LEBBE AND OTHERS
COURT OF APPEAL.
ANANDACOOMARASWAMY J (P/CA)
CA 178/84 (F)
D. C. KALMUNAI 625/L.
January 8, 17, 18, 19, 31, 1996.
Donation – Revocation of same – Issues – when could it be raised – Illegality- Sanctity attached to Notarially attested Documents.
The Deed of Donation from the father to the daughter – P1 is alleged tohave been revoked by the Father with the consent of the Daughter by P2 on
but according to the Appellant it was revoked on 19.6.1969. On
the donee on P1, had donated the property to her husband byP5 and he had sold it to the 3rd Defendant-Appellant for valuableconsideration on 4.3.1970 – P7.
The Plaintiff-Respondent claimed that the Deed of Revocation was on
(before P5) the 3rd Defendant Appellant claims that it was on
The District Court held with the Plaintiff.
On examining the original Deed P2 the duplicate, and the protocol it isquite clear that there are interpolations, alterations and amendments andall copies are not exact copies.
Furthermore the 1st Defendant Respondent denied having consented tothe said revocaton, as seen by her letter to the Registrar wherein she hadon 16.6.1969 objected to any transfer of her property which she got on P1.
It is also strange that the Attesting Notary was not called as a witness,instead the Plaintiff-Respondent called the Clerk, according to whom theprotocol only was filled and signed and the signatures of all concernedwere obtained in blank forms which were later filled.
This was illegal, and therefore there was no due execution of the deed.
The net result of this exercise is that transaction that took place is notgenuine, and therefore the Deed of Revocation is invalid for want of dueexecution and that title passed to the 3rd Defendant – Appellant.
It was submitted that there was no issue raised on the due execution of theDeed and as such the Court should not rule on the due execution of theDeed of Revocation.
Per Anandacoomaraswamy, J.
“Issues can be raised upon evidence and in the course of the trial andeven before judgment, the evidence upon which this issue arises wastendered by the Plaintiff-Respondent and he cannot be heard tocomplain against it. Further no court can turn a blind eye to such anillegality which if condoned would be a blot on the sanctity attached tonotarially attested documents.
AN APPEAL from the judgment of the District Court of Kalmunai.
S.Mahenthiran for substituted 3rd Defendant-Appellant.
Faiz Mustapha P.C. with Sanjeewa Jayawardane for Plaintiff-Respondent.
Cur. adv. vult.
February 14, 1996.
ANANDACOOMARASWAMY, J. (P/CA)
This is an appeal from the judgment of the learned District Judge ofKalmunai entering judgment for the Plaintiff-Respondent affirming therevocation of a Deed of Donation from the father the Plaintiff-Respondentto his daughter the 1st Defendant-Respondent who gifted it to herhusband the 2 Defendant-Respondent, who in turn transferred forvaluable consideration to 3rd Defendant-Appellant.
The facts relevant to this appeal are briefly as follows:
The Deed of Donation from the father to the daughter was by P1,which is alleged to have been revoked by the father with the consent ofthe daughter by deed P2 of 9.6.1969 but according to the Appellant itwas revoked on 19.6.1969. On 11.6.1969 the donee on P1 donated theproperty to her husband by deed P5 and he sold it to the 3rd Defendant-Appellant for valuable consideration (Rs. 20,000/-) by P7 on 4.3.1970.
While the Plaintiff-Respondent claims that the Deed of Revocationwas on 9.6.1969 (that is before the donee transferred it to her husbandon 11-6-69) the 3rd Defendant-Appellant claims that it was on 19.6.69.But the 1st Defendant-Respondent denied having consented torevocation of the said deed P1 by P2 as seen by her letter to theDistrict Registrar marked P12(a), wherein she had on 16.6.1969 objectedto any transfer of her property which she got on P1.
Counsel for Defendant-Appellant and Plaintiff-Respondent cleverlydemonstrated that the deed in question P2 was executed on 19.6.69and 9.6.69 respectively. On examining the original deed P2, the duplicateP10 and the protocol P11, it is quite clear that there are interpolations,alterations and amendments and all these copies are not exact copies.The net result of this exercise is that we are unable to hold that thetransaction that took place is a genuine one especially in view of thePlaintiff-Respondent’s own evidence of the Notary’s clerk who was theattesting witness to the said transaction and the letter P12(a) of the1st Defendant-Respondent produced by the Plaintiff-Respondent. It isstrange as to why the attesting Notary was not called as that wouldhave been the best evidence. Instead the Plaintiff-Respondent calledthe clerk according to whom the protocol only was filled and signedand the signatures of all concernd were obtained in blank forms whichwere later filled and now called as original and duplicate, marked P2 &P10 respectively. The witness further said that that was their practice,which in our view is illegal and therefore there was no due execution ofthe deed, which alone is sufficient to declare the Deed of Revocationinvalid.
The learned counsel for the Plaintiff-Respondent submitted thatthere was no issue raised on the due execution of the deed and assuch the Court should not rule on the due execution of the Deed ofRevocation. We do not agree. Issues can be raised upon evidene andin the course of the trial and even before judgment. The evidence uponwhich this issue arises was tended by the Plaintiff-Respondent andhe cannot now be heard to complain against, it. Further no Court canturn a blind eye to such an illegality, which if condoned would be a bloton the sanctity attached to notarially attested documents.
The learned Counsel for the Plaintiff-respondent drew our attentionto the letter by the 1st Defendant-Respondent to the District Registrarmarked P12(a) and stated that that letter supports his contention thatthe Deed of Revocation was executed on 9.6.69 as it was written on
and refers to the Deed of Revocation and therefore the Deed ofRevocation could not have been on 19.6.69. That may be so, but thatletter refers to the execution on 11.6.69, which according to the Counselfor Plaintiff-Respondent is a mistake and the reference to her fathercan only refer to the Deed of Revocation as he did not figure in anyother transaction pertaining to the property in question. If that be soher father had cheated her and therefore she had in fact not consentedto the revocation which go further to corroborate and strengthen thestory that the duplicate and the original were signed in blank and filledlater perhaps to suit them.
It is thereofe quite clear that she did not consent to the revocationof the Deed of Donation and the question whether it was executed on
or 19.6.69 is immaterial and/or irrelevant.
We therefore hold that the Deed of Revocation is invalid for want ofdue execution and that the title to the property passed to the 3rdDefendant-Appellant. For these reasons we set aside the judgment ofthe learned District Judge and dismiss the Plaintiff-Respondent’s actionwith costs.
The appeal is accordingly allowed with costs fixed at Rs. 5,250/-.EDUSSURIYA, J. -1 agree.
MOHAMED v, LEBBE AND OTHERS