1939     Present: Soertsz S.P.J. and de Kretser J.

JAYASEKERE v. JAYASEKERE.

 231-D. C. Galle, 36,317. 

Deed-Execution of three gifts at the same time-Property donated by one gift included in another-Earlier deed entitled to priority. Where a person executed three deeds of gift in favour of three sons on the same day and where certain lands donated by one deed were included in another,-

Held, that the earlier deed must prevail and that there was a presump­tion that the Notary did his duty properly and that he numbered them in the order in which they were executed.

 APPEAL from a judgment of the District Judge of Galle.

N. E. Weerasooria, K.C. (with him H. A. Wijemanne), for first defend­ant, appellant.

H. V. Perera, K.C. (with him L. A. Rajapakse, E. B. Wikremanayake and H. A. Chandrasena), for plaintiff, respondent.

March 30,1939. DE KRETSER J.-

This is an unusual type of case. One Dona Gimara Gunasekere Hamine, whom I shall call Dona Gimara, was entitled on three Crown grants to three allotments of land called Wahugalahena and Wahugalakandedeniya. These three allotments formed part of an estate called Weihena Estate in Baddegama. Dona Gimara lived on the estate. She had three sons, namely, Edwin, the plaintiff, Alexander whose estate is being administered by his widow the first defendant, and Francis.

Edwin had contracted a marriage which his mother disapproved of, and at one stage she had made a last will cutting him off from her property and only providing for an allowance. Thereafter Edwin divorced his wife and became reconciled to his mother and took up his residence with her, and after her death is still on the land. Alexander was her eldest son, and seems to have attended to her business affairs.

On October 3, 1929, Dona Gimara executed three deeds of gift in favour of her three sons. Of these the one in favour of the plaintiff bears the earliest number. The three deeds of gift were registered but no question arises with regard to some irregularity in the registration of Alexander's deed as these were deeds of gift.

It seems to have been common ground at the trial that the deed of gift conveyed to Edwin the extents shown in the three Crown grants, which would amount to 22 acres and 4 perches, and that the deed of gift in favour of Alexander conveyed almost 20 acres from this very extent, leaving therefore only about two acres for Edwin the plaintiff.

It would appear that at one time Dona Gimara had occasion to mortgage her property and that for the purpose of the mortgage a survey had been made.

The deed of gift in favour of Edwin recited the Crown grants and placed these three allotments in the forefront of the deed, whereas the deed in favour of Alexander placed the two allotments he claims as numbers 13 and 14 in a gift referring to 16 allotments, and his deed of gift referred to the plan made in 1922 for the purpose of mortgage and in a general way referred to the title as being by virtue of purchase from the Crown and by virtue of a certain last will.

It would appear that after Dona Gimara's death, it was Edwin who