedit to three persons, by deed dated 25th January, 1870, one
of whom died leaving the other two, Raharnat Umma and Abdul
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Cader, as his heirs. Rahamat Umma, who was a Mohammedanlady residing in India, granted a power of attorney, dated 27thNovember, 1895, to her husband, who, acting as her attorney,transferred a moiety of the land to the plaintiffs by deed dated27th November, 1897. The power of attorney appeared to havebeen made in Satankulam, in the District of Tjnnevelly in SouthIndia, before five witnesses, and three days afterwards its execu-tion appeared to have been admitted by Rahamat Umma before theSub-Registrar of Satankulam and two witnesses, whose signaturesit bore, together with the seal of the Sub-Registrar. Thedocument bore an Indian stamp of five rupees, and appeared tohave been duly registered on 30th November, 1895. The plaintiffscomplained that defendant was in the forcible possession of thesame. The defendant, claiming to be the lessee of a moietyunder Abdul Oader, denied that Rajhamat Umma executed thedeed pleaded by the plaintiffs, and as regards the other moietydefendant pleaded prescriptive possession.
The District Judge held that Rahamat Umma’s deed in favourof the plaintiS was bad, because the person who signed it for herwas not authorized to do so notarially. Following a judgment ofthe Supreme Court in Dias v. Fernando, reported in 8 S. C. C.182, he dismissed plaintiffs’ case.
Wendt, for appellant.
No appearance for respondent.
Cur. adv. vv.lt.
31st August, 1899.—The Supreme Court set aside the judgmentof the Court below and gave judgment for plaintiff.
The only question argued before us was whether the DistrictJudge was right in holding that a certain notarial conveyance wasvoid and of no effect because the person who purported to sign itfor his principal was not authorized thereto by a notarial powerof attorney.
The District Judge relied on the case of Dias v. Fernando,D. C., Colombo, 9,793, reported in 8 S. C. C. 182.
The important question of law, observed Chief Justice Burnside,which arises in this appeal, is whether the plaintiff’s agent, nothaving been duly appointed agent by a notarial document, was aperson “ lawfully authorized by him ” to sign a lease required to benotarial by the 2nd section of the Ordinance No. 7 of 1840 againstFrauds and' Perjuries. The Chief Justice came to .the conclusion
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that, as our Ordinance requires a notarial document to authenticatea lease, the authority to sign such a lease should be notarial.His reasons for arming at this decision I prefer to give in his ownwords: “ Now it is manifest that the object of the Ordinance was“ to secure the most solemn proof of the contract, and not to let it“ depend upon the*very fallible proof which parol evidence would,
“ more especially in this country, afford. It would be, in the langu-“ age of Lord Eldon, the most mischievous evasion of the Ordinance,“ if, whilst the instrument of lease itself must be cff the solemn“ character prescribed, yet the authority to execute it and thus bind“ a party to it might depend upon the weakest and most unsatis-“ factory of all proof. The English statute requires a mere writing:
“ our Ordinance requires a most solemn writing, which has all of,“ and more than, the solemnity of the execution of a deed by“ English Law, and in this material particular the two enactments“ differ, and open the way to a decision based on the well-recog-“ nized principle of English Law, that the authority to execute“ a deed must be by deed.” The Chief Justice expressed himselfas being glad to be able to arrive at this conclusion, because anyother would seem to permit the very evils which it was theadmitted intention of the Legislature to defeat.
Mr. Justice Clarence, who sat with the Chief Justice on thatappeal, expressed no opinion on the point. He was content toaffirm the judgment of the Court below, on the ground that- therewas no evidence of any kind of an authority given by the plaintiffto the defendant to make the lease.
The action, it appears, was for rent secured on a lease, and theDistrict Judge had dismissed the action because in his opinion theplaintiff had no right to sue on the lease.
With all deference to the learned Chief Justice his reasoningseems to me to be based on the fdllacy that the intention of theLegislature as to powers of attorney to convey interests in land mustbe taken to be the same as to the intention respecting the forms ofactual conveyance or agreements to convey such interests. Theintention of the Legislature must be found in the language which ituses to express its intention. The Ordinance No. 7 of 1840 clearlyordained that conveyances of interest in immovable propertymust be attested in the solemn forms presented by its provisions.But, what does it say with regard to the mandates to those whoexecute such conveyances under the authority of their mandates?” No sale, contract, &c., shall be of force or avail in,law unless the‘‘ same shall be in writing and signed by the party making the same,“ or by some person lawfully authorized by him or her in the pre-“ sence of a notary,” &c. The underlined words were introduced
August 81.Withers, J.
August 81.With BBS, J.
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for the first time into a local Ordinance having for its object theprevention of frauds or perjuries. They are not to be found inthe previous Ordinance, No. 7 of 1834. It is a pity that moreintelligible language was not used, for who is meant “ by 'him orher? ” But the words “ lawfully authorized ” are not ambiguous.They mean authorized in a manner recognized by the law. Whatwas the law? The law “ according to the laws and institutions“ which subsisted under the ancient Government of the United“ Provinces,” to use the words of the Proclamation of the 2SrdSeptember, 1799. I say that must be the law, because I can findno previous Ordinance, Regulation, or Proclamation speciallydealing with the subject of mandates or power of attorney.
What that law is cannot be better explained than it was by Mr.Berwick in a considered judgment on the very point before us, ofwhich I append extract* (D. C., Colombo, No. 61,545, 21st January,
MEERA SAIBO et al. v. PAULU SILVA