044-NLR-NLR-V-48-ADLIET-RATNAYAKE-Appellant-and-RATNAYAKE-et-al.-Respondents.pdf
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KEUNEMAN J.—Adliet Ratnayake v. Ratnayake.
1947Present: Keuneman and Canekeratne JJ.
ADLIET RATNAYAKE, Appellant, and) RATNAYAKEet al., Respondents.'
20—D. C. (Jnty.) Colombo, 10,504 T.
Last will—Probate—Evidence.
Where there is no doubt of the mental competency of the testatorand no element of suspicion arises a will will be held to be proved if thewitnesses who speak to the due execution and attestation are believedby the court.
PPEAL from a judgment of the District Court, Colombo.
N. Nadarajah, K.C. (with him H. A. Koattegoda), for the 1st petitioner,appellant.
H. V. Perera, K.C.and 7th respondents.
(with him H. W. Jayewardene), for the 1st, 5th
Cur. adv vult.
March 6, 1947. Keuneman J.—
The main question in this case was whether the alleged will (P 1) ofMay 23, 1943, was duly executed by James Albert Ratnayake in thepresence of five witnesses. The 1st petitioner who propounded the willwas the mistress of Ratnayake, who had treated her as he would amarried wife, and who had two children by her to whom he was devoted.
The District Judge has held that the will itself was not an unreasonablewill, and that no suspicion can attach to the will from the dispositionscontained in it which were just and equitable. In fact it is not improbablethat the will represented the wishes of the testator. No doubt the willwas written, in an unusual place, viz., an account book of the testator.But it is also to be noted that this moderately long will was written outentirely in handwriting strongly resembling that of the testator in thisaccount book which contained pages of the testator’s writing. If thewill was a forgery, the forger was courting immediate detection. Thewill certainly was accepted for a time as genuine by the 2nd petitionerwho is now a strong opponent of the will, and he signed the originalaffidavit asking for probate as one of the executors named in the will.The 2nd petitioner was familiar with the handwriting of the deceased.
One matter may be specially mentioned. The District Judge says“ Grave suspicions arise on the evidence as to whether the will pro-pounded was the act of the deceased ”. We have carefully examinedthe judgment and we do not think that in this case any element ofsuspicion relating to the will can be said to have arisen. The questionswhich did arise according to the findings of the District Judge related tomatters which may have affected the credibility or the reliability of thevarious witnesses called and cannot properly be said to relate to thecircumstances under which the will was made. We do not think thatany suspicion with regard to the genuineness of the will can be said tohave arisen.
KEUNEMAN J.—Adliet Ratnayake v. Ratnayake.
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In Shama Charu Kundu v. Kettromoni Dasi1 the Privy Council had toconsider a similar problem. “ In this case the suspicion, if there wasone, would be that on the morning when the will was said to have beenmade the deceased was in an unconscious state and was unable eitherto sign the will or to understand what he was doing, that is that thewitnesses in support of the will were not telling the truth.- If they were,their Lordships do not see anything to excite suspicion. .The questionwas simply which set of witnesses should be believed ”.
In the present case the question was whether the alleged will was dulyexecuted by the testator and attested by the five witnesses. It was apure question of fact—as to whether the witnesses who spoke to the dueexecution and attestation were to be believed. If they were believedno element of suspicion arose. If they were not believed, then the willcould not be held proved.
In our opinion the District Judge has been misled into the belief thatthere were elements of suspicion which it was the duty of the propounderto remove. This belief has influenced the District Judge into thinkingthat a heavier burden of proof rested on the propounder than the lawhad in fact imposed upon her. There can be no doubt, on the factspresent in this case, of the mental competency of the testator, and if itwere proved that he in fact executed the will there can be no douht thathe knew and approved of the contents of the will. The real questionto be decided was whether the will had been executed and attested in duecourse.
In dealing with the witnesses who spoke to the due execution of thewill the District Judge mentioned certain facts which in his opinionaffected their reliability. Some of these reasons relating to particularwitnesses are fairly cogent, some are not so convincing. In the endthe District Judge said: — “The evidence of the 1st petitioner andher witnesses has not removed those suspicions. On the contrarytheir evidence is not such evidence as I feel I can act on withany confidence. ” In our opinion the District Judge expected anespecially high degree of proof for the removal of the suspicion whichhe thought had arisen in the case.
One matter has been argued, viz., that the District Judge has acceptedthe evidence of the witness Girigoris called by the opponents of the will.There are, however, some matters relating to this evidence on whichwe should have been glad to have had the' assistance of the District Judge.The point of the evidence was that Girigoris had been present on May 23,1943, on the premises and that he did not see the witnesses to the willcoming to or going from the house of the deceased. But Girigoris hadmade a statement in cross-examination as follows : —
“ Cocoanuts used to be plucked on the Hendela lands” (these weredifferent lands to that in Talangama on which deceased was living)“ in the odd months, January, March, May, July, &c. There wouldhave been a picking in March, 1943. I supervised that picking. Thenext picking I supervised was in May. That picking took place aboutMay 22 or 23. I did go to the lands for that picking. ”
»I. L. R. 27 Cal. 522, at 528.
The Attorney-General v. Krishnajnllai.
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This evidence on the face of it seriously reduced the value of Girigoris’evidence. Later, however, Girigoris was reminded that May 23 was aSunday, and stated that no work was permitted by the deceased onSundays ; and Girigoris added that on each of the Sundays from May 10to 23, he was on the estate where the deceased resided. The DistrictJudge does not deal with the passage I have cited or consider its relevancy..Apparently the point was not made, when the 1st petitioner’s witnesses-were in the witness-box, that work on Sunday was not permitted by thedeceased. Examination of the account book in which the will P 1 waswritten does not at first sight appear to be consistent with that, andwe do not think this point has been sufficiently explored. In all thecircumstances we do not think we are obliged to regard the evidenceof Girigoris as conclusive of the case.
The evidence of the handwriting expert was not relied on by theJudge except as “ slight corroboration of the conclusions come to in-dependently on the other evidence ”. It did not conclude the case.
There has been in this case delay in the delivery of the judgment.The District Judge has explained the reasons of the delay, and no faultappears to attach to him in this respect. The delay, however, may haveaffected his recollection of the witnesses, some of whom gave evidencea considerable time before the date of the judgment. At any rateit makes us less reluctant to interfere in this case.
In the circumstances we set aside the judgment appealed againstand send the case back for trial before another District Judge. If theparties agree the evidence already recorded may be utilised, but it isdesirable that all the witnesses be presented again for cross-examination.
The 1st petitioner will have the costs of the appeal, and all othercosts will be in the discretion of the District Judge who tries the caseanew.
Canekeratne J.—I agree.
Case sent back jor re-trial.