094-NLR-NLR-V-50-ANANTHATHURAI-Appellant-and-KANAGARATNAM-Respondent.pdf
■TA V KTI t.TCTC'K S.P.J.Ananthatkurai v. Kanagaratnam
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Present: Jayetileke S.P.J. and Grattaen J.ANANTHATHUEAI, Appellant, and KANAGAJR.ATNAM, RespondentS. C. 58—D. C. (Inty.) Jaffna 84
Last Will—Variation by Codicil—Person writing Codicil taking benefit under it—Suspicious circumstance—Duty of Court.
Where a person who writes or prepares a last will takes some benefitunder it this fact gives rise to a suspicion that the last will does notexpress the mind of the testator. A Court ought, in such circumstances,to be vigilant in examining the evidence in support of the instrumentend should not pronounce in its favour unless the suspicion is removed.
Appeajl from a judgment of the District Judge, Jaffna.
A. Hayley, K.G., with N. Kumarasingham, for the respondent,appellant.
H. V. Perera, K.C., with S. J. V. Ghelvanayakam, K.C., H. W. Tambiah,and G. Vanniasingham, for the executor respondent.
Cur. adv. mult.
June 14, 1948. Jayethjbke S.P.J.—
Selvanayagampillai, wife of Sangarapillai of Tellipallai West, died onNovember 29, 1942, having made her will P1 dated May 9, 1942, bywhich she devised 21 lands absolutely to her eldest son Kanagaratnam,the respondent, and seven lands absolutely to her younger son Anantha-thurai, the appellant, and the residue also to Ananthathurai subject to thecondition, that if he married and had children by the marriage, the saidresidue should devolve on the children, and, if he died without leavingany lawful children, it should devolve on the children of the respondent.
On January 27, 1943, the respondent applied for probate of P 1. OnMarch 15, 1943, the appellant produced X1 and the duplicate X 2 datedSeptember 23, 1942, which he alleged was a codicil duly executed by thedeceased, and sought to obtain probate of P 1 and XI. XI and X 2have been attested by five witnesses Subhraman iam, Rasiah, Sinna-tambiar, Arumugam and Velupillai. At thS inquiry, Counsel for therespondent insisted on X 1 and X 2 being proved in solemn form. Afterinquiry, the learned District Judge held that X 1 was duly executed bythe deceased, and entered order absolute declaring P 1 and X1 proved.The respondent appealed against this order. The appeal was arguedbefore Keuneman J. and myself. Counsel for the appellant contendedthat under our law the propounder of a will has to prove (1) the fact ofexecution, (2) the mental competency of the testator, (3) his knowledgeand approval of the contents of the will, and further that, if the circum-stances are such that a suspicion arises affecting any of these matters,the propounder should remove it. He pointed out that the learnedDistrict Judge had failed to consider the third element referred to above.In these circumstances we decided to uphold the findings of the learned16—L.
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District Judge on the fact of execution and the mental competency ofthe testatrix, and to send the case back for a decision by the Courtwhether the testatrix knew and approved of XI. Our judgment isreported in the 36th volume of the New Law Reports at p. 302.
When the record went back the District Judge who had heard the casehad ceased to function. The inquiry was taken up by his successor andthe following issues were framed :—
When the testatrix signed X1 and X 2 did she know the contents
of X 1 and X 21.
Did the testatrix approve of the contents of X1 and X 2 ?
After hearing evidence, the learned District Judge answered bothissues in the negative and directed that probate should issue only inrespect of P1. The present appeal is against that order.
Before I deal with the arguments that were addressed to us I thinkI should examine the nature of the burden that lies on the appellant onthese two issues. The leading case on the subject is Barry v. Buttin 1in which Parke B, delivering the judgment of the Judicial Committeesaid :—
“ The rules of law according to which cases of this nature are to bedecided do not admit of any dispute so far as they are necessary to thedetermination of the present appeal, and they have been acquiesced inon both sides. Those rules are two. The first, that the onus pro-bandi lies in every ease upon the party propounding a will, and he mustsatisfy the conscience of the Court that the instrument so propoundedis the last will of a free and capable testator. The second is that if aparty writes or prepares a will under which he takes a benefit, that is acircumstance that ought generally to excite the suspicion of the Court,and calls upon it to be vigilant and jealous in examining the evidencein support of the instrument, in favour of which it ought not to pro-nounce unless the suspicion is removed, and it is judicially satisfiedthat the paper propounded does express the will of the deceased.”
The only other case to which I need refer is Tyrell v. Painton 3 in whichBindley L.J., said :—
“ The rule in Barry v. Butlin {supra), Fulton v. Andrew 3, and Brownv. Fisher 4 is not, in my opinion, confined to the single case in whicha will is prepared by or on the instructions of the person, taking largebenefits under it, but extends to all cases in which circumstances existwhich excite the suspicion of the Court; and whenever such circum-stances exist and whatever their nature may be, it is for those whopropound the will to remove such suspicion and to prove affirmativelythat the testator knew and approved of the contents of the document,and it is only where this is done that the onus is thrown on those whooppose the will to prove fraud or undue influence or whatever else theyrely on to displace the ease made for proving the will.”
The appellant admitted that X1 and X 2 were prepared by him.These documents purport to remove the restrictions under which theresidue was devised to the appellant by the testatrix by PI. These1 t Moo. P. C. 480.3 L. R. 7 B. L. 448.
* L.B. {1894) Probate Division 151.4 63 L. T. 465.
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facts would, raise a suspicion that X1 and X 2 do not express the mindof the testatrix and, according to the authorities I have referred to, the
what she was doing when she executed them. The appellant mustestablish affirmatively that the testatrix knew and approved of thecontents of XI and X2. On this question the District Judge, afterreviewing all the evidence that was placed before him by both sides,said :—
“ It is my considered view that the documents were not read overto the testatrix or interpreted. That being so, how could she haveknown and approved of the contents ? ”.
Mr. Hay ley urged (1) that the District Judge has not rejected theappellant’s evidence that XI and 52 were prepared by him in accord-ance with the instructions given to him by the testatrix ; (2) that thegeneral circumstances show that the testatrix intended to execute X 1and 52 and (3) that the above finding is unreasonable having regard tothe evidence.
There are certain facts in this case which are not in dispute. They areas follows :—The testatrix was living, apart from her husband, in a villagecalled ffiavalai, for some years prior to her death, which occurred onNovember 29, 1942. She did not understand English at all, but shewas educated in her own language. She was a very capable person, andright up to her death she managed her own affairs. In 1930 she gotdispleased with the respondent over his marriage, and she executed, awill R 3 by which she left all her property to the appellant. She, however,made up with the respondent, and in the year 1941 she gifted to him byE 4 75 parcels of land. On that occasion she wanted to gift to theappellant also some of her lands but subject to certain conditions as hewas unmarried at the time. The appellant refused to accept a giftsubject to conditions, and left the house. He went to a village calledMaravunpula about 20 miles distant, and remained there for some months.In April, 1942, the testatrix was taken ill and was removed from her houseto the Ihuvil hospital where she executed the will P1 on May 9, 1942.In June, 1942, when she was in the Inuvil hospital, she expressed to Mr.
vaJai at the time, to see her. That visit brought about a reconciliationbetween the appellant and the testatrix. Towards the end of August,1942, the testatrix left the Ihuvil hospital and went back to her house.She stayed there a few days, and, as there was no improvement in hercondition, she went to Dr. Subramaniam’s Nursing Home at Jafina
appellant. On October 3, 1942, she executed X1 and X 2 and six weekslater she died.
The appellant gave evidence at the inquiry. He said that, on bisvisit to Hie testatrix at the Ihuvil hospital, he placed his grievances
Court ought not to pronounce in favour of X1 and X 2 unless the sus-picion is removed by the appellant by evidence that the testatrix knew
a cousin of hers, her desire to see the appellant, and Mr.induced the appellant, who was living with him at IHa-
where she stayed for three or four weeks. On September 23, 1942,she left Dr. Subramaniam’s Nursing Home and went back to her house atHlavalai, stayed there for a few days, and went to the house of the
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JAYETILEKE S.P.J.—Ananthathurai v. Kanagaratnam
before the testatrix, and, after some discussion she agreed to execute adeed of gift in his. favour without any restrictions. This evidence was notaccepted by the learned District Judge. He says in his judgment:—
“ It may be that, when the respondent pressed her, she gave him theimpression for the time being that she would consider the matterfavourably. If she had changed her mind about imposing conditionsand had decided to grant him properties without restrictions she wouldnot have hesitated to sign X 1 and X 2 in Dr. Subramaniam’s NursingHome on September 23, 1942.”
The finding of the learned District Judge on this point is supported by thefact that the testatrix did not take any steps to execute such a deed,though she had ample opportunities to do so, when she was in the Inuvilhospital.
The appellant said further that the testatrix sent for Proctor Thamby,after she entered Dr. Subramaniam’s Nursing Home, and gave himinstructions to draw up a deed of gift without any conditions in favourof the appellant, and requested him to bring the deed to the nursing homefor her signature. The evidence of the appellant as to the date on whichProctor Thamby agreed to bring the deed to obtain the testatrix’s sig-nature is somewhat contradictory. In examination-in-chief he said thatProctor Thamby agreed to come with the deeds on September 23, 1942,but in cross-examination he said that he agreed to come with the deedsnine or ten days before September 23, 1942. I think that the effect ofthe evidence when read as a whole is that Proctor Thamby was expectedto bring the deed nine or ten days before September 23, 1942. Tocontinue, the appellant said that as Proctor Thamby failed to bring thedeed as promised the testatrix expressed a desire to execute a documentlike X 1 and requested him to get it prepared. Thereupon, he went to apetition drawer in Jaffna two or three days prior to September 23, 1942,and got a draft. He took the draft to the nursing home and got thedispenser to type X1 and X 2 without the date. He did not give X 1and X 2 to the testatrix as she was in good health at the time. But onSeptember 23, 1942, he requested the testatrix to sign them as her illnesstook a turn for the worse. His father read the documents and preventedher from signing. It is important to note that the date on X1 and X 2is September 23, 1942. X 2 is a carbon copy of X 1. On examining X1I was left with the impression that the whole of it—including the date—had been typed at one and the same time. Further the impression leftin my mind on a consideration of the appellant’s evidence is that theappellant gotX 1 prepared on September 23, 1942, when he found thatthe condition of the testatrix was rather grave and that the testatrix hadmade up her mind to leave the nursing home. He then sent the telegramP 2 himself to Proctor Thamby in order to get him to attest X 1. Thetelegram reads “ Come immediately for signature ”. If what theappellant says is true, namely, that the telegram was sent with the objectof getting Proctor Thamby to come with the deeds, it should read “ Comeimmediately with deeds obtain signature I find it difficult to believethat P 2 was sent by Dr. Subramaniam because he did not say so in hisevidence. He was called by the appellant but he was not questioned onthe point.
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The evidence of the appellant was proved by P4, P5, P 6, P7, P 8,and P10 to be untruthful on many points, and I do not think it safe toplace any reliance on his statements that the testatrix gave him instruc-tions to prepare X 1 or that the testatrix gave Proctor Thamby instruc-tions to draw up a deed in his favour without any restrictions. If, infact, the testatrix gave the appellant instructions to prepare XI I amunable to comprehend why the appellant did not inform the testatrix thathe had prepared the document and why he did not obtain her signatureto it. Again if, in fact, the testatrix gave instructions to Proctor Thambyto draw up a deed of gift I am unable to comprehend why Proctor Thambywho, according to the evidence of Mr. Ratnasingham, was a man ofintegrity and had a large practice should not have carried out hisinstructions. It is unfortunate that Proctor Thamby had died beforethe inquiry commenced.
The evidence of Dr. Subramaniam, which has been accepted by thelearned District Judge, shows that on September 23, 1942, the appellantrequested the testatrix to sign XI and X 2. Dr. Subramaniam saidthat he went into the bedroom hearing a noise in it. He saw the appellantthere with X 1 and X 2 in his hands and he believed that Sangarapillaiand Mr. Ratnasingham were also there. When he went in the testatrixasked him for his advice whether she should sign X1 and X 2. He read-through the documents and told her that he did not wish to interferein the matter. His evidence is not clear as to whether the testatrixknew the contents of X 1 and X 2. He said that from the fact that shesought his advice as to whether she should sign or not he inferred thatshe was aware of the contents of the documents. The learned DistrictJudge does not seem to have been satisfied that the testatrix was awareof the contents of X1 and X 2 when she sought the advice of Dr.Subramaniam. He says in his judgment:—
“ The evidence is that when the respondent presented X 1 and X 2for her signature at the nursing home the father Sangarapillai objectedto her signing the same and that she consulted Dr. Subramaniam, andwhen the doctor was not inclined to interfere in her domestic affairsand refused to express an opinion she did not sign them. If she haddecided to grant the properties without restrictions I think she wouldhave signed them in spite of the objections of Sangarapillai in the samemanner as she had signed and executed deed No. 909 (R4). Theevidence is that she. was a woman of strong character and thoroughlycapable of looking after her own affairs and that she had been livingin separation from her husband for many years.”
It must be noted that X 1 and X 2 are in the English language and thatthere is no evidence that the documents were explained to the testatrixby anyone before she sought the advice of Dr. Subramaniam. All thatthe appellant said in his evidence was that when he attempted to get thetestatrix to sign X 1 and X 2 his father, who was present, read them and'prevented her from signing. It may well be that when the testatrixsought the advice of Dr. Subramaniam she wanted him to read thedocuments, tell her what they contained and advise her as to what sheshould do. In this state of the evidence it seems to me that it is not
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possible to say with any degree of certainty that the testatrix was awareof the contents – of XI when she sought the advice of Dr. Subra-rnaniam.
The appellant said further that after the testatrix left Dr. Subra-maniam’s Nursing Home he took X 1 and X-2 with him and left them inan almirah in his house. The appellant’s evidence as to what took placebefore the testatrix signed XI and -X 2 on October 3,1942, is not as fullas it should have been. He said that on that day one Subramaniamcame to his house and a little later Rasiah and Sinnatamby came there.The testatrix told them that she intended to execute a document inappellant’s favour and requested Subramaniam to bring X1 and X 2from the almirah. When Subramaniam brought the documents thetestatrix requested him to explain the contents of the documents to thewitnesses and Subramaniam did so in her presence and hearing.Thereupon she signed the documents. The appellant called three ofthe attesting witnesses Rasiah, Arumugam and Sinnatambiar. At thetime of the inquiry Subramaniam was dead. Rasiah said that X 1 andX 2 were read over in English and he was told in Tamil that a codicil in aparticular manner was being executed. No one told him what thecontents of X1 and X 2 were. The testatrix told bim that she wasaltering a previous will of hers. Arumugam and Sinnatambiar saidthat Subramaniam read and explained X 1 and X 2 to them and thetestatrix told them that she was going to execute a document removingthe conditions in her last will. The learned District Judge was notimpressed by any of these witnesses and he rejected their evidence. Mr.Hayley pointed out that some of the reasons given by the District Judgefor not accepting their evidence are not supported by the evidence. Ihave considered Mr. Hayley’s submission very carefully, but I find it verydifficult to dissent with any confidence from a conclusion on a questionof fact at which the trial Judge who has seen and heard the witnesseshas arrived. On a consideration of the whole of the evidence I agreewith the learned District Judge that the appellant has failed to dischargethe burden that lay on him. The learned District Judge seems to havethought that when the testatrix signed XI she may have intended torelease from the fidei commissum created by her by P 1 a few of the landsfor the benefit of the appellant. Some support for that view is affordedby R 5 which is a certified copy of P 1 issued by the attesting notary twodays before X 1 was executed. A certified copy of a will can only beissued to the person who executed the will during his lifetime. I thinkthat I am entitled to presume that R 5 was issued to the testatrix. Inthese circumstances the question would arise whether she needed R 5 ifshe intended to remove all the restrictions in P 1.
For the reasons given by me the appeal fails and must be dismissed.The respondent will be entitled to the costs of appeal. In view of thefact that the appellant succeeded in the first inquiry I think the partiesshould bear their own costs of the previous appeal and in the Courtbelow.
Gbatzabbt J.—I agree.
Appeal dismissed.