1938 Present: Moseley J.

PERERA v. CASSIM.

1,007-P. C. Colombo, 13,406.

Notaries Ordinance, No. 1 of 1907-Deed of lease-Execution by lessor only-Meaning of ?executed? in rule 24, s. 29-Failure to forward duplicate to Registrar-No breach of rule 24, s. 29.

The failure of the notary to forward to the Registrar of Lands a duplicate of a lease executed by the lessor only does not constitute a breach of rule 24 of section 29 of the Notaries Ordinance, 1907.

A DEED of lease was drawn by the accused, a notary, on December 14, 1936. It was signed and executed by the lessor whose signature was attested by the notary. A number was given to it, but he did not send a duplicate to the Registrar of Lands as required by rule 24 of section 29 of the Notaries Ordinance, 1907. He was charged with violating this rule. The learned Magistrate who tried the case held that, since the document, not having been signed by the necessary parties, was not a deed, the rule did not apply. He accordingly acquitted the accused. From this order the complainant appealed with the sanction of the Attorney-General.

E. A. L. Wijeyewardene, K. C., S. -G. (with him E. H. T. Gunasekara, C. C.), for complainant, appellant. -This is a test case. The deed was attested and executed, and a number was given to it. A ?deed? in Ceylon is not the same as that in England. Properly speaking there is no ?deed? in Ceylon. It is a notarially executed document. (Ukku v. Rankiri [1 (1908) 11 N. L. R. 212, at p. 213. ].)

[MOSELEY J,-Is deed defined in the Ordinance?]

No. Under section 29, rule 3 the mere form giving the intention of the parties appears to be a deed. It is a deed even before it is executed.

[MOSELEY J. -Can you explain the use of the words ?deed or instrument? in that section?]

No. It is not material to decide in the present case whether a document is a ?deed? or an ?instrument? as rule 24 itself uses the words ?deed or instrument".

The earlier part of rule 3 shows that the Legislature regarded a writing even before it was executed by the parties as a deed or instrument within the meaning of the rules. If the rule did not contain the words ?or to sign his name or make his mark upon any paper or other material intended to be afterwards used for any such purpose?, then in view of the above interpretation of the words ?deed or instrument? it would have been in order for a notary to obtain the signature of a party to a blank piece of paper. Rule 16 (a) shows that a document drawn by a notary is a deed or instrument. Rules 7, 9, and 13 show that the document is a deed or instrument before it is signed by a party or witness. The notary attests the deed under rule 19 after it has been drawn and executed. Rule 22 deals with the numbering of deeds.

[MOSELEY J. -Suppose the lessor only signed but not the others, then what is the number?]

The moment it is executed by the lessor a number must be given. When the lessee signs, there will be another attestation. Otherwise the words ?without delay? in rule 19 would be superfluous.

Now deeds are executed in triplicate : one is sent to the Registrar, one is kept by the notary and the other is handed over to the party. The one sent to the Registrar contains the stamps required under the Stamp Ordinance, 1909. The Registrar has to see that the proper stamps had been affixed. They must be affixed immediately before the attestation. Hence the document must be sent to the Registrar to check the stamps.

[MOSELEY J. -If it is not executed by the lessee, is not the stamp fee recoverable?]

Under section 51 (d) of Ordinance No. 22 of 1909, the Commissioner of Stamps could make an allowance for the stamps used on such an instrument. Section 10 of this Ordinance shows that the stamps should be affixed before the notary attests the deed.

[MOSELEY J. -Under the Notaries Ordinance, it must be done before the execution.]

That is for the protection of the n