DHANAWATHIE VS. NANDASENA AT PRESENT KNOWN AS BENTARA NANDA THERO

DHANAWATHIE
VS.
NANDASENA AT PRESENT KNOWN AS BENTARA NANDA THERO

COURT OF APPEAL
A.H.M.D. NAWAZ, J
CA. 303/2000 F
DC BALAPITIYA 1933/L
MARCH 26, 2014

NOVEMBER 13, 2014
SEPTEMBER 16, 2015
NOVEMBER 11, 2015
JUNE 24, 2016

Due execution of a Deed - Fraudulent/forged deed-What is due execution -Who bears the burden of proof - Evidence Ordinance Sections 67, 68, 101, 103 - Prevention of Frauds Ordinance Section 2 Who is an attesting witness? - Notaries Ordinance Section 31 - Civil Procedure Code Section 114(1), 154(3) - Forbidden by law? Document admitted - Later made subject to proof - Permissibility?

The original Plaintiff Appellant instituted action seeking a declaration of title and eviction relying on a Deed of Transfer 33504. The Defendant contented that the said Deed of Transfer was a fraudulent document and called in question the due execution of the Deed. The trial Court held with the Defendant.

On Appeal;

Held:

(1) Due execution means (a) that the formalities of the law which are mandated for the execution of a document have been complied with -Section 2, 3 of the Prevention of Frauds Ordinance (b) that the signatures of the party or parties who executed the document and of any attesting witnesses must be proved.

(2) When Defendant takes up a defense such as forgery or fraud, Section 101 of the Evidence Ordinance will equally apply to him as the Defendant has to establish his pleaded case. The burden is on him to prove his case.

(3) Where a deed executed before a Notary is sought to be proved the Notary can be regarded as an attesting witness - Section 68 - provided only that he know the executants personally.

(4) A deed of Transfer is not invalid merely because the requirements of the Notaries Ordinance were not complied with by the Notary - Section 31 Notaries Ordinance.

(5) it is the Defendant's burden to establish that the deed was a forgery. One

cannot shift this burden to the Plaintiff, if the Defendant deemed it necessary that the Court must be aided by the opinion of an expert, it was open to him to make an application to the trial Judge to have the issue of signature referred to the EQD.

Per Nawaz, J.

"I take the view that on totality of evidence led in the case, the Defendant has not discharged his burden of establishing that the impugned deed is a forgery, testimonial trustworthiness of the Notary was not shaken by the defence on the contrary his testimony was buttressed by two other attesting witness"

Per Nawaz, J

"When the impugned deed was originally marked there was no objection raised. It was only later that Learned District Judge allowed the Attorney-at-Law for the Defendant to raise the objection - "subject to proof - the procedure is in my view impermissible - Section 154(3) Civil Procedure Code.

(6) Though it is not permissible for the teamed District Judge to allow an objection "subject to proof long after the document was admitted, it is incumbent upon him to embark upon the inquiry whether or the document is forbidden by law Where the opposing party fails to object, the trial Judge has to admit the document unless the document is forbidden by law - as no objection can be taken in appeal.

APPEAL from the judgment of the District Court of Balapitiya.

Cases referred to :

(1) Miller Vs. Ministry of Pension 1947 2 All ER 372 at pg 374.
(2) Burdett Vs. Spilsbury 1843 10 Cl & Fin 340 (8 Eng Rep at 800-1)
(3) Solicitor General Vs. Ava Umma 71 NLR 512
(4) Romen Chetty Vs. Assen Naina 1892 1 SCR 216
(5) Kiri Banda Vs Ukkuwa 1892 1 SCR 216
(6) Somanathar Vs Sinnathamby 1899 1 Tambyah's Rep 38 (or Koch's Rep 16)
(7) Seneviratne Vs. Mendis 1919 6 CWR 211 1 Recorder 47

(8) Wijegoonatilleke Vs. Wijegonatilleke 60 NLR 560.
(9) Marian Vs. Jesuthasan 59 NLR 348
(10) Weeraratne Vs. Ranmenike 1919 21 NLR 286 at 287, 288.
(11) Asliya Umma Vs. Thingal Moh

Click Here to Read the rest of this document