KUGABALAN

 Vs.

RANAWEERA

SUPREME COURT
DE ABREW, J.
THURAIRAJA, J.
AMARASEKARA, J.
SC/APPEAL/36/2014
SC/HC/CA/LA/232/2012
CP/HCCA/KAN/136/2010 (FA)
DC NUWARA ELIYA 1279/L
SEPTEMBER 21, 2020

Declaration of title-Denial of execution of the title deed by the executant- Proof of the deed-Evidence Ordinance, section 68-"Subject to proof' objection-Waiver of objection

The title deed of the plaintiff purportedly executed by the defendant was marked subject to proof. The plaintiff called only the notary as a witness to prove the deed. The notary did not know the executant of the deed, nor did he state in the attestation clause that the attesting witnesses knew the executant personally. However, at the close of the plaintiff's case, the

defendant did not inform the court that the deed marked "subject to proof had not been proved, The District Court held with the plaintiff. On appeal the High Court reversed it. The plaintiff appealed to the Supreme Court.

Held:

Where a deed executed before a notary is sought to be proved, the notary can be regarded as an attesting witness within the meaning of section 68 of the Evidence Ordinance provided only that the notary knew the executant personally or knew the attesting witnesses personally and the attesting witnesses knew the executant personally. The deed in question has not been proved.

Held further (Amarasekara, J. dissenting):

When a document which is required to be proved in accordance with the procedure laid down in section 68 of the Evidence Ordinance is produced in evidence, whether or not an objection is taken such document cannot be used as evidence by court if it is not proved in accordance with the procedure laid down in section 68 of the Evidence Ordinance.

Cases referred to:

1. Sri Lanka Ports Authority v. Jugolinija Boal East [1981] 1 Sri LR 18

2. Wijegoonetilleke v. Wijegoonetilleke 60 NLR 560

3. Marian v. Jesuthasan 59 NLR 348

4. Ramen Chetty v. Assen Najna [1909] Current Law Reports of Ceylon 256

5. Balapitiya Gunananda Thero v. Talalle Methananda Thero [1997] 2 Sri LR 101

6. Robins v. Grogan 43 NLR 269

7. Samarakoon v. Gunasekara [2011] 1 Sri LR 149

8. Perera and others v. Elisahamy 65 CLW 59

9. Mudiyanselage Samarakoon and another v. Mohammadu Sally Fajurdeen (SC/APPEAL/06/2012, SC Minutes of 15.06.2012)

10. Arulanandam Puvirajakeerthy v. Nadaraja lndranee (CA 1222/2000(F))

11. Seyed Mohamed v. Perera 58 NLR 246 at 254

12. Siyadoris v. Danoris 42 NLR 311

13. Cinemas Ltd v. Sounderarajan [1998] 2 Sri LR 16

14. Adaicappa Chetty v. Thos.Cook and Son 31 NLR 385

15. Silva v. Kindersley 18 NLR 85.

16. Andrishamy v. Balahamy 1 Matara Cases 49

17. Seelawalhie Gunasekara v. K.W. Resanona (SC/APPEAL/22/1987)

18. Rolax Enterprises (Pvt) Ltd v. People's Bank (SC/APPEAL/12/2011, SC Minutes of 31.03.2017)

19. Stassen Exports Ltd v. Brooke Bond Group Ltd [2010] 2 Sri LR 36

20. Hemapala v. Abeyratne [1978-1979] 2 Sri LR 222

21. Jayalath v. Karunathilaka [2013] 1 Sri LR 337

22. Wijewardena v. Ellawala [1991] 2 Sri LR 14

23. Gunawardane v. Indian Overseas Bank [2001] 2 Sri LR 113

24. Vellage Sumanasiri De Silva v. Gamage lndranee Paranagama (CA/1264/1998/F, CA Minutes of 06.02.2013)

25. Mohamed Naleem Mohamed Ismail v. Samsulebbe Hamithu (SC/ APPEAL/04/2006, SC Minutes of 02.04.2018)

26. Dadallage Anil Shantha Samarasinghe v. Dadallage Mervin Silva and another (SC/APPEAL/45/2010, SC Minutes of 11.06.2019)

APPEAL from the Judgment of the High Court of Civil Appeal of Kandy.

Dr. J. A. De Gunarathne with Parakrama Agalawatta and Mohan Walpita for the Plaintiff-Respondent-Petitioner-Appellant.

Harsha Soza, P.C., with Nishaka Jayasena for the Defendant-Appellant-Respondent-Respondent.

cur. adv. vult.

February 12, 2021

DEABREW,J.

Plaintiff-Respondent-Petitioner-Appellant (hereinafter referred to as the "Plaintiff-Appellant") tiled this action in the District Court of Nuwara Eliya against the Defendant-Appellant-Respondent-Respondent (hereinafter referred t