Present: Ennis J. and De Sampayo A. J.

SAPAPATHIPILLAI v. TIRUMANCHANAM.

329-D. C. Batticaloa, 3, 653.

Deaf and dumb person-Capacity to execute deed of conveyance.

A deed executed by a deaf and dumb person was held to be good.

IN this case the plaintiff and appellant, claiming to be the owner of an undivided 111/120 share of a piece of land called Tirappu Valavu, sought to partition it in this suit against the minor defendant Kandavanam Thirumanchanam, appearing by his guardian ad litem the defendant and first respondent. The defendant filed answer admitting the correctness of the share allotted to the minor, but alleged that deed No. 2, 073 dated August 1, 1912 (P 3), which was executed by his stepdaughter Sanmugam Sinnatangam, who was deaf and dumb, and another, was inoperative in Jaw to pass title to the plaintiff for her 29/120 share of the land which the deed purported to convey.

The learned District Judge thereon caused notice to issue to the above-named Sanmugam Sinnatangam, and she was made an added defendant. She failed to file answer.

At the trial the District Judge (T. W. Roberts, Esq. ) tested Sinnatangam's capacity to understand matters: -

I test Sinnatangam's ability to understand by putting her various questions through Seenitamby, and also through Kandavanam.

Q. -How did you cross the river to-day, in a big or little boat ?

A. -A little boat.

Q. -How many persons with you ?

A. -Two.

Q. -Have you signed any deeds ?

A. -Yes.

Q. -Did you receive money from plaintiff ?

A. -No; Seenitamby got the money.

Plainly she can understand many things.

JUDGMENT.

By the deed P 3 Sinnatangam and her brother Seenitamby purported to convey their shares of the land to be partitioned to the plaintiff.

Sinnatangam has filed no answer contesting the plaintiff's claim, but the counsel for defendant as amicus curi?, and in the interest of Sinnatangam, drew my attention to the fact that Sinnatangam is deaf and dumb.

I have therefore to consider whether the due execution of this deed has been proved in so far as concerns the transfer of Sinnatangam's interest. The Roman-Dutch law, so far as I can find, regarded the deaf and dumb as incapable of making wills. By analogy it might perhaps be considered that they are also incapable of making conveyances, except under authority of the sovereign and after due inquiry as laid down by Grotius.

By the English law it seems that the deaf and dumb, if they cannot read or write (as is the case here), are presumed to be incapable of making such a contract, unless it is shown that they understood its nature by virtue of the use of signs.

Considered from this standpoint, it is in evidence that Sinnatangam is able to converse by signs to some extent, and it in proved that she touched the pen after the notary had made certain efforts to have the purport of the deed explained to her by her brother. There is also no doubt that plaintiff paid the consideration. I tested Sinnatangam in Court, and she is certainly intelligent in a considerable degree. She appeared to say that she had in fact signed the deed, but that her brother had taken the money. So far the facts are with plaintiff, but they do not amount to proof that Sinnatangam understood the contract on which she was entering.

She can understand certain matters of a sort describable by signs, but I am not satisfied that she can be made to understand that a certain document was a sale as distinguished from a lease or a mortgage. I find that the deed P 3 did not validly transfer her title, and that she remained the owner of her share. I have added her as defendant, and find the title to be otherwise proved as stated in the plaint. Enter interlocutory decree allotting the shares accordingly to plaintiff, to defendant, and to Sinnatangam. Costs pro rata. Plaintiff may sue for return of his money.

The plaintiff appealed.

Bartholomeusz, f