Dk SaupayoJ.
( 288 )
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.
Appeal allowed.
1 Austin's Rep. 113.
3 Austin's Rep. 139.
Grenier (1374), p. 39.