Legal battle between siblings Legality of the Notarial Execution contested

By Lakmal Sooriyagoda  

In a recently concluded case before Mount Lavinia Civil Appellate High Court between two parties who were brother and sister, the legality of a Notarial Execution was intensely contested as per the provisions of the Prevention of Fraud Ordinance.  

The Mount Lavinia Civil Appellate High Court held that the questionable Notarial Execution has violated the Prevention of Fraud Ordinance as one stamp affixed had been issued by the Philatelic Bureau only after the Notarial Execution.  In terms of section 02 of the Prevention of Fraud Ordinance stipulates that the transactions effecting to the immovable property be executed by a deed before a Notary and witnesses.  The plaintiff being the sister had instituted an action in the district court of Mount Lavinia seeking a declaration that the Plaintiff has fulfilled the conditions of the conditional transfer of a title deed dated in 2009 and to make an order to the Defendant to re-transfer the property.  

The defendant represented by Senior Counsel Ian Fernando filed answers denying the claim of the plaintiff and seeking to dismiss the action filed by the plaintiff and via a claim in reconvention sought a judgment against the Plaintiff to pay a total sum of Rs. 660,000 for the loan with 4% monthly interest till the initial loan of the Rs.300,000 is being settled and if not seeking a judgment declaring that the Defendant is the lawful owner of the land.  The trial proceeded inter-parte and at the conclusion of the trial, the District Court dismissed the Plaintiff’s action and granted reliefs in favour of the Defendant.  Subsequently, the plaintiff filed an appeal in the Civil Appellate High Court arguing that he has fulfilled the conditions of the conditional transfer Deed, thus he is entitled to re-transfer the mortgaged property in her name. Senior Counsel Ian Fernando appearing for the defendant contended that the Plaintiff has failed to establish his case by adducing evidence that he has settled the initial loan borrowed Rs. 300,000.00 with interest and the genuineness of the document.