H. N. 6. FERNANDO, J.—Subramaniam v. Tfianarase
1957 Present: H. N. 6. Fernando, J., and Slnnetamby, J.
V. sl/KRAMATTTAM, Appellant, and P.THANARASEeZ oZ., RespondentsS. G. (.Inty.) 63—D. G. Jaffna 8847 (Partition)
Evidence—Capacity of party to a contract—Deed executed by a deaf and dumb person—Validity—Burden of proof .
The 2nd defendant was apparently a deaf and dumb woman. She had bydeed conveyed certain immovable property to the 1st defendant. There wasclear evidence to show that the 2nd defendant did in fact execute the deed.The notary who attested the deed was proved to be dead, and his declarationin the attestation clause that he read over and explained the instructions to the2nd defendant was produced as prima facie evidence that the 2nd defendantwas aware of the purport of the document.
Meld, that in the circumstances the 2nd defendant had a heavy burden todischarge when she challenged the validity of the deed on the ground that shewas not aware of the purport of the deed when it was executed.
^^-PPEAIi from a judgment of the District Court, Jaffna.
G. Banganathan, with V. K. Palasunderam and S. G. Grossette-TKambiah,
for the 1st Defendant-Appellant.
G. GheBappah, for the 2nd Defendant-Respondent.
A. Nagendra, for the 3rd to 6th Defendants-Respondents.
S. Sharvananda. for the Plaintiff-Respondent.
Cur. adv. wit.
February 13, 1957. H. N. G. FEKETAirDO, J.-~
The only dispute in this aotion for partition concerns the claim of the1st defendant to a 3/8 share of the land which had admittedly belongedat one time to the 2nd defendant, a woman called Nachchipillai, thewidow of one Kandiah. The 1st defendant’s claim to the 3/8 shareis based on a deed 1 Di of 1940 which purports to have been executed byNachchipillai; but the learned District Judge -has held that that deed,was not the aet and deed of Nachchipillai.
Nachchipillai is apparently a deaf and dumb woman. She entered thewitness-box at the trial and the Judge has noted that she did not under-stand the interpreter when he asked her for her age ; when asked for hername, however, she had replied “ Nach ” and pointed to her tongue toindicate her inability to speak. The Judge decided that she was unableto affirm to the truth of her evidence and to answer questions and heldthat she was not a competent witness. In addition her demeanour in
TT N. (J. FERN A ND O, J.—Suhramaniam v. Thctnarase
the examination -which preceded that decision of the Judge -was takeninto consideration by the Judge when he stated in his judgment thatNachchipillai does not understand normal speech and is unable to makeherself understood. This impression the Judge has utilised in decidingthe main question as to the validity of the deed X>1 and in our opinionhe erred in so doing.
The evidence of the Village Headman was that Nachchipillai followsconversations from the movements of the mouths of people, but she cannotunderstand if she does not follow such movements, that the Headmanhimself used to speak to her and that she voted at the ParliamentaryElections. This evidence was not substantially different from that of thewitness Varithamby, the brother of N aohchipillai and the father ofthe 1st defendant. He too stated that although his sister cannot speaklike ordinary people, she can understand if one faces her. As to theexecution of the deed itself Varithamby said that the notary was seatedin front of Nachchipillai and that as soon as the notary explained to herthe instructions which he had been given by another of her brothers,one Visuvanathar, she gave to the notary the deed, meaning obviouslythe deed under which she herself had title to the 3/3 share.
The notary who attested the impugned deed was proved to be deadand in these circumstances his declaration in the attestation clause thathe read over and explained the instructions to Nachchipillai would beprima facie evidence of the truth of that declaration, (de Silva v. Sinne-tamby etal.1), but the learned Judge disregards this point, again for thereason that Nachchipillai is deaf and dumb. If, as stated by Varithamby,the notary told Nachchipillai that the deed was to he executed for thesale of her land and if she responded by handing her own title deed tothe notary, the fact that she was deaf and dumb does not negative herconsent to the transfer of the land. The same inference has to he drawnfrom the notary’s declaration that the consideration for 1 HI, whichwas Rs. 700, was paid in his presence.
The case was an unusual one in that the defence did not call any evi-dence to disprove the execution of the deed but relied only on somewhatvague allegations made in the course of the cross-examination of witnesses.It was admitted that Nachchipillai’shusband BLandiahhad been convictedon a charge of stabbing Nachchipillai’s brother Visuvanathar, and thatNandi ah died while serving a sentence of imprisonment. The Judge hastreated these facts as showing ill-feeling between Nachchipillai and herbrother. The Vidane and the Village Headman did state that therehad been ill-feeling in consequence of the stabbing incident, but suchill-feeling does not in our view provide evidence of a strength necessaryto establish that Nachchipillai was fraudulently induced by her brothersto divest herself of her property. According to the evidence it was thebrother Visuvanathar who gave instructions to the notary for the exe-cution of 1 HI, and, however, strained feelings may have been at the timeof the execution of the deed, it was established that Nachchipillai wasliving with Visuvanathar at the time of the trial. A retired Vidane who
1 (1932) 1 C. L. W. 350.
ZaJtir v. David Silva
was called on behalf of Nachdhipillai admitted that after having livedon the land in dispute NachchipiUai has now moved to another land.This supports the evidence that she gave up possession of the land afterthe execution of 1 Dl.
To put the matter at the lowest, there was clear evidence to showthat NachchipiUai did in fact execute 1 Dl and the notary’s attestationclauses prima facie established that she was aware of the purport of thedocument when executed; in these circumstances, the 2nd defendanthad a heavy burden to discharge when she chaUenged the validity of thedeed. The matters which appear to have weighed with the trial Judgefall far short of being sufficient to discharge that burden. Por thesereasons we would hold that 1 Dl was effective to pass title to the 3/8share of NachchipiUai.
The appeal is allowed with costs and the decree appealed from will bevaried as follows —
a 3/64 share will be allotted to the 2nd defendant in lieu of the
27/64 share allotted to her by the trial Judge ;
a 3/8 share will be allotted to the 1st defendant;
the 2nd defendant will pay to the 1st defendant the costs of the
contest in the District Court.
Subject to these variations the original decree will stand.
SnrarXTAMBY, J.—I agree.
V. SUBRAMANIAM , Appellant, and P. THANARASE et al , Respondent