103-NLR-NLR-V-53-SANGARAKKITA-THERO-Appellant-and-BUDDARAKKITA-THERO-Respondent.pdf
BOSE C.J.—Sangarakkita Thcro v. Buddarakkila Then
AST
1951Present ; Rose C.J. and Swan J.
SANGARAKKITA THERO, Appellant, and BUDDARAKKITATHERO, Respondent
S. C. 483—D. C. Colombo, 5,494
Deed—Will—Presumption of due execution—Evidence in rebuttal—Preventionof Frauds Ordinance (Cap. 57), s. 4.
A deed which on its face appears to be in order is presumed to have- beenduly executed. The mere framing of an issue as to the due execution of thedeed followed in due course by a perfunctory question or two on the generalmatter of execution, without specifying in detail the omissions or illegalitieswhich are relied upon, is insufficient to rebut that presumption.
-^^^PPEALi from a judgment of the District Court, Colombo.
N. K. Choksy, K.C., with Sir Ukwatte Jayasundere, K.C., E. G.Wikramanayake, K.C., C. S. Barr Kumarakulasinghe, H. W. Jayewardenr.and E. S. Amerasinghe, for the plaintiff appellant.
H. V. Perera, K.C., with N. E. Weerasooria, K.C., E. B. Wikrama-nayake, K.C., and G. T. Samarawickreme, for the defendant respondent.
Cur. adv. vult.
December 17, 1951. Rose C.J.—
This is an appeal from the District Court of Colombp and concerns adispute as to the incumbency of a temple. It appears that one Mapiti-gama Dharmarakkita Th'ero was the controlling . Viharadhipathi of thetemple in question and that he died on the 17th July, 1947, leaving theplaintiff as his senior pupil. The defendant-respondent concedes that theappellant was his senior pupil but he contends that by deed Dl of 26thJune, 1947, he was appointed to succeed to the office of Viharadhipathi.
It is common ground between the parties that Dharmarakkita hadfreedom of choice as to his successor to the office of Viharadhipathi, thewhole question in dispute being the validity of deed Dl.
In the court below the appellant attacked this deed on three grounds.First, that it was obtained by undue influence ; secondly that Dharmarak-kita was of unsound mind at the time of its execution and thirdly, that• the document itself was not duly executed. At no stage was Dharma-raklata’s signature disputed.
There is ample evidence to support the learned District Judge’sfindings that the appellant had failed to establish the first two allegations rand in this court the argument was confined jto the third ground.
While it is true that an appointment to the office of Viharadhipathidoes not require any particular form, there is, in my opinion, substance-in the appellant’s contention that where a party elects to make such anappointment by a deed or by will, then such deed must be shown to havebeen duly executed according to the requirements of the law in question.Moreover in the particular case now under consideration, it appears to
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ROSE C.J.—Sangarakkita Thero v. Buddarakkita Thero
have been conceded by the parties in the eburt below that this documentD1 should be treated as requiring to be proved with all formalities'attaching to the proof of a will. The learned District Judge himselftreated the matter on that basis and I, therefore, propose to considerthe question in that light.
Issue No. 6 reads:“ Was Deed No. 5038 (Dl) duly executed by the
plaintiff's tutor Dharmarakki.ta Thero ? ”. The learned District Judgeanswered this issue in the affirmative, but as the appellant rightly pointsout, the only passage in the judgment which can be said to refer to thisissue is at page 198 and reads as follows:—“ After considering th‘evidence as carefully as I possibly could, I am satisfied that the documentDl was duly executed by Dharmarakkita with full knowledge andapproval of i.ts provisions ”. Moreover this passage follows upon aconsideration of Dharmarakkita’s mental capacity and it is thereforecontended on behalf of the appellant that the learned District Judgedid not sufficiently apply his mind to issue No. 6.
The brevity of the court's reference to this issue may be partly explainedby the fact that the greater part of the contest in the court below wasconfined to the questions of undue influence and the deceased’s mentalcapacity. Having regard, however, to the position now taken by theappellant, it is, I think, necessary to examine the evidence on this matterof the execution of the deed to see if, in fact, the learned District Judgewas justified in answering the issue in 'the affirmative. Mr. Choksy inopening the appeal confined himself to the allegation that there was notsufficient proof that the two witnesses had signed in the presence ofDharmarakkita and of each other. Sir Ukwatte Jay&sundere, however,in his final reply urged for the first time the highly technical and evendesperate argument that it was not sufficiently proved that Mr. D. F. J.Perera, the Notary Public, himself signed the deed at the relevant time.
At page 121 of the record in his evidence-in-chief, Mr. Perera onbeing shown Dl said “ I attested that deed. Dharmarakkita signedthat deed at the Durdans Hospital. Besides myself there were presentthe witnesses and some people. The deed was duly executed. Thedeceased priest gave me instructions for the preparation of that deed.I had occasion to meet Sir Frank Gunesekera (the physician attendingupon Dharmarakkita) at the Durdans. I spoke to him regarding thepriest’s condition. ^As far as I could judge, the priest's mental conditionwas quite normal. That was so at the time he gave me instructions andalso at the time he executed the deed. I read over and explained thedeed to him before he signed. The deed was in accordance with hisinstructions. On the same day I attested other documents. I attestedthree other deeds ”.
In cross-examination at page 129 of the record appear the followingquestions and answers : —
"‘•Q. Bet us get to the execution of this deed.
A. I say that at the time of the execution there were the witnessesand some other people. Buddarakkita (the defendant priest)was there but not the plaintiff priest. I do not know thenames of the other priests who were there ”.
BOSE C.J.—Sangarakkita Thero v. Buddarakkita Thero
459
At page 150 of the record the following passage appears: —
“AHe signed sitting up. The witnesses were there
at the same time.
Q.1 am putting it to you that the witnesses were not there andyour attestation is false ?
A. That is not correct.
Q.The only persons who were there at the time were Mr. D. C.Wijeywardene, Buddarakkita (defendant) and the other personwho signed other than these two persons ?
A. That is not correct.
Q. I am putting it to you that you got some signatures in your house ?
A. 1 never did that.
Q. You did not do that on this day ?
A. No.”
It seems to me that the only reasonable inference to be drawn from thesepassages is that the witness's position was that the two .witnesses werethere at the relevant time and signed according to the requirements ofsection 4 of the Prevention of Frauds Ordinance (Cap. 57). As regardsthe notary himself, Sir Ukwatte Jayasundere contended that when thewitness states ** I attested the deed ” he was referring to the formalattestation which accompanies a deed. Having regard to the contextin which the phrase was used I am unable to accept that interpretation.It seems to me that the reasonable and natural meaning of the expressionis that the witness himself signed the deed as the attesting witness.Moreover, the artificiality of the contention is, in my opinion, demon-strated by the fact that no specific challenge was made to the witness tothe effect that he himself had not signed the deed at the proper timeand in accordance with the requirements of section 4 of the Preventionof Frauds Ordinance. I am, therefore, prepared to hold on the actuallanguage of the record that the due execution of this deed is sufficientlyproved. But even if that were not so, and if the correct view is thatthere is some small omission in the chain of evidence, I would not bedisposed to say in the light of the emphasis which was placed on thevarious issues in the court below that such small omission was fatal tothe respondent’s position. There is, of course, a presumption that, adeed which on its face appears to be in order has been duly executed,and it seems to me that the mere framing of an issue as to the dueexecution of the deed followed in due course by a perfunctory questionor two on the general matter of execution, without specifying in detailthe omissions or illegalities which are relied upon, is insufficient Wrebut that presumption.
That being so, the appeal must be dismissed and the judgment of theDistrict Judge affirmed. The appellant will pay the costs of this appeal.
Swan J.—I agree.
Appeal 'dismissed '.