EDIRISURIYA AND OTHERS
COURT OF APPEAL.
CA 849/92 (F).
DC HAMBANTOTA 972/L.
06th SEPTEMBER. 1999.
Conditional Transfer – Conditions deleted in duplicate only – Attestationsoforiginal and protocol silent regarding deletions – Fraudulent conversions- Notaries Ordinance Ss.3(2). 24. S.33 – Prevention of Frauds OrdinanceSs.2. 15. 16 – Due execution and attestation – Is the duplicate a draft'/
S. 16 Prevention of Frauds Ordinance requires deeds to be attestedin Dupiicate. The corrections or deletions in the original and duplicatemust be attested in both copies stating that such and such correctiontook place in the original and such correction in the Duplicate.
Each copy cannot carry only corrections and deletions on itsindividual body only, then the deed would not be attested in Duplicate.
Under S.31(24) of the Notaries Ordinance duplicate cannot be thedraft.
APPEAL from the Judgment of the District Court of Hambantota.
C.J. Laduwahetty for Plaintiff Appellant.
W. Dayaratne for Defendant Respondent.
Cur. adu. vult.
September 6, 1999.
WIGNESWARAN. J.This is an appeal against the judgment of the DistrictJudge of Hambantota dated 09. 06. 1992 wherein the actionof the Plaintiff was dismissed and the 3rd and 4lh Defendant-Respondents were declared entitled to the premises in suit.
Patabendi v. Edirisuriya and Others (Wigrwswaran, J.)
Mr. Ladduwahetty on behalf of the Plain tiff-Appellantpoints out that there has been irregularity with regard to theexecution of Deed No. 593 dated 14. 07. 1983 which wentbeyond mere formal irregularity and amounted to a fatalirregularity. He points out that the correction made in theDuplicate to the said deed had not been referred to in theattestations to the Original and Protocol copies of the deed. Herefers to the evidence and points out that according to thePlaintiff what was shown to him was a prepared draftdocument in which a condition as to the re-transfer of theproperty was inserted while the other documents remainedblank printed documents. After signature the condition in thedraft had been deleted and the blank documents filled inwithout the condition. He also referred to the fact that in V2,the statement made to the Police on 27. 10. 1985, the Plaintiffhad claimed the property as belonging to him which had beengiven on a conditional transfer and for which amount receivedon the conditional transfer he had paid interest.Mr. Ladduwahetty says that this deed transaction was in facta fraudulent transaction where a conditional transfer hadbeen converted into a deed of transfer with the connivance ofthe Notary.
Mr. Dayaratne points out referring to section 33 of theNotaries Ordinance, that no instrument shall be deemed to beinvalid by reason only of the failure of any Notary to observeany provision of any rule set out in Section 31 in respect of anymatter of form. He therefore states that any defect in theexecution of the deed would not make the deed an invaliddocument. He further points out that the evidence of thePlaintiff had only referred to a single copy of the documentbeing in blank and that such evidence contradicts the actualposition because the Original and Protocol both had nodeletion referred to in the attestation to the Duplicate.
We have perused the evidence, the documents filed ofrecord and also the judgment. Without doubt Document P3refers to the deletion of the last two lines on page two of the
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1200012 Sri LR.
said deed in the attestation and in fact there was such adeletion of the last two lines. Curiously no such deletion hadbeen made in the Original Copy nor in the Protocol copy. Thewords deleted in the Duplicate were never mentioned in thesecopies. The attestations in the Original and the Protocol fail torefer to any deletion in the Duplicate. In fact the Original doesnot refer to any deletion at all in the attestation clause. On theface of the documents it would therefore be seen, as mentionedin the plaint and in the Plaintiffs evidence, that the conditionrelating to a right of re-transfer had been inserted in one of thecopies of the deed but signatures obtained in three copies ofthe deed where presumably one or two copies were blank. If asmentioned by the Notary all three copies had been prepared atthe same time prior to signature and the parties signed allthree copies at the same venue, the three copies would havecarried the conditional clause in all of them. This conditionalclause is not found in the Original nor the Protocol. Thereforewe have to come to the conclusion that the Original and theProtocol copies were prepared subsequent to the Duplicate. Ifall three copies had been prepared prior to signature with theDuplicate having deletions and the Original and Protocol beingprepared sans the deletions, then the attestations in all threecopies should have referred to the deletion in the Duplicate.Why did the Notary have different attestation for each of thecopies, contrary to legal requirements? Probably the Notaryhad got the Original and Protocol signed in blank and in orderto avoid being exposed had thought it fit to insert only thedeletion in the Duplicate copy because a certified copy wouldhave been available to the Plaintiff-appellant only from theDuplicate. The failure to carry the corrections and deletionmade in the Duplicate copy in the attestations to the threecopies of the deed was fatal. On the face of it therefore thisdocument lacks credibility. We have considered the evidenceof the Plaintiff and also the statement made by the Plaintiff tothe Police. They bring out the fact that the Plaintiff hadcontinued to be in possession of the land in question even afterthe execution of the said deed. Possession would have been
Patabendi v. Ediiisuriya and Others (Wtgneswqran. J.)
sought by the 2nd Defendant Respondent if in fact the deed wasan outright sale. Dispute seems to have arisen only 2 yearsafter the execution of P3. P3 was executed in 1983. P4 beinga transfer by the 2nd Defendant to the 3rd Defendant took placein 1984 and only in 1985 did the dispute arise. The fact thatthe 2nd Defendant transferred the property to the 3rd Defendantwas unknown to the Plaintiff. Therefore, There is no doubt thatthe transaction that took place at the time of the execution ofP3 had not been properly reflected in the documents signed.Section 2 of the Prevention of Frauds Ordinance refers to thedue attestation of an instrument by a Notary. Proviso toSection 15 of the Prevention of Frauds Ordinance requireseven deeds executed or acknowledged before Notariespractising in other jurisdictions to be duly attested. Section 16requires deeds to be attested in Duplicate, Thus thecorrections or deletions in the Original and Duplicate must beattested in both copies stating that such and such correctiontook place in the Original and such correction the Duplicate.Each copy cannot carry only corrections and deletions on itsindividual body only. Then the deed would not be attested inDuplicate. In this instance the Original does not carry theattestation relating to the deletion of an important condition inthe body of the Duplicate though mentioned in the Duplicate.The attestation clauses are therefore completely different inthe Original and the Duplicate. The deed was therefore notattested in Duplicate. The attestation did not conform to theprovisions of Section 31(20) of the Notaries Ordinance.
Mr. Dayaratne stated that the Duplicate was only a draft.If that was so it could have been made as the Protocol copy.Section 31(24) of the Notaries Ordinance refers to "a draft ofcopy” as Protocol. The Duplicate cannot form the draft. Thestamped Duplicate copy which was sent to the Land Registrywas different in content to the Original copy registered at theLand Registry. Thus it appears that the Original and theProtocol copies were filled in after signatures were obtained onthe Duplicate without any deletions and on the Original andProtocol in blank. On the face of the copies of the document it
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appears that at the time the Duplicate copy was signed theother two copies had been blank. This was pointed out inevidence by the Plaintiff though he referred to one copy beingin blank. Whether one or two , a copy being in blank whensignature was obtained speaks not well of the Notary whoattested the deed.
We are therefore of the opinion that the conclusion of thelearned District Judge is not acceptable in the face of thedocuments produced. The short-comings on the deed go to theroot of the transaction in that there appears have been noconsensus ad idem between the parties to the transactionwhen executing the deed. We agree with Mr. Ladduwahettythat the short coming was not merely one of form, but onewhich went to the root of the transaction and therefore thevalidity of the deed has become questionable. Therefore, we areof the opinion that the said document must be set aside forwant of due execution and attestation.
We set aside the judgment of the learned District Judgedated 09. 06. 1992 and enter judgment in favour of thePlaintiff according to paragraphs (ep), (ep), («^), (ep^) of theplaint. The 2nd Defendant or her assignee is entitled to theamount deposited in Court by the Plaintiff Appellant. ThePlaintiff Appellant is entitled to the costs of this appeal.
SHIRANEE TILAKAWARDANA, J, – I agree.Appeal allowed.