FRANCIS SAMARAWICKREMA
VS
HILDA JAYASINGHE AND ANOTHER

SUPREME COURT
SARATH N. SILVA, C. J.
SHIRANEE TILAKAWARDANE, J. AND
SALEEM MARSOOF.
S. C. APPEAL NO.7 /2004
S. C. SPECIAL L. A. NO. 111/2003
C. A. NO. 388/93(F)
D. C. KALUTARA NO. 2443/L
OCTOBER 24TH, 2006,
JUNE 21ST 2006,
JULY 4TH 2006,
SEPTEMBER 21ST 2006
MARCH 15TH 2007

Prevention of Frauds Ordinance - Section 2 - Any contract for the sale or other disposition of land or any interest in the land is invalid unless in writing and signed in the presence of a Notary Public and two or more witnesses - Evidence Ordinance - Section 68 - proof of execution of document required to be attested - Section 33, Section 101, Section 102, Section 103 - Evidence in a former judicial proceedings when relevant - Section 3 - Definition of proved and disproved - Standard of proof - Criminal and Civil.

The plaintiff-respondent-appellant filed this action in the District Court of Kalutara on 24th November 1976 against the 1st and 2nd defendant-appellants- respondents. The case first went to trial on 1st March 1978, and after trial the District Judge pronounced the judgment for the appellant as prayed for in the plaint. The respondents appealed against the judgment and the Court of Appeal by its judgment dated 300 May 1982 set aside the judgment of the District Court and remitted the case for re-trial mainly on the ground that the District Court had considered the due execution of the deeds nos. 4879 and 4880 of 24.3.76 were proved despite the fact that apart from the Notary, neither of the two attesting witnesses has given evidence at the trial.

The second trial commenced on 20.10.1983, and was heard by several Judges and finally District Court delivered its judgment on 16th June, 1993, By that judgment the District Court once again held in favour of the appellant as prayed for in the plaint.

The respondents appealed against the judgment to the Court of Appeal. The Court of Appeal by its judgment dated 9th May, 2003 set aside the judgment of the District Court dated 16.6.1993 and dismissed the action filed by the Plantiff appellant.

 The Supreme Court granted special leave to appeal against the judgment of the Court of Appeal dated 9th May 2003 on the following substantial questions of law:

    (1) Did the Court of Appeal err in holding that P4 was fraudulently executed when the same has not been proved with the high degree of proof required to prove fraud?

    (2) Did the Court of Appeal err in law in not considering the evidence of the notary in terms of Section 33 of the Evidence Ordinance when the said evidence was

 part of the record?

Held:

    (1) It is trite law that leave to appeal will not be granted from every incidental order relating to the admission or rejection of evidence. But if the incidental order goes to the root of the matter and it is both convenient and in the interests of both parties that the correctness of the order be tested at the earliest possible stage then leave to appeal is granted.

    (2) In the context of the present appeal it may be said that while the burden is on the appellant to prove due execution of the impugned deeds, it is the burden of the respondents to show that its execution was tainted with fraud.

Per Saleem Marsoof, J.

    (3) District Court erred in refusing to adopt the Notary evidence accorded in the first trial upon proof of his death and the Court of appeal aggravated the situation by failing to take into considertion this vital deposition which was already part of the record.

Held Further,

    (4) Where the question is whether the execution of the impugned deeds was tainted with fraud, proof of payment of the amounts stated as consideration for the execution of the deeds may be equally relevant.

Per Saleem Marsoof, J.

"The Court of Appeal has in this case failed to observe the time tested principle enunciated by James L. J. in The Sri Robert Peel, which was quo