( 66 )
1 8 9 5 . I n the Matter of the Last Wil l and Testament of
September24. ^ Q A B O L I S J)IAS, deceased.
Between PEBERA, Petitioner, and DIAS, Respondent.
D. C, Colombo, 180J425.
” Rebutted,” as used in s. 534 of the Civil Procedure Code—Procedure in
the trial of issues framed under s. 533—Order nisi on application
for proof of will—What evidence may be availed of in showing cause
against it-—Discharge of order nisi — Procedure where cause is
shown against it—Civil Procedure Code, ss. 386, 524, and 526.
Section 534 of the Civil Procedure Code enacts that in the case of
a petition for proof of a will, Where an order nisi declaring the will
proved is made, and issues which appear to arise between the
petitioner and the respondent kave been framed under section 533,
“if at the final hearing, or on the determination of the issues thus
” framed, it shall appear to the Court that the prima facie proof of
” the material allegations of the petition has not been rebutted,
” then the order nisi shall be made absolute—”
Held, per B O N S E R, C.J.—(1) The word ” rebutted ” in the above
section does not refer tothe trial of the issues, but to the final result
of the proceedings.
(2) The procedure in the trial of issues framed under section 533
is the ordinary procedure in a regular action : that is to say, the
person who wishes to prove anything should begin, and at such trial
it is competent to the respondent to make use of the evidence
adduced by the petitioner to obtain the order nisi to rebut the
W I T H E R S , J.—(1) When a party respondent to an order nisi
satisfies the Court which granted that order that,.on the material
before it, it was not competent to make that order, a Judge can and
should discharge it.
. (2) If an order nisi is properly supported, and the respondent has
cause to show against its being made absolute, he must satisfy the
Court by evidence, either by affidavit or oral testimony, that he has
(3) When the respondent has put forward his evidence, the Court
may do one of two things : either adjourn the matter to enable the
petitioner, if he asks to be allowed to do so, to adduce additional
evidence ; or, if the Court thinks’ it necessary, it may frame issues to
be tried between the petitioner and the respondent. It will depend
on the issues framed whether the petitioner or the respondent is to
begin.( 67 )
24th September, 1895. B O N S E B , C.J.—
In this case the appellant sought to prove a will and codicil.
He proceeded under section 524 of the Civil Procedure Code, and
the Court being satisfied that the evidence adduced was sufficient
proof of the due making of the codicil, made an order nisi under
«ection 826 declaring the will to have been duly proved. That
order was served upon the respondent, who appeared under section
533, and satisfied the Court that there were grounds of objection
to the application for probate such as ought to be tried by viva voce
evidence. Thereupon the Court framed two issues : first, whether
the codicil was duly executed ; and second, whether one Dabera was
duly appointed executor or not. These issues were directed to be
tried. The language of section 533 is somewhat ambiguous ; it
refers to section 386 as to the procedure to be adopted. Grammatically, the words, ” for the purpose under section 386,” refer to the
word “appointed ” ; but that cannot be the meaning. They must
refer to the word ” tried.” What it means is that you are to go to
section 386 to see how the issues should be tried. On the day for
the trial of the issues the appellants adduced no evidence, asserting
that the onus of proof was on the other side. The Acting District
Judge ruled against them. On that they still declined to call any
evidence, and moved that the order nisi be made absolute. The
Acting District Judge refused that application. It is against that
refusal that this appeal is brought. Now, section 386 provides
that ” issues, when they are framed, are to be tried in conformity
” with, as nearly as may be, the rules hereinbefore prescribed for
” the taking of evidence at the trial of a regular action,” and it
appears to me that that means that the procedure is to be the
ordinary procedure in a regular action; that is to say, that the
person who wishes to prove anything should begin. I see no reason
why that rule should not be followed, and why the person who.
asserts the affirmative should not begin. Reference was made to
section 534, where it was provided, ” if at the final hearing, or on
” the determination of the issues thus framed, it shall appear to
” the Court that the prima facie proof of the material allegations
” of the petition has not been rebutted, then the order nisi shall be
rH E _ „ facts of th T September e case sufficiently appear in the judgment of 1 8 * 5 – 24^
B O N S E R , C. J. *
Dornhorst and Pereira, for petitioner, appellant.
Layard, A.-O., for respondent.( 68 )
1 8 9 5 . ” made absolute,” and it was said that the word ” rebutted ” shows
September 24. that the onus of proof lay upon the respondent. But that word
„ ~ _. ” rebutted ” does not refer to the trial of the issues, but refers to
B O N S E B , C . J .
the final result of the proceedings. The Attorney-General says
that the evidence which was adduced by the petitioner himself
in support of the order nisi was read by the respondent as part
of his case, and he satisfied the Court on that evidence that the
material allegations of the petition were not proved. . Surely it is
competent for the respondent to make use of the petitioner’s
evidence to rebut his own case, and that is what has been done in
this case. The Acting District Judge set aside the order nisi on
the ground that it ought never to have been granted, the material
allegations required to be proved under section 534.being not proved.
It appears that the evidence was quiffe insufficient to prove the
material allegation (as pointed out by the Attorney-General) that
the witnesses were present together when the will was executed.
That being so, I think the Acting District Judge was right in setting
aside the order nisi. ‘The case should go back for new issues to be
framed and tried. The issues already framed appear to me to be
too vague. To save expense to the parties, we will rescind so much
of the order as discharges the order nisi, and will put things in the
position they were in before the issues were stated. The respondent
will have her costs.
‘ W I T H E R S , J —
\ I agree in the order proposed by my lord the Chief Justice, and
. I have very little to add. But I wish for my part to say that I
think when a party respondent to an order nisi satisfies the Court
which granted that order that on the material before it it was not
competent to make that order, a Judge can and should discharge
If an order nisi is properly supported, and the respondent has
cause to show against its being made absolute, he must satisfy
the Court by evidence that he has good cause.
That evidence may be either by affidavit or oral testimony (see
section 384 of the Civil Procedure Code).
When the respondent has put forward his evidence to show
cause against the order nisi being made absolute, then the Court
may do one of two things : either adjourn the matter to enable
the petitioner, if he asks to be allowed to do so,”to adduce additional evidence ; or, if the Court thinks it necessary, it may frame
issues to be tried between the petitioner and the respondent (see
section 386 of the Code). It’will depend on the issues framed
whether the petitioner or the respondent is to begin. Each case
as it arises will be governed by the Law of Evidence applying to it.
In the Matter of the Last Will and Testament of L. CAROLIS DIAS,deceased. Betwee