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QUEEN v. WERASINHE.
D. C., Galle, 12,746.
Notaries Ordinance, 1877, s. 26 (14) — Attesting mortgage bond rcithon
endeavouring to ascertain prior deed affecting the land.
Under sub-section 14 of section 26 of the Ordinance No. 2 of 1877, itis sufficient if a notary ascertains that a prior deed has been registeredand inserts the registration number thereof in his deed.
Where he has personal knowledge of the registration of a prior deed,it is no part of his duty to search the register so as to acquaint himselfwith the actual state of the grantor’s title.
Queen v. Abrew, 3 N. L. R. 206, distinguished.
HE Registrar of Lands, Galle, charged the accused, a notary
public, under sub-section 14 of section 26 of OrdinanceNo. 2 of 1877, with attesting a certain deed affecting an interestin land without endeavouring, before attestation, to ascertainwhether any prior deed affecting any interest in such land hadbeen registered.
The deed in questionwas amortgage bondgranted byone
Gunawardane to Silva.It wasproved that ifthenotaryhad
inquired at the Registrar’s Office he would have found that themortgagor had divestedhimselfof his title totheland before
the execution of themortgage. The Registrardeposedas
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follows:—“There is no fee for ascertaining prior registration.,“ but there is a fee for searching for prior encumbrances. If“ accused had applied for prior registration of land, he would“ have been given any folio and volume of the prior registration“ and nothing more. But if he had applied for previous encum-“ brances, he would have been given the folio and volume of“ prior encumbrances and particulars of all deeds registered“ touching the land.”
The accused explained that the mortgagor produced the Crowngrant in his favour, and from it he (the accused) took over thenumber of the volume and folio of prior registration and insertedit in the mortgage deed; that, as neither the mortgagor normortgagee desired him to search for prior encumbrances, he didnot think it was legally necessary to search for them.
The District Judge acquitted the accused, holding that he hadcomplied with the concluding woi'ds of sub-section 14, whichwas as follows: “If any such prior deed has been to his (the“ notary’s) knowledge registered, he shall insert at the head of“ the deed attested by him the number of the registration volume“ and the page of the folio in which the registration of such“ prior deed has been entered.”
The Attorney-General appealed. The case was argued on the27th September, 1899.
Ramanathan, S.-G.—The mortgagor had no right to the landwhen he executed the mortgage bond, and the accused notaryfailed to acquaint himself with the true state of the mortgagor’stitle at the date of the execution of the deed, for if he had doneso he would not have attested the deed. Two distinct dutiesare imposed on a notary by sub-section 14 of section 26 of Ordi-nance No. 2 of 1877, viz., (1) to search the register of any priordeed affecting any interest in the land, and (2) to insert thenumber and page of the folio, if any such deeds have been to hisknowledge registered. If a notary learns of the registration of adeed from sources other than actual search in the register, thenotary is not relieved from the duty of actually searching in theregister, D. C., Galle, 12,610 (3 N. L. R. 206).
No appearance for accused, respondent.
Cur. adv. vult.
3rd October, 1899. Lawrie, A.C.J.—
I understand the facts to be that in April, 1899, A. P. Jeronisde Vos Goonewardene went to the office of the appellant, anotary public, and showed a Crown grant in his favour dated53RR 19790 (12/60)
Sept. 21 andOctober 3.
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Sept. 21 a ndOctober 3.
23rd July, registered 21 st August, 1890. At the request of Goone-wardene the notary drew up and attested a mortgage over theland in favour of Charles de Silva, and he inserted at the head ofthe mortgage deed attested by him the number of the registrationvolume and the page of the folio in which the registration of theCrown grant had been entered.
The notary was afterwards tried in the District Court of Galleon an indictment charging him with having neglected toendeavour to ascertain whether any prior deed affecting the landhad been registered, and had thereby committed an offencepunishable under sub-section 14 of section 26 of the Notaries’Ordinance, No. 2 of 1877.
The learned District Judge acquitted the accused notary,holding that he had committed no offence. The Attorney-Generalhas appealed.
I agree with the District Judge. D. C., Galle, 12,610, reportedin 3 N. L. R. 206, differed in essential particulars from the presentcase. There a notary was satisfied with the assurance of theman who came to execute a deed, that he was entitled to land byinheritance. The notary there made no endeavour to ascertainwhether any prior deed affecting the land had been registered,and Boxser, C.J., held that the notary had committed a breachof the 14th sub-section of section 26 of the Notaries’ Ordinance.The Chief Justice said there:—“ Unless a notary has personal“ knowledge (which in some cases he may have) of the state of“ the title, it is his duty either to attend the Registrar's Office“ in person to search the register or to employ some one else“ to do it for him.’’ Here the notary had personal knowledge ofthe title, because he had before him a registered Crown grant,which was sufficient proof that in 1890 the land belonged to theproposed mortgagor.
It seems to me that he obeyed the 14th sub-section, when heinserted at the head of the deed attested by him the number olthe registration volume and page of the folio in which theregistration of such prior deed had been entered
I agree with the Chief Justice in the advice he gives in hisjudgment, which ought to be followed by all notaries. But Icannot set aside this acquittal, and find this notary guilty unlessthe statutory offence has been committed. In my opinion, asthe Ordinance stands, if a notary ascertains that a prior deedhas been registered, and if he inserts the registration number inhis deed, he does all that the Ordinance required him to do.