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Present: De Sampayo J.
WEEBABATNE v. RANMENIKE.
1122—C. R. Ratnapura, 15,644.
Deed—Failure of notary to get deed executed in duplicate.
The failure on the part of a notary to have a deed execated in
duplicate does not affect its operation as a deed.
The facts appear from the judgment.
Samarawickreme, for plaintiff, appellant.—The deed on whichthe plaintiff bases his title being more than thirty years old must bepresumed to have been duly executed. The burden of proving thatthe deed was not genuine was, therefore, on the defendant. Thatburden has not been discharged.
The Commissioner is wrong in holding that the absence of aduplicate vitiates the deed. The provision in section 15 of Ordi-nance No. 7 of 1840 with regard to the execution of a deed induplicate merely imposes a duty on the notary. Failure on thepart of the notary to observe this duty in noway affects the validityof the deed.
V. Perera, for defendant, respondent.—Section 90. of theEvidence Ordinance enacts that the .Court “ may presume ” that adocument more than thirty years old was duly executed. Theexpression “ may presume ’’ is defined in section 4 and contrastedwith the expression “ shall presume. ” It was open to the Court tocall for proof of the genuineness of the deed. The Commissionerwas right in adopting this course, in view of the “ very suggestiveelements of fraud ” referred to in his judgment, especially theabsence of a duplicate, and the existence of another deed, admittedlygenuine, bearing the same date and number, but embodying atotally different transaction.
Section 15 of the Frauds Ordinance, when read in the light of thepreamble to the Ordinance, cannot be regarded as merely imposinga duty on the notary. The requirement is imperative, and a deedis bad unless it is complied with. The provisions of law that merelyimpose duties on notaries in connection with the execution of deedsare all contained in the Notaries Ordinance.
Koch, for intervenient, respondent.
October 21, 1919. Be Sampayo J.—
The plaintiff claimed title to a land called Welegedarawatta byinheritance from his father Tennekoon Mudiyanselaye Kiri Banda.The plaintiff pleaded as his father’s title a deed of gift bearing
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No. 1,720 dated November 4, 1886, attested by W. D. T. Perera,Notary Public. The Commissioner held that this deed was notexecuted as required by law, and was insufficient to convey title, andhe accordingly dismissed plaintiff's action, with costs. The reasonfor this holding is that the deed is not shown to have been executedin duplicate. The plaintiff produced the original, but it has beenproved by the Begistrar of Lands that the notary had not sent anyduplicate to the Begistrar’s Office, and no duplicate is to be foundthere. There is in the Begistrar’s Office a duplicate of a deed bear-ing the same number and date, but it is not the duplicate of thedeed of gift pleaded by plaintiff. It appears that the notary wasguilty of many irregularities in Bis professional career, and in parti-cular failed to send the duplicates of deeds attested by him to theBegistrar’s Office. Once he was fined, and went to jail for non-pay-ment of the fine. He is now dead. The Commissioner concludesthat no duplicate of the deed has been proved to have been executed.The question is whether the deed is invalid for that reason. TheCommissioner bases his opinion on section 15 of the Ordinance No. 7of 1840, which provides that “ every deed or other instrument,except any will, testament, or codicil required by this Ordinanceto be executed or acknowledged before or to be attested by a notary,shall be executed, acknowledged, or attested in duplicate.” Butthere is no provision invalidating a deed which is not executed induplicate, nor does section 2, which is the substantial provision of theOrdinance relating to deeds affecting land, require such deeds to beexecuted in duplicate. The fact is that Ordinance No. 7 of 1840,like its predecessor Ordinance No. 7 of 1834, apart from the mainpurpose of requiring written instruments for certain classes oftransactions, contained many provisions concerning the duties ofnotaries, which have since been embodied in separate Ordinancesspecially relating to notaries. In this connection it is instructiveto note the whole of- section 15, part of which I have above cited.It is as follows:" And it is further enacted that every deed or
other instrument, except any will, testament, or codicil required by-this Ordinance to be executed or acknowledged before or to beattested by a notary, shall be executed, acknowledged, or attestedin duplicate, and every such notary shall at the end of each monthtransmit the duplicates of all deeds or other instruments executedor acknowledged before or attested by him during the month to theCourt of the district wherein he shall have been licensed to practise,with a list in duplicate of such deeds of instruments.” It is clear tomy mind that this clause merely imposed a duty on the notary, andwas not intended to invalidate deeds where the. notary might havefailed to observe the direction therein contained. It is well settledthat a notary’s failure to observe his duties with regard to formali-ties which are not essential to due execution, so far as the partiesare concerned, does not vitiate a deed. For instance, the absence
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of the attestation clause does not tender a deed invalid. D. G.Kandy, 19,866x; D. 0. Negombo, 574.2 Similarly, I think thefailure on the part of the notary to have a deed executed in duplicatedoes not affect its operation as a deed. The case D. C. Kandy,22,401,3 is an authority on this point. I therefore think that thedecision of the Commissioner in this case is erroneous.
There was also a question as to the execution of the deed by theparty at all. The deed is more than thirty years old, and on behalfof the plaintiff reliance is placed on the presumption of due execu-tion under section 90 of the Evidence Ordinance, No. 14 of 1895.That section, however, declares that the Court “ may presume,”and not that it must do so, and in circumstances of doubt it iswithin the power of the Court to refuse to apply the presumption.In this case there is nothing suspicious on the face of the document,and the notary’s signature was sufficiently verified by the. Registrarof Lands. One of the witnessess is dead, and the other is said tobe alive. The Commissioner refused to allow a postponement toenable the plaintiff to call the surviving witness, though, I think, hemight fairly have allowed it, if proof of execution w^as absolutelynecessary. On the whole, however, I think the burden was on thedefendant to prove that the deed was not genuine. There should befurther inquiry on that and any other issues which arise in the caseor may be submitted by the parties.
The judgment of dismissal is set aside, and the case is remittedto the Court of Bequests for further proceedings. The plaintiff isentitled to his costs of the day in the Court below and of unis appeal.
1 Austin's Rep. 113.
3 Austin's Rep. 139.
Grenier (1374), p. 39.