v.BINDUVA ALIAS GUNASEKERA
COURT OF APPEALANANDACOOMARASWAMY. J. ANDGUNASEKERA, J,„
A. APPEAL NO. 126/85 (F)
C. KURUNEGALA NO, 1452/L29 NOVEMBER 1991
Deed – Execution of deed – Fraud.
A document formally and duly executed need not be proved even if the signatureof the executant was obtained by fraud or deception, but where the documentwas fraudulently or illegally executed, the due execution must be proved becausethe alleged execution is in fact no execution at all.
Case referred to:
W. Branchy Appu v. PoidOtiamy (1902) 2 Br. Rep. 221, 222.
APPEAL from judgment of the District Judge of Kurunegala.
Joseph for plaintiff-appellantLakshman Perera for defendant-respondent.
17th January, 1992.
This is an appeal from the judgment of the Learned District Judgeof Kurunegala dated 13.01.1985, dismissing the Plaintiff-Appellant’s(hereinafter referred to as Appellant) action with costs.
The Appellant instituted this action seeking a declaration of title tohalf share of the land described in the schedule to the plaint and forejectment of the Defendant-Respondent (hereinafter referred to asRespondent) and for damages.
It is the Appellant’s position that one Wattuwa was the owner of anundivided half share of the said land and had gifted the said half
Piyadasa v. Binduva alias Gunasekera(Anandacoomaraswamy, J.)
share to the Respondent by deed No. 6883 of 20.09.1976 (D1) andthat on 02.12.1983 by deed No. 3321 (P2) the said Wattuwa revokeddeed (D1) and by deed No. 3328 (P.1) of 02.12.1983 gifted the saidhalf share to the Appellant and. that the Respondent continued inforcible possession.;
The Respondent has in his answer stated that PI and P2 were notthe acts and deeds of said Wattuwa in that the said; Wattuwa was notin a fit condition. to understand the nature and contents of the saiddocuments, and in .the alternative there was undue influenceperpetrated oft the said Wattuwa by the Appellant. The Respondenthas also takan up the position that he was ^ tenant cultivator of thefield under Wattuwa end therefore could not be evicted.
The crux of the- matter is whether deeds P1 and P2 were dulyexecuted.
The Learned District Judge by a careful consideration of theevidence, had come to the conclusion that deeds P1 and P2 were notduly executed and that Wattuwa was not in a fit condition to executethe said deeds. We see no reason to interfere with his findings andhis .judgment.
The Learned Counsel for the Appellant contended that when fraudis alleged, the execution of the document need not be proved. Insupport of this submission he relied on the decision in the case ofW. Branchy Appu v. J. Poidohamym where the former Supreme Court(Lawrie, A.C.J., with Moncreiff, J. agreeing) held "The execution of adocument impeached as having been obtained by fraud need not beproved.
“But when it is alleged that a person signed a blank sheet ofpaper, which was subsequently filled up in the form of a deed andimpeached as fraudulent by such person, the execution of suchdocument ought to be proved; not by calling the notary who attestedit, but by calling at least one of the witnesses thereto".
This decision supports the view that a document formally and dulyexecuted need not be proved even if the signature of the executantwas obtained by fraud or deception, but where the document was
fraudulently or illegally executed, the due execution must be proved,because the alleged execution is in fact no execution at all. This viewfinds support in the very same judgment of Lawrie, A.C.J., in theaforesaid case;.
In the instant case the Learned District Judge concluded thatdeeds "PI" arid “P2" were not duly executed and that WattuWri.didnot know the naiure and contents of the said documents, when rife-isalleged to have eluted the said deeds.
For the foregoing reasons we dismiss theappeai with costs.
GUNASEKERA, J. – / agree.
PIYADASA v. BINDUVA ALIAS GUNASEKERA