Present  : Pereira J. and De Sampayo A.J.   1914.

GUNERIS v. KARUNARATNE.

228-D. C. Negombo, 9,696.

Omission on the part of notary to search for registration of seizures before drawing up conveyance-Action for damages against notary.

Where a notary follows a general practice and makes a mistake regarding the strict requirements of the law as to which there is a reasonable doubt, or where he commits an error of judgment, he is not guilty of such negligence as would make him liable in damages to his client.

Defendant, a notary, was sued by plaintiff for damages sustained by him by reason of omission on the part of defendant to search for registrations of seizures before drawing a conveyance of a certain parcel of land in plaintiff's favour.

Held, per PEREIRA J.-That under section 29 (16a) of the Notaries Ordinance, 1907, it was the duty of a notary, before a deed or instrument affecting land or other immovable property was drawn by him, to search or cause to be searched the registers in the Land Registry, to ascertain, inter alia, whether there were registrations of seizures (in execution) of the property dealt with by the deed or instrument, but that in the present case the defendant was not

liable, because the evidence showed that the omission to search the registers for registrations of seizures was due to an error of judgment.

Per DE SAMPAYO A.J.-The defendant was not bound to search for registrations of seizures under section 29 (16a) of the Notaries Ordinance, 1907.

IN this action the plaintiff sued the defendant, who is a notary, to recover a sum of Rs. 1,000 as damages for drawing a deed of transfer, No. 44 of October 18, 1912, in his (plaintiff's) favour without properly searching for encumbrances, with the result that a duly registered seizure of one-third of the property transferred existing at the execution of the transfer deed was not discovered, and this transfer deed was rendered void to such extent, and plaintiff lost title to one-third of this land sold to him. The plaintiff alleged that the loss of the one-third share was due to the defendant's negligence. The defendant filed answer denying liability.

The learned District Judge after trial dismissed plaintiff's action with costs.

The plaintiff appealed.

A. St. V. Jayewardene, for the plaintiff, appellant.-The notary did not search for registrations of seizures. It was necessary to have searched that register as well to find out the state of the vendor's title. Section 29 (16a) of the Notaries Ordinance, 1907, requires the notary to ascertain the state of the vendor's title. Seizure is an encumbrance; under the Civil Procedure Code all alienations by the debtor pending the seizure are void, as against claims enforceble under the seizure. The notary was guilty of negligence for not making the search, and he is liable in damages, as this was a gross neglect of duty. The section of the Notaries Ordinance made his duty very clear. If there was a wrong practice, it should not be allowed to over-ride the law.

Counsel cited 3 Nathan, p. 1747, paras. 1706, 1709; Williams on Vendors and Purchasers 579, 604; 25 Halsbury 357; Ramanathan (1820) 4; Van Zyl's Judicial Practice 735; 4 C. P. 13; 7 L. T. R. 781; 21 L. J. Q. B. 292.

Bawa, K.C. (with him Samarawickreme and Dias), for the respondent (not called upon).

Cur. adv. vult.

September 3, 1914. PEREIRA J.-

The primary question in this case is whether the defendant can be said to be guilty of negligence in omitting to search for registrations of seizures in execution of the property sold to the plaintiff on the deed attested by him, that is to say, deed No. 44 of the 18th October, 1912. I think it is clear law that a notary, like a solicitor, is not liable to his client in damage for loss caused to him by an error of

judgment on the part of the notary, nor would he be chargeable with negligence if he make a mistake on a point of law or practic