JUDGMENT

The Plaintiff-Appellant (hereinafter referred to as the Plaintiff) instituted this action seeking a declaration that the deed of transfer no. 259 dated 26-05- 1992, attested by G.H. Premasundera, NP, is a forgery and is a fraudulent deed.

Further sought the reliefs prayed for in the prayer to the plaint. After trial the Learned District Judge dismissed the plaintiff’s action by judgment dated 02-02-2000. However, the judgment was delivered in open court on 21-07-2000.

Being aggrieved by the said judgment, the plaintiff preferred an appeal to this court. While the appeal was pending before this court, the plaintiff made an application to admit fresh evidence, namely a conviction that was entered against the 1^st defendant in the Magistrate's Court of Colombo. The 1^st defendant had appealed against the conviction to the High Court. Whilst that appeal was pending before the High Court, the 1st Defendant had died, and the appeal was abated.

This court refused to admit the evidence of the conviction on the basis that the conviction of the 1st defendant was not affirmed in the appeal and therefore, did not come within the provisions of section 41A(2) of the Evidence Ordinance as amended by Act No. 33 of 1988. The plaintiff appealed to the Supreme Court, against that order of the Court of Appeal. The Supreme Court on 31-10-2023 pronounced the judgment and directed to admit the evidence regarding the convictions and to consider the appeal on its merits, inclusive of the fresh evidence permitted by the Supreme Court.

The facts of this case briefly are as follows:

The property (hereinafter referred to as the property) in question in this case was owned by the 1st defendant's husband. The plaintiff is the 1^st defendant's elder sister's son. The plaintiff, in his evidence, stated that, on the 1st defendant's request, her husband gifted the property to the plaintiff, by deed of gift no. 363 dated 13-02-1988, with a view that the plaintiff would look after the 1st defendant. If not for that deed, the 1st defendant would have been entitled to half of the property. The husband of the 1^st defendant died two days after the execution of the above deed. The plaintiff did not assist or look after the 1^st defendant as her husband and she expected. The 1^st defendant sought to sell a portion of the land, and the plaintiff objected to the sale. Thereafter, the plaintiff learned that the 2nd defendant claimed part of the 10 perches of the land. He searched the land registry and found that by deed no. 259 dated 26-05-1992, attested by G.H. Premasundera NP, the property was gifted to the 1^st defendant. However, the plaintiff had not signed such a deed, and that deed number 259 was a forgery.

At the trial, the plaintiff and the Notary who attested the alleged forged deed testified in favour of the plaintiff’s case. The 1st and 2nd defendants also gave evidence in support of their respective claims. The 3^rd defendant, the National Savings Bank, did not give evidence.

The Learned District Judge observed the following facts and decided that the plaintiff had not proved his case. The Learned District Judge observed that after the 1^st defendant requested to sell a part of the land, there was a resentment between the plaintiff and the 1^st defendant. The 1^st defendant had no other property or income for her living. The plaintiff had not come to see the 1^st defendant for three and a half years. The plaintiff had not looked after the 1st defendant. The 1st defendant was in possession of all the original deeds, including the Deed of Gift, which conveyed the property to the plaintiff. The plaintiff resides a quarter of a mile from the property. When the 1^st defendant sold a part of the property to the 2^nd defendant, a surveyor prepared a plan, and the plaintiff would have probably known those facts. The plaintiff did not take any steps in that regard because the plaintiff attested the deed number 259 in favour of the 1^st defendant. Further, the Notary who attested t