MEERA SAIBO et al. v. PAULU SILVA.

MEERA SAIBO et al. v. PAULU SILVA.

D. C., Kandy, 11,868.

Sale of land-Deed of sale-Principal and attorney-Sale by power of attorney not notarially executed - Validity of sale - Ordinance No. 7 of 1840, 9. 2-" Person lawfully authorized."

A notarial conveyance of land is not void because the person who purported to sign it for his principal was not authorized thereto by a notarial power of attorney.

Withers, J.-As an exponent of the Roman-Dutch Law, Mr. Berwick D.J., has had no superior in this Island,

PAKIR MOHIDEEN, being owner of the land in suit, gifted it to three persons, by deed dated 25th January, 1870, one of whom died leaving the other two, Rahamat Umma and Abdul

Cader, as his heirs, Rahamat Umma, who was a Mohammedan lady residing in India, granted a power of attorney, dated 27th November, 1895, to her husband, who, acting as her attorney, transferred a moiety of the land to the plaintiffs by deed dated 27th November, 1897. The power of attorney appeared to have been made in Satankulam, in the District of Tinnevelly in South India, before five witnesses, and three days afterwards its execution appeared to have been admitted by Rahamat Umma before the Sub-Registrar of Satankulam and two witnesses, whose signatures it bore, together with the seal of the Sub-Registrar. The document bore an Indian stamp of five rupees, and appeared to have been duly registered on 30th November, 1895. The plaintiffs complained that defendant was in the forcible possession of the same. The defendant, claiming to be the lessee of a moiety under Abdul Cader, denied that Rahumat Umma executed the deed pleaded by the plaintiffs, and as regards the other moiety defendant pleaded prescriptive possession.

The District Judge held that Rahamat Umma's deed in favour of the plaintiff was bad, because the person who signed it for her was not authorized to do so notarially. Following a judgment of the Supreme Court in Dias v. Fernando, reported in S S. C. C. 782, he dismissed plaintiffs' case.

Plaintiffs appealed.

Wendt, for appellant.

No appearance for respondent.

Cur. adv. vult.

31st August, 1899.-The Supreme Court set aside the judgment of the Court below and gave judgment for plaintiff.

Withers, J.-

The only question argued before us was whether the District Judge was right in holding that a certain notarial conveyance was void and of no effect because the person who purported to sign it for his principal was not authorized thereto by a notarial power of attorney.

The District Judge relied on the case of Dias v. Fernando. D. C, Colombo, 9,793, reported in 8 S. C. C. 182.

The important question of law, observed Chief Justice Burnside, which arises in this appeal, is whether the. plaintiff's agent, not having been duly appointed agent by a notarial document, was a person " lawfully authorized by him " to sign a lease required to be notarial by the 2nd section of the Ordinance No. 7 of 1840 against Frauds und Perjuries. The Chief Justice came to the conclusion

that, as our Ordinance requires a notarial document to authenticate a lease, the authority to sign such a lease should be notarial. His reasons for arriving at this decision I prefer to give in his own words: " Now it is manifest that the object of the Ordinance was to secure the most solemn proof of the contract, and not to let it depend upon the very fallible proof which parol evidence would, " more especially in this country, afford. It would be, in the language of Lord Eldon, the most mischievous evasion of the Ordinance, " if, whilst the instrument of lease itself must be of the solemn character prescribed, yet the authority to execute it and thus bind a party to it might depend upon the weakest and most unsatisfactory of all proof. The English statute requires a mere writing: our Ordinance requires a most solemn writing, which has all of, and more than, the solemnity of the execution of a deed by English Law, and

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