Siyadoris V. Danoris Et Al.,

 

1841     Present: Howard C.J. and Keuneman J.

 

SIYADORIS v. DANORIS et al.
 

317-D. C. Galle, 37,135.

 

Deed-Admission in evidence without objection-Objection to due execution in appeal-Civil Procedure Code, s. 154.

 

Where a deed has been admitted in evidence without objection at the trial, no objection that it has not been duly proved could be entertained in appeal.

 

Andrishamy v. Balahamy (1 Matara Cases 49) followed.

 

APPEAL from a judgment of the District Judge of Galle.

 

E. B. Wikramanayake, for second to seventh defendants, appellants.

 

L. A. Rajapakse, for plaintiff, respondent.

 

Cur. adv. vult.

 

February 6, 1941. KEUNEMAN J.-

 

This is a partition action. The main point urged for the appellant is that the deed of transfer of immovable property, P. 2 of 1935, on which the plaintiff depends to establish his title has not been proved in accordance with section 68 of the Evidence Ordinance (Cap. 11), in that neither the party executing it nor the Notary nor any of the attesting witnesses have been called for the purpose of proving its execution. Emphasis was laid on the words, " It shall not be used as evidence ", appearing in the section. It is to be noted that no objection was taken to this docu­ment at the trial, and that the objection was taken for the first time in appeal.

 

In Shib C'nandra et al v. Gour Chandra Paul et al [1 T. R. (1922) Calcutta 160]], in respect of this section 63, it was held that " where evidence has been admitted without objection, it is not open to the opposite party to challenge it at a later stage of the litigation. But where evidence has been received in direct contradiction of an imperative provision of the law, the principle on which unobjected evidence is admitted, be it acquiescence, waiver or estoppel, none of which is available against a positive legal enactment, does not apply ".

 

It was further held in that case that the existence of section 70, whereby an admission of due execution was sufficient proof against the party admitting, lent colour to the supposition that the Legislature desired to add no further exception to the law laying down the special method of proof of instruments required by law to be attested. It is to be noted that it was held that acquiescence, waiver or estoppel was not available against a positive legal enactment.

 

Mr. Rjapakse for the respondent argued that account should be taken of another positive enactment in our law, namely, section 154 of the Civil Procedure Code. The explanation to clause (3) of that section is as follows: -

 

" If the opposing party does not, on the document being tendered in evidence, object to its being received, and i

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