Present: Lascelles C.J. and Middleton J'.
IBRAHIM NEINA v: KOSUMMA et at.
122—D. 0. Batticalou, 677.
Last will—Execution—Witnesses standing ■ outside the room when deceasedsignedwill, butabletosee—Presence-Ordinance No.7 of 1840,
s, 3—Appeal—Security bond not stamped fully before the timeallowed—Appeal does not abate—Civil Procedure Code, s. 756.
The witnesses to a will .were not actually in the same room as thedeceasedandthe notarywhen the former signed the will, but were
in a verandah opening into the room,, and saw and were consciousof what- was taking place in the room.
Held,theywerein the" presence ” of the testatorwithin the
meaning of section 3 of Ordinance No. 7 of 1840.
Middleton J.—The wording of section 3does notseem neces-
sarily to imply that, the attestation of the notary must, be made inthe ■ presence of the witnesses. They all mugt be present at theexecution by the testator and witness the signature, and must dulyattest such execution thereafter,' as' I read the clause.
This appeal was held notto have abated,though the appellants'
security bond was not fully stamped within the time allowed.
. Iiascelles 'C.J.—The bondwas tenderedandwasaccepted • by
the respondent’s proctor within the appealable time, and there canbe no doubtthat,evenifthe District Judge had notallowed the
deficiency to be supplied, the bond, at the expiration of the appeal-able time, was a valid security, which could have been enforcedon payment of the deficiency and penalty under section 36 of theStamp Ordinance of 1909.
Middleton J.—I think thatthis security bond is .not an
instrument required by lawto be stampedineverytestamentary
suit, as it is not included in Part III. of Schedule B of the StampOrdinance, No. 23 of 1909, and would not therefore come underthe terms of section. 87 of the Ordinance.
^pHE facts are set out in the judgment of Middleton J.
van Langenberg (with him Tissaveerasinghe) for petitioner, re-spondent.—The _ security bond furnished by >the appellant for theappeal was not sufficiently stamped within the time limited forperfecting the bond. It has been held in Kandappa v. Elliott 1 thatit was not sufficient for a party wishing to appeal from a judgment ofa District Judge to tender security within twenty days, but that hemust perfect the security by entering into the bond within the timelimited. As the bond was not properly stamped it is invalid, andtherefore the appeal has not been duly perfected. A Court has no
* (1892) 2 C. L. R. 17.
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power to extend the time within which the appellant is required: totender security. Sulama Levai v. Iburai Naina, 1 The fact thatfull stamp duly was paid after the twenty days dues not helpthe appellant. Counsel also cited Qunatilleke v. Punchy Hamyt iHenderson v. Daniel. 3
Bawa, for the respondent and * intervenient, appellants.—Theprovisions of the Civil Procedure Code as to security in appeal areintended for the benefit of respondent parties, who may waive suchbenefit at their option. Jayasekera v. Jansz. 4 The respondent didnot object to the bond when he was noticed. ,The cases cited bythe respondent's counsel are not on all fours with the present.The question of stamp duty did not arise in those cases. Counselcited Stamp Ordinance, sections 87 and 36.
[Their Lordships over-ruled the objection.]
Counsel argued on the facts.
van Langenberg, for the respondent:—The will was not dulyexecuted* The witnesses were not present in the same room whfefithe will was signed by the deceased.* The notary did not sign thewill in the presence of the witnesses. The requirements of section3 of Ordinance No. 7 of 1840 have not been complied wfth.
The burden of proving the genuineness of the will is on the partypropounding the will. The petitioner has not satisfied the DistrictJudge that the will * is valid. Counsel cited In re Last Will ofCdrolis Dias. 6
Bawa, in reply.—There. should be strong proof before the willcould be impeached for want of due execution. Atumugam et al. v.Sanmugam. 6 Counsel also cited Pieris v. Pieris et al. 7 Sullivanv. Sullivan. *
Cur. adv. vult.
October 13, 1911. Lascblles C.J.—
The facts which gave rise to this appeal have been stated in thejudgment of my brother Middleton, and it is unnecessary to recapitu-late them in detail. With regard to the highly technical objectiontaken by the respondent that the appeal has abated, inasmuch as theappellants’ security bond was not fully stamped, within the appeal-able time, I am .of opinion that the objection cannot be sustained.The bond was tendered and was accepted by the respondent’sproctor within the appealable time, and there can be no doubt that,even if the District Judge had not allowed the deficiency to besupplied, the bond, at the expiration of the appealable time, was a
» (1910) 2 Cw. L. R. 183.«(1895)2 N.L.R.66.
. a 2 Leader L. R. 116.•(1899)4 N.L.R.314.
* (1892) 2 C. L. R. m.*(1905)9N.L.R.17.
4 2 C. L. R. 25.*L. R.3 Tr. 399.
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valid security, which could have been enforced on payment of thedeficiency and penalty under section 36 of “ The' Stamp Ordinance,1909. ” The case of Kandappa, v. Ettiott1 does not appear to me tobe in point.
On another preliminary point, namely, whether the propertydealt with by deed No. 6,329 was the partnership property of thedeceased and the appellant, I think the District Judge was right inrefusing to allow the real issue to be complicated by an inquiry atthis stage into the partnership relations of the deceased and therespondent. There was practically only one issue^ in the case,namely, the genuineness of‘the document D 1, which it was admittedis a testamentary instrument, which, if genuine, ought to be admitted•to probate'.
The first point for consideration is the probability or otherwisethat the deceased would have made the disposition effected by thedocument in question. At the trial no specific issue was framed asto whether the document was executed and attested in accordance
with the requirement of Ordinance No. 7 of 1840, but it wascontended on appeal that the deed was defective in this respect.Section 3 of the Ordinance requires a will, when notarially executed,“ to be signed at the foot or end thereof by the testator . . . andsuch signature shall be made or acknowledged by the testator in thepresence of a licensed notary public and two or more witnesses, whoshall be present at the same time and duly attest such execution. ”
The grounds of the objection appear to be (1) the testimony of thewitness Mohamadu Pakir Meera Levvai Ahamado Levvai (page 39)that the notary did not sign in his presence, but this witness- in re-examination professed himself Unable to swear that the notary didnot sign there; (2) the testimony of Thura Levvai Aliar Levvaithat he did not see the notary sign the will; and (3) the circumstancethat the witnesses were not actually in the same room as the deceasedand the notary when the former signed the document. With regard to
and (2), the balance of evidence proves that the notary did infact sign the will in the presence of the witnesses. With regard to
, the witnesses, though not actually in the same room as thedeceased, were in a verandah opening into the room, and saw andwere conscious of what was, taking place in the room. They weretherefore in the “ presence ” of the testator in the sense in which theword has been construed in the English Wills Act (1 Viet. c. 26).
In Shires v. Glasscock2 for example, the witnesses subscribed thewill in a gallery, between which and the testator’s chamber there wasa lobby with glass doors, the glass of which was broken in certain:places. It having been proved that the testator might have seenthe table where the witnesses subscribed through the lobby, and thebroken window, this was adjudged sufficient. Here it is clear thatthe attesting witnesses hot only might have seen, but did actually» (1892) 2 C. L. R. IT.*2 Salk. 688.
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see without any difficulty all that took place in the deceased’s room.The deceased, the notary, and the subscribing witnesses were thusclearly in the " presence ”.of each other in the sense in which thatword has been construed. The objection to the attestation of thedocument therefore fails.
In my judgment the order granting letters of administration tothe respondent should be revoked and the document D 1 admittedto probate, the intervenient Abdul Cader being granted letters* ofadministration cum testamento annexo. The appellants are entitledto have their costs of the trial in the Court below and of this appeal.
This was an appeal from an order absolute granting letters of* administration to the respondent of the estate of his deceasedbrother Mohammadu Ibrahim Saibo. The respondent and intersvenient, in opposing the grant, propounded a document in the shapeof a deed No. 5,329 dated December 16, 1909, and marked D 1, as-the last will of the deceased, and the order appealed against also1held that this document had not been proved to be genuine. Apreliminr-v o! :ection was taken by Mr. van Langenberg for theresponde -.t the security bond furnished on appeal not havingbeen sutnciently stamped within the appealable time the appeal hadabated, and he relied on the decision of this Court in Kandappa v.Elliott.1 The objection had been taken in the District Court, butthe learned District Judge very properly ordered the case to be sentup to this Court, holding it' was a question"to be decided here. Itwould seem from a minute in the diary that on June 10, 1911, beforethe appealable time had elapsed, the security bond had been dulytendered to and accepted by the proctor for the respondent. Afterthe appealable time had elapsed the insufficiency in stamps wasapparently discovered—by whom there is no record, but presumablyby an officer of the Court. If the objection had been taken onJune. 10, 1911, as it might have been, an opportunity would havearisen to the appellants to supply the deficiency within the propertime. It- has also been held that a respondent may waive theprovisions altogether as to deposit of security for costs.
I think also that this security bond is not an instrument requiredby law to be stamped in every testamentary suit, as it is not included'in Part HI. of Schedule B~of the Stamp Ordinance, No. 22 of 1909,and would not therefore come under the terms of section 87 of theOrdinance.
If it were sued upon by the respondent for the purpose for whichit was executed, it might be admitted in evidence under section 36'of the Ordinance on payment of the deficiency 'and of a penalty,so that its perfection for the purpose for which it was intended mightalways be attained in this way.
* (1*09) 0 C. L. A. tt.
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1911. The case of Kandappa v. Elliott (ubi supra) is, I think, to beUxsDUBioir distinguished, in that there' the necessary security was not tendered
in time, but a mere notice of intention to tender security was given.
Here the security bond was tendered, and in the first place itssufficiency was in effect waived, and in the second it could even nowbe rendered effective if it becomes necessary to sue on It.
In my opinion the security was tendered in time under section 756,and the appeal should be admitted, subject to the payment of thedeficiency in stamps and the penalty under section 36 of the StampOrdinance.
The issues agreed to on the hearing of the case were:—
Whether the document,, deed No. 5,329 dated December 16,1910, was signed by the deceased.
If so, whether he) was of sound mind and memory at thetime he signed it.
Whether such document was the last will and testament ofthe deceased Ibrahim Saibo. .
A further issue as to whether the property dealt with by the deedNo. 5,329 (D 1) was the partnership property of the deceased andthe applicant had been held by the Acting District Judge to bepremature, and the case went to trial on the three issues set out..
In my opinion there is every reason to believe that the deceasedsigned the impugned deed on December 16, 1909, and I feel noreason to doubt that he did so, and that his intention was to dealonly with what he, tbe deceased, considered to be his own property.Whether it was so or not is another question, which must be decidedlater on.
The next question is .whether the document was executed as atestamentary document according to law. The formalities requiredare set forth in section 3 of Ordinance No. 7 of 1840, and I have nodoubt from the evidence on the record that the testator signed thedeed.in the presence of the notary and the two witnesses, who wereall present together and. conscious of the act' being done in the senserequired under the English Wills Act, 1837 (Pieris v. Pieris et al. ’).One witness, it is true, says he did not see the notary sign there, buthe cannot swear he did not sign the will there,.and the notary and thepolice vidane witness say that the notary signed there and then.Another witness also says he did not see the notary sign, but hesays he left the house before the notary left, and that he signedsix documents that day.
Following the decision in Arumugam et al. v Sanmugam, 2 T am ofopinion tha notary did sign the attestation clause there and then,and that the document was duly attested as required by the firstpart of section 3 applying to a notarially attested will. At the sametime the wording of the section does not seem necessarily to . imply1 11905) 9 N. L. R. 17.x2 (1899) q N. L. -R. 314..
Ibrahim .Neina v.Kosumma
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that the attestation of the notary must be made in the presence ofthe witnesses. They all must be present at the execution by thetestator and witness the signature, and must duly attest suchexecution thereafter, as I read the clause.
In Sullivan v. Sullivan1 it was held that the attesting witnessesto a will need not subscribe their names to the instrument in thepresence of each other.
In my opinion, therefore, this document was duly signed andexecuted by the deceased, and it is admitted that it is a testa-mentary document, and I think should be admitted to probate,the interveni'ent appellant Abdul Cadet being. granted letters ofadministration thereof as of a will annexed.
The intervenient obtains no benefit under the will, and his appoint-ment as administrator will clearly be on a footing with the wishesof the deceased, and convenient, considering the sex and race of thetwo beneficiaries, one of whom is absent in India. The order grantingletters of administration to the respondent must be set aside, and theappeal allowed with costs.
IBRAHIM NEINA v. KOSUMMA et al