Perera v. Cassim.
Present: Moseley J.
PERERA v. CASSIM.
1,007—P. C. Colombo, 13,406.
Notaries Ordinance, No. 1 of 1907—Deed of lease—Execution by lessor only—Meaning of " executed ” in rule 24, s. 29—Failure to forward duplicateto Registrar—No breach of rule 24, s. 29.
The failure of the notary to forward to the Registrar of Lands a dupli-cate of a lease executed by the lessor only does not constitute a breachof rule 24 of section 29 of the Notaries Ordinance, 1907.
DEED of lease was drawn by the accused, a notary, on December
14, 1936. It was signed and executed by the lessor whose signature
was attested by the notary. A number was given to it, but he did notsend a duplicate to the Registrar of Lands as required by rule 24 ofsection 29 of the Notaries Ordinance, 1907. He was charged withviolating this rule. The learned Magistrate'who tried the case held that,since the document, not having been signed by the necessary parties, wasnot a deed, the rule did not apply. He accordingly acquitted the accused.From this order the complainant appealed with the sanction of the .Attorney-General. .
E. A. L. Wijeyewardene, K.C., S.-G. (with Kim E. H. T. Gunasekara, C.C.),for complainant, appellant.—This is a test case. The deed was attestedand executed, and a number was given to it. A “ deed ” in Ceylon isnot the same as that in England. Properly speaking there is no “ deed ”in Ceylon. It is a notarially executed document. (Ukku v. Rarckiri1.)
[Moseley J.—Is deed defined in the Ordinance ?]
No. ‘ Under section 29, rule 3 the mere form giving the intention of theparties appears to be a deed. It is a deed even before it is executed.
[Moseley J.—Can you explain the use of the words “ deed or instru-ment ” in that section ?]
No. It is not material to decide in the present case whether a documentis a “ deed ” or an “ instrument ” as rule' 24 itself uses the words“ deed or instrument ”.
The earlier part of rule 3 shows that the Legislature regarded a writingeven before it was executed by the parties as a deed or instrument withinthe meaning of the rules. If the rule did not contain the words “or tosign his name or make his mark upon any paper or other material intendedto be afterwards used for any such purpose ”, then in view of the aboveinterpretation of the words “deed or.instrument” it would have been inorder for a notary to obtain the signature of a party to a blank piece ofpaper. Rule 16 (a) shows that a document drawn by a notary is a deedor instrument. Rules 7, 9,'and 13 show that the document is a deed orinstrument before it is signed by a party or witness. The notary attests ^the deed under rule 19 after it has been drawn and executed. Rule' 22deals with the numbering of deeds.
[Moseley J.—Suppose the lessor only- signed but not the others, thenwhat is the number ?]
» (1908) 11 N. b. R. SIS, at p. S13.
Perera v. Cassim.
The moment it is executed by the lessor a number must be given.When the lessee signs, there will be another attestation. Otherwise thewords “ without delay ” in rule 19 would be superfluous. •
Now deeds are executed in triplicate : one is sent to the Registrar, oneis kept by the notary and the other is handed over to the party. The onesent to the Registrar contains the stamps required under the StampOrdinance, 1909. The Registrar has to see that the proper stamps hadbeen affixed. They must be affixed immediately before the attestation.Hence the document must be sent to the Registrar to check the stamps.
[Moseley J.—If it is not executed by the lessee, is not the stamp feerecoverable ?]
Under section 51 (d) of Ordinance No. 22 of 1909, the Commissioner ofStamps could make an allowance for the stamps used on such an instru-ment. Section 10 of this Ordinance shows that the stamps should beaffixed before the notary attests the deed.
■[Moseley J.—Under the Notaries Ordinance, it must be done beforethe execution.]
That is for the protection of the notary. The stamps should be affixedbefore, but cancelled after the execution.
[Moseley J.—Should another duplicate be sent if there is anotherattestation ?]
As a matter of practice the duplicate is returned by the Registrarafter he has satisfied himself as to the stamps, &c. The duplicate whencompleted by the signature of the other parties is then sent back to theRegistrar by the notary.
[Moseley J.—The rule requires that it should be sent every time withfresh stamps ?]'
It is anything but clear. The notary sent a list of deeds attested byhim and this one was included. Unless the duplicate was sent to theRegistrar, a breach of rule 6 cannot be detected. The Registrar mustsee that the revenue is paid.
Execution means the first signing.
L. A. Rajapakse, for the accused, respondent.—The notary is a proctorof twenty years’ standing. He has attested the signature but not thedeed. According to the evidence of the prosecution the practice hasbeen not to send the duplicates till the deeds are fully executed. Execu-tion and attestation of a deed refer to the embodiment of an agreementin a certain way. It is only such a transaction—not a portion of it—that should be followed up in that way. The elements necessary for adeed are given in 10 Hailsham 163, s. 199; Elphinstone p. 45.
' [Moseley J.—Those give the nature of the document. When does adeed come into being ?]
Parties manifest their intention which is written down by the notary.If they do not adopt them, then as their intention is not set, the documentwill not become a deed. If one party signs it, it is an instrument in thegeneral sense of the term only. See Stroud (2nd ed.), p. 986. Stampsshould be affixed before the parties execute the deed, but the deed is notcomplete till all parties sign it. If the duplicates are sent before some of
MOSELEY J.—Perera v. Cassim.
the parties execute it, it will'cause hardship because they cannot completethe deed till the duplicates are returned. Hence this rule must be con-strued in favour of .the public.
Cur. adv. vult.
February 18, 1938. Moseley J.—
This is an appeal with the sanction of the Attorney-General, againstthe acquittal of the accused (respondent) on a charge of a breach of rule 24of section 29 of the Notaries Ordinance, 1907. The rule is as follows : —
“ 24. He shall deliver or transmit to the Registrar of Lands of thedistrict in which he resides the following documents so that they shallreach the Registrar on or before the fifteenth day of every month, viz.,the duplicate of every deed or instrument (except wills and codicils)executed or acknowledged before or attested by him during the preced-ing month, together with a list in duplicate, signed by him, of all suchdeeds or instruments which list shall be substantially in the form F. inSchedule IT. hereto, and he shall at the same time forward a similarlist so signed by him to the Registrar-General. Provided, however,that in the case of wills and codicils only the number and date of thedocument shall be inserted in such list. ”
It is common ground that the accused failed to send a duplicate of adocument, numbered by him 486, as required by the said rule, if indeedthe rule is applicable in the circumstances of the case. The document isa lease and appears to have been signed by the lessor, but not by thelessee. The accused contended that rule 24 does not apply to suchdocument until it has been executed by all the parties necessary thereto.The learned Magistrate held that the document, not having been signedby both the necessary parties, had no validity in law, and held that therule does not apply to incomplete deeds. He accordingly acquitted theaccused.
It must be conceded on the authority of Ukku v. Rankira et al.1, thatthe term “ deed ” as used in the Notaries Ordinance has no relation to adeed signed, sealed and delivered in accordance with English Law. TheOrdinance deals with notarially attested instruments. It is convenientfor the purpose of this case to refer to such a document as a deed.
Counsel for the-appellant sought to interpret the rule as a requirementthat a notary who has attested any execution of a deed shall transmit tothe Land Registry a duplicate thereof, even if such document not havingbeen executed by all the necessary parties,, is of no legal effect. In supportof his argument he brought to my notice a number of other rules undersection 29, namely, rules 2, 3, 6, 7, 16 (a), 19, and 22 and contended thatin each of those rules the document referred to might be, dr in some casesmust be of an inchoate character. I am not disposed to disagree withthat view, but it seems to me that the Legislature in describing suchdocuments as deeds or instruments did so in what Counsel for the respond-ent has put it as “ an anticipatory manner ”, in order to avoid referringto such an inchoate document as a paper writing, which may ultimatelybecome a deed or. instrument.
» XI N.- L. R. 212.
Tennelcone c. Dohanayake.
In my view, the case rests upon the proper interpretation to be placedupon the word “executed” in rule 24. The learned Solicitor-Generalexpressed the view that one of the objects of the Legislature was to protectthe revenue, that is to say, to give the Registrar-General the earliestopportunity of satisfying himself that the requirements as to stamping ofthe document had been observed. That argument loses a great deal of its•cogency when it is realized that even if the appellant’s view is correct,the Registrar-General is enabled to satisfy himself on this point. In thelight of the first proviso to section 29 it seems to me more probable thatthe object of rule 24 is to ensure that the documents relating to land orproperty in Ceylon are brought to the notice of the Registrar of Lands.If that is so, or in any case, there does not appear to me to be any virtuein transmitting to the Registrar of Lands a duplicate of a document,which is only partially executed and which may never be completed.
In Nicholson v. Fields% Pollock C.B. observed as follows:—“We are,I think, bound undoubtedly to this sort of strict construction in a penalstatute, that if there be a fair and reasonable doubt, we must do that whichwe always do in revenue cases—hot to charge the subject with a tax unlessthe language by which the tax is imposed is perfectly clear and free fromdoubt; still more, perhaps, are we bound to do so in the case of a penalty. ”
In view of my" observations as to what I think to be the object of therule, it will be realized that for myself I have very little doubt as to what-is the meaning of the term “ executed ”. If I had any doubt the benefitshould be given to the accused and against the Legislature which has failedto explain itself. In short, my opinion is that rule 24 does not apply toany deed or instrument which has not been executed by all the partiesnecessary thereto.
I may add that if the contention of the appellant is correct and therequirements of the rule as interpreted by him were strictly complied withan obvious inconvenience would result inasmuch as a document afterexecution by one party might have to be recovered from the Registry forsubsequent execution.
The appeal is therefore dismissed.
PERERA v. CASSIM