LORD MORTON OF HENRYTOiST—Selvaguru v. Thaialpagctr 361
[In The Privy Council]
1952 Present: The Lord Chancellor, Lord Morton of Henry tonand Sir Lionel LeachT. SELVAGURU, Appellant, and G. TTT AT ALP AGAR, RespondentPrivy Council Appeal No. 14 op 1951
S. G. 78 Inty.—D. C. Jaffna, 227
Appeal—Finding of fact—Circumstances when appellate Court will interfere—Band-
writing— Value of experts testimony.-
An appellate Court will set aside the finding of a trial judge -when thereasons given by him for accepting a party’s story are contrary to what isplainly proved by documents produced in evidence by the opposite party.
In deciding issues of fact, the advantage which a trial judge has of seeing andhearing the witnesses is perhaps not so great when the evidence is heard ondates widely separated each from the Other and when the judgment is writtenlong after the last hearing.
Observation on the weight of a handwriting expert’s evidence.
,^^_PPEAL by special leave from a judgment of the Supreme Court.George Hesketh, for the petitioner appellant.ft. T. Paget, Q.C., with R. N. Hales, for the respondents. .
Cur. adv. vult.
November 5, 1952. [Delivered by Lord Morton op ELenryton]—
This is an appeal by special leave from a judgment of the Supreme Courtof Ceylon (Soertsz S.P. J. and Nagalingam J.) reversing a judgment of theDistrict Court of Jaffna (Wijeyewardene A.D.J.).
The appellant is the brother of Arudchelvam (widow of Kumarakuru)who died on the 3rd July, 1943. The first respondent has been twicemarried. The appellant and Arudchelvam are children of his by his firstwife, and he has had five children by his second wife. The secondrespondent is the only child of a sister of Arudchelvam who predeceasedher. The appellant and the respondents are the only persons entitled toany property as to which Arudchelvam died intestate.
On the 17th February, 1944, the appellant filed a petition in the DistrictCourt of Jaffna (held at Point Pedro) for a declaration that he was entitledto take out probate as executor of the will of Arudchelvam dated the28th June, 1943, whereby she devised and bequeathed all her property
2J. N. B 25066-1,592 (2/53)
362 LORD MORTON OS’ HENRYTON—Selvagv.ru, v. ThaiaVpagar
to the appellant and. appointed him executor thereof. To this petition thepresent respondents -were respondents, the second respondent being aminor appearing- by the first respondent as his guardian-ad-litem.
The first respondent filed a statement of objections and opposed thegrant of probate to the appellant on the grounds that the document(marked P. 1) purporting to be the will of Arudchelvam was not executedby her, and that the signature thereto had been forged and that neitherthe attesting notary nor any of the witnesses to the document hadbeen present when the document was said to have been executed.
The petition came on for trial on the 15th February, 1945, before theAdditional District Judge of the said District Court. The hearing wasresumed on the 5th April, 1946, and again on the 9th May, 1946, evidencebeing adduced on both sides. The learned judge reserved judgment.On the 10th December, 1946, he gave judgment in favour of the appellant,holding that the document P. 1 was the duly executed will of Arudchelvam.On the 10th December, 1947, the Supreme Court set aside this judgmentand dismissed the petition for probate. From this decree the appellantappeals..
Counsel for the appellant urged that the issues in the case were issuesof fact and that the trial judge had the great advantage of seeing and hear- ’ing the witnesses, but this advantage is perhaps not so great when theevidence is heard on three dates widely separated each from the other andwhen the judgment is written seven months after the last hearing.
The story told by the appellant and his witnesses Sabaratnam andChelliah may be summarised as follows :—
The appellant said that his sister Arudchelvam, having been ill for sometime past, had asked him on or about the 26th June, 1943, to find a pur-chaser for some land belonging to her which she desired to sell in orderto raise money for her medical expenses. The appellant succeeded infinding a prospective purchaser in one Chelliah, a fisherman living nearby,and on the 27th June, 1943, an agreement was concluded whereby Chelliahwas to purchase two lachams of land from Arudchelvam for the sum ofUs. 780 and the relevant deed was to be executed by the parties on thefollowing day. On the night of the 27th Jline, 1943, Arudchelvam feltthat she might not have long toliveand at 1 a.m. on the28th June, 1943,she asked the appellant to fetch- a notary as she wished to make her will.and at the same time to execute the transfer deed of the land to Chelliah.It should here be stated that at this time the.first,respondent was themanager of a. school at Valvettiturai,. and he and his second wife and hisdaughters by his second wife, the appellant and his wife, and Arudchelvamwere all living in a building inside the school compound, and were occupy-ing a row of three adjoining rooms opening on to a verandah. The roommarked C. 2 on the agreed plan was occupied by the appellant and his wife,the next room C. 3 was usually occupied by Arudchelvam and her half-sisters, but according to the appellant Arudchelvam’s bed was in room C. 2on the night in question. The third room C. 4 was occupied by the-firstrespondent and his wife.
LORD MORTON OF HENRYTOX—Selvaguru v. Thaialpagar303
In response to the request of his sister Arudehelvam the appellant wentto the house of his father-in-law, one Selvadurai, and they proceededtogether to the house of the witness Sabaratnam, a notary, to whom theygave instructions for the drafting of a transfer deed in favour of Chelliah.According to the evidence of Sabaratnam this transfer deed (the documentmarked D. 9.) was drafted in Sabaratnam’s house at 4 a.m. on the 28thJune, 1943, and the transferee Chelliah was not then present: although theappellant was not in possession of the title deeds of the land he wasable to supply particulars of the boundaries of the land and the number ofthe relevant title deeds required for the drafting of the document D. 9.frominformation placed at his disposal by Chelliah, who in turn had obtainedthis information, according to the appellant, from Certain of Chelliah’srelatives who had previously bought parcels of adjacent land.
After the drafting of the document D. 9 the appellant, togetherwith his father-in-law Selvadurai, the notary Sabaratnam and thelatter’s clerk set off for the school compound and on theirway there they passed the house of the appellant’s father-in-lawwhere one Ramalingam was found seated outside the house.According to the appellant it so happened that Ramalingam had comethere at 3.30 a.m. on the chance of seeing the appellant’s father-in-lawSelvadurai on some matter of business connected with timber. Theappellant alleges further that he fetched the witness Chelliah who livednearby and that the whole party, which was joined by Ramalingam andconsisted in addition to Ramalingam of five other persons namely theappellant, his father-in-law, the notary Sabaratnam with his clerk andChelliah, arrived at the school compound. They gained admission tothe compound by unlocking the main gate of the compound by meansof a key which the appellant had in his possession. They went to the-room C. 2. Sabaratnam read out and explained the deed (D. 9). Arud-chelvam thereupon demanded the purchase money, which was handedby Chelliah to Sabaratnam and by him to Arudehelvam. The deed (D. 9)was then signed by Arudehelvam, and Selvadurai and Ramalingamappended their signatures as witnesses. At the time the deed was beingread out there were present in the room the appellant, his father-in-lawSelvadurai, the notary Sabaratnam, the notary’s clerk, Chelliah, Rama-lingam and a certain woman. After the deed (D. 9) was executed Arud-chelvam desired Sabaratnam to draft her will and on her instructionsSabaratnam drafted the alleged will P. 1 and the protocol thereof]!). 10,which were then signed by Arudehelvam and attested by Chelliah andRamalingam. In his evidence at the trial in the District Court Sabarat-nam said that two pen holders had been brought by him and were usedwhen the documents were signed. He attributed a difference in the appear-ance of the ink used for the signature of Arudehelvam on the deed (D. 9)from that of the signatures of the two attesting witnesses tolthe poor qualityof the ink and explained that it had been necessary to shake the ink bottlefrom time to time. Sabaratnam added that the difference might be dueto the pen used by Arudchelvam. There was a similar difference in theappearance of the ink used in writing the signature of Arudehelvam on allthree documents D. 9, D. 10 and P. 1, to that used both for writing thecontents of these documents and the signatures of the witnesses.
364 LORD MORTON OF HENRYTON—Selvaguru v. Thaialpagar
The first respondent in his evidence said :—
“ I generally get up from bed between 3 and 4 a.m. The deceasedwas occupying the room adjoining my room. Besides the deceased myother daughters also used that room. At that time my other daughterswere not grown up girls. The wall between my room and thedeceased’s room was a half wall and it did not reach up to the roof.If anybody had gone to the deceased’s room at about 3 a.m. or 4 a.m.
I would have known. When I get up at about 3 a.m. my wife andchildren also used to get up and they prepare warm water for my bathbecause I am subject to catarrh troubles. Generally I go to thetemple at about 5 a.m. and return from the temple at about 7 or 7.30a.m. If anybody had come to my house between 3 a.m. and 5 a.m.
I would have known. ”
Even if the first respondent was mistaken as to Arudchelvam occupyingthe room next to his on the night in question, it is strange that neither thefirst respondent nor his wife nor any of their daughters heard these sixmen enter and leave room C. 2 and carry on conversations therein.Further, the witness Iyangar, who is a Brahmin and Principal of the schooland lives within the school compound, gave evidence as to his habits ofearly rising which, if it is accepted, makes it very unlikely that these sixmen could have passed and repassed his house on the morning in questionwithout his knowledge. He also gave evidence that the appellant neverhad a key to the gate of the school compound.
Their Lordships feel that it is unnecessary to set out fully the evidencefor the respondents or to comment upon the learned judge’s reasons foraccepting the appellant’s story, because they think that certain documentsproduced by the first respondent show quite plainly that the story toldhy the appellant was false. These documents I>. 1,1). 2, D. 3, I). 4 and
7 are letters and postcards written hy Selvadurai to the appellant andother persons and their dates, contents and postmarks show, beyondreasonable doubt, that at the time when, according to the appellant’sevidence, Selvadurai was taking part in this curious nocturnal expeditionat Valvettiturai he was in fact at a place called Vavuniya, some eightymiles away. This documentary evidence was supplemented by the oralevidence of one Velupillai, an Irrigation Department clerk called by therespondents at the trial, who stated that Selvadurai stayed with him atVavuniya “for about a week till 30th June, 1943”. The District Judgedisbelieved Velupillai for reasons which seem to their Lordships uncon-vincing and dealt with the letters and postcards by saying The stamp ofthe postmark could easily have been obtained fraudulently with the con-nivance of an employee of the Vavuniya Post Office ”. Counsel for theappellant very properly stated that he was unable to support thisobservation.
It is also worthy of note that Selvadurai was present on the first dayof the hearing at the District Court when the letters and postcards wereproduced in evidence. As from this date Selvadurai disappeared from hisvillage and all attempts thereafter to effect service on him of a summonsto attend the District Court failed. Moreover, Hamalingam, one of the
Aladappuli v. Patrick
two witnesses to the alleged will, did not give evidence. His absence at thetrial and his presence outside the house of Selvadurai at 3.30 a.m. aboutsome timber business were not explained.
In their Lordships’ view the Supreme Court rightly disbelieved the storytold by the witnesses for the appellant. One other matter should bementioned. On the 31st October, 1945, the District Judge issued aCommission to a handwriting expert at Colombo, Mr. E. T. MacIntyre,to examine the signature on the three disputed documents P. 1, D. 9 and
10, together with the signatures on four other documents admittedlysigned by Arudehelvam, and to report whether in his opinion the signa-tures on the three disputed documents were written by the person whosigned the four admitted documents. Mr. MacIntyre reported in writingthat in his opinion the three disputed signatures were forgeries. At thetrial he gave oral evidence to the same effect, and gave his reasons in fall.Ho other expert witness was called, but the learned judge preferred hisown view of the documents to that of Mr. MacIntyre and held that thesignatures were genuine. The Supreme Court, on the other hand, thoughtthat the appellant had entirely failed to prove that the document P. 1 wasthe duly executed will of Arudehelvam. Their Lordships see no reasonto differ from this view and they will humbly advise Her Majesty that thisappeal should be dismissed. The appellant must pay the costs of theappeal.
T. SELVAGURU , Appellant, and G. THAIALPAGAR , Respondent.
LORD MORTON OF HENRYTOiST—Selvaguru v. Thaialpagctr 361