Actalina Fonseka v. Dharshani Fonseka
ACTALINA FONSEKA AND OTHERS
v.DHARSHANI FONSEKA AND OTHERS
SUPREME COURTH. A. G. DE SILVA, J.
G. P. S. DE SILVA, J. AND KULATUNGA, J.
S.C. APPEAL NO. 23/87S.C. SPECIAL L.A. NO. 147/86
A./L.A. NO. 62/84
C. GAMPAHA NO. 24975/MAPRIL 27, 1989.
Last Will – Probate – Separate suit to recall probate on ground of fraud, allegedforgery of last will – Non-disclosure of heirs – Sufficiency of cause of action tomaintain suit – Civil Procedure Code, section 46.
The plaintiffs – respondents filed an action against the defendants – appellants to havethe probate issued in another case No. 1322/T recalled on the ground that it had beenobtained by fraud – the Last Will propounded in that case being a forgery and all theheirs- of the testator not having been made parties.
The plaint discloses a cause of action founded on fraud by forging a will and non -disclosure of heirs. The law. does not require that the plaint should make out a primafacie case nor carry the evidence by which the claim would be proved. Hence the casemust be heard." '
Per Kulatunge J.,y•
"I am of the view that categories of fraud are not closed and that it should' be left tothe Court to decide whether any particular contrivance constitutes a fraud on the Courthaving regard to the facts and circumstances of such case".
If the real grievance of the defendant – appellant is that the plaint, does not containsufficient particulars or even in a case where it is alleged that the plaint does notdisclose a cause of action the correct procedure under s.46(2) of-the Civil ProcedureCode is to move, before pleading to the merits, to have the plaint taken off the file.
Cases referred, to:
Adoris v. Perera 17 NLR 212
Reid v. Samsudin 1 NLR 292
Biyanwila v. Amarasekera 67 NLR 488
Mudali Appuhamy v. Tikarala 2 CLR 35
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Tissera v. Gunatilleke Hamine 13 NLR 261
Tissera v. Gunalillake 15 NLR 379
Priestman v. Thomas (1884) 9 P.D. 210
Srirangammal v. Sandammal 23 M 216, 219
Jonesco v. Beard  AC 298
Flower v. Uoyd 10 Ch. D 327
Laxmi Narain v. Mohd. Shali 1949 EP 141APPEAL against the judgment of the Court of Appeal.
H. L. de Silva, P.C. with Geethananda de Silva and Miss. L. N. A. de Silva forappellants.
S. Gunasekera for respondents.
Cur. adv. cult.
June 6, 1989.
The Defendants-Appellants appealed to the Court of Appealagainst the order of the learned District Judge made on 30th April,1984, in which he answered the preliminary issue No. 5 in favour ofthe Plaintiffs-Respondents and directed that the trial should proceedon the remaining issues. The Court of Appeal by its judgment dated2nd September, 1986 dismissed the appeal and directed the return ofthe record to the District Court to proceed with the trial. TheDefendants-Appellants have appealed to this Court against thejudgment of the Court of Appeal.
The Defendants-Appellants contend that the above action in whichthe Plaintiffs-Respondents have sought to obtain a declaration thatthe probate issued in DC Gampaha case No. 1322/T is void on theground of fraud is not maintainable on the facts pleaded in the plaint.I am of the opinion that the instant case is not one that may bedisposed* of on the issue of law only and that the appropriate coursewould be to allow the case to proceed to trial. The question whichwas argued at length before us really arises under issues Nos. 2 and3 which are issues of both law and fact and can only be decided afterhearing the evidence in the case. I now proceed to set out thematters relevant to this appeal.
Actalina Fonseka v. Dharshani Fonseka (Kulatunga, J.)
According to the averments contained in the plaint in the actionwhich is the subject matter of this appeal instituted’ on 22ndSeptember, 1982, the 1st Plaintiff-Respondent is the only daughter ofthe deceased Merennege Kithsiri Wijesoma Fonseka who was adivorcee and the 2nd Plaintiff-Respondent was his wife by habit andrepute. The plaint alleges that the deceaspd died of a sudden heartattack on 3rd November, 1977, and had no opportunity of making alast will.
It is alleged that on ,28th September, 1977, the 1st, 2nd and the3rd Defendants-Appellants forged a will purporting to be by thedeceased devising his entire estate to the 4th, 5th and 6thDefendants-Appellants who are the children of the deceased’s sister,the 3rd Defendant-Appellant.
It is also alleged that the 1st and the 2nd Defendants-Appellantsinstituted DC Gampaha case No. 1322/T joining only the 3rd; 4th, 5thand 6th Defendants-Appellants when they knew that the 1stPlaintiff-Respondent is the only daughter and the 2ndPlaintiff-Respondent is his wife by hajbit and repute and fraudulentlyobtained an Order Nisi on 12th May, 1978 and probate on 17thMarch, 1981 in their favour.
The plaint further alleges that the 1st, 2nd and 3rdDefendants-Appellants fraudulently propounded the said forged willand obtained probate in DC Gampaha case No. 1322/T bymisleading the Court and seeks a declaration accordingly and for adecree declaring the probate void.
The Defendants-Appellants in their answer only admit that the 1stPlaintiff-Respondent is the daughter of the deceased and deny theother averments. The answer proceeds to state that even assumingthe truth of all the facts averred therein the plaint does not disclose acause of action.
The following issues were adopted when the action came up fortrial:
Was the 2nd Plaintiff the wife of Merennege Kithsiri
Wijesena Fonseka by habit, and repute from 1965 until hisdeath?
Did the 1st, 2nd and 3rd Defendants forge the signature of
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Merennege Kithsiri Wijesena Fonseka and execute a will on28th September, 1977?
Did the 1st, 2nd and 3rd Defendants propound the said willin DC Gampaha case No. 1322/T and fraudulently obtain anOrder Nisi dated 12th May, 1978 and probate dated 17thMarch, 1981 having misled the Court?
If the above issues are answered in the affirmative, is thePlaintiff entitled to the reliefs prayed for?
In any event as the Order Nisi has been issued and it hasbeen made absolute can the Plaintiffs maintain this actionon the facts pleaded in the Plaint?
By consent of parties, issue No. 5 was heard as a preliminaryissue arid the learned District Judge answered it in favour of thePlaintiff-Respondents and ordered the action to proceed on theremaining issues. This order was affirmed by the Court of Appeal.
Mr. H. L. de Silva, PC learned Counsel for the Defen-dants-Appellants submitted that the Full Bench decision in AdoriS v.Perera (1) is exactly in point. I am unable to agree. In that case thePlaintiffs who were not parties to the testamentary action, sued forthe recall of the probate of the will of Ran Etana granted to herhusband, the. defendant. The ground of action assigned in the plaintwas that the will produced in Court “was not the act and deed ofVithanage Ran Etana, and probate should not have been granted inrespect thereof”.
It was held that the plaintiffs could not maintain the action,because, if the circumstances were such that probate could berecalled under Section 536 of the Civil Procedure Code (which wasnot the. case), application should have been made for the purpose byway of summary procedure in the testamentary action, and apartfrom Section 536 and 537, because the plaint does not aver suchfraud as is necessary to impeach a judgment.
De Sampayo A.J. agreed that when the issue of probate hasfollowed upon an Order Nisi the, provisions of Section 537 do notapply, and all parties are concluded by the issue of probate andadded:-
"There might, of course, be fraud in connection with the
Actalina Fonseka v. Dharshahi Fonseka (Kulatunga, J.)
obtaining of probate even upon an Order Nisi, in which case, anindependent action might in analogy to the English practice, bebrought to set aside the probate. There is, however, no fraudalleged in this case".r
I think that the dismissal of the action in Adoris v. Perera (-1). inlimine was warranted by the provisions of Section 46(2)(i) of the GivifProcedure Code on the ground that it was. a suit for the recall of theprobate which was barred by the provisions of Sections 536 and '537of the Code. The power under Section 46(2)(i) can be exercised atany stage, whether before or after the commencement oT-the' trial rReid v. Samsudin (2). No fraud was alleged jn the pjaint and as suchit could only have been entertained after an amendment consequentupon an order under Sectiqn 46(2). During the argurhent of theappeal Counsel for the Plaintiffs-Respondents applied to be allowedto rectify the plaint but this was not' entertained by the; Fuji Court,
In the instant case, the pleadings are entirely different and in' myview complies with Section 40 of the. Civil Procedure Code. Asrequired by Section 40(d) it contains a plain and concise statement"ofthe circumstances constituting the cause of action. It alleges theforgery of a will and its use in the testamentary Case withoutdisclosing the 1st Plaintiff-Respondent who is the only daughter ofthe deceased and who along with the 2nd Plaintiff-Respondentappears to have been residing with the deceased at the time of hisdeath. It alleges that the Defendants misled the Court, to grantingprobate.
Mr. H. L. de Silva, PC' cited the decision- in-'Biyanwila v.Amarasekera (3) which held that the requirements of Section 524 ,of.the Civil Procedure Code to mention the names of the heirs of thedeceased are only directory which only means that the failure todisclose an heir would not make the probate void on account of suchnon-compliance. However, such failure is a relevant fact indetermining whether probate had been obtained by fraud..,'
Learned Counsel also submitted that notice of Order Nisi wasadvertised in the Newspaper as required by Section 532. That may beadequate in law. However, for determining whether probate wasobtained by fraud it would be relevant to know whether having regardto the Circumstances of the plaintiffs, such notice afforded to' them anadequate opportunity of'being aware of the case and whether the
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Defendants-Appellants kept the Plaintiff-Respondents out of the casebeing aware of the fact that the Plaintiff-Respondents were not likelyto have read the Newspaper and become aware of the testamentarycase.
On the allegations contained in the plaint the Court has todetermine upon evidence whether the Plaintiff-Respondents weredeliberately kept in the dark about the existence of the testamentaryaction to make it appear to the Court that there was no opposition tothe grant of probate, whether the will is a forgery and whetherprobate had been obtained by fraud.
The law does not require that the plaint should make out a primafacie case which is what the Defendants-Appellants appear to insiston, nor are the Plaintiffs required to state their evidence by which theclaim would be proved. The plaint in the action discloses a cause ofaction and if as it appears to me, the real grievance is that it does notcontain sufficient particulars, the defendants should, before pleadingto the merits, move to have the plaint taken off the file for want ofparticulars – Mudali Appuhamy v. Tikarala (4). Under Section 46(2)of the Civil Procedure Code this is the correct procedure even in acase where it is alleged that the plaint does not disclose a cause ofaction.
Although the above findings are sufficient to dispose of this appeal,in deference to the submission of the learned Counsel for theDefendants-Appellants, I wish to deal with some of the points takenby him.
Learned Counsel submitted that the Court of Appeal placingreliance on a statement of Monir “The Principles and Digest of theLaw of Evidence” (4th Edition – Volume I), has misconceived the law. as to the kind of fraud which may vitiate a decree. This statementwhich also appears in the 14th Edition of that work at page 639 is “Ifthe claim in the previous suit was false and the falsity of the claimwas necessarily known to the party putting forward the claim, thedecree in that suit is liable to be set aside". Counsel argued thatMonir made an incorrect statement of the law with reference to casescited as authority for that statement. I
I do not think that Monir has mis-stated the law. The author doesnot say that a false claim knowingly made would necessarily vitiate a
Actalina Fonseka v. Dharshani Fonseka (Kulatunga, J.)
decree. All that he has stated is that the decree in such a case is‘liable’ to be set aside. Whether the decree is void and may be setaside would depend on the totality of the evidence in the case-.,andany such decision would have to take into account the entirety, of therules applicable in this sphere. The relevant principles have been fujlystated in Monir (14th Edition) pages 634 – 641.
The most salient principles are as follows:- f
In order to get rid-of a former judgment it is not sufficient for
a person to prove constructive fraud, he must prove actualpositive fraud, a meditated and intentional contrivance toke,ep the parties and the Court in ignorance of the real factsof the case and the obtaining of that judgment by thatcontrivance.•
Fraud must be extraneous to the decree, it must be fraudvitiating the proceedings in which the decree was passed.The decree should have been obtained by fraud practisedupon the Court..
It must be a fraud that is extrinsic or collateral to everythingthat has been adjudicated upon and not such as has been ormust be deemed to have been dealt with by the Court.
It is not possible to show that the Court in the former suitwas mistaken, it may be shown that it was misled. In otherwords where the Court has been intentionally misled by thefraud of a party and a fraud has been committed upon theCourt with the intention to procure its judgment, it will vitiateits judgment.
The decree cannot be set aside merely on the ground that ithas been procured by perjured evidence. It is not sufficient toallege that the judgment was obtained by false evidence as
, the judgment sought to be vacated must be taken to havedecided the question whether the testimony of any witnesswas true or false and whether the document produced inevidence was genuine or not.
t-; o.. .
The Court of Appeal in its judgment refers to the rules (b), (c) and(d) above and was fully seized of the applicable principles and assuch has not misconceived the law.
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Learned Counsel for the Defendants-Appellants submitted that insubstance the allegation in this case is that probate had beenobtained on perjured evidence. I cannot agree. An allegation that awill was forged intentionally to mislead the Court to granting probatefor the administration of an estate which has in fact devolved onintestate heirs and that probate has been obtained by persons whoforged such will without disclosing the heirs has to be vieweddifferently from an allegation that probate has been obtained by mereperjury. If it were otherwise it is not clear why our Courts have heldthat the proper procedure to impeach probate obtained on a forgedwill is by separate action – Tissera v. Gunatilleke Hamine (5); Adorisv. Perera (1); Biyanwila v. Amarasekera (3). If the Plaintiff succeedsin such action he cannot apply for letters of administration but wouldbe entitled to sue for his share of the estate without obtaining letters- Tissera v. Gunatilleke (6).
Woodroffe and Amir Ali’s Law of Evidence 14th Edition at page1264 cites the following case. 'B' in an action brought in the ProbateDivision had propounded a will and 'A' had propounded thesubstance of a later will alleging that the earlier will had beenobtained by undue influence. A compromise was effected underwhich the alleged earlier will was admitted to probate. Afterwards ‘A'discovered that the last mentioned alleged will was a forgery and that‘B’ was a party or privy to the forgery and brought an action to getthe compromise declared as having been procured by fraud andobtained judgment in that action – Priestman v. Thomas (7).
In Srirangammal v. Sandammal (8) the plaintiff sued for thepartition of the property comprised in the estate of the deceased. ThePlaintiff derived title to the property upon a sale of the property to himin execution of a decree obtained by him against the deceased on apromissary note allegedly executed by her. The Defendantssuccessfully resisted the action on the ground that the former decreewas obtained by fraud and was null and void in that the promissarynote upon which it was obtained was a forgery and the Plaintiff hadno rights as purchaser under it. The Court held that the defendantswere entitled to set up this defence under Section 44 of the EvidenceAct.
Mr. H. L. de Silva PC, submitted that the fraud should relate to theactual business of the Court and the ground of setting aside a decreeshould be strictly limited to frauds such as the suppression of
Actalina FonSeka v. Dharshani Fonseka (Kulatunga. J.)
process, concealment of the knowledge of the suit or disabling aparty from defending it. I am of the view that categories of fraud arenot closed and that it should be left to the Court to decide whetherany particular contrivance constitutes a fraud on the Court havingregard to the facts and circumstances of each case.
In Jonesco v. Beard (9) cited by the learned Counsel for theDefendants-Appellants, the House of Lords held that the propermethod of impeaching a completed judgment on the ground of fraudwas by action in which the particulars of the fraud must be exactlygiven and the allegation established by the strict proof such a chargerequires. If, however, for any special reason departure from theestablishment practice is permitted, the necessity for stating theparticulars of the fraud and the burden of proof are in no way abatedand all the strict rules of evidence apply.
This was a decision in appeal from an order of the Court of Appealsetting aside a judgment and ordering a new trial on the ground thatthe judgment had been obtained by fraud. At the hearing before theCourt of Appeal affidavit evidence was filed in support of the appeal.It was on these affidavits that the new trial was ordered. Havingexamined the available evidence the House of Lords reversed theorder of the Court of Appeal.
In Flower v. Lloyd (10) the fraud alleged in the action was that theDefendants had wilfully and with corrupt intention deceived andmisled an inspector who had conducted an inspection of thedefendants process on an order of Court. . The Vice-Chancellorconsidered the fraud to be established and gave judgment for thePlaintiff, The Court of Appeal having examined the evidence reversedthe judgment of the Vice-Chancellor on the ground that the charge offraud had not been substantiated.
James L.J. (Obiter) dwelt'at length on the dangers of setting asidea final judgment by a fresh action on the ground that perjury hadbeen committed in the first action – in particular the danger ofprolification of litigation which might go on ad infinitum. However,Bagallay L.J. observed –
“Whilst I am fully sensible of the evils and inconveniences whichmust arise from reopening what are apparently final judgmentbetween litigant parties, I desire to reserve myself an opportunity offully considering the question how, having regard to the general
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principles and authority, it will be proper to deal with cases, if andwhen any such will arise, in which it shall be clearly proved that ajudgment had been obtained by the fraud of one of the parties whichjudgment, but for such fraud, would have been in favour of the otherparty. I should much regret to feel myself compelled to hold that theCourt has no power to deprive the successful but fraudulent party ofthe advantages to be derived from what he has so obtained byfraud”.
I think that the observations of Bagallay L.J. are appropriate to thecase before us. The decisions cited are generally those in which theallegations of the parties have been tried. It is very rarely that a suitis rejected in limine and on this basis too I take the view that thecase before us is one which should be heard lest the Plaintiffs wouldbe left' with a grievance that they have been deprived of theopportunity of a trial.
In the circumstances of this case there is no warrant for theapprehension as expressed by James L.J. in Flower v. Uoyd (10)that our decision would encourage frivolous litigation. Having regardto the hazards and expenses of litigation in our time it may beassumed that ordinarily no person would embark on litigation unlesshe has a serious grievance. We should be slow to demise such agrievance in limine.
It is also relevant to note that fraud like any other fact, can beproved by circumstantial evidence and if the circumstances are suchas from which no other inference except that of fraud can bededuced, it would not be right to throw out the plea merely becauseno direct proof of it was furnished. Laxmi Narain v. Mohd Shaft (11).I would therefore leave it to the District Court to hear the evidenceand reach a decision having regard to all the circumstances.
For the above reasons, I affirm the judgment of the Court of Appealand dismiss the appeal with costs.
h: A: G. DE SILVA, J. – I agree
P. S. DE SILVA, J. – I agree.