The learned District Judge in answering the issues raised has answeredthe said issue in the negative and the reasons given in his judgment foranswering the aforesaid issue in the negative are as follows :

Paragraph 8 of the answer referred to in the said issue reads as follows:
The relevant issue settled on this point of contest is issue No. 12 whichreads as follows:
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it would be pertinent to refer to Section 68 of the Evidence Ordinancewhich reads as follows :
“If a document is required by law to be attested, it shall not be usedas evidence until one attesting witness atJeast has been called forthe purpose of proving its execution, if there be an attesting witnessalive, and subject to the process of the court and capable of givingevidence.”
In the instant action the plaintiffs-respondents in complying with theprovisions in Section 68 of the Evidence Ordinance have called not onebut both attesting witnesses to the deed marked P2 to testify to the dueexecution of the said deed. As to N.H. Gunaratne, Notary Public whoattested the deed it tranpired in evidence that his whereabouts were notknown and was not listed as a witeness. As to the evidence of these twowitnesses in signing the deed as attesting witnesses was never challengedby the defendant-appellant and under cross examination no suggestionput to them that they did not attest the deed marked P2. It is also to benoted that these two attesting witnesses were not the recipients of anybenefit in terms of the said deed.
It is contended by the counsel for the defendant-appellant that sincethe two attesting witnesses are the children of the executant and alsosince they are the ones who found the Notary and as the Notary did notknow the executant there was a legal duty cast on the plaintiffs-respondentsto have called the mother as a witness to prove the fact that she placedthe thumb impression on the said deed marked P2. It is to be seen that inP2 Notray’s attestation clearly says that the Notary does not know thetransferor. He specifically has stated that he knows the two attestingwitnesses who in turn were the children of the executant. At this point itwould be pertinent to refer to Section 31 (9) of the Notaries Ordinance No.01 of 1907 which reads as follows :
31(9) “ He shall not authenticate or attest any deed or instrumentunless the person executing the same be known to him or to at leasttwo of the attesting witness thereto; and in the latter case, he shallsatisfy himself, before accepting them as witnesses, that they arepersons of good repute and that they are well acquainted with theexecutant and know his proper name, occupation, and residence,
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and the witnesses shall sign a declaration at the foot of the deed orinstrument that they are well acquainted with the executant andknow his proper name, occuption, and residence.”
Evidence reveal that these provisions contained in the aforesaid Sectionof the Notaries Ordinance has been complied with. Middleton, J inValupillai vs. Sivakampillai stated that :
‘To attest” means to bear witness to a fact. An attesting witnessis a witness who has seen the deed executed and who signs it as awitness. Where the instrument is required by law to be attested, themeaning is that the witness shall be present at its execution andshall testify that it has been executed by the proper person.Middleton, J.was of the opinion that “ to attest” does not necessarilymean that the witness is to write down anything in the document tothe effect that he subscribes as a witness, and that if it is shown thatin fact he did sign and did witness the signarture which he isattesting, that would be sufficient for attestation."
And as for the object of calling a witness in Solicitor-General vs. AvaUmma(2)at 515:
Per T.S. Fernando, J.
“ The object of calling the- witness is to prove the execution of thedocument. Proof of the execution of the documents mentioned insection 2 of No. 7 of 1940 (prevention of Frauds Ordinance (cap.84)means proof of the identity of the person who signed as maker andproof that the document was signed in the presece of a notary andtwo or more witnesses present at the same time who attested theexecution."
Evidence of the two attesting witnesses also reveal that the deed markedP2 has been duly attested or executed. In any event, Section 33 of theNotaries Ordinance provide that:
“No instrument shall be deemed to be invalid by reason only of thefailure of any notary to observe any provision of any rule set out in section31 in respect of any matter of form :
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provided that nothing hereinbefore contained shall be deemed to givevalidity to any instrument which may be invalid by reason of non-compliancewith the provisions of any other written law. ”
In Asliya Umma vs. Thingal Mohamed(3) the Supreme Court held :
“ The failure of the Notary to observe the provisions of section 31 ofthe Notaries Ordinance in executing the deed of revocation did notmake it invalid; for in terms of section 33 of the Ordinance, the deedshall not be deemed to be invalid by reason of such failure.”
In the circumstances, I am unable to agree with the counsel for thedefendant- appellant that there was a legal duty cast on the plaintiffs -respondents to have called the mother as a witness to prove the fact thatshe placed the thumb impression on the deed marked P2 for this fact hasbeen established by the testimony of the two attesting witnesses. Thefact that the two witnesses were children of the executant does not makethem disqualified to sign as attesting witnesses or make their testimonyunworthy of credit. Therefore it appears that deed P2 stands proved ashaving been duly executed. In the circumstances provision of section 114illustration “F” of the Evidence Ordinance will have no application to thefacts of this case. I might also say that though evidence revealed thatwhen evidence on behalf of the plaintiffs-respondents were led the executantof the deed marked P2 was alive, evidence also revealed that she was 82years of age and was a sick person and according to the evidence of thedefendant-appellant she was not only physically ill, but also a mentalpatient for a number of years before she died. Defendant-appellant in hisevidence at page 285 of the brief says as follows :

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when the defendant-appellant himself in his evidence says that theexecutant was a mental patient who was not in a position to give evidence,I am unable to comprehend as to how the counsel for the defendant-appellant could argue that the plaintiffs-respondents should have calledthe executant to prove the fact that she placed her thumb impression onthe said deed marked P2 or if she was unable to come to Court to giveevidence, the plaintiffs-respondents should have moved for affidavit evidenceto be recorded on commission or debenne esse evidence before the trial.
Counsel for the defendent-appellant also contended that the learnedDistrict Judge had erred in coming to the conclusion that the plaintiffs-respondent’s mother was dead at the time of trial, when in fact accordingto the evidence of the 1 st plaintiff-respondent she was very much alive.However I do not think that the learned District Judge can be faulted for hisconclusion for the defendent – appellant himself in his evidence admit thathis mother is no longer living. At page 282 of the brief he says :

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Another matter raised by the counsel for the defendant-appellant is thelack of consideration. It is to be seen that the deed marked P2 in itsattestation states that consideration was not paid in the presence of theNotary who attested the said deed. The 1st plaintiff -respondent who isone of the purported purchasers on the said deed marked P2 in his evidenceadmitted that no consideration passed or was paid. Evidence of GunarathnaPingamage also reveal that consideration did not pass and the sum of R.7,500/- was mentioned in the deed on the instructions given by the Notary.
The question arises as to whether the deed of conveyance becomesinvalid if the consideration is not paid fully. According to Voet 19.1.21 nonpayment of purchase price is not a ground for cancellation of a conveyance.It was held in Meyer vs. Rudolhp’s Executors (4)that the failure ofconsideration does not give rise to a claim for cancellation of the deed butonly to claim for unpaid consideration. This question was considered inJayawardena vs. Amerasekera (5)and the Court held as follows.
“On the execution of a notarial conveyance the sale is complete, andthe mere fact that the whole of the consideration has not been paid cannot,in the absence of fraud or misrepresentation, afford ground for the rescissionof the sale and the cancellation of the conveyance.”
Where a person obtains a conveyance of property without fraud, butafterwards fraudulently refuses to pay the consideration stipulated for, the

Again at page 320 of the brief:

Also at page 286 of the brief:
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grantor is not entitled to claim a cancellation of the conveyance, but hisremedy is an action for the recovery of the consideration. This principlewas adopted in Mohamadu Vs. Hussian.(6)
In Nona Kumara vs. Abdul Cader(7) the plaintiff, when she was a minor,transferred certain lands to the first defendant by a deed which, on theface of it, was a transfer for consideration. She sought to have the deeddeclared null and void on the ground that her signature was obtained to itby undue influence, intimidation and threats. The District Judge held againstthe plaintiff on the questions of undue influence, intimidation and threats.He held, however, although no specific issue was raised, that the deedwas a donation, and therefore null and void, merely because the transferordid not receive the consideration mentioned in the deed. Jayetileke, J held“ that the deed which on the face of it, was a transfer for considerationcould not be held to be a donation merely because the transfer did notreceive the consideration. The plaintiffs remedy was an action to recoverthe consideration and not to claim a cancellation of the conveyance.”
I might also refer to the Law of Evidence E.R.S.R. Coomaraswamy vol.II Book 01 at page 203 wherein he considers Want or failure of consideration’and says :
“ It can always be shown that a contract was entered into withoutconsideration, or the consideration, if any, has failed. This applies evenwhere the instrument contains an averment that the deed was forconsideration.”
“ In Sri Lanka, consideration is only necessary for those contractswhich are governed by the Roman-Dutch Law. Those contracts which aregoverned by the Roman-Dutch Law require only causa to support them.Therefore, in contracts governed by Roman-Dutch Law, proof of the wantor failure of consideration will not enable a party to set it aside, so long asthere is some justa causa to support it. But if there is and averment in acontract governed by the Roman-Dutch Law, such as a contract for thesale of land, that a certain consideration had been paid, then it is open toparty, alleged to have received the consideration, to show that in fact noconsideration had been paid.
2 – CM 7650
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Certain Indian cases took the view that'the want or failure ofconsideration sought to be proved under the proviso must be such asinvalidates an instrument. That is, total want or failure of consideration.But this view appears to be too narrow. The words “such as” in the provisoshow that the words “wants or failure of consideration” need not beconstrued in this limited way. Our courts have held that it is open to adefendent to prove that the consideration was in fact different from theconsideration stated in deed. Certain Indian cases take the same view.”
Counsel for the defendant-appellant also contended that at the time ofexecution of the deed marked P2 none of the recipients who derived titleby the said deed were present and the fact that no consideration passedbetween parties to the said deed goes to show that there being no nexusbetween the parties, no evidence of intention to transfer the property insuit and hence the validity of the deed is questionable. Here again, I amunable to agree with the counsel for the reason that due execution of thesaid deed has been established.
On the other hand, it is for the defendant-appellant to prove the objectionstaken by him to the said deed in paragraph 08 of the answer. It appearsthat except for lack of consideration the other matters pleaded thereinhave not been proved by the defendant-appellant. As the plaintiffs-appellantshave proved due execution of the deed marked P2 the burden of provingthat said deed marked P2 is not the act and deed of the executantUkkumenika and that it was obtained by deceit and undue influence is onthe defendant-appellant. Only evidence placed before the learned DistrictJudge was the ipse dixit of the defendant-appellant that the executant wasa mental patient.
Section 101 of the Evidence Ordinance reads as follows :
“Whoever desires any court to give judgement as to any legalright or liability dependent on the existence of facts which heasserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it issaid that the burden of proof lies on that person.’
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A desires a court to give judgment that B shall be punished for acrime which A says B has committed.
A must prove that B has committed the crime.
A desires a court to give judgment that he is entitled to certainland in the possession of B by reason of facts which he asserts,and which B denies to be true.
A must prove the existence of those facts.”
I would say the learned District Judge has correctly answeredissue 12 raised by the defendant-appellant in the negative, though he hasfailed to give reasons for coming to that conclusion. Likewise once thepaper title was established by the plaintiff-respondent it was for thedefendant-appellant to establish his prescriptive right. However nosubmissions have been made by the counsel for the defendant- appellanton his claim based on prescription. Likewise no submissions have beenmade as to inadequacy of compensation awarded to the defendant-appellant. Hence I do not propose to go into these matters.
In the circumstances it is to be seen that even though the learnedDistrict Judge has failed to examine and analyse in detail the evidenceplaced before him and give reasons for his findings, on an examination ofthe evidence placed before the trial Judge he has it appears come to acorrect finding and answered issue no. 12 in the negative and also heldwith the plaintiffs-respondents. In the circumstances I see no basis tointerfere with the judgment of the learned District Judge. Accordingly theappeal will stand dismissed with costs fixed at Rs. 5,0007-
Appeal dismissed.