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Present: Ennis J. and De Sampayo'A.J.
SAPAPATHIPILLAI v. TIRUMANGHANAM.
329—jD. G. Batticaloa, 3,653.
Deaf and dumb person—Capacity to execute deed'of conveyance.
•A deed executed by a deaf and dumb person was held to be good.
N this case the piaintiff and appellant, claiming to be the ownerof an. undivided 111/120 share of a piece of land called
, Tirappu Yalavu, sought to partition it in this suit against the. minor defendant Kandavanam Thirumanchanam, appearing by hisguardian ad litem the defendant and first respondent. The defend-ant filed answer admitting the correctness of the share allotted tothe minor, but alleged that deed No. 2,078 dated August 1, 1912(P 3), which was executed by his stepdaughter Sanmugam Sinna-tangam, who was deaf and dumb, and another, was inoperative in. law to pass title to the plaintiff for her 29/120 share of the landwhich the deed purported to convey.
The learned District Judge thereon caused notice to issue to theabove-named Sanmugam Sinnatangam, and she was made an addeddefendant. She failed to file answer.
At the trial the District Judge (T. W. Roberts, Esq.) testedSinnatangam’s capacity to understand matters: —
I test Sinnatangam’s ability to understand by putting her variousquestions through Seenitamby, and also through Kandavanam.
Q.—How did you cross the river to-day, in a big or little boat ?
A.—A little boat.
•. Q.—How many persons with you ?
Q.—Have you signed any deeds ?
Q.—Did you receive money from plaintiff ?
A.—No : Seenitamby got the money.
Plainly she can understand many things.
Judgment to-morrow.T. W." Roberts.
By the deed P 3 Sinnatangam and her brother Seenitamby purportedto convey their shares of the land to be partitioned to the plaintiff.
Sinnatangam has filed no answer contesting the plaintiff's claim, butthe counsel for defendant as amicus curia, and _ in the interest of Sinna-tangam, . drew my attention, to the fact that Sinnatangam is deaf anddumb.
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*ne piUai v.Tiru-
£ . have therefore to consider whether the doe execution of this deed19(8
has been proved in so far as concerns the transfer of Sinnatangam’e
interest. The Boman-Dutch law, so far as I can find, regarded
deaf and dumb as incapable of making wills. By analogy it might ^manchonam
perhaps be considered that they are also incapable of making convey-ances, except under authority of the sovereign and after due inquiry aslaid down by Grottos.
By the * English law it seems that the deaf and dumb, if they cannotread or write (as is the case here), are presumed to be incapable of makingsuch a contract,unless itis shown that* theyunderstoodits natureby
^virtue of the use of signs.
Consideredfrom thisstandpoint, itis inevidence that Sinnatangam
is able toconverse bysigns to someextent,and. it is proved thatshe
touched thepen afterthe notary hadmadecertain efforts to havethe
purport of the deed explained to her by her brother. There is also nodoubt thatplaintiff paid the consideration.I tested Sinnatangamin
Court, and sheiscertainly intelligent in aconsiderable degree.She
appeared to saythatshehad in fact signedthe deed,but thather
brother had takenthe moneysSo farthefacts arewithplaintiff,but
they do not amount to proof that Sinnatangam understood the contract,on Hrhich she was entering.
She can understand certain matters of a sort describable by signs, butI am not satisfied that she can be made to understand that a certaindocument was asaleasdistinguished from alease ora mortgage. I
find that the deed P 3 did not validly transfer her title, and that sheremained the owner of her share. I have added her as defendant, andfind the title tobe otherwiseprovedasstated intheplaint. Enter
interlocutory decree. allotting the, sharesaccordinglytoplaintiff,to
defendant, and toSinnatangam.Costsprorata. Plaintiffmay suefor
return of his money.
The plaintiff appealed.
Bartkolomeusz, for appellant, cited Chttty on Contracts 154;Nathan, voi. II.t ss. 749 and 852.
No appearance for respondent.
Cur. adv. vult.
November 4, 1913. Ennis J.—
The only point for determination in this appeal is whether a transferof land executed by one Sinnatangam, a deaf and dumb woman, iseffective to pass title.
The learned District Judge was satisfied that the woman possesseda large degree of intelligence, and was able to communicate withothers and understand them by means of signs, and the notarybefore whom the deed was executed gave * evidence that the trans-action was explained to her by signs.
In my opinion the deed passed a good title. Sinnatangam wasnot .an imbecile or lunatic. She did not suffer from any disabilitywhich affected her capacity to contract, and there is reason tosuppose she understood what she was doing. She has been- twice
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married, and the evidence leaves no doubt that she 'Was capable offorming a rational judgment on matters affecting her interests. Shewas, therefore, competent to contract. ‘
It has been urged that under Roman-Dutch law a deaf and dumbperson could not make a will. I do not propose to Consider whetherthis is so now, because the making of a will and the making of acontract are two different matters, .governed by different considera-tions. No authority has been, shown that by Roman-Dutch law adeaf and dumb person could not make a valid contract when capableof understanding the nature of the act, and, in the absence ofconclusive authority on the point, I find myself unable to hold acontract invalid which has been made with the free consent of aperson of sound mind.
The decree should, I consider, be amended, and the share allottedto the added defendant should go to the plaintiff.
I would amend the decree accordingly, with costs.
De Sampayo A.J.—I agree.
SAPAPATHIPILLAI v. TIRUMANCHANAM