KEUNEMAN J.—Siyadoris v. Danoris.
1941Present: Howard C .J. and Keuneman J.
SIYADORIS v. DANORIS et al.
317—D. C. Galle, 37,135.
Deed—Admission in evidence without objection—Objection to due execution inappeal—Civil Procedure Code, s. 154.
Where a deed has been admitted in evidence without objection at thetrial, no objection that it has not been duly proved could be entertainedin appeal.
Andrishamy v. Balahamy (1 Matara Cases 49) followed.
PFEAL from a judgment of the District Judge of Galle.
E. B. Yfikramanayake, for second to seventh defendants, appellants.
L. A. Rajapakse, for plaintiff, respondent.
Cur. adv. vult.
February 6, 1941. Keuneman J.—
This is a partition action. The main point urged for the appellant isthat the deed of transfer of immovable property, P. 2 of 1935, on whichthe plaintiff depends to establish his title has not been proved in accordancewith section 68 of the Evidence Ordinance (Cap.-11), in that neither 'theparty executing it nor the Notary nor any of the attesting witnesseshave been called for the purpose of proving its execution. Emphasiswas laid on the words, “ It shall not be used as evidence ”, appearing inthe section. It is to be noted that no objection was taken to this docu-ment at the trial, and that the objection was taken for the first time inappeal.
In Shib Chandra et al v. Gour Chandra Paul et al', in respect of thissection 68, it was held that “ where evidence has been admitted withoutobjection, it is not open to the opposite party to challenge it at a laterstage of the litigation. But where evidence has been received in directcontradiction of an imperative provision of the law, the principle onwhich unobjected evidence is admitted, be it acquiescence, waiver orestoppel, none of which is available against a positive legal enactment,does not apply ”.
It was further held in that case that the existence of section 70, wherebyan admission of due execution was sufficient proof against the partyadmitting, lent colour to the supposition that the Legislature desired toadd no further exception to the law laying down the special method ofproof of instruments required by law to be attested. It is to be notedthat it was held that acquiescence, waiver or estoppel was not availableagainst a positive legal enactment.
?,!r. Rajapakse for the respondent argued that account should be takenof another positive enactment in our law, namely, section 154 of theCivil Procedure Code. The explanation to clause (3) of that section isas follows : —
“ If the opposing party does not, on the document being tenderedin evidence, object to its being received, and if the documentis not such as is forbidden by law to be received in evidence,the Court should admit it.”
1 r. B. (1922) Calcutta ISO.
KEUNEMAN JT.—Siyadoris v. Danoris.
Counsel argued that the words, “forbidden by law”, did not applyto the case where the document was required not to be received or usedunless a certain method of proof had been complied with. In this case,he argued, there was no absolute prohibition of the document, which wasvalid if proved in a particular form.
I think there is substance in this contention. The Civil ProcedureCode requires that on the tendering of a document in evidence, if theopposing party fails to object, the Court should admit it. No doubtsuch admission will not give the document any greater force or validitythan it has in law, but I think objections as to the proper method of proofof the document must be taken at that stage, and cannot be entertainedafter the trial is over. It has to be remembered that if the special methodof proof required had been insisted upon, it was possible for the partytendering the document to supply that proof. In this case, the appellantsnot only failed to object to the document P 2, but they also producedthree deeds—6 D 1 of 1933, 7 D 2 of 1934, and 7 D 3 of 1919—uponwhich they depended to prove their title, without proof of due execution.
After the argument of the appeal was completed, Mr. Rajapakse gaveme an authority which is in point, namely, Andrishamy v. Balahamy1where it was held in 1909 that, in a partition action, if a deed is admittedin evident* without objection, it is too late to object in appeal that thedeed had not been duly proved. This is a decision of two Judges, which,I think, we should follow, all the more so as the procedure in our Courtsin partition and other cases appears to have proceeded on the footingthat this decision is correct—vide Silva v. Kindersley *. Further, I thinkthe decision can be supported.
There is no other point of substance in the appeal, which is dismissedwith costs.
Howard C.J.—I agree.
1 Matara eases 49.
• 18 N.LJt. 85.
SIYADORIS v. DANORIS et al