003-SLLR-1988-V2-FONSEKA-V.-CANDAPPA.pdf
FONSEKAV.
CANDAPPASUPREME COURTRANASINGE C.J. TAMBIAH J ANDSENEVIRATNE J.
S. C. APPEAL NO. 6/86C.A. NO. 35/75 (F)
D C .COLOMBO No. 25217/T.
MAY 19 AND JUNE 01.02.03.06.07 AND 10.1988.
Last Will ~ Revocation of Last Will by tearing it under dufess — Is it arevocation? —Does it revive earlier Will ?
Interpretation—What is a question of taw.
A duress had not been established in the. tearing up of a Last Will revocationanimo revocandi by the deceased testratrix has been proved. The tearing up ofthe Will will not sejve to revive an earlier Will made by the said testatrix. Thedevolution then will be as on intestacy.
It becomes a question of law where relevant evidence bearing on a fact has notbeen considered or irrelevant matters.have been given undue importance or theconclusions rest mainly an erroneous considerations or is not supported bysufficient evidence.
The failure to consider the material evidence of a witness is a substantialquestion of law.
Cases referred to
Collettes v. Bank of Ceylon (S.C. Ref. 6/82 — S.C. Minutes of 05.11.1982)
Collettes Ltd. v. Bank of Ceylon (1984) 2 Sri LR 253. 264, 265
Flower v. Abbw Vale Steel. Iron and Coal Co. 1936 A. C. 206
Sri Lanka Ports Authority v. Peiris 1981 1 Sri LR 101. 108
Appeal from Judgment of the Court of Appeal
H. L de Silva P.C. with $. C. Crosette, Tembiah and Miss L N. A. de Silva forappellant.
Dr. H. W. Jayewardene Q.C. with D. A E. Thevarapperuma for 8th A and 11threspondents. M. I. H. M. Sally with M. Nassim for 10th respondent.
Cur. adv. vult.
July 18. 1988TAMBIAH, J.
• The following facts are not in issue. The properties which arethe. subject matter of this testamentary case belonged to oneHerbert Luke Fonseka. Herbert first married Janet, a sister of thedeceased Virginia Fonseka, and had one child, Mervyn Fonseka,the petitioner-appellant's father. Janet died when Mervyn was 3years old and Herbert then married Virginia. Mervyn was broughtup by Virginia. Mervyn married Brightie Holmes and they had 5children, the appellant Ranjith, Nelun, Nirmala, Brightie andLakmSl. Herbert died on 19.7.1943, and on his death, half-shareof the property devolved on his widow Virginia and the balancehalf came to Mervyn. the main properties left by Herbertconsisted of the premises and business known as Hotel DuRoi situafed at Borella and residential premises
No. 16. Dickman's Road, Bambalapitiya. called "King's Royal".There were also other properties situated at Galle Road.Bambalapitiya. In 1960 therILwas an amicable division of theproperties between Mervyn and Virginia, and Virginia got theproperties which are the subject matter of these proceedings. Inregard to the main properties, as a result of the amicabledivision, she got a half-share of the Hotel %nd the entirety of"King's Royal”. It was also agreed that Mervyn should payVirginia Rs. 1,000/- per month from the profits of the Hotel.Mervyn died on 27.5.1968 intestate. The half-share, that wasowned by Mervyn devolved on his widow Brightie and the 5children.
Virginia died on 10.12.1969. During her life time, she hadexecuted 4 Last Wills:
Last Will No. 731 dated 11.9.1957 (PI), attested by Mrs.Muriel Gunawardene.
Last Will No. 785 dated 25.5.1960 <P2) attested by Mrs.Muriel Gunawardena.
Last Will No. 6790 dated 21.5.1962 (P3) attested by H. V.Ram Iswara.
Last WiH No.1027 dated 11.7.1968 attested by Mrs. MurielGunawardena.
.Each Will contained a clause revoking all previous Wills. ByLast Will (PI). Virginia devised a half-share of Hotel Du Roi and atialf-share of King's Royal to the appellant, reserving a lifeinterest to Mervyn. a half-share of premises No, 29/1, and 21,Galle Road, Bambalapitiya. to Nelun, reserving a life interest toMervyn, a half-share of premises No. 29/2. and 35, Galle Road,Bambalapitiya. to Nirmala. reserving a life interest to Mervyn. anda half-share of premises 29/3. and 33, Galle Road.Bambalapitiya. to Brightie reserving a life interest to Mervyn. Theresidue was bequeathed to Mervyn, Mervyn was appointedExecutor.
By Last Will (P2), the devise in regard to Hotel Du Roi was the.same. $he devised the entirety of King's Royal to the appellSntwith life interest to Mervyn. Premises 35 Gaffe Road.
Bambalapitiya. was bequeathed to the appellant reserving a lifeinterest to Brightie, his mother. Mervyn was appointed executor,and the residue was bequeathed ta him.
In Last Will <P3) the provisions with regard to Hotel Du Roi and"King's Royal" were the same as in Last Wills PI and P2: the onlychange effected w§s that premises No. 35 was bequeathed toNelt»n. Nirmala and Brightie, reserving a life interest to Mervyn.The residue was given to Mervyn and he was also retained asexecutor.
i
Then came the final Will (P4). It revoked all former Wills.Virginia appointed one Drupada Fonseka to be the executor, asby this time, Mervyn was dead. Drupada Foriseka is Mervyn'spaternal uncle's son. At the date of the Last Will (P4), theappellant was a rrlinor. The entirety of "King's Roy&l" and a half-share of Hotel Du Roi were devised to the appellant. The residuewas also bequeathed to the appellant. In the event of theappellant dying unmarried and without issue, the properties wereto devolve on his 3 sisters, Nelun, Nirmala and Brightie equally. Itwould appear from Mrs. Gunawardena's evidence that by thistime one of the Bambalapitiya properties was sold by Virginiaand the balance was given to the appellant's sisters.
It is common ground that Virginia entered hospital inNovember 1969 and died on 10.12.1969. Other than Janet andMabel who predeceased her. Virginia left behind 2 sisters,.Lilian(9th respondent). Winifred (10th respondent) and 2 brothers.Wilfred Peiris (8th respondent) and Justin Peiris (lltffrespondent). On 9.1.1970. the 11th respondent Justin Peirisfiled papers in Testamentary Case No. 25214,D. C.. Colombo, on the basis that Virginia died intestate and thather intestate heirs are entitled to succeed to her property asintestate heirs.
On 10.1.1970. the appellant filed petition through Mrs. MurielGrfhawardena and claimed letters of administration with the LastWill (P3t annexed to the Estate of Virginia. No reference wasmade at all to the subsequent Last Will (P4). On 28.2.1971, the‘8th. 10th and 11th respondents filed their statements ofobjections and averred, inter alia:—
Para 1 • that Last Will (P3) was revoked by a subsequent LastWill..No. 1037 dated 17th October. 1968. and attestedby Muriel Gunawardena and that Justin .Peiris was awitness to Last Will (Pi).
Para 2 – that "the petitioner Ranjith Luke Fonseka. some timeprior to her death, harassed agd ill-treated thedeceased and threatened to kill her. Her last illness wasattributed to this constant fear and threats of violencecaused by the petitioner."
Para 3 – that "in or about November. 1969, in consequence ofthe said harassment, ill-treatment and threats, thedeceased in the presence of the said MurielGunawardena, Notary Public, who attested the said LastWill, destroyed completely the said Last Will. No. 1037,and died shortly after on the 10th of December. 1969.without executing another Will and thereby diedintestate."
They prayed that the petitioner's application be dismissed and fora declaration that the deceased died intestate and that theintestate heirs be declared entitled to succeed to her property.
At the proceedings had before the District Court on 14th ofJune. 1972, it is recorded that learned Queen's Counsel for theappellant pointed out that the "respondents did not know thecorrect number of the Last Will that has been destroyed.However, the resulting position remains the same, whether theWill bears No. 1037 or 1027, the later Will has been destroyedand therefore the earlier Will is in force. The later Will states thatshe revokes the earlier Will but the revocation must be animorevocandi. If the later Will has been destroyed by duress, thenNo. 1027 still speaks. The destruction of the Will. No. 1027. wasnot done animo revocandi and the Will that speaks is 1027. forall practical purposes the Will 6790 and the later Will that wasdestroyed are substantially the same and in that situation, therevocation by destruction of the later Will 1027 merely as a f%st-of revoking the earlier Will 6790 does not affect his cas$."
Learned Counsel for the 8th and 10th respondents thenmoved to amend the statement of objections by deleting thewords "No. 1037 dated 17th October 1968" in para 1 and thewords "said Last Will 1037" in Bara 3, and substituting thereofthe words "said Last Will No. 1017."
Learned Queen^ Counsel for the appellant objected to theamendment and said he had come prepared to go to inquiry onthe basis that the objections referred to a Will No. 1037 and thatit will be necessary for him to amend his petition.
The case was taken off the inquiry roll to enable the appellentto amend his original petition.
The amended petition was filed on 28.7.1972 by the appellantthrough Muriel Gunawardena and he averred, inter alia:—
that the Last Will 6790 (P3) has already been filed in theseproceedings in the wrong belief that such Will alone maybe admitted to probate.
.(b) that "subsequently Virginia made Last-Will No. 1027 on11.6.1968 attested by Muriel-Gunawardena. a copy ofwhich is annexed, marked "B".
(c) about a month before she died the Last Will No. 1027marked "B" was torn with the assent of the deceased aS §result of the duress of W. Justin Peiris (referred to ijiparagraph 9) and in his presence and on his insistence byMuriel Gunawardena. N. P. The deceased did not intend torevoke such Will but intended and believed that suchforced destruction would only result in reviving andrestoring the Last Will No. 6790 marked "A". The deceasedopenly expressed her belief and state of mind the very nextday to Muriel Gunawardena. The deceased was certainthat in the event of death, she the deceased would dietestate and not intestate."
•Hf prayed that letters be granted to him with Will 1027 annexed,or in the^lternative with both Wills 6790 and 1027 annexed.
The affidavit of Mrs Muriel Gunawardena dated 26.7.1972was also filed and she repeated word to word the contents ofpara (c) above. On 23.12.1972, she filed her 2pd affidavit anddeposed to, inter alia,
"About 2 weeks before the deceased entered hospital, inview of the threats of personal violence to the deceased byJustin Peiris made at my flat and in view of his threateningattitude towards me. the deceased told me to tear up the
Will."
'The deceased saw me the next day and told me amongstother things that Justin might do her some personal harmand that is why she asked me to tear up her Will."
"She referred to an earlier Will, also, the testatrix and I' believed that the earlier Will was revived."
"In the course of conversation she gave me otherinstructions which I carried out."
"She went to the Wycherley Nursing Home about 10 dayslater."
"Before her instructions could be finalised, she died about* 15 days after admission to the Nursing Home."
The 2 crucial issues raised by learned Counsel for the appellantand for the respondents were as follows:—
Was the Last Will P4 destroyed as a result of the duress ofJustin Peiris in that about two weeks prior to the deceasedentering hospital and approximately about a month beforeshe died, the said Justin Peiris threatened personalviolence on the deceased at Mrs. Muriel Gunawardena'sflat at No. 2. Gregory's Road and in view of the threateningattitude adopted by the said Justin Poiris towardsMrs Muriel Gunawardena ?
Sri Lenka Law Reports(1988J 2 Sri L. R.
>
20. Had Ranjith Fonseka the petitioner in this case, prior to theaforesaid revocation, harassad, ill-treated and threatenedto kill the^deceased. ?
Learned Queen's Counsel for tl^ appellant also raised thefollowing issues:—
4 (a) Is there any clear inconsistency between Last WillNo. 1027 attested by Mrs Muriel Gunawardena and theLast Will 6790 of 21st May 1962 attested by Mr. H. V.Ram Iswara ?
4 (b) If there is no real inconsistency, does the Last Will 1027operate to revoke the Last Will 6790 ?
4 (c) If Last Will 1027 does not operate to revoke Last Will6790 is the Last Will 6790 valid and entitled to beadmitted to probate ?
At all events did the deceased, at the time of destructionof,the Last Will 1027, intend and believe that suchdestruction would only revive and restore Last Will6790 ?
If so, is Will 1027 entitled to be admitted to probate orin the alternative is Will 6790 entitled to be admitted toprobate or are both Wills entitled to be admitted toprobate ?
On the 2 crucial issues, there were only 2 witnesses who gaveevidence—
Mrs Muriel Gunawardena for the appellant and Justin Peiris forthe respondents.
It is common ground that about the middle of November1969, Virginia and Justin visited Muriel Gunawardena at her flatat Mb. 2. Gregory's Road, Colombo 7. in the afternoon. As to whythey wentais only spoken to by Justin. According to him. Virginiacame to his flat at about 3.00 p.m. and told him that theappellent is harassing her, threatening her with bodily harmand that even on that day. he had come with some thugs
and threatened her. She did not want to give any of herproperties to the appellant as he is harassing her and wanted allher properties including the car to be transferred to himimmediately. He was an ungrateful chap. She asked him what todo about it. He then asked her “Have you left the properties tohim ?" She replied "Yes, by a Will drawn by Mrs Gunawardena."He advised her to see Mrs Muriel Gunawardena and she ventedhim to accompany her. He denied that he took Virginia to the flatby force. He was a younger brother of Virginia and hisrelationship with her was very gqod.
Under cross-examiniation. he stated that this was the onlyoccassion he had accompanied Virginia to Mrs Gunawardena'sflat. He admitted that Mrs. Gunawardena was related to Virginia'shusband, that the 2 ladies were very friendly and know eachother well, and there was no need for Virginia to take him to seeMrs. Gunawardena. The purpose for which he accompaniedVirginia was to get Mrs. Gunawardena's advice as to how tocancel the Will attested by her.
It was Mrs. Gunwardena's evidence that she and Virginiavisited each other, were very close to each other and Virginia hadconfidence in her.
As to what exactly happened in the flat has been testified to byboth Mrs Gunawardena and Justin Peiris and they have givensharply conflicting versions.
According to Mrs. Gunawardena. Virginia came to her flat withJustin Pei/is at about 2.00 p.m. Virginia knocked at her door andshe came- down and opened the door. Both came in and satdown. She too sat down. Then Justin Peiris started scoldingVirginia and said her step-grandson was ungrateful and doqa notdeserve that she should leave all her properties to him. Virginialooked terrified. She did not speak a word. Justin PeiriS asked herwhere the Will was. She did not speak. He told Virginia to a^Jc herwhere the Will was. She said she has it. Justin insisted that
Virginia ask her to bring it. She went into her room and broughtthe Will and sat down. Again, Justin started scolding Virginia andsaid that the boy does not deserve any properties because he isungrateful, wicked, and disgracefffl to the.family. All the whileVirginia looked terrified, but said nothing. Then he asked Virginiato tell her to tear the Will. Even then Virginia did not talk. ThenJustin got up in an angry mood and asked Virginia, “Are you nottelling her to tear the Will?" Virginia also got up. He almostpushed her aside and she was terrified and asked her to tear theWill and accordingly the Will was torn. The Will was at her placebecause Virginia was afraid to take it home. After the Will wastorn, the wickedness in Justin's face Was gone and he tookVirginia away.
Under cross-examination, she stated that Justin and Virginialeft her flat at about 3.00 p.m. She had a telephone in her flat.Justin looked like a devil. Virginia's face and hands showed thatshe was terrified. She was sweating.
She had kept the Will in a safe place in the almirah on a shelf,the door of which was locked. The almirah was in her bed room.She unlocked the almirah and returned to the verandah with theWill and sat on a chair and had the Will on her lap. Then Justinstarted scolding Ranjith again and said he was ungrateful withno love for the grand-mother and she should not give him*anything. Justin then commanded her to tear the Will. Virginiadid not talk. Then Justin got up in-a threatening manner andVirginia also got up. She too got up and Justin came forward in athreatening manner and she thought he was going to pushVirginia. She too took a step forward and then Virginia asked herto tear the Will. After the Will was torn, Justin took Virginia by thehand, pulled her along and left.
She stated that she was Virginia’s Lawyer and Virginia regularlycame to her for advice. They were also related. She admitted thatin that dual capacity, she had a duty to protect Virginia'sintents. When questioned as to why she did not take preventiveaction to pfotect the Will and the interests of Virginia, and run
into her room and lock the door, her answer was threefold—"Youcan easily make another Will, if the client asked fbr the Will, Ihave to give it", and if she did sa "then he would have assaultedher, I did not want to because hetlife was more precious."
The Will, according to her, consisted of 4 pages of thick paper,typed on 3 sheets of paper and the 4th page Was blank. It wasfolded longitudinally and nobody could see the typing of tfteinside pages. She did not read out the Will to Virginia or Justin.She admitted that if she brought.another piece of paper, both ofthem would not have known what the document was. She wasshown the Will (P3) and she said the Will (P4) was the same sortof paper and when asked "You could have cheerfully tom thedocument if they did not know what its contents were", sheanswered—"Justiri knew what a Will Was, it is written on thickpaper, I had no other thick paper"
Mrs Gunawardena admitted that she was annoyed andincensed at what had happened and that she considered theconduct of Justin Peiris unfair and unjust, and that he was almostguilty of assault on that occasion: that about 6.00 p.m. Virginiasent her car to fetch her and on her way to Virginia’s house andon the way back, she passed the Cinnamon Garden PoliceStation: that she made no complaint to the police or any personin authority: that soon after the alleged incident or evensubsequently, she made no record of what happened on that dayiiT her flat.
Mrs. Gunawardena was 60 years when she gave evidence inNovember. 1973. and at the time of the alleged incident inNovember. 1969. she was 64 years of age. She describedVirginia as huge, fat and bulky, about double her si2e and about6' 4' in height. She took Virginia to Wycherley Nursing Home inNovember. 1969, as she said she was ill: she died on10.12.1969 of a heart attack.
Mrs Gunawardena’s attention was also drawn to Austin’sappearance (who was in Court) and asked whether he lookegallright now and her answer was that he looked better than hewas on that day.
Learned Queen's Counsel for the 11 th respondent beforeconcluding his cross-examination stated that he was putting hisdefence to the witness lest it betsaid later that she had not beenQiven an opportunity to answer tiem:—
Q. I want tor put to you what really happened on that day. I amputting it t6 you that Virginia came along with Justin toyour house that day in the evening?
A. Yes.
Q. I am putting it to you that Virginia told you the way inwhich she had been treated by Ranjith?
A. No. she did not talk a word.
Q. I am putting it to you that Virginia told you that Ranjith wascausing her a lot of trouble?
A. No.
Q. I am putting it to you that Virginia told you that Ranjith hadeven threatened her with bodily harim?
A, No, not on that occasion.
Q. I am putting it to you that Virginia told you that she had ,been even threatened with murder by Ranjith?
A. No, she did not speak a word.
Q. I am putting it to you that she asked you for advice as towhat she should do?
A. On that occassiofi. no she did not talk a word.
Q- You were of course the person whom she had earlierasked advice on many matters?
A. Yes.
Q. I am putting it to you that you then told her to cancel herlast Will?
A: Certainly not.
Q. And you said that it was to be done by tearing the Will?
A. I did not say that, she did not talk.
Q. I am putting it to you fiat you then went into your room?
A. When Virginia asked fbr the Will I went into the room.
Q. Admittedly you went into the room qp that day?
A. Yes.
Q. Admittedly according to you. you went in order to bringthe Will?
A. Yes.
Q. I am putting it to you that you did so of your own volition?
A. No.
Q. Admittedly you returned with that Last Will on to theverandah?
A. Yes.
Q. I am, putting it to you that you destroyed that Will yourself?
A. Yes.
Q. I am putting it to you that when you did it you said that theLast Will was thus revoked?
A. I did not say anything.
Q. I am putting it to you further that you stated on thatoccassion that thereby in the event of her death she willdie intestate?
A. No.
Q. I am putting it to you that thereafter these parties (eft. thatVirginia and the brother left the house?
A. No.
On the other hand Justin Perns' version of what happened inthe flat was entirely different. He wa$ 58 years when he gaveevidence on 28.10.1974. According to him. when they reachedthe upstair flat. Viriginia went ahead and he followed her. Sheknocked at the door and Mrs Gunawardena came out. Virginiatold her how Ranjith is harassing her and threatening her withbodily barm and as such, she does not want to give any of herproperties to this boy but to leave them to her brothers andsisters and wanted to know how to get about it. MrsGunawardena said that the only thing to do is to cancel the Will.Virginia asked her how to get about it, and she said to tear theWill. Virginia said “alright we will do it". Then Mrs Gunawardenawent to her bed room and brought some paper and destroyed it.Virginia then asked her whether everything was all right and shereplied "Yes. and that everything will now go to her brothers andsisters." After that, they left the place. He denied that he draggedher or pulled her against her will; she came of her own free will.
Under cross-examination, he stated that Virginia told MrsGunawardena on the day the Will was torn "even today Ranjithcame to assault me" and he had mentioned this to his Counsel.He said that Mrs Gunawardena's evidence that he looked like adevil and Virginia was frightened are "deliberate lies". Whenasked why Mrs Gunawardena should utter lies, his reply was that"she is making money by way of fees in this case." MrsGunawardena told Virginia that the destruction of the Will did notrevive the old Will and this too.he mentioned to his lawyers. MrsGunawardena asked Virginia to tear up the Will and Virginia said"you tear it."
Mrs Gunawardena was questioned as to why she failed tomention the Last Will (P4) and that it was torn as a result of theduress of Justin in the 1st application for letters of administrationdated 10.1.1970. In her principal examiniation she was asked:—
Q. Why did you seek to prove that Will (P3) first?
A. because I was advised to do so.
Q. Later on whatdidyoudo?
A. sought to prove the torn Will.
Q. Also on advice?
A. Yes.
In cross-examination she was «ked—
Q. Did you consult anybody before you filed those papers?
A. Yes.
Q.' Whom did you consult?
A. Counsel.
Q. Is it Junior Counsel or Senior Counsel?
A. Senior Counsel.
Q. Have you any objection to divulging his name?
A. Mo. (The witness then mentioned the name of theappellant's Senior Counsel who was in Court).
Q. Did you consult him with Junior Counsel?
A. With Junior Counsel.
Q. Who was the Junior Counsel?
A. Miss Chinniah.
> Q. How long prior to your filing the papers, did you consultthem?
A. About a week or two before.
Q. You made them perfectly aware of all the facts of thiscase?
A. Yes.
Q. You did not suppress anything from them?
A. No.
s.
Q. Did you tell them everything that you told the Court inevidence-in-chief, on the very first dpy you met them?
A. Yes.
Q. Who drafted the first set of papers filed in this ease on10.1.70?
A. Counsel.
Q. Your second set of papers was rued on 28.7.72?
A. Yes.
Q. Who drafted those papers?
A. Counsel.
She also stated that though she prepared her affidavit dated26.7.72, it was whetted by Senior Counsel.
In the course of his address what was submitted by learnedQueen's Counsel for the appellant is recorded as follows:—
"In regard to the evidence of Mrs Muriel Gunawardena, whenCounsel leads her evidence and the witness says that she didthis with the consent of Counsel mistakenly and the Counselkeeps quiet", learned Queen's Counsel asks the Court to say toitself that no Counsel worthy of his position would accept theposition as stated by the witness unless it were true." Butlearned Queen's Counsel states that he is notrelying on it.
In this case the original papers were filed on 10th January.1970 seeking probate of Mr Ram Iswara’s Will P3. MrsGunawardena tells the court that she thought the revocation ofthe Will P4 revived the earlier WiJI P3, that she discussed thematter with her junior counsel and that thereafter both of themdiscussed with senior Counsel who advised her to go ahead.Mrs Gunawardene now says so on oath." Learned Queen'sCounsel states that when the Last Will P4 was destroyed andthe earlier Will P3 was in the safe intact, in taking action ontfiat Will P3. he (Counsel) has been in errop. However, thefunction of the court is not to worry about the mistakes thatCounsel make but to determine the question as to how theproperties of Virginia Clara Fonseka should devolve, andffothina that Counsel says or does would hurt a dead personor affect the devolution of her Estate."
Learned Counsel for the 11th respondent in the course of hisaddress, stated that the Will P4 stated "I hereby revoke all myformer Wills", and pointed out that the revival of a Last Will musttake place in the manner set out in s. 8 of the Prevention ofFrauds Ordinance-by re-execution or by a codicil.
The judgments of both the trial Court and the Court of Appealquite correctly did not make any reference to the statement fromthe Bar made by the learned Queen's Counsel for the api&llant.The judgment of a trial Judge must be based "upon the evidencewhich has been duly taken or upon the facts admitted in thepleadings or otherwise" (s. 184 (1) of the Civil Procedure Code).Sections 167 and 168 require that the evidence of witnessesshall be given orally on oath or affirmation in open Court in thepresence and under the personal direction and superintendenceof the Judga S. 58 of the Evidence Ordinance declares, interalia, that admissions at the trial may be made by the parties ortheir agents or where, before the hearing, they agree to admit afact by any writing under their hands. The term "agents" wouldinclude proctprs and Counsel. But. evidence in the case cannot- be supplemented by statements made by Counsel from the Bar.
It is the further evidence of Mrs Gunawardena that after the Willwas torn, that very evening Virginia telephoned her and said thatshe will send the car and that she should come and see her. Shedid so and Virginia said she was afraid of her brothers Wilfredand Justin and that Justin is more wicked. She then askedVirginia, "What are we going to do, shall we write another Will?"She said "there is an old Will in the iron safe also, you had betternot write any more Wills. I will leave all the properties to mygrandson subject to my life interest. You had better prepare thedeeds for it." Virginia sent her the old deeds from which she tookthe schedule and prepared the deeds. Ten days after that. Virginiaentered the Nursing Home. She prepared the deeds and told bothVirginia and the appellant that the deeds were -ready. Virginiaasked her to come with the appellant and the stamp? to sign thedeeds. She asked the appellant to bring the money of the stamps
which amounted to Rs. 10.000/-. The appellant asked for thecopies of the deeds saying that he wanted to show them tosomebody before he signs. He took the deeds and never cameback. Later, she got the deeds back from the appellent. but. inthe meantime Virginia died.
On the face of them, the draft deeds were prepared inNovember. 1969.
Wherr learned Queen's Counsel sought to produce the deedsP5 to P8. learned Queen’s Counsel for the 11th respondentstated that none of the documents were listed and the learnedtrial Judge indicated to him that he would be given anopportunity of .examining the documents and cross-examiningthe witness on them. Learned Counsel for the 8th and 10threspondents also objected to the production of the documentsand asked that he be given an opportunity to file an additional listof witnesses and documents to prove what the deceased'sinstructions were.
When cross-examined she stated that she wanted to transferthe properties to the appellant so that her 2 brothers cannotmeddle with it. She had been enrolled as a Proctor in 1945.been 33* years in practice, was an experienced notary andattested about 1200v deeds. She never maintained an"Instructions Book". In regard to instructions pertaining to adeed, she would take them down on a sheet of paper. Once theoriginal deed and duplicate are prepared, the instructions arethrown away. Once the deed is signed, it is not necessary topreserve the instructions. Virginia gave her verbal instructionsand she has no documentary evidence to show that Virginia gaveher instructions.
Learned Counsel for the 8th and 10th respondents questionedMrs Gunawardena in regard to her affidavit and she stated that inthat affidavit filed by her. she had not deposed to the fact thatshe went the same evening to Virginia's house and to the allegedconversation they had.
When cross-examined by learned Queen's Counsel for the11th respondent, Mrs Gunawardena stated that the 2ndaffidavit was prepared by Mrs Chinniah on her Instructions.
was brought to her for her perusal and she perused andapproved of it and signed it. She filed the 2nd affidavit as shehad forgotten to state the place where the duress occurred in her1st affidavit.
Justin Peiris stated that he visited Virginia at the Nursing Homeand she told him that even at the Nursing Home she was notallowed to rest and the appellent was harassing her to havetfhedeeds immediately written in his name but she did not want towrite any deeds.
Mrs Gunawardena also stated that on about 4 occasions shevisited her in the Nursing Home. Her visits were between 3.00p.m. and 4.00 p.m. She appeared to be all right while she was inthe Nursing Home. She had never met Justin Peiris in theNursing Home. At the Nursing Home, she had met Ranjith twice.She admitted that Virginia was a rich lady and in possession of aconsiderable income and that Hotel Du Roi brought inconsiderable income and that the appellant gets a good income.
In the course of his address, learned Counsel for the 11threspondent stated that the deeds are consistent with Virginiadestroying the Will animo revocandi. that he does not accept theposition that they were drafts prepared at Virginia's instructions.
Both witnesses also testified as to the state of relationshipbetween Virginia and the appellant and Virginia and her 2brothers, Wilfred and Justin. According to Mrs Gunawardena.after marriage Mervyn and Brighfie Holmes lived with Virginiaand the appellant was born at King's Royal. Even after his parentsmoved out of Virginia's house, the appellant continued to staywith Virginia during his boyhood days, and attended school fromthere. Mervyn died on 27.5.68 in England. The appellant attainedmajority on 24.11.69. When Mervyn was away in England,Virginia went to the Hotel along with the appellent. For ^bout 1year before Virginia's death, the appellant was running the Hoteland Virginia got a.half-share of the profits. Virginia never, told herthat she had no peace from the appellant and never found faultwith him- The appellant met her medical and Nursing Homeexpenses. The Benz car was used by both Virginia and theappellant and when she was ill. tfce appellant was using it.
She admitted that at a carnival at Dehiwela. the appellant wasinvolved in a row and got a blow on his ear that caused deafnessin pne ear; that oTie day. between 6.30 and 7.00 p.m. Virginiasent her car to fetch her. Virginia told her that the appellant hadcome drunk to her house with a pistol in his hand and threatenedher and that the uncles had made him drunk and had given himthe revolver to point at her. He was so drunk that he did not knowwhat he was doing. The appellant was not there when she went.She did not find fault with the appellant over this incident.
In the course of his address, the appellant's own Counselsubmitted— "It is true that there was evidence that Ranjith was adifficult boy. But. in any family you find boys like that."
As regards Wilfred and Justin, Mrs Gunawardena's evidencewas that the 2 brothers had tormented her. She personally knewabout complaints made by Virginia against her two brothers. Thetrial Judge disallowed the police complaints P9 to P15. Thecomplaints were against. Wilfred only. The Court of Appeal,however, correctly held that the trial Judge was in error when herejected the documents P9 to P15 as they show the state ofrelations between Virginia and Wilfred. But the Court of Appealtook the view that the complaints do not carry the case for theappellant much further, as the complaints were made severalmonths prior to the date P4 was torn and were against Wilfredonly.
Mrs Gunawardena further stated that neither Justin nor Wilfreddid anything at any time in regard to Virginia's illness. Bothbrothers tormented Virginia.
According to Justin Peiris 2 or 3 days after the Will was torn.Virginia summoned him late in the night and told him that theappellant had assaulted her servant boy Gunapala and
dislocated some of his teeth. He took the boy to theBambalapitiya police station and he lodged a complaint. Thepolice inquired into the matte* and sent the boy to the hospital.When Virginia was in the Nursing Home practically every dayVirginia would telephone him and ask him to come. He neverinduced the appellant to drink and put him up to threatenVirginia.
Justin Peiris further stated that Virginia was fond of Mervynand the appellant until Mervyn started creating trouble for her.The appellant visited Virginia at the Nursing Home when she wasill. Since his father's death, the appellant was creating trouble forher. The appellant was running the Hotel for a year since hisfather's death up to date and giving Virginia her share and therewas no protest from her. He paid all the doctor's bills when shewas in the Nursing Home. The appellant may have opened hersafe in the house. The appellant used the car whenever hewanted to and Virginia did not object. Until a month before shedied, Virginia was very fond of the appellant. Neither he norWilfred threatened Virginia with physical violence. She nevermade complaints against him to the police. He never made anycomplaints against the appellant to the police. He denied that heand Wilfred made life a hell for Virginia, and threatened to giveher trouble in her home.
It would appear that Wilfred was occupying an annexe inVirginia's house. The police complaints, P9 to P15, cover aperiod from May 1968 to April, 1969. all made by Virginiaagainst her brother Wilfred making allegations of assaults on herservant girl, of attempts to extract money from her, of threats toshoot her and throw bombs at her house and that she fears forher life, of damage to her house and of abuse in filthy language.
Attempts were made by Counsel on both sides to damage«thecredibility of both witnessess.
Mrs Gunawardena was enrolled as a Proctor in 1945 and inAugust 1973 when she gave evidence she had beer? 33 years
in practice. According to her, she had a wide and varied practice.She had practised in the Magistrate's Court, was an experiencedNotary and also given evidence ds a witness many times. Sheadmitted that she was being sued in D.C. Colombo Case No.69930/M. for Rs. 50.000/- -as damages for fraudulentlyrepresenting to the plaintiff in that case that she was the ownerof certain premisdfe and depriving him of possession of thepremises. That case was pending and she was under 'cross-examination. She admitted that Dr Douglas Flamer Caldera hadsued her in connection with Rs. 20.000/-that he had given herto be given out on interest that ex-parte judgment was obtainedagainst her about 30 years ago. She was examined under s. 219;she disclosed no assets' and even now she has no assets. Rs.20,000/- had still not been paid up.
A long time ago, she had also filed a private plaint in theColombo South Magistrate's Court charging two persons withmisappropriation of Rs. 41,000/- given by Dr Caldera andDr Curuswamy for the supply of whisky to them. They neithersupplied the whisky nor returned the money. She did not pursuewith the case as her brother and sister did not allow her to do soand the accused were acquitted. Dr Caldera, had given Rs.20.000/- for supply of whisky and filed action stating that hegave Rs. 20,000/- to be given out on interest.
In her own divorce case. No. 4252, D.C., Colombo, her1evidence was believed and she was granted a separation and*awarded alimony.
Justin Peiris admitted that he was charged by the Bamba-lapitiya Police for having assaulted his brother-in-law oneMarcus Fernando. He admitted that one Dyson had charged himon a private plaint for issuing a cheque without funds but saidthat he paid the money and the case was withdrawn and he waswarned |nd discharged. He admitted that he had been chargedin the Magistrate's Court along with 3 persons with having goneinte various shops in Ja-ela and Kuliyapitiya and by fraud gettingmoney on cheques issued without funds, but stated that they
were all acquitted. He admitted that his brother-in-law filedaction against him claiming Rs. 10.000/- in a transaction wherehe had got his brother-in-law to endorse a cheque to enable himto get money from Medonsa. Thatrial Judge disbelieved him butstated that the case is in appeal. He admitted that he never paidincome tax and is not possessed Of any property.
According to the witness Jinadasa. who signed the Will P3 a#awitness and worked under the late Ram Iswara as his Clerk, heknew Justin Peiris well and he frequently visited Ram Iswara'soffice in connection with land transactions and earnedcommissions from buyers. He was a broker who introducedcustomers to the proctor.
The learned trial Judge after a recital of evidence, both oraland documentary, posed the correct question forhis decision—'The main matter for determination is whether the Will wasdestroyed as a result of duress exercised by the 11th respondenton Virginia as stated by Mrs Gunawardena or whether the Willwas voluntarily destroyed by Virginia in the circumstances as setout by the 11 th respondent." Thereafter, the first matter headverted to was the failure of the appellant to disclose theexistence of the Will P4 and that the said Will was destroyed onaccount of duress exercised by the 11th respondent in his 1stapplication for letters of administration, and stated — "If Will10£7 was in fact destroyed as a result of duress exercised by theWth respondent, this was a matter which could not haveescaped the attention of Mrs Gunawardena who is a senior andexperienced lawyer. Nor could she have failed to mention thisfact to Counsel, when Counsel prepared the original applicationfor letters of administration on behalf of the petitioner. To my‘mind, the probabilities are that if this Last Will 1027 (P4) hadbeen destroyed as a result of duress exercised'by the 11threspondent, these matters would have been brought to thenotice of Court when the petitioner first filed papers for letters o£administration." The learned trial Judge concluded — 'Theprobabilities are that such matters were not brought to the^ioticeof Court, for. there was no incident in which Will 1027 wasdestroyed as a result of any duress exercised by thg 11th
respondent." This is the first reason given for rejecting Mrs
Gunawardena's evidence.
Thereafter, the (earned trial eludge gave 6 other reasons for
rejecting the evidence of Mrs Gunawardena—
If Justin Peiris was taking Virginia for the purpose ofrevoking the Last Will P4, it is unlikely that he would havetravelled with her in her car.
It seems strange that Justin Peiris who had.accompaniedVirginia should suddenly scold her with regard todispositions made by her in favour of the appellant, in thepresence of Mrs Gunawardena.
There is no evidence of any threats made on Virginia.
Mrs Gunawardena could well have informed the Police orlooked up the Will in her safe and refused to give it back.
. She, however took no such action.
Virginia could not have left the flat in the same car with the11 th respondent who had exercised the duress.
Virginia had informed Mrs. Gunawardena that the appellanthad come to her home, armed with a revolver andthreatened her with bodily harm. Virginia must necessarilyhave been disgusted with the appellant over this incident.Mrs Gunawardena’s assertion that Virginia told her thafctheuncles had got the appellant drunk and induced him Tothreaten Virginia is not supported by evidence and iswithout foundation.
Having set out the above reasons, the teamed trial JCidgestated — "I prefer to accept the evidence of the 11threspondent that Virginia saw Mrs Gunawardena on the dayin question with the view to revoke the Will P4 in favour ofthe petitioner as she was disgusted with the petitioner whohad threatened her with bodily injury with a revolver."
The learned trial Judge next considered the deeds P5 toP8 and stated that he was not impressed with the
reason adduced by Mrs Guanwardena that the deeds were notexecuted as the stamp fees were not forthcoming. He added —"Although Mrs GunawarderiS has not been cross-examined onthe draft deeds as containjpg the instructions given by thedeceased, I am unable to accept her evidence that these draftdeeds were prepared on Virginia's instructions."
The learned trial Judge concluded — "Mrs Gunawardena'sevidence is totally unacceptable and I regret t have to reject herevidence. I prefer to accept the evidence of the 11 th respondent.I am satisfied that Virginia Fonseka had on her own free wit), inthe presence of Justin Peiris. requested the Notary Gunawardena,as she lawfully might, to destroy the Last Will P4. for the reasongiven by Justin Peiris in his evidence, namely, that she did notwant to leave any property to Ranjith, the petitioner." He held thatboth Wills P3 and P4 have'been validly revoked by Virginiaanimo revocandi. and that the estate of the deceased will beadministered as on an intestacy.
The learned trial Judge answered issue 2 in the negative, issue20 in the affirmative, issues 4 (a), (c) and'5 and 6, in thenegative, and 4 (b) in the affirmative. The appellant's applicationwas dismissed.
The appellant preferred an appeal to the Court of Appeal. TheCourt of Appeal held that the first reason given by the trial Judgefor rejecting the evidence was not tenable as this reason wasconsequent on a "serious misdirection on the evidence." TheCourt of Appeal said— “Mrs Gunawardena in her evidence madeit clear that the reason for the failure to mention the fact that P4was destroyed and the circumstances in which P4 came to bedestroyed was on the advice of senior Counsel appearing for thepetitioner. In fact she mentioned the name of the senior Counselin the course of her evidence and at that time the CounseT waspresent in Court. Counsel remained silent. The trial Judgeoverlooked the explanation given by Mrs Gunawardena andnowhere in his judgment has he considered Mrs Gunawardena'sevidence that she acted on Counsel’s advice at the stage when theoriginal application for letters of administration with the Will P3annexed was filed in the District Court. In these circumstances Iam of the view that the failure of Mrs Gunawardena to bring tothe notice of Court the existence of P4 and its subsequentdestruction by reason of duress is'not a tenable ground uponwhich her evidence could have been rejected by the trial Judge."
Thet)ourt of Appeal affirmed and highlighted the 4th reasongiven by the learned trial Judge for the rejection ofGunawardena's evidence and said that the trial Judge hasaddressed his mind to a very relevant matter, namely, theconduct of Mrs Gunawardena both before and after thedestruction of the Will, in that, she h£d failed to take steps tosafeguard the document P4 which was attested by her and givento her for safe-keeping and prevent its destruction againstVirginia's wishes, and had failed to make a police statementthough she went past the Cinnamon Gardens police station thatvery evening. The Court of Appeal asked "would not commonprudence require her to place on record the circumstances inwhich the Will was destroyed which she had attested and whichwas handed over to her by the testatrix for safe-keeping? andconcluded that Mrs Gunawardena's conduct both before andafter the alleged duress leaves much to be desired, and lends nocredence to her story of duress."
The Court of Appeal- then adverted to 5 attendantcircumstances, which the learned trial Judge had overlooked,which according to the petitioner supported his plea of duress—
No provision was made for Virginia's brothers and sistersand her intestate heirs in any one of the Wills PI to P4.
Virginia's properties belonged to her late husband HerbertFonseka, Mervyn and his children are the legitimate heirsHerbert's property. Virginia's brothers and sisters wereStrangers.
There • was no need for Virginia to ask Justin toaccompany her. Her relationship to Mrs Gunawardenawas so.close that she could have gone along alone or gotdown Mrs Gunawardena to her home.
Virginia knew how to revoke a Will. She could have writtenanother Will without resorting to the device of intestacy.
Virginia had made 4 Wills. It was unnatural for her to dieintestate.
The Court of Appeal regarded these as relevant circumstances,but, went on to give 2 additional reasons for affirming thejudgment of the trial Judge—
having regard to the statement of objections of therespondents. Issue No. 20. Mrs Gunawardena's evidenceabout the pistol incident and Justin Peiris' denial that heinduced the appellant to drink and then threaten Virginiawith a pistol, the appellant's conduct was a live issuethroughout the proceedings. He was in the best position tospeak to the actual state of feelings between him andVirginia at or about the time of the destruction of the Will."It is difficult to resist the conclusion that the petitioner'sfailure to get into the witness box tells heavily against him".The. appellant could have also corroborated MrsGunawardena's evidence that he took the deeds away andthat they could not be executed as Rs. 10,000/- for stampfees was not available.
(2i Mrs Gunawardena was 64 years old, a senior andexperienced lawyer who practised both in the civil andcriminal Courts and had been a litigant as well. Was she thekind of person who would meekly bring out the Will and tearit on account of the abuse and threats of Justin Peiris? Thepersonal impression formed by the trial Judge who had theundoubted advantage of listening to her and observing herfor several days in the witness box cannot be easilydiscounted.
The Court of Appeal held that the learned trial Judge had noterred in answering the crucial issues. No. 2 and 20. anddismissed the appeal.
Thereupon, the appellant made an application to the Court ofAppeal for leave to appeal to the Supreme Court under Article128 (1) of the Constitution and obtained leave ex-parte on23.1.86. In granting leave, the Court of Appeal stated —"We areof the view that the matters set out in para 9 of the petitionconstituted substantial questions of law". I reproduce para 9below :—
9 (a) Whether the Court of Appeal having found that the initialrejection of the evidence of Mrs Muriel Gunawardena bythe trial Judge was consequent on a serious misdirectionand based upon an untenable ground, failed to appreciatethat this cardinal factor coloured the entire approach ofthe trial Judge on the question of her credibility and thuserred in law in nevertheless drawing upon the trial Judge'sviews as to her credibility and in making this the basis ofits own conclusion on the issue of duress:
Whether the Court of Appeal erred in law in confirming thetrial Judges view that the petitioner had prior to therevocation of the said Last Will, harassed, ill-treated andthreatened to kill the deceased, without a properconsideration of the evidence of Justin Peiris who washimself not an eye witness to any of these allegations andwho did not depose to any personal knowledge of suchfacts; and also especially because the deceased had at notime made any complaints to the Police against tfiepetitioner whereas she had on several occasions madesuch complaints against her brother Wilfred and his wife:
. Whether the Court of Appeal having found serious
misdirection in the evaluation of the evidence in this caseby the trial Judge, in addressing itself afresh to the task ofassessing the evidence on the issue of duress, itselfcommitted a substantial error of law by wholly omitting toconsider the several infirmities in the evidence of JustinPeiris, the respondent's pnly witness, such as for instancethe following:—
Justin is a witness with an obvious interest in lyingbecause he stood to gain as an intestate heir one sixth(1 /6th) of the deceased's very valuable estate if hisversion of the destruction of the said last Will wasbelieved.
Justin was a person who did not have an unblemishedcharacter in that he admitted (a) that the BambalapitiyaPolice had charged him with having assaulted hisbrother-in-law Marcus Fernando, (b) that he had beenwarned and discharged in a criminal case where oneDyson complained that Justin had cheated him byissuing a cheque without funds, (c) that' he had beencharged in the Magistrate's Court of Negombo andGampaha with having gone into various shops at Ja-elaand Kufiyapitiaya and defrauded them by obtainingmoney on cheque issued without funds.
Justin's version of the incident of the destruction of thesaid Last Will was improbable and incredible in severalparticulars such as for instance the following, (a) whathe stated in evidence was not put to Muriel when shewas cross-examined, namely that the deceased hadexpressly declared her intention to benefit her brothersand sisters in the presence of Muriel and that aftertearing the Will Muriel had herself declared aloud thateverything will now go to the deceased's brothers andsisters, (b) the deceased had made no provision for anyof her brothers and sisters in any one of the four Willsexecuted by her in her lifetime and in the said Last Willshe had even provided for alternate heirs to thepetitioner ip the event of his dying unmarried andwithout issue, (c) as proved conclusively by thedeceased's police statements marked P9 to P15 therewas one brother whom the deceased would never havfewanted to benefit by dying intestate namely her brotherWilfred, who is an intestate heir to one sixth (1/6th) ofthe estate;
Justin's allegation of the deceased's animosity towardsthe petitioner rested entirely on what he claimed wastold to him by the deceased, but the most important ofthese allegations whidh if true would have provided theproximate cause for ttya destruction of the said Last Willwas never put to Muriel during her cross-examination.namely..that on the very day when the deceased wentto Muriel’s flat with Justin she told Muriel "even todayRanjith came to assault me.”
d. Whether by such a failure and uncritical acceptance ofJustin's evidence, the Court of Appeal failed to consider thewhole case upon a preponderance of probabilities which wasthe applicable standard of proof and instead considered theissue of duress as though it was a charge in a criminal caseand thereby committed a substantial error of law;
In the written submissions filed in this Court on behalf of 8th.10th and 11 th respondents, the point has been made that "therehas been no mistake of law on the part of the trial Judge or in thejudgment of the Court of Appeal to permit the appellant toappeal to the Supreme Court on the point of law.”
Learned Queen's Counsel for the 11 th respondent submittalthat we must reject the appeal as, leave alone substantialquestions of law. there is no question of law involved at all. Whatis involved is a straightforward question of fact – belief ordisbelief of witnesses which is a pure question of fact based onthe credibility of witnesses. There is no mistake of law in thejudgment of the Court of Appeal. The appellate jurisdiction ofthis Court has been invoked under Article 128(1) of theConstitution. If the Court of Appeal grants leave to appeal, itmust be on a substantial question of law. If no substantialquestion of law is involved, then, despite the leave granted by theCourt of Appeal, this Court will not hear the appeal.
Learned Queen's Counsel further submitted that there areconcurrent findings by the trial Judge and the Court of Appealand as such, this Court will not interfere.
Learned President's Counsel, ,on the other hand, submitted thatas regards the order of the Court of Appeal granting leave, therewere 2 courses open to the respondents—i1) they could haveapplied to the Court of Appeal for leave to appeal to the SupremeCourt from the order of 23.1.86, (2) in the event of the Courtrefusing leave to appeal, they should have applied to theSupreme Court for special leave to appeal within 21 days of therefusal to grant leave. The respondents cannot raise the matter athearing of the appeal. This Court has no jurisdiction to decidewhether the order of 23.1.86 is valid or not.
Learned President's Counsel further submitted that the matterraised in para 9 of the application for special leave involvessubstantially questions of law.
It is unnecessary for me to decide whether it is now open tothis Court to decide the validity of the order of 23.1.86.
In Collettes v. Bank of Ceylon (1) the Court of Appeal referredto the Supreme Court for determination, inter alia, as to whatconstitutes a "question of law" within the meaning of Article►28(1) of the Constitution, and as to when does a question oflaw become a "substantial" question of law, within the meaningof the said Article. Sharvananda. J. (as he then was) determined,inter alia, with 4 other Judges concurring, thus:— 'The questionwhether the Tribunal has failed to take into account relevantconsiderations is a question of law ….. The proper testwhether a question of law raised in the case is substantial would
bewhether it directly or substantially affects the rights of
parties."
When one examines the contents of para 9 of the applicationfor special leave, it seems to me that the gravamen of the .appellant's complaint is that the Court of Appeal has not properlyconsidered and evaluated the evidence of Justin Peiris.
It has failed to consider relevant matters set out in subpara c.i-ivof para 9 and the infirmities in his evidence. If these matters wereconsidered by the Court of Appeal, the conclusion of the Courtof Appeal might have been different.
It seems to me. that this is a point of law. Further, it is asubstantial question of law. for. the belief or disbelief of eitherMrs* Gunawardena or Justin Peiris would directly andsubstantially affect the rights of parties. If Mrs Gunawardena isbelieved, then the appellant would inherit the entirety of "King'sRoyal " and half-share of Hotel Du Roi and the residual estate. If.Justin Peiris is believed, then, the estate devolves on intestacyand the brothers and sisters of Virginia would get a 1 /6th shareand the appellant also as an intestate heir would receive a muchreduced share as a grandson of Janet. Virginia's deceased sister.
In regard to concurrent findings, in Collettes Ltd. v. Bank ofCeylon (2) Sharvananda. J. (as he then was) said:
"Thus this court undoubtedly has the jurisdiction to revise theconcurrent findings of fact reached by the lower court inappropriate cases. However, ordinarily it will not interferewith findings of fact based upon relevant evidence except inspecial circumstances, such as. for instance, where thejudgment of the lower court shows that the relevant evidencebearing on a fact has not been considered or irrelevantmatters have been given undue importance or that the<conclusion rests mainly on erroneous considerations or isnot supported by sufficient evidence. When the judgment ofthe lower court exhibits such shortcomings, this court notonly may. but is under a duty to examine the supportingevidence and reverse the findings."
In Flower v. Ebbw Vale Steel; Iron and Coal Co. (3) the trialJudge found that the workman was guilty of contributorynegligence in that he disobeyed the orders of his employer anddismissed his claim for damages for personal injury sustained byhim while cleaning the machine. The Court of Appeal affirmed
the judgment of the trial Judge. The House of Lords allowed theappeal of the workman and awarded him damages. Lord Wright(at 220 & 221) said:
“It is further objected that there are here concurrent findingsof fact. That would not be a relevant consideration if the casewere one in which there was no evidence at all that any suchspecific instructions as were relied on were brought hom& tothe appellant's mind. I do not feel it necessary to say whetherI am so satisfied, but I am quite clear that there is nosufficient evidence.”
It is not the appellant's complaint that there is no evidence orinsufficient evidence to support the conclusion arrived at by thetrial Judge which has been affirmed by the Court of Appeal. Thecomplaint of the appellant is that in reaching the conclusion,both the learned trial Judge and the Court of Appeal have failedto consider and evaluate the evidence of Justin Peiris and if thiswas done, the conclusion might well have been different. Inshort that relevant evidence has not been considered. So. Ipropose to consider Justin Peiris' evidence.
Justin Peiris described himself as a Land Sales CommissionAgent. He received commissions for putting through landtransactions. He admitted that he never paid income tax and wasnot possessed of any property. As an intestate heir of Virginia, heStood to gain a 1 /6th share of her estate if his version of thedestruction of the Will was believed.,But. on the other hand,there is Jinadasa's evidence that Justin Peiris came regularly toMr Ram Iswara's office regarding land transactions and had putthrough .several transactions through Mr Ram Iswara. He wastherefore well known to Mr Ram iswara who attested Last WillP3. Justin Peiris had signed (P3) as a witness. It is his evidencethat Virginia took the Will P2 on the occassion she met Mr RamIswara and had a discussion with the Proctor and gaveinstructions in his presence. If so, Justin Peiris would ha*e knownthat the appellant was going to be the sole beneficiary under P4and that Virginia was not going to benefit her own brothers andsisters. If Justin Petris took offence and was disappointed, it isunlikely he would have signed as a witness. And for a period of alittle over 6 years, the Will P3 st<jod and there is no evidence thatJustin Peiris created any trouble for Virginia for not making anyprovision for her own brother an|J sisters.
As to why they went to Mrs Gunawardena's flat is spoken toonlV by Justin Peiris — that he went along, at the instance ofVirginia. There is no evidence that Justin Peiris took her by forceand against her will. Of course, he admits that having regard tothe close relationship between the two ladies, there was no needfor Virginia to take him along. Virgina could have eventelephoned Mrs Gunawardena, sent her car, and got her down toher own house. But. if Virginia had decided to disinherit theappellant and was afraid of the appellant, of her two brothers, itwould be to Justin Peiris she would look for advice and support.Clearly she was on bad terms with Wilfred. Justin Peiris said hisrelationship with Virginia up to the time of her death was cordial.Though Mrs Gunawardena's position was that the two brothershad tormented Virginia and that she personally knew aboutcomplaints by Virginia against them, and though it was put toJustin Peiris by the appellant's Counsel that he made life a hellfor her, the police complaints reveal that they were againstWilfred only. It was Mrs Gunawardena who had attested the WillsP1. P2 and P4. Why did Virginia go to Mr Ram Iswara for theexecution of the Will‘P4? Brightie Holmes. Mervyn's wife wasgiven a life interest in premises No. 35. Galle Road, by P2. MrSGunawardena gave a reason for omitting Brightie in P3 —Mervynhad filed action to divorce her and the case was pending. DidVirginia seek advice from Justin Peiris and on his advice go to MrRam Iswara to consult and execute P3? Mr Ram Iswara was wellknown to Justin. If so, Justin would be the person she would seekadvice from again in case she wanted to disinherit the appellantif ^e was disgusted with his conduct.
in theStatement of objections, the. position of Justin Peiriswas that sometime prior to her. death, the appellant harassedand ill-treated Virginia and threatened to kill her and in
consequence of the said harassment ill-treatment and threats,the deceased destroyed the Will in the presence of MrsGunawardena. Issue 20 is to the effect that the appellant prior tothe revocation, harassed, ill-treated and threatened to killVirginia. The defence version thatVas put to Mrs Gunawardenawas that Virginia told her that the appellant was causing her a lotof trouble, threatened her with bodily harm'and even witfcmurder. Justin Peiris' evidence is that prior to going to MrsGunawardena, Virginia told him that the appellant is harassingher, threatening her with bodily harm and that even on that day,he had come with thugs and threatened; that in the flat, Virginiatold Mrs Gunawardena that even today, the appellant had cometo assault her, and he had mentioned this fact too to his Counsel.This portion of his evidence was not put to Mrs Gunewardena.The further evidence of Justin Peiris that Mrs Gurawardena toldVirginia that the destruction of P4 will not revive P3 was also notput to Mrs Gunawardena.
In this case we have 2 sharply conflicting oral versions of howthe Will came to be torn. The Court of Appeal was of the viewthat the personal impression formed by the trial Judge who hadthe undoubted advantage of listening to Mrs Guanawardena andobserving her for several days in the witness box cannot be easilydiscounted. True that the trial Judge has had the "pricelessadvantage" of seeing her and observing her demeanour in thewitness box. The question is, has he used this advantage ofseeing and observing her demeanour and consider it a materialelement in considering whether she is a truthful witness or not?Nowhere in the judgment has the trial Judge made any referenceto the demeanour of Mrs Gunawardena in the witness box and ofany impression left in his mind. The disbelief of MrsGunawardena is .not based even partly upon her demeanour; onthe contrary, the trial Judge has given reasons for rejecting herevidence. However, the conduct of Mrs Gunawardena and JustinPeiris before the'Will was torn has an important bearing on thequestion as to who should be believed. The Court of Appealrightly considered the conduct of Mrs Gunawardena both beforeand after the alleged duress and concluded that it leaves much
to be desired. As regards the conduct of Mrs Gunawardena priorto the destruction of the Will, learned President's Counselsubmitted that there were % courses of action open to MrsGunawardena — refuse to part with P4 and risk a confrontationwith Justin Peiris or tear up P4 and later take corrective action tosafeguard her client Virginia's interests: that in fact this is whatshe did in preparing the draft deeds, the terms of which aresubstantially the same as P4. This submission, in my view, losesits force as the evidence is that later in the evening, the idea ofexecuting deeds was conceived by Virginia who instructed MrsGunawardena to prepare the draft deeds.
In regard to Justin Peiris' conduct there is one importantaspect which stands out prominently in his favour. According toMrs Gunawardena. the last page of P4 was blank and shebrought it out from her almirah folded longitudinally. She did notread out the contents of P4 and neither Virginia nor Justin Peiriswould have known the contents of the document she tore. It isJustin Peiris' evidence that Mrs Gunawardena brought "somepaper" from her bed room and destroyed it. P4 bears the number1027 dated 11.7.68. In the statement of objections of therespondents filed on 28.2.71. the number and date P4 weregiven as Klo. 1037 dated 17.10.68 and* both particulars werewrong. Mr Chellappah moved to amend and insert the cprrectnumber and date, only after learned Queen's Counsel for~theappellant pointed out the error on 14.6.72. Even as at June1972. Justin Peiris did not know the correct date and number ofP4. According to the appellant's case. Justin Peiris set out on amission — to destory Will P4. In the flat he overwhelmed bothwomen by his threats and devilish appearance. He could thenwell have demanded to see P4 to ensure that the correctdocument was being torn, and yet he did not. The man who wenton a calculated mission made no attempt to make certain that hismissjpn was not to be in vain. This conduct of Justin Peiris couldonly be explained on the basis, as put by his Counsel toMrs Gunawardena that Justin Peiris had "X'ray eyes" whichpenetrated through a folded document and saw its contents.
It stands to the credit of Justin Peiris that he got into thewitness box and faced the search light of cross-examination. Theappellant did not. The Court of Appeal was of opinion that theappellant ought to have given evidence in regard to two matters— the pistol incident and that the non-execution of the deeds forwant of money to meet the stamp fees — and that his failure todo so told heavily against him.
In regard to the pistol incident. Mrs Gunawardena who testifiedto what Virginia told her. also stated that Virginia told her that theappellant's uncles had got him drunk and given him a revolver topoint at her. She did not find fault with him over this incidentJustin Peiris. however, denied that he induced the appellant todrink and put him up to threaten Virginia with a pistol. JustinPeiris also in his evidence stated that the appellant was runningHotel Ou Roi for about a year before Virginia's death and wasgiving Virginia her share; that he visited the Nursing Home andpaid Virginia's medical and Nursing Home expenses, used hercar without objection and until a month before she died. Virginiawas fond of the appellant. The appellant's Counsel thereforesubmitted that this being the state of evidence, the appellantneed not have given evidence, as despite the pistol incident,Virginia's fondness for the appellant remained undiminished. Theappellant had no case to meet I cannot agree with thissubmission.
According to learned President's Counsel, the draft deeds wereproduced to show that Virginia had no intention of disinheritingthe appellant, that the Will was not destroyed animo revocandi,and that it was a cogent circumstance which supported MrsGunawardena’s version that P4 was destroyed under duress byJustin Peiris. If Virginia was fond of the appellant until her dyingday despite the pi&tol incident, why were the draft deeds notexecuted? The reason given by Mrs Gunawardena was that theappellant could not find Rs. 10.000/- for stamp fees. Accordingto Justin Peiris. Virginia told him at the Nursing Home {fiat theappellant was harassing her to have deeds written in his nameand that she did not want to do so.
Virginia died on 10.12.69. According to Mrs Gunawardena’s2nd affidavit she died about 15 days after admission to theNursing Home and that 2 weeks before entering the NursingHome, the Will P4 was torn. The Will therefore was torn aboutthe 11th of November. There was about a month for the deedsto be executed. Mrs Gunaufardena stated that she and theappellant visited Virginia at the Nursing Home and that Virginiaappeared to be all right. It is not her position .that Virginia wasphysically and mentally disabled and was therefore not in a fitcondition to execute the deeds. She has further stated thatVirginia was a rich lady and had considerable income, and thatthe appellant is in receipt of a good income from Hotel Du Roi.Then, why were the deeds not executed despite the fact that theappellants was forgiven over the pistol incident and he was inreceipt of a good income? If he did not have ready money, couldhe not have raised the money by other means, considering thevaluable property and business he was getting? These arequestions that called for answers from the appellant and he hasfailed to do so to his detriment.
The appellant's Counsel sought to attack the credibility ofJustin Peiris on the ground that he had issued cheques withoutfunds. But I find from the evidence that in one case he hadhonoured the dishonoured cheque and he had been warned anddischarged. In the second case he-was'acquitted and the thirdcase is in appeal and is sub judice.
Before I conclude, I must advert to another submission madeby learned Queen's Counsel. In Sri Lanka Ports Authority v. Peiris
Sharvananda, J. (as he then was) said:
"Article 127 spells the appellate jurisdiction of this Court.This appellate jurisdiction extends to the correction of allerrors in fact and/or in law which shall be committed by theCourt of Appeal or any Court of first instance. On readingArticles 127 and 128 together, it would appear that onceleave to appeal is granted by the Supreme Court or the Courtof Appeal and this Court is seized of the appeal, thejurisdiction of this Court to correct all errors in fact or in lawwhich had been committed by the Court of Appeal or Courtof first instance is not limited but is exhaustive. Leave toappeal is the key which unlocks the door into the SupremeCourt, and once the litiganfhas passed through the door, heis free to invoke the appellate jurisdiction "of this Court" forthe correction of all errors in fact and/or in law which hadbeen committed by the Court of Appeal or any Court of firstinstance."
This view, Sharvananda J. reiterated in Collettes Ltd. v. Bankof Ceylon (supra). It was learned Queen’s Counsel'ssubmission that this is an erroneous view because theappellate jurisdiction of this Court is spelt out in Article 128
and the power to act within a given jurisdiction is speltout in Article 127(1): that Article 128 (1) controls the powersof this Court under Article 127(1); and therefore whendealing with an appeal that comes to this Court under ArticleT28 (1). this Court must confine itself to substantialquestions of law and cannot review the whole case underArticle 127(1). It is unnecessary for me to decide whetherSharvananda. J. (as he then was) was correct or not in theview he had taken, as. in my opinion, the failure to considerJustin Peiris' evidence is a substantial question of law.*
I am not inclined to reverse the findings of the learned trialJudge on issues Nos. 2 and 20 and which have beenaffirmed by the Court of Appeal. I affirm the judgments of thelearned trial Judge and the Court of Appeal and dismiss theappeal with costs.
RANASINGHE, CJ., -1 agree.SENEVIRATNE* J. -1 agree.Appeal dismissed.