046-NLR-NLR-V-22-PATHUMMA-v.-RAHIMATH.pdf
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Present; Bertram C. J. and Shaw J.
i
PATHUMMA v. RAHIMATH.
D. C. Colombo, 50,582,
Oral authority to execute notariaUy attested instrument—Principal andagent.
An authority to execute an instrument which under our law. must be notarially executed can be given orally.
facts appear from the judgment.
F, M. de Saram (with him Tisseverasinghe and Betnam), for theappellant.
Elliott (with him A. St. V. Jayawardene and H. E. Garvin), forthe added respondent.
H. J. C. Pereira (with him Croos-Dabrera), for the defendant,respondent.
July 20,1920. Bertram C.J.—
Many questions have been discussed in this case, but it is onlynecessary to give a decision on one point. What the case reallyturns on is whether an authority to execute an instrument, whichunder our law must be notariaUy executed, can be. given orally.As to the facts, it appears that the plaintiff some years ago receivedfrom her late husband a transfer of the property in dispute. Beforeshe had received that transfer she had given her husband a power ofattorney authorizing him to transact busme'ssin her name, the objectbeing that as she was a Muhammadan woman she need not be troubledto subject herself to the publicity which the execution of notarialdocuments involves. The couple had a young adopted daughter,and, subsequently, arrangements were made for the marriage ofthat daughter. It is aUeged, and the learned Judge considers it
1920,
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1920,
Bebtbam
C.J.
Fathummav, Rahmath
proved, that the plaintiff-and her husband arranged that theproperty in dispute should be conveyed to a trustee for the purposeof being settled upon this adopted daughter when she came to bemarried. A deed of trust for this purpose was drawn up and wasexecuted by the husband, and it would appear that all partiesconsidered that the husband was authorized to execute this deed■by virtue of the general power of attorney which he had obtainedfrom his wife some years before. It now appears that the termsof that power of attorney .are not sufficiently specific to cover theexecution of this deed. Nevertheless, it seem3 to me that there canbe no doubt that, if the wife consented to her husband executing thedeed, and approved of his doing it under the power of attorney shehad previously given him, she must be taken by that very factverbally to have authorized him to execute the instrument.
The question is, What is the legal effect of her so doing ? Thathas been determined by cases which have been decided in this Court,the most important of which is the case of Meera Saibo v. PauluSilva.1 That was decided more than twenty years ago, and, 1think, it must be taken to be now settled law, notwithstanding adifferent opinion expressed by Burnside C.J. in the case of Dias v.Fernando? The case of Meera Saibo v. Paulu Silva1 was followedin a subsequent case of comparatively recent date, Sinnatamby v.Johnpulle,8 and I do not think that there can be any doubt thatthis represents the law of the Colony. In the circumstances, I amof opinion that the part which the wife took 'in the arrangementsfor the execution of the deed of trust constitutes a verbal author-ization for the execution of that deed, aiijd that, .therefore, thatdeed was validly executed. In these circumstances it is notnecessary for us to discuss the facts of the case. There is, no doubt,much to be said on both sides. But there can be no question thatthe District Judge had ample justification for the conclusion whichhe formed: that the wife was a consenting party to the arrangementfor the execution of the deed of trust. The subsequent deed bywhich the trustee conveyed the property to the adopted daughterupon her marriage was executed in pursuance of that deed of trust,and must also be taken to be valid. I am, therefore, of opinionthat the case was rightly decided, and that the appeal should bedismissed, with costs.
Shaw J.—I agree.
Appeal dismissed.
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* 1899) 4 N. L. R. 229.2 (2555) 5 S. C. C. 182.
* (1910) 28 N. L. R. 273: