027-SLLR-SLLR-1987-1-CHARLES-DE-SILVA-v.-ARIYAWATHIE-DE-SILVA-AND-ANOTHER.pdf
CHARLES DE SILVA
v.ARIYAWATHIE DE SILVA AND ANOTHER
COURT OF APPEAL.
JAMEEL, J. AND ABEYWIRA, J.
C.A. No. 114/76.
(D.C. No. not available).
OCTOBER 29. 30 AND DECEMBER 2. 3 AND 4, 1986.
Last Will – Dispute re execution of will – Report of EQD – Comparisonmaterial-Assessment of expert evidence of handwriting-Judgment delivered afterlong delay-Evidence Ordinance, s. 45.
Where in holding that an impugned Last Will sought to be propounded was not proved,the court acted on the opinion of an expert witness based on comparison material thathad not been proved and long intervals in the recording of evidence and the delayeddelivery of judgment made judicial evaluation difficult.
Held-
11) The Court was wrong in acting on the evidence of the handwriting expert as-
(а)the genuineness of the comparison material on which he based his opinion was indispute and such material had not been duly proved.
(i>) the photographs used by the handwriting expert had not been proved in Court.
(c) comparison specimens both adequate in number and of a suitable kind areessential as the human hand will not reproduce the characters like atypewriter-the most suitable material being that which has been written at aboutthe same time as the contested document on similar paper, in similarcircumstances and with similar pen and ink, pencil or type-writing.
The Court could not reasonably have in mind the credibility and demeanour of the
witnesses.
There was sufficient direct and oral evidence to hold that the impugned will hadbeen in fact signed by the deceased testator. Where there is no doubt of the mentalcapacity of the testator and no element of suspicion arises a Will will be held to beproved if the witnesses who speak to the due execution and attestation are believed byCourt. If there are circumstances which excite the suspicion of the Court thepropounder must remove it and satisfy the Court that the testator knew and approvedof the contents of the Last Will.
Cases referred to:
Selvaguru v. Thalalpagar-(1952) 54 NLR 361 (P.C.).
Ratnayakev. Ratnayake-(.1947) 48 NLR 134.
Bandappuhamy v. Ekanayake-(1957) 61 NLR 187.
The Queen v. Kularatne-{ 1968) 71 NLR 529.
The Queen v. Wijehamy-(1958) 62 NLR 425.
(б)Meenadchipillai v. Karthigesu-(1957) 61 NLR 320.
Sangarakkita Them v. Buddharakkita Thero-(1962) 63 NLR 433.
Samarakone v. The Public Trustee-(1960) 65 NLR 100.
. Soysav. Sanmugam-(1907) 10 NLR 355.
Mohotihamy v. Alninona-( 1949) 50 NLR 317.
APPEAL from the judgment of the District Judge of Gampaha.
Dr. H. W. Jayewardene, Q.C. with 8. Rajapakse and Miss T. Keenawinna forpetitioner-appellant.
J. W. Subasinghe, P.C. with D. Nilanduwa and MissS. Seneviratne for 3rd respondent.P. A. D. Samarasekera. P C. with K Abeyapala for 4th and 5th respondents.
Cur. adv. vult.
January 30. 1987.
ABEYAWIRA, J.
Dissatisfied with the decision of the Learned District Judge ofGampaha delivered on the 7th of June 1976 wherein he has held thatthe due and proper execution of the Last Will No. 774 of 01.02.1972has not been satisfactorily proved as it has not been shown inevidence to have been signed by its author, the late Dadallage DonSeeman Appu, who had died on the 3rd of June 1972, and as thelearned Judge had accordingly dismissed the application made toCourt on the 7th of July 1972 whereby the petitioner as the appointedExecutor by the said Will had sought for probate and other authority tohave the said Will implemented, the petitioner has filed papers inappeal on the 17th of June 1976 to have the decision of the LearnedDistrict Judge set aside and that he be appointed the Executor asmentioned in the said Last Will since he maintains that on the evidenceled in the District Court the due and proper execution of this Will hadbeen proved satisfactorily.
The petitioner had filed his papers in the District Court of Gampahaon the 7th of July 1972 together with the Last Will No. 774 of01.02.1972 (P1) seeking the authority of that Court to have himappointed the Executor as stated therein and for probate. He hadnamed his daughter and wife as the 1 st and 2nd respondentsrespectively to his petition for according to him they are the only otherdevisees mentioned in the said Last Will. It will be noted that the 3rd,4th and 5th respondents have been added as parties to this case ontheir own applications made to Court on the 9th of October 1972(vide Journal Entry No. 5).
The 3rd respondent has on the 12th of December 1972 filed hisobjections to the petitioner being appointed the Executor, and againstthe issue of probate as claimed by the petitioner-appellant: Accordingto this party the deceased had left no Last Will but had died intestateand therefore his estate will have to devolve on the intestate heirs ofthe deceased, who among himself are very many others than thosementioned in paragraph 8 of the petition of the appellant. He hasaccordingly prayed that he be appointed the administrator of thedeceased's estate by Court and that the application of the appellantbe dismissed. This case had thereafter come up for hearing before thelearned judge on the 26th of July 1973 when the following issueswere raised by the attorneys appearing for the petitioner and the 3rdrespondent, viz:
Is the Last Will No.774 attested by the Notary Mr.B. R. L.Tillekaratne and referred to in paragraph 3 of the petition of thepetitioner, the Last Will of the deceased Dadallage SeemonAppu?
Did the said Dadallage Seemon Appu die without signing thesaid Last Will?
Did the said Dadallge Seemon Appu die without leaving a LastWill?
If the deceased died without leaving any Last Will would hisestate devolve on the parties mentioned in paragraph 8 of thepetition?
The first witness called on behalf of the petitioner-appellant was theNotary Tillekaratne who is said to have attested the Last Will No. 774of 01.02.1972 (P1). The said Notary is also an attorney-at-law whohas given evidence to the effect that he has been carrying on hisprofessional work for about 11 years and had by then executed over1200 notarial deeds and about 10 last wills. He has also stated thathe had known the deceased for about 20 years prior to his death andthat he had been his Attorney in other matters calling for legal advicebefore he did draw up and attest the disputed Last Will. It was hisevidence that about 2 months prior to the execution of the aforesaidLast Will, the deceased had discussed with him about the drawing upof a last will, and that on the 1 st of February 1972 while he was in hisoffice that morning before going to Court, the deceased had comethere on his way to the deceased's estate in Kurunegala and had givenhim instructions and the other details required for the drawing up of alast will and had requested him to have it ready when he returned inthe afternoon that day from the estate for signature. The Notary hastold Court that he had drawn up the Last Will as required by thedeceased in the English language and that while he was in his officethat day at about 1 or 2 p.m. the deceased had returned by himself tohave the Last Will signed. He has told Court that he did explain to thedeceased the contents of the said Last Will in the inner room of hisoffice, after which the deceased had signed it before the two
witnesses named Don Ariyawansa Gunaratne and Don PercivalJayasinghe: This witness has formally produced the said Last WillNo. 774 of 01.02.1972 (P1) in Court and identified it as the onesigned by the deceased and the two witnesses which he had attested ;and had also recognised the signatures in it. The witness stated inevidence that both at the time of signing the said document and alsowhen giving instructions to him in the morning of that day thedeceased appeared quite normal and signed the same as any othernormal person. He stated to Court that the deceased appeared to bein good health both physically and mentally and in no way showed himthat he was executing this document under compulsion, haste or suchlike, but that it was a willing and voluntary act of his. According to thiswitness after the due execution and attestation of this Last Will wasover he had put the same into an envelope sealed it and kept it in hissafe. The sealed envelope has been produced marked P2 andidentified by the said witness: He also told Court that the petitionerhad come to his office a few days after the death of this person andinformed him of his death whereupon he had requested the petitionerto produce proof of the said death to him by bringing the deathcertificate and also a report from the Grama Sevaka of the area to thateffect before he could give the document (PI) which was with him.This had been complied with by the petitioner and the witness didstate in evidence that he handed over the sealed envelope withoutopening it to the petitioner. Under cross-examination the witnessstated that the deceased had helped him to transport his paddy from afield which was about 1 1/2 miles away from Halpe, by getting him thetransport for the same on several occasions, and that he did alsooccasionally visit him in the office when on his way to the estate. Thewitness also stated that the deceased may be a person from theSouthern Province since the deceased had occasion to get his adviceregarding the transfer of a Bank of Ceylon account which he had inGalle to the branch bank at Kurunegala. He was however not sure as towhen the deceased had taken up residence at Mirigama.
It will be seen that this witness was in no wise cross-examined onthe basis that he was giving false evidence as regards the executionand attestation of P1 and that the said Last Will did not contain thesignature of the deceased himself, but was in fact a forgery of it.
Gongala Vitanage Don Ariyawansa Gunaratne a resident ofKurunegala and the 1 st witness to the said Last Will P1 has stated thathe did know the deceased for about 6 years prior to his death having
met him at various places in the town, and that he had spoken with thedeceased also. He has given evidence to the effect that he did sign thesaid Last Will PI. He has further said that he did know the notaryMr.Tillekaratne and the other attesting witness to this Last Will calledDon Percival Jayasinghe. According to him the deceased Seemon, thesaid notary, a clerk of this notary and the other witness Jayasinghewere all present in the notary's office when he had come there to signthe Last Will. He has also referred to the fact that he was personallypresent when Seemon, the deceased, and the other witnessJayasinghe did place their signatures to the document P1.
This witness has stated under cross-examination that close to thesaid notary's office, there was a shop, into which he had gone atsome time in the morning of the day in question and that while he wasthere the said notary had called him to sign as a witness to thisdocument P1. He has told Court that when he did come to the saidoffice it would have been about 1 p.m.-2p.m. that day, and that theLast Will had been drawn up ana ready for the signing of it. It has beenhis evidence in Court that the said Last Will had been written out in theEnglish language and that its contents were explained by the notary tothe deceased in the Sinhalese language. He has stated in evidencethat the deceased Seemon Appu did thereafter first place his signatureto this document, after which he did sign the same as the first witnessand Jayasinghe too signed it. thereafter as another witness. He hasstated in evidence that an affidavit had also been signed at this time.He was however not sure, if in fact more than one copy of the Last Willwas signed on that occasion. He did identify his own signature in theLast Will PI, and has denied the suggestion made to him undercross-examination that this document had been signed on asubsequent date. He has also made out by his evidence, that the. deceased may have met the Notary earlier and given him thenecessary instructions regarding the preparation of the said Last Will,for when he did arrive at the notary's office it had been drawn up andready for the respective signatures to be placed thereon.
This Court does see that even in the case of this witness it has notbeen suggested to him under cross-examination that this Last Willdoes not bear the signature of the deceased and that he was himselfnot a witness to it.
The original petitioner, viz. Charles de Silva was an old man at thetime he gave evidence in Court for he has said that he was 73 yearsold then. He has stated that he is a resident of Halpe in the MirigamaDistrict, and that the deceased Seemon who is an uncle of his wife,was himself residing with this petitioner and his family for many yearsprior to his death in June 1972 and was in fact generally looked afterby them. This witness has told Court in evidence that he was given thesaid Last Will P1 by the notary Tillekaratne in the manner andcircumstances as stated to Court by the notary himself thuscorroborating the evidence of the notary on this point. He has alsogiven evidence in Court to the effect that having obtained a sealed andunopened envelope from this notary he did take this document to hisown lawyer who having opened it and read its contents, had informedhim of the fact that it contained the Last Will of Seemon Appu thedeceased and the contents of it. The witness had then requested hislawyer Mr.Senaratne to take the appropriate legal steps to have thesaid Last Will enforced through Court by obtaining probate. On beingshown the Last Will P1 this witness has said that he could identify thesignature of the deceased therein as the same is familiar to him thoughhe was not personally present when the same was signed.
Under cross-examination he stated that the deceased is an uncle ofhis own wife, being a brother of her father. He has said that to hisknowledge the deceased died unmarried and leaving no brothers orsisters who survived him. According to the petitioner-appellant theheirs of the said deceased would be those mentioned by him inparagraph 8 of his petition. He has accepted the fact that an estatecalled Kirindigalawatta in the District of Kurunegala which is about 21acres in extent has been given by this last will P1 to the 1strespondent, but subject to the life interest of both, this petitioner andhis wife the 2nd respondent. It will be noted that all the other assets ofthe deceased have also been given to the petitioner by the said LastWill P1. This witness did tell Court in evidence that he had not beenpersonally aware of the execution of this Last Will until notaryTillekaratne had given him the sealed and unopened envelopecontaining the same which he took to his own lawyer Mr. Senaratnewho after reading the document had informed him that it was the LastWill of the deceased Seemon and the contents stated therein. Onbeing questioned under cross-examination he has told Court that thedeceased had at some period prior to his death told him thateverything which has to be done regarding his property and estate had
been fulfilled or attended to whereupon the petitioner had thought thatwhat the deceased meant was that he had disposed of his estate byLast Will or otherwise but had not sought to question him in respect ofwhat was told.
This witness stated that the 1st respondent is his own daughterthrough another woman and that although he had not been happy withher, for some time after she had got married on her own accordwithout his consent, he had subsequently pardoned her and taken herand her husband back into his family unit whereupon they too livedwith him and the said deceased Seemon Appu in the same house. Infact the witness has gone on to state that the 1 st respondent hadbeen legally adopted as their own child by his wife and himself withoutany discrimination, whereupon the deceased had also treated the 1 strespondent as a child of the petitioner and his wife the 2ndrespondent. This witness has stated in evidence that the 1strespondent herself did always refer to the deceased as her "Mutha”(grandfather) through affection. It was also his evidence that the 1strespondent had been very helpful to the deceased who in the lateryears of his life had been often unwell due to the condition of his bloodpressure, whereupon the 1st respondent had generally looked afterhim.
The witness admitted that the deceased and he had a joint bankaccount in the Bank of Ceylon at Kurunegala bearing the accountNo. 4512. The witness has stated in evidence that the deceased didalways invite him to accompany him on the journeys of the deceasedwhenever he was feeling not too well and that this witness did alwayscomply with the said requests. According to the evidence of thiswitness the deceased would not even go to his estate namedKirindigalawatta when he felt unwell but would ask him to accompanythe deceased on such occasions which he did not refuse.
It will be relevant at this stage to note that while the'petitioner-appellant was giving evidence under cross-examination amotion had been tendered to Court by the attorney for the 3rdrespondent on the 31st of August 1973 (vide Journal Entry 20) withnotice to the Attorney for the petitioner that the Secretary of the Bankof Ceylon at Kurunegala be ordered to submit to Court all thedocuments in that Bank which contained the signature of thedeceased, so that the same could be compared by the Examiner ofQuestioned Documents with the signature of the deceased found in
the impugned last will PI by the 3rd respondent. Thereafter theJournal Entry in the Court Record dated the 17th of September 1973(vide Journal Entry 23) shows that a document which is a SavingsAccount Form of the Bank (3D3), a signature card of the Bank (3D5)and a photograph with a name "D. Seemon Appu" written on itsreverse (3D6) had been received by the District Court. Thesedocuments along with the letter dated the 1 st of November 1971(3D4) received by the said Bank and having the name "D. SeemonAppu" written at the appropriate place therein, had been sent forexamination and report to the Examiner of Questioned Documentsalong with the Last Will P1 to examine and report as to whether theseso called specimen signatures of the deceased so obtained by Courtdid tally and was the same as the signature of the deceased SeemonAppu as shown in the Last Will P1. It is significant to note that whenthe Attorney for the appellant had wanted two notarial deeds,No. 6631 of 8.6.1968 and No. 9401 of 18.11.71 (marked P5 andP6) wherein the signature of the said deceased is also said to befound, be sent for this examination with the other documents, thesame had been objected to by the Attorney for the 3rd respondentwhich objection had been upheld by the District Judge, so that onlythe documents received from the Bank of Ceylon, Kurunegala hadbeen available for comparison with the signature found in the Last Willwhen the commission was sent to the Examiner of QuestionedDocuments. Also there has been no evidence led in Court at this timethrough any responsible bank officer as to how, when and why thesedocuments were obtained by the Bank and also that the signaturestherein were the true signature of the said deceased.
According to the evidence of the appellant there were no closerelations of the deceased who were alive, with whom he even formallyassociated during the many years that he had lived with this petitionerand his family. It is his contention that the 3rd respondent has for thefirst time tried to show in this case that he also is an intestate heir ofthe said deceased though in actual fact the deceased did have noassociation with this party when living and to the good knowledge ofthe appellant. It is hence maintained by the appellant that it is nosurprise to him to have seen that the deceased had executed a LastWill leaving his entire estate to those who had been of help and benefitto him whereby the 1st-2nd respondents along with himself havebeen benefited.
Don Percival Jayasinghe the 2nd witness to the Last Will P1 has toldcourt in evidence that he did know the Notary cum AttorneyMr.Tillekeratne for over 15 years and that he, the witness, did run ashop about 4 fathoms away from this Notary's office for quite a periodof time prior to his signing the said Last Will. He has also stated that hedid personally know the deceased since he was a customer whopurchased goods from his shop for a period of about 8 years prior tohis death. He has stated in evidence that he did sign the said Last Willas its 2nd witness with Don Ariyawansa Gooneratne who is alsoknown to him signing the same as the 1st witness. He has alsomentioned that both of them as witnesses did place their respectivesignatures after the deceased Seemon Appu had signed the same. Ithas been his evidence that after signing this document he didimmediately return to his shop to attend to the work there, and thuscould not say when and where the Notary had signed the Last Will.
Under cross-examination he accepted the fact that this Last Will P1was drawn in the English Language but contradicted the evidencegiven by the other witness Gooneratne to the effect that both of themwere present when the notary is said to have explained the contentstherein to the deceased. He did also say under cross-examination thathe had met the deceased earlier on this day and that the latter hadrequested him to be available to sign a document before the notary asa witness if so required. He has also testified to the fact that at about1.30 p.m. and 2 p.m. the Notary did call him to attest the documentand that when going to the Notary's office the other attesting witnessGooneratne and the deceased were also present in the office.According to this witness it was incorrect for Gooneratne to havestated in evidence that both attesting witnesses were present whenthe notary did explain the contents of the Last Will to the deceased;though it may have been so explained just before he had been called.
The Examiner of Questioned Documents, Mr. A. D. H.Samaranayake to whom a Commission had been issued by court atthe instance of the 3rd defendant has given evidence in this casewherein he has first given his academic and other relevantqualifications which permit him to give a report in the nature of his ownreport of 25.01.1974 (3D2) and to give oral evidence as an expertunder section 45 of the Evidence Ordinance. He gave evidence to theeffect that he did compare the signatures of Seemon Appu found inthe documents marked 3D3 to 3D6 together with the signature of theexecutant of the said Last Will P1 and that it is his opinion that theperson who did sign the documents 3D2 to 3D6 did not sign the LastWill P1. It will be seen that the document marked 3D3 is a letter statedto have been received by the Bank on the 27th of August 1970 fromits signatory D. Seemon Appu asking the permission of the Bank ofCeylon, Kurunegala to open a Savings Deposit Account with it. Thisdocument had been objected to by the attorney for the petitionerwhen formally produced in evidence and the same had been allowedsubject to the proof of it. This together with the other documents sentto Court by the Bank and forwarded to this witness Mr. Samaranayakehad been all objected to when produced at the trial but allowedsubject to proof, which onus has not been discharged legally by the3rd respondent as would be seen later from this judgment.
The report of the Examiner of Questioned Documents marked 3D2and dated the 25th of January 1974 has gone on the presumptionthat the genuine signatures of the deceased are to be found in thedocuments 3D3 to 3D6 and thereafter accepting them as specimensignatures of the deceased has after comparison of these with thesignature found in the Last Will P1 come to the conclusion that thesaid Last Will P1 has not been signed by the same person who hassigned the documents 3D3 to 3D6. He has also stated in his reportand evidence the reasons for the conclusion he has thus arrived at:One important fact which has to be considered by Court is whetherthese other specimen signatures which had been sent to the Examinerof Questioned Documents were legally proved to bear the actualsignatures of the deceased Seemon Appu since they had beenallowed in evidence by Court only subject to being correctly proved:This important fact the 3rd respondent has failed to prove as wouldhave been normally required in a Court of law. It will be noted that theonly witness called by the 3rd respondent is an officer of the Bank ofCeylon at Gampaha who is a clerk there by vocation, but who failed tosay whether the documents 3D3 to 3D6 were in fact signed by thedeceased Seemon Appu. Thus it will be seen that the very foundationand data on which the Examiner of Questioned Documents has beencalled upon to give an opinion as to whether the Last Will P1 has beensigned by the deceased being of no legal value as the correctness ofthe signatures found in 3D3 to 3D6 has not been proved, the report ofhis marked 3D2 will be of no assistance to Court and so also would behis oral evidence given at the trial. On the point the Privy Council caseof Selvaguru v. Thalalpagar (1) is relevant for there it was held that the
handwriting expert should compare with the admittedly provedsignatures the one which is disputed. The said case also went on tostate that the advantage had by a trial Judge of seeing the witnesses,their demeanour and also hearing them when giving evidence is not sogreat when the evidence is heard on dates widely separated from eachother and when the judgment is thereafter written a long time after thelast hearing. Again the case of Ratnayake v. Ratnayake (2) is anauthority for the proposition that a long delay in giving judgment afterthe evidence had been heard would no doubt affect the recollectionsof the said judge as regards the veracity of the evidence given by therespective witnesses. In the present case it has been brought to thenotice of this court that not only were the said specimen signaturesnot legally produced and proved to be those of the deceased SeemonAppu, but also that the judgment of the learned District Judgedelivered on the 7th of June 1976 was too long a period after thehearing of the evidence in this case which was on the 7th of July 1975for him to have been reasonably enabled to have in mind the credibilityand demeanour of the witnesses (see also Bandappuhamy v.Ekanayake (3), The Queen v. Kularatne (4) and The Queen v.Wijehamy (5)).
Under cross-examination the Examiner of Questioned Documentsstated Court that he was unable to say as to how the said specimensignatures of the deceased had been obtained by court in the, documents marked 3D3 to 3D6 which had been sent to him forinvestigation and report with the disputed signature in the Last Will P1according to the terms of the Court Commission. He has in evidenceaccepted the fact that no two signatures written by the samesignatory would be exactly accurate with each other but even so thatan expert should be able to state whether the two have been signed byone person or not. He also accepted as correct that with the passageof time one's own signature would change and also that the time,place and circmstances under which any signature is placed and themental and physical state of the person signing would also have someeffect on the signature he has placed at that time.
The Examiner of Questioned Documents also stated that thesignature of anyone written with a bail-point pen will have differentfeatures to that person's signature written by him with a fountain pen.On this point the reply sent to court by a former Examiner of.Questioned Documents on the 18th October 1974 is relevant. Thisarose as the appellant not being satisfied with the so called specimen
signature sent to Mr.Samaranayake, without the two notarial deedsmarked P5 and P6 which he did also want to send therewith, and thereport sent by Examiner to Court thereafter had wanted anotherCommission sent to Mr.Nagendran a retired Examiner of QuestionedDocuments who was then accepting private commissions for hisreports. On the application made to the District Court by the appellantit permitted him to have the relevant documents sent to this person forhis examination and report. However in consequence of this there hasbeen the aforestated letter sent by Mr. Nagendran to Court to theeffect that as only the Last Will P1 has been signed with a bail-pointpen, while the other specimen documents sent for comparison werenot so signed by a bail-point pen but by a fountain pen it would be ofno valid purpose to compare them for there were bound to besignificant and different features in the two sets of signatures due tothe different types of pens used for the writing of the respectivesignatures. The witness Mr.Samaranayake has also in his evidenceaccepted the fact that the signature in the last will P1 made by thedeceased is with a bail-point pen, while the relevant signatures statedto be of the deceased found in the documents 3D3 and 3D4 have notbeen made with such a pen. He has also stated in evidence that hisevidence to Court is being given with the aid of the enlargedphotographs of the relevant signatures that are with him. Here too wewould say that the said photograph should have been duly proved inevidence before any reliance on evidence given with their aid could beaccepted the fact that the signature in the Last Will P1 made by thephotographer who did the said enlargement on the orders ofMr. Samaranayake. This also has not been done by the 3rd respondentand this error or defect also adds to the inability of Court to act on thereport and evidence of Mr.Samaranayake.
Under cross-examination Mr. Samaranayake has accepted the factthat even among the specimen signatures sent to him as being thesignatures of the deceased there are differences. He accepts the factthat no two signatures of the same person would be similar to oneanother so as to be called all correct in both. He further stated that thetype of paper used when placing the signature, the manner in whichthe writer was when so signing whether he was seated or standing,his normal health then, his age and the mental condition in which hewas when placing his signature would also affect the writing made. Hehas told Court in evidence that within a period of two years one's ownhandwriting could change to a significant extent and that a person
who has signed any document after taking liquor or when for anyreason not in his normal condition would make a different signature toone made by him under normal circumstances.
Having considered the evidence given by the Examiner ofQuestioned Documents we are of the view that the so called specimensignatures of the deceased found in the documents marked 3D3 to3D6 have not been legally proved to contain the true signatures of thedeceased. Accordingly the foundation of the examination based onthe presumption that the said signatures on 3D3 to 3D6 are the realsignatures of the deceased is without legal proof or any substance forthe learned District Judge to act on the evidence given by this officer.
The witness Tillekeratne a clerk in the Bank of Ceylon at Gampahahad been summoned to give evidence in a weak attempt made by theattorney for the 3rd respondent to prove the document marked 3D3to 3D6 as containing the real signatures of the deceased SeemonAppu. However he has admitted under cross-examination that he wasnot personally present when any of these documents were signed andcould therefore not say whether they had been signed by thedeceased himself or not. He has also told Court that he has notworked in the Bank of Ceylon at Kurunegala where the deceased hadhis account with the Bank. Under these circumstances this court issatisfied that the 3rd respondent has failed to prove that thesedocuments had been signed by the deceased especially as they werepermitted to be submitted in evidence on the undertaking given thatthey would be proved before court.
In a dispute of this nature the one question for Court to decide iswhether the signature of the executant of the Last Will No. 774 of
2.1972 is that of the deceased Seemon Appu. It will be noted thatthis Last Will is a notarial document attested before a notary and twowitnesses all of whom have given evidence at the trial before theDistrict Court while the 3rd respondent has rested his case on theevidence of the Examiner of Questioned Documents and the Bankclerk.
As stated earlier in this judgment the Notary and his two attestingwitnesses to this Last Will have not been cross-examined on the basisthat they are supporting a forgery of the deceased's signature placed
therein. In fact when considering their evidence this Court sees noproper or sufficient cause to reject this evidence as being not possibleto be believed by normal standards. Under normal circumstances thisLast Will as a notarial document could have been accepted by courtunless it had been challenged. The 3rd respondent had filed hisobjections stating inter alia that the said Last Will did not bear thesignature of the deceased whereupon the District Court was put onguard in respect of the grant of probate and the proving of this LastWill. Otherwise as stated in the case of Ratnayake v. Ratnayake(supra) (2) where there is no doubt of the mental competency of thetestator and no element of suspicion arises a will would be held to beproved if the witnesses who speaks to the due execution andattestation are believed by Court. The Supreme Court in the case ofMeenadchipillai v. Karthigesu (6) stated that where the grant ofprobate is resisted and circumstances do exist which excite thesuspicion of the Court, it is for those who propound the will to removethat suspicion and satisfy court that the testator knew and approved ofthe contents of the Last Will.
It is evident to this Court that the learned judge has relied largely onthe evidence and report of the Examiner of Questioned Documents inpreference to that of the Notary and the two attesting witnesses to theLast Will P1. This expert evidence has been given on the propositionthat the signature of the deceased found in the Last Will is not thesame as the signatures found in the documents 3D3 to 3D6, thoughin fact the signatures found in the document 3D3 tb 2D6 have notbeen proved to contain the true and correct signature of the deceasedSeemon Appu. In Bandappuhamy v. Ekanayake (supra) (3) it was heldthat where the prosecution relies on the evidence of the prints of theaccused as incriminating him, evidence should be expressly given toshow that the specimen slips said to have been taken in Court were infact the prints of the accused. Again the case of The Queen v.Kularatne (supra) (4) held that in a criminal case the identity ofproduction must be accurately proved by the direct evidence which isavailable and not by way of inference. Here the analyst had producedthe plate on which he found a trace of arsenic, but neither the policeconstable who brought the plate nor the person who had identified thesaid plate were called as witnesses and this non-summoning of the
said persons as witnesses was stated to be bad. These cases arerelevant in respect of the evidence in the present matter for there hasbeen no proof of the identity of the person who signed the documents3D3 to 3D6 and also of the photographer who had madeenlargements of the signatures at the instance of and for the benefit ofthe Examiner of Questioned Documents. Also the case of The Queenv. Wijehamy (supra) (5) held that there should be direct evidence ofthe photographer who prepared the enlarged photographs and thatthe evidence should not be got from the expert as to the opinion he didform after making use of these photographs if the said photographerwas himself not called as a witness; while the case of Sangarakkita ■Thero v. Buddharakkita Them (7) held that a deed which on its faceappears to be in order is presumed to have been duly executed andthe mere framing of an issue as to its due execution and followed onlyby a perfunctory question or two on general matters of executionwithout stating the omissions or irregularities or other illegalities whichare relied upon, is not sufficient to rebut that first presumption hadwith reference to a notarially executed document.
It is further relevant to note that the evidence of a handwriting expertis to be considered only as a relevant fact and not conclusive of thegenuineness or otherwise of the handwriting in dispute and that it isonly relevant to enable the judge to form his own opinion, (vide section45 of the Evidence Ordinance). Also in the case of Samarakone v. ThePublic Trustee (8) it has been held inter alia that on an issue of forgerythe Court may accept a handwriting expert's testimony provided thatthere is some other evidence direct or circumstantial which tends toshow that the conclusion reached by the expert is correct (see also61, New Law Reports – page 522). Again in the case of Soysa v.Sanmugam (9) the then Chief Justice Hutchinson has stated thus:
"I have known too many instances in which expert opinions as tothe identity of handwriting have been proved to be mistaken, toaccept them as anything more than a slight corroboration of aconclusion arrived at independently, never so strong enough as toturn the scale against the person charged with forgery, if the otherevidence is not conclusive "
The learned Judge in the course of his judgment has also referred tocertain contradictions in the evidence of the two attesting witnessesand for that reason has considered their evidence not acceptable tohim. On this point there is the case of Mohotihamy v. Alninona (10)which held that where there is a conflict of direct testimony as to thegenuineness of a document it would be dangerous to base a decisionon a mere comparison of the said document with admitted signaturesand that in such an instance the judge should come to a conclusion onthe other oral evidence led. Such evidence which in the opinion of thisCourt is quite adequate or sufficient can be found in the quantum ofevidence led by the appellant before the trial judge.
Also the text book writer Phipson on the "Law of Evidence" in his10th Edition at page 146, paragraph 316 has said that when a party'shandwriting is in question in any proceedings the comparison of adisputed writing with any-writing proved to the satisfaction of theJudge to be genuine shall be permitted to be made by witnesses. Inthis case it cannot be said that the signatures in the documentsmarked 3D3 to 3D6 have been legally proved to the satisfaction ofCourt for they were produced subject to proof of the same which the3rd respondent has failed to supply through the evidence of the Bankclerk (vide section 73 of the Evidence Ordinance also).
The text book writer A. S. Osborn in his 2nd edition on "QuestionedDocuments" at page 25 has stated:
"that one of the first steps in the investigation of a suspected ordisputed writing should be the seeking out of suitable genuinewritings with which it is to be compared."
Again at page 27 in the same Edition the author has stated:
"that several signatures should always be obtained, if possible,before any final decision is rendered, five signatures alwaysconstituting a more satisfactory basis for an opinion than one, andten being better than five".
Again at page 364 it has been said:
"that no final and definite opinion should be given regarding adisputed document without finally comparing it with the provedgenuine document".
Also at page 368 the same author says thus:
'One of the evidences of forgery in a tracing is its identity with amodel or the damaging identity of several traced forgeries whencompared with each other, or of several simulated signaturescopied from one model or written from one mental design. As iseasily demonstrated by experiment when even two short signaturesor any of two words are written, there is possibility of slightdivergence at any point in the line making up the words orsignatures, and this is the genuine divergence which should appearin genuine signatures or of any continued genuine writing."
The next author Wilson R. Harrison in his book entitled "SuspectDocuments" states at page 13 therein, the difference when using acarbon pen than an ordinary fountain pen with ink. At page 288onwards this author has referred to the two main characteristics inone's handwriting under the term "style characteristics" and personalcharacteristics. He also has at page 376 in this book referred to thedifferences in the bail-point movement and the ordinary fountain penmovement with the different pen lifts, halts and hesitations of thesignatory due to various reasons. He too has at page 400 in the saidbook referred to the correct magnification that has to be made for theproper answers to be given to questions which will be asked.
It is thus evident to this Court that the said authors have alsoconsidered it essential that the signatures said to be genuine will haveto be proved to be so, before the same are compared with the one indispute. It is also seen how the enlarged photographs are essential tothe Examiner of Questioned Documents when giving his report oranswer to questions and thus making it clear that these photographstoo will have to be proved before Court through the photographer whomade the said enlargements of the signature which have to beconsidered by the expert in respect of any evidence that has to begiven by him.
Again the treatise on 'Contested Documents and Forgeries" byBrewester at pages 2-3 goes on to show that there will be a certainamount of natural variation in all genuine handwriting as the humanhand will not reproduce the characters like a typewriter. However it issaid that two different writing habits do not normally exist at the sametime in any one writer. At Chapter 19 in the said book its author goeson to show:
"That comparison specimens both adequate in number and of asuitable kind are essential when an opinion is sought of any •contested document. He has stated that the most suitable materialis that which has been written at about the same time as thecontested document on similar paper, in similar circumstances andwith similar pen and ink, pencil or typewriting."
Further at page 437 the author states:
"That if a signature is in dispute the number of authenticspecimens required for comparison will depend upon the questionsto be answered. If the signature in contest is a crude forgery it mayproclaim its guilt from the house tops and no specimen at all may benecessary to prove the fact. Sometimes one specimen may sufficebut at other times as many as forty may be necessary. As a rulehowever, at least 6, but if possible 12 should be obtained."
Here too we find that the identity of the specimen signatures whichare sent for comparison with the contested signature must be provedto be genuine. The aforequoted passage also shows that the Examinerof Questioned Documents should have been sent the two notarialdeeds submitted by the appellant's lawyer (marked P5 and P6) for abetter and proper study of the contested signature.
For the said reasons given by us in this judgment we are unable toagree with the Learned District Judge when he held that the signaturefound on the Last Will P1 is not the genuine signature of its maker thelate D. Seemon Appu inasmuch as this decision is largely based on theevidence of the Examiner of Questioned Documents who has said thatthe signature in the Last Will PI is not identical with the specimensignatures 3D3 to 3D6 sent to him for comparison. As stated beforeinasmuch as these specimen signatures have not been duly proved tobe the true signatures of the deceased, the foundation on which theexaminer has based his decision crumples away and is thereforeunable to sustain the conclusion he has thereupon arrived at.
It is also our view that there has been sufficient direct and oralevidence given by the Notary who attested the said Last Will and thetwo witnesses to the said document to enable the Judge toreasonably conclude that this Last Will has been signed by thedeceased himself despite some not very important contradictionsmade in the course of their evidence which are referred to in thejudgment of the learned judge.
We would therefore set aside the answers of the learned judgegiven to the issues raised at the trial together with his judgment andhold that the Last Will No.774 of 1.2.1972 (PI) has been signed byits maker the late D. Seemon Appu, wherein he has appointed theappellant as the executor. The said Will is duly admitted to probateand the petitioner appointed Executor under the said Last Will. Weaccordingly order that this case be remitted to the District Court ofGampaha for appropriate further action on the basis that the Last WillP1 has been duly proved to be the Last Will of the deceased SeemonAppu and for the taking of all the other necessary subsequent steps intestamentary cases through Court.
We further hold that the petitioner-appellant will be entitled to costsas against the 3rd respondent.
JAMEEL, J. – I agree.
Appeal allowed.
Will declared proved.
Case remitted to be continued.
Note by Editor. – The Supreme Court refused an application(No. 23/87) for special leave to appeal from this judgmenton 19.05.1987.