Rosaline Nona v. Mango Nona
Present: Sansoni, J., and H. N. G. Fernando, J.A. A. ROSALINE NONA, Appellant, and V. P. K. MANGO NONA
et al., Respondents
S. C. 21(60 (Inty.)—D. C. Gampaha, 537jT
_Administration of estates—Will—Allegation that it was found destroyed or mutilatedby testator—Burden of “proof.
Where a will ia found destroyed or mutilated, in a place in which the testatorwould have naturally put it, the presumption is that the testator destroyed it,and that the destruction was done ani/mo revocandi. .
Appeal from an order of the District Court, Gampaha.C. D. S. Siriwardene, for the Petitioner-Appellant.
A. C. M. Uvais, for the 6th Respondent-Respondent.
Cur. adv. vult.
SAJNSONI, J.—Rosaline Nona v. Mango Nona
April 28, 1961. Sansont, J.—
The deceased Oderis Singho, whose estate is being administered in.these proceedings, died on 22nd March, 1959. He executed a last willNo. 525 dated 22nd July, 1954, by which he devised and bequeathedcertain lands and movables to the 6th respondent, whom he appointedexecutor, and left the rest of his estate to all his children, including the 6th.respondent. His widow (the petitioner) applied for letters of adminis-tration to his estate on the footing of an intestacy, making her six.children (1st to 6th respondents) and the children of her deceased sonJinadasa, respondents to her application. The 6th respondent alone-objected to the grant of letters to her, pleading that the last will was-operative. He did not, however, apply to have the will proved and to-have probate issued to him, but contented himself with asking that theapplication of the petitioner be dismissed. When the matter came up-for inquiry, evidence was led on both sides but no issues were framed as.required by section 533 of the Code.
On behalf of the petitioner the case put forward Was that the testatorhad revoked his Will by cutting out his signature and that of the two-attesting witnesses with some sharp instrument, and by making anendorsement on it which reads “ I have revoked the last will in favourof (the 6th respondent) because of his wayward conduct and I have cutoff the signatures.” The endorsement purports to have been signed,by the testator. The 6th respondent at the inquiry attacked the endorse-ment as a forgery, and alleged that the cutting out of the signatures was-the work of the other members of the family and not of the testator.
To rebut the first allegation the petitioner called a hand-writing expertwho said that he had compared the signature on the endorsement with_proved signatures of the testator, and it was his opinion that the endorse-ment was signed by Oderis Singho. The only other evidence led with.regard to the hand-writing on the endorsement was that of the 5th and.6th respondents who respectively asserted and denied that it was that-of the testator.
These two respondents also gave evidence with regard to the findingof the will after Oderis Singho’s death. The 5th respondent said that-two days after his fathei’s death he found the will in his father’s lockeddrawer of which his mother had the key. The 6th respondent was-present when he found it, and read the endorsement. He denied thateither he or his brothers or sisters forged the signature on the endorse-ment or cut out any portions of the will. The 6fch respondent said thatabout three days after his father’s death he searched for the will with.the other members of the family and he found the will in question in hisfather’s drawer. He immediately corrected himself and said that it was-his eldest sister, the 2nd respondent, who found the will lying in a drawer,inside an envelope. He contradicted himself as to whether the will'was taken out of the envelope or not, but under cross-examination he1
SA^sTSONI, J.—Rosaline Nona v. Mango Nona
admitted that the will never came into his hands, was never seen byhim, and he could not say whether any portions of it had been cut outor not. These admissions are important, because they flatly contradicthis evidence in chief where he said that he saw the will and saw thatportions had not been cut out of it. His evidence is altogetherunsatisfactory because he has made so many inconsistent statements,whereas that of the 5th respondent suffers from no such defect.
The learned District Judge dismissed the application for letters ofadministration on the ground that the allegations in the petition hadbeen rebutted by the 6th respondent. He seems to have arrived atthis conclusion by declining to act on the evidence of the hand-writingexpert, but he has not dealt with the evidence relating to the finding ofthe will and its condition at the time it was found. He does not saywhat he thinks of the evidence given by the 5th and 6th respondentsrespectively on this aspect of the case. He has overlooked the contra-dictions in the evidence of the 6th respondent which throw considerabledoubt on his position that the will had been mutilated after it was foundin the drawer. If he had directed himself properly and considered theevidence carefully, I think he would have come to the conclusion thatthe will was in its present condition when it was first found in the testator’sdrawer after his death. “Where a will is found destroyed or mutilated,in a place in which the testator would naturally put it, the presumptionis that the testator destroyed it, and that the destruction was doneanimo revocandi …. but this presumption is only prima facie and maybe rebutted ” —see 34 Halsbury (2nd edition) para. 124. The hand-writing expert’s evidence supports the evidence of the 5th respondent,and in view of the unsatisfactory evidence of the 6th respondent it cannotbe said that the presumption has been rebutted.
One point which emerged from the evidence of the 6th respondent wasthat his mother opposed his marriage. He was charged for assaultinghis mother, and in that case he was asked to pay Rs. 20 as Crown costs.His wife did not live with him in his father’s house. These admissionsmade by him in evidence lend weight to the 5th respondent’s evidencethat the 6th respondent married against his father’s wishes and was notpermitted to bring his wife to his father’s house. These circumstancesmay account for the revocation of the will.
I would set aside the judgment under appeal and direct that the ordernisi declaring the petitioner entitled to letters of administration on thefooting of an intestacy be made absolute. The 6th respondent will paythe petitioner her costs in this Court and in the lower Court.
N. G. Fernando, J.—I agree.
A. A. ROSALINE NONA, Appellant, and V.P.K. MANGO NONA et al., Respondents