1919  Present: De Sampayo J.

WEERARATNE v. RANMENIKE.

1122-C. R. Ratnapura, 15,644.

Deed-Failure of notary to get deed executed in duplicate.

The failure on the part of a notary to have a deed executed in duplicate does not affect its operation as a deed.

THE facts appear from the judgment.

Samarawickreme, for plaintiff, appellant.-The deed on which the plaintiff bases his title being more than thirty years old must be presumed to have been duly executed. The burden of proving that the deed was not genuine was, therefore, on the defendant. That burden has not been discharged.

The Commissioner is wrong in holding that the absence of a duplicate vitiates the deed. The provision in section 15 of Ordinance No. 7 of 1840 with regard to the execution of a deed in duplicate merely imposes a duty on the notary. Failure on the part of the notary to observe this duty in noway affects the validity of the deed.

H. V. Perera, for defendant, respondent.-Section 90 of the Evidence Ordinance enacts that the Court '' may presume '' that a document more than thirty years old was duly executed. The expression " may presume " is denned in section 4 and contrasted with the expression " shall presume. " It was open to the Court to call for proof of the genuineness of the deed. The Commissioner was right in adopting this course, in view of the " very suggestive elements of fraud " referred to in his judgment, especially the absence of a duplicate, and the existence of another deed, admittedly genuine, bearing the same date and number, but embodying a totally different transaction.

Section 15 of the Frauds Ordinance, when read in the light of the preamble to the Ordinance, cannot be regarded as merely imposing a duty on the notary. The requirement is imperative, and a deed is bad unless it is complied with. The provisions of law that merely impose duties on notaries in connection with the execution of deeds are all contained in the Notaries Ordinance.

G. Koch, for intervenient, respondent.

October 21, 1919. DE SAMPAYO J.-

The plaintiff claimed title to a land called Welegedarawatta by inheritance from his father Tennekoon Mudiyanselaye Kiri Banda. The plaintiff pleaded as his father's title a deed of gift bearing

No. 1,720 dated November 4, 1886, attested by W. D. T. Perera, Notary Public. The Commissioner held that this deed was not executed as required by law, and was insufficient to convey title, and he accordingly dismissed plaintiff's action, with costs. The reason for this holding is that the deed is not shown to have been executed in duplicate. The plaintiff produced the original, but it has been proved by the Registrar of Lands that the notary had not sent any duplicate to the Registrar's Office, and no duplicate is to be found there. There is in the Registrar's Office a duplicate of a deed bearing the same number and date, but it is not the duplicate of the deed of gift pleaded by plaintiff. It appears that the notary was guilty of many irregularities in his professional career, and in particular failed to send the duplicates of deeds attested by him to the Registrar's Office. Once he was fined, and went to jail for non-payment of the fine. He is now dead. The Commissioner concludes that no duplicate of the deed has been proved to have been executed. The question is whether the deed is invalid for that reason. The Commissioner bases his opinion on section 15 of the Ordinance No. 7 of 1840, which provides that " every deed or other instrument, except any will, testament, or codicil required by this Ordinance to be executed or acknowledged before or to be attested by a notary, shall be executed, acknowledged, or attested in duplicate." But there is no provision invalidating a deed which is not executed in duplicate, nor does section 2, which is the substantial provision of the Ordinance relating to deeds affecting land, require such deeds to be executed i