Joseph Fernando V. Pearlin Fernando

1957 Present: Weerasooriya, J., and Sinnetamby, J.

s, Appellant, and PEARLIN FERNANDO,
Respondent

S. C. 233-D. C. Negombo, 16,654/L

    Evidence-Proof of execution of a deed when attesting witness denies the execution- Handwriting-Proof of its genuineness-Evidence Ordinance, ss. 68, 69, 71.

When an attesting witness, who is called for the purpose of proving the execution of a document required by law to be attested, denies the execution of the document, proof of his signature is not sufficient to establish due execution. Under section 69, read with section 71, of the Evidence Ordinance there must be, in addition, proof of the executant's signature.

Quaere, whether, in the absence of other evidence and without the benefit of the opinion of an expert, it is open to a Court, on a mere comparison of two documents containing respectively an admitted signature and a signature which is repudiated, to express the opinion whether the two signatures are of one and the same person.

APPEAL from a judgment of the District Court, Negombo.

Ivor Misso, with A. Nagendra, for the 2nd defendant- appellant.

E. R. S. R. Coomaraswamy, with E. B. Vannitamby and T. G. Gunasekera, for the plaintiff-respondent.

Cur. adv. vult

February 15, 1957. WEERASOORIYA, J.-

The substantial question which arises in this appeal is whether the learned trial Judge was right in holding that decdNo.154 of 1933,which is one of the deeds relied on by the plaintiff-respondent in proof of her title to the entirety of the land in suit, and of which PI is a certified copy, had been duly executed. Deed No. 154 is a deed by which the 1st defendant (who died while the action was pending) and one of her children, Emailine, purported to sell the land for a sum of Rs. 6,000 to one Matilda Pieris. Although the deed purports to convey the entire land, actually the 1st defendant was entitled to only an undivided three fourths share, and Emaline to an undivided one-sixteenth share, at the time of its alleged execution.

The 2nd defendant, who is the appellant and a son of the 1st defendant, claims to have acquired the undivided three-fourths share of the 1st defendant by virtue of a subsequent deed, D4 of 1951, from the 1st defendant.

The 1st and 2nd defendants in the answer filed by them challenged deed No. 154 as a forgery, and certain of the issues on which the case went to trial related to the questions whether the signature on it purporting to be that of the 1st defendant was a forgery and whether it had been duly executed. Although the name of the attesting notary was included in the list of witnesses filed by the plaintiff, and summons issued on him, the plaintiff refrained from calling him at the trial, on the ground, as stated by her counsel, that he was "not available ". Prior to the trial, and shortly before her death, the 1st defendant was examined on commission as a witness, and she denied having been a party to any transaction as embodied in P1. Neither P1 nor the original deed or the duplicate, nor the other certified copy, P1a, (all of which were subsequently produced at the trial) was shown to her.

The names of the two attesting witnesses in P1 refer to the 2nd defendant and one Leo Fernando (who is the husband of Emaline).

The question whether in the absence of the notary and in view of the evidence given by the 1st defendant it was incumbent on the plaintiff to call one or other of the attesting witnesses was discussed at the trial and counsel for the plaintiff conceded the burden being on the plaintiff (as it undoubtedly was) to call one of them. He ultimately decided to call the 2nd defendant who, however, denied in his evidence that he signed the deed or was present at its execution. In the course of his examination by counsel for the plaintiff he was shown what, presumably, was the proxy granted by him for the purposes of this case and he admitted that

the signat

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