049-SLLR-1984-V1-WEERASINGHE-v.-NAGAHAWATTE-AND-OTHERS.pdf
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Tampoe v. fjajasingham. I.G,P.,(CQlin-Jt>ornd, J.)
* . •
411
WEERASINGHE
v,
NAGAHAWATTE AND OTHERS
COURT OF APPEAL.
TAMBIAH, J. AND MOONEMALLE, J.
C.A. 107/74 (F) – D C. GALLE 9306/T.
MARCH 76. 1984.
Testamentary action – Last Will of testator not found at time of death – Applicability ofpresumption that Will had been destroyed animo revocandi – Proof of Will by' secondary evidence ~ Issue of probate on protocol of Will, when possible – Validity ofjudgment written by trial judge and pronounced by his successor.
The deceased was known to have made a Last Will attested by a Notary Public. His wifethe appellant applied for letters of administration on the basis that he died intestate andOrder Nisi was entered granting her letters. The objecting respondents filed objectionsdenying that the deceased died intestate and claimed that he had made ^Last Will theoriginal of which was being suppressed or had been destroyed. The protocol of theoriginal Will and other documentary evidence was led to prove fhat the deceased hadmbde a J-asuWill.*The appellant took up the positfcn that the Will was not among the
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[1984] 1 SriLR.
Sri Lanka
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papers of the deceased and relied on the presumption that if a Last Will is shown to havebeen in the testator's possession and is not forthcoming at his death, it is presumed tohave been destroyed by him animo revocandi. The District Judge held the Will proved' by secondary evidence and issued probate of the protocol of the Last Will.
Held-
HI). It is a necessary condition to the coming into effect of the presumption that atestator has destroyed his Last Will animo revocandi where the Will is shown to havebeen in his possession but is not forthcoming at his death, that the Court should besatisfied that the Will was not in existence at the time of the death. As the appellant hasfailed to satisfy court that the Will did not exist at the time of death, the presumption willnot arise.
. Where circumstances giving rise to the presumption are absent, and the Will hasbeen irretrievably lost or destroyed its contents may be proved by secondary evidence.The protocol is a copy of the original Will and the court was competent to issue probatethereof.
. A judge may pronounce a judgment written by his predecessor but notpronounced.
Cases referred to:
(1) Attapattuv. Jayewardene, (1921]22N.l.R497, 499, 420.
{2) Raliya Umma v. Mohamad, 11954) 55 N.L.R. 385.
Sergdan & others v. LordS. T. Leonards & Others. (1976) 1 P.D. 154p.220.
Ramanathan Reports, (1877) p.31 at 34.
APPEAL from the District Court. Galle.
E. R. S. R. Coomaraswamy, P.C.. with S. Walgampaya for the appellant.
N. S. A. Goonetilleke for the respondents.
Cur. adv. vult.
May 31.1984.
TAMBIAH, J.
The petitioner-appellant, the widow of the deceased Arthur Andrew.Weerasinghe, applied for letters of administration in respect of theestate, on the basis of an intestacy. There were 27 respondents to thisapplication. The deceased had no children ; nor had he brothers orsisters.
The deceased died on 24.1.70 and the application for letters ofadministration was made on 24.9.70. Order Nisi was enteredgranting letters to* the appellant.
Weerasinghe v. Nagahawatte {Tambiah, J.)
413
CA
The 7th respondent (who is the son of the deceased's father's owr)brother) Stanley Weerasinghe and his son Gemunu Weerasinghe filedobjections and denied that the deceased died intestate without leavinga Last Will, They stated that the deceased left a Last Will No. 2548dated 20.12.65 attested by T. G. Abeysundera, Notary Public,Galle, and that "some person who seems to be interested in the estateof the said late Arthur Andrew Weerasinghe seems to have destroyedor seems to be suppressing the original of the said Last Will". Theyalso set out two properties which they said were owned by thedeceased, but have been left out by the appellant in the inventory filed.The 2nd property was called "Obahena". The Notary who attested thesaid Last Will had died and his protocols were with theRegistrar;General. They prayed that the Registrar-General be orderedto furnish a certified copy of the said Last Will, that the said Last Willbe admitted to probate and that the 23rd respondent, who wasnamed as executor in the said Will be ordered to "execute" the said LastWill. The 23rd respondent, Piyasena Karunanayake, is the brother ofthe appellant.
The issues raised are as follows
Did the deceased Arthur Andrew Weerasinghe die leaving LastWill No. 2542 of the 20th December, 1965, attested by T. G.J. Abeysundera, Notary Public ?
Bv the said Last Will did the deceased Arthur AndrewWeerasinghe appoint a person called Piyasena Karunanayakeas administrator of the estate ?
Has any person with any connection with the estate of thedeceased Arthur Andrew Weerasinghe destroyed orsuppressed the original copy of the aforesaid Last Will ?
If the above issues are answered in favour of theobjecting-petitioners, can the petitioner's claim be granted ?
Is Piyasena Karunanayake entitled to probate as stated by theobjecting-petitioners without the production of the original ofthe Last Will ?
The original of the protocol of the said Last Will was witfTthe Clerk ofthe Land Registry when he gave evidence. A certffied copy has beenmarked 1R 2). Under the Will, the properties were to devolve onGemunu Weerasinghe, the 2nd objecting petitioner, subject to a life
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interest in favour of the appellant. The two attesting witnesses gaveEvidence and they identified their signatures as well as the signature ofthe Notary Public. The Delivery Book (P 6) maintained by the NotaryPublic shows that this Last Will had been handed to the deceased on£>. 12.65. The appellant herself, having come to Court on the footingthat her husband died without leaving a Last Will and having first takenup the position in her evidence that if her husband wrote a Last Will, hewould have put it in the iron safe, the key of which was always in hercustody and that she would come to know about the Last Will, laterconceded that her husband did write a Last Will and has identified herhusband's signature on the Protocol {P 2). The learned trial Judge hascome to the finding that the deceased executed a Last Will bearingNo. 2542 dated. 20.12.65 and learned President's Counsel for theappellant has not canvassed this finding.
In the lower Court, the appellant's position was that at the time ofher husband s death, the Last Will was not among his papers in theiron safe and she relied on the presumption that if a Last Will is shownto have been in the testator's possession, and is not forthcoming athis death, it is presumed to have been destroyed by him animorevocandi.
The objecting petitioners, the father and sop, gave evidence and it
was their position that the Last Will written by the deceased was in
existence at the time of his death. Geraunu Weerasinghe in his
evidence stated that after the funeral he stayed back with the appellant
while his father and mother returned to their home. About seven days
after the death, Piyasena the 23rd respondent who was named as
Executor in the Will came one morning to the house and discussed
with the appellant, his sister, about filing a testamentary case. She
.told him that Stanley Weerasinghe had asked for the Will before he-left
and asked Piyasena to take the Will and hand same to Proctor
Abeysundera, with instructions to file a testamentary case. She
Opened the safe and took out something like a deed and handed it to
Piybsena, who then left. He returned in the afternoon and discussed
something with her which he did not hear. Later, he told his father
ab'out the conversation and the handing over to Piyasena, of
something which looked like a deed.
*
Stanley Weerasinghe, in his evidence, corroborated the son'sevidence that he told him that rtyasena removed a document frorrrthewidow to be given to a lawyer. He produced in evidence the letter
CA
Weettimgf^v. Nagshawatte [TafhbiStl, J.)
415
dated 19.2.66 (R 1) written by the deceased to him in which hestated that he had written a Last Will. He then met the deceased andinquired as to whom he had left his properties. The deceased told himhe was attached to Gemunu and that he had chosen him as hislegatee. The deceased opened his safe and showed him the Last Wilt.He read the Last Will and noted its contents in his pocket Diary (R 3 A)which he produced in evidence. After the funeral, before he left, heasked the widow for the Last Will and she replied that it would beproduced in Court.
Koraneiis, the former clerk of the Notary Public who attested theLast Will, and who has signed as one of the attesting witnesses, alsogave evidence. He stated that the Protocol was typed by him. Twoweeks after the deceased died, Piyasena came to meet ProctorAbeysundera, bringing with him the Last Will. The proctor read theLast Will out and he gathered it was the Last Will of the deceased. Thewitness asked Piyasena to furnish a full list of the deceased'sproperties and Piyasena left taking with him the Last Will. He cameback a few days later but did not bring a list of the properties.Thereafter he never came.
The appellant in her evidence denied the alleged conversation spokento by Gemunu Weerasinghe. She first stated that Gemunu left with hisparents soon after the funeral and came back for the one month's"Daane" and stayed on till the three months' "Daane". Later, sheadmitted that Gemunu stayed back for a week after the funeral, thenwent away and returned again. According to her, she told Piyasenathat something must be done about the properties of the deceased.She told this after the three months' "Daana'. Piyasena said he wouldattend to it when he was free and that he would hand over the deedsto the Proctor. The deeds were in the safe. After the three months’"Daana*, they went through the deeds. There was no Last Will amongthe papers. Piyasena said that a testamentary action has to be filed.He removed the deeds. After some time he returned the deeds, after,noting down the particulars. She denied that she destroyed or]suppressed the Last Will. She did not tell Piyasena to give the deedslo*Proctor Abeysundera.
Piyasena's evidence is that no one spoke about the Last Will till thethree months' "Daana". He told his sister he would atjend to thematter after the "Daana". Thereafter he made a list of the deeds andtook all the deeds to Proctor Jayaw^rdena antf gave instructionsregarding the testamentary case. He did not know Proctor
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Abeysundera well, and denied he saw Proctor Abeysundera with theLast Will. He denied the suggestion that he and his sister hadSuppressed the Will.
It is Proctor Jayawardena who filed the testamentary case for thewidow. It would appear from the evidence that the deceased's legalmatters were attended to by Proctor Abeysundera and Piyasena'susual lawyer was C. R. Wickremanayake, and that their respectiveoffices were in the same room. Piyasena stated that he had engagedthe services of Proctor Jayawardena in two cases.
The learned trial Judge rejected the appellant's allegation that theDiary entries {R 3A) are a fabrication and holds that the entries aregenuine ; he rejected the suggestion of the petitioners-objectors thatthere was estrangement between the appellant and her husband ; hehas not accepted the submission of the appellant that the sale by thedeceased of two lands mentioned in the Last Will, shortly prior to hisdeath, is indicative of an intention to revoke the Last Will and statedthat if the deceased had changed his mind about leaving a Last Will,he would have intimated that fact to the Notary and asked for thereturn of the Protocol; he accepted the evidence of StanleyWeerasinghe that before he left after the funeral, he asked theappellant for the Last Will and she replied it would be produced inCourt; he pinpoints the admission by the appellant that Gemunustayed back for a week and the admission by Piyasena that there wasdiscussion about a Last Will.when he stated that no one spoke about aLast Will till the three months.' 'Daana'; he accepted the evidence ofthe clerk Koranelis, who, admittedly, was on good terms with theappellant and Piyasena ; he characterised him as an independentwitness ; he took into consideration the sudden change of Proctor andthat Proctor Abeysundera was alive when the testamentary action.wasfiled ; he accepted the version of the objecting petitioners that the LastWill No. 2542 of 20.12.65 was lying in the safe of the deceased atthe time of his death and that it has been subsequently destroyed orsappressed by some interested party ; he referred to the fact that theappellant had only a life interest in the deceased's property under theWill and if the Will was destroyed, the appellant and Piyasena wouldstand to gain ; he also referred to the admission of the appellant that,on her deaffi, the half-share of the property that would come to her incase of intestacy vtould devolve on her brother Piyasena as she waschildless.
CAWeerasinghe v. Nagahawatte (Tambiah, J.)417
i..
The learned Judge answered ^he issues 1, 2. 3, and 5 in the*affirmative, and 4 in the negative" He discharged the Order Nisientered and made order declaring the LasfWill proved and issuingProbate to Piyasena Karunanayake, the Executor named in the Last*Will.
The appellant came to Court on the basis of an intestacy and asked•for Letters of Administration. Stanley Weerasinghe produced the!etter(R1) wherein the deceased stated he had written his Last Will.His pocket Diary (R3A) contains entries relating to the Last Will. The'Delivery Book (P6) of the attesting Notary proves that the Last Will-was delivered to the deceased. The Land Registry Clerk produced the’Protocol (R2). Confronted with this documentary evidence,'theappellant had no alternative but to admit that her husband did write aLast Will and has even identified her husband's signature on theProtocol.
The question is, what has become of the Last Will ? The appellantsays that the Last Will was not among his papers in the iron-safe andrelies on the well settled principle of law that if a WiU is made by atestator, and is shown to have been in his possession and is notforthco’ming at his death, the presumption is that he has destroyed ithimself, animo revocandi. The objecting-petitioners on the other hand,say, the Will.was in existence at the time of the death. For this, theyrely on their own evidence and the evidence of Koranelis, the Notary'sClerk. The learned Judge has preferred to accept the version of theobjecting-petitioners,
Learned President's Counsel for the appellant submits that theevidence shows that the Last Will was in the possession of th§deceased (R 3 A, P 6, and evidence of Stanley Weerasinghe). The1 Will was missing at death. Therefore the presumption applies andthe burden of proving that the Will was not destroyed animo revocandiis upon the party propounding its contents. He pointed out to^Vinfirmities in the evidence of the objecting-petitioners and Koranelis.
(1)' In their joint affidavit the objecting-petitioners stated-'Someperson who seems to be interested in the Estate…*..seems tohave destroyed or seems to be suppre$sing*the original"
'Stanley Weerasinghe stated in evidence that the appellant saidsoon after the funeral that she would produce the Will in Court.
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•
Gemunu said in evidence thaf he listened to a conversation andhad seen the appellant giving a document to Piyasena to take itto the lawyers. They therefore suspected the appellant andPiyasena of having destroyed or suppressed the Will.
These matters have not been pleaded. The vague statements intheir petition and affidavit lead to the inference that these twoitems of evidence were in fact afterthoughts.
(2) Koranelis, who was summoned to produce the Delivery Book,spoke to matters that transpired in Proctor Abeysundera'soffice. He admitted that he had neither told thepetitioners-objectors nor the lawyers about what happened inthe office. He was divulging these matters for the first time inCourt
As regards (1} above, the learned Judge has considered the matterand has correctly taken the view- that these are matters of evidencewhich need not have been embodied in the petition.
As regards (2) above, this aspect too has been considered, by thelearned Judge and amongst other reasons for believing his evidence,he stated that Koranelis had no reason to give false evidence and thaiadmittedly, he was on good terms with the appellant and Piyasena.
I cannot agree with learned Persident's Counsel that in this case, thepresumption that the Last Will had been destroyed by the deceasedanimo revocandi applies. As was pointed out by Bertram, €. J. inAttapattu v. Jayawardena (1) 'The first question is : Is it shown thatthe Will could not be found at the date of the deceased's death ? It is anecessary condition to the coming into effect of the presumption thatthe Court should be satisfied that the Will was not in existence at the
tfme of the deathThe onus of this is on those who assert it
The next question is : Had the Will been in his
possession ?.Now, if that is held, there follows the
j0&Mumption above explained ’
After considering the evidence in the case, the learned Judge haspreferred to accept the version of the objecting petitioners to that ol.the appellant and her witness Piyasena. The learned Judge has foundas a fact that the Will was in the possession of the deceased ; he hasalso found as a fact that the VVill was in existence at the tirpe pf.thetestator's death. He has given reasons for his findings. I see ho reasonto disturb these findings. The first finding is fully justified on the
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evidence. As to the second, it iW) reasonable finding having regard tgthe evidence. As the appellant has failed to satisfy the condition,namely, that the Will did not exist at the time of death, thepresumption Vvill not arise.•
Is there any reason for the testator to destroy his Will ? Theevidence shows that he was on terms of cordiality with his wife ; sowas he with his father’s brothers's son Stanley Weerasinghe and thelatter's son Gemunu who has been referred to as 'my nephew' in theLast Will. He had no children nor any brothers and sisters. For a man inthis position, he, therefore, did the most natural thing – to ensure thathis wife will be provided for during her lifetime, he gave her a lifeinterest in the properties ; to ensure that his properties remain in hisfamily, he left his properties to Gemunu.
i
Who stands to benefit, if the Last Will is not forthcoming at hisdeath, and he is considered to have died intestate ? The widow gets ahalf share of the properties which admittedly would go to Piyasena.her brother. She admits she had access to the iron safe, and that thekey was in her custody, both after her husband's death, and while helived. It was in their interests, therefore, to destroy or suppress the' Will.
It is the appellant’s Counsel's next submission that the learnedJudge has erred in holding that the protocol is an original Will. LearnedCounsel relied on the case of Raliya Umma v. Mohamed (2). Dealingwith the submission that the protocol ought to be regarded as anoriginal document capable as such of being propounded, Gratiaen, A.C. J. said (p. 38&)- 'As to the argument concerning the protocol. Iconcede that a testator may, for greater security, execute his Will in1
duplicateBut a protocol is not a duplicate in that sense, for it ts ‘
intended only to serve as a formal authenticated record of the^transaction in which the Notary concerned had been professionally,!employed. Under our law. it is not an original document but oakiMi!copy of one.'
But, the proper question to be asked is whether it is competent tbrthe Court to issue probate on the protocol of the-Last Will ?
In Sergdan & Others v. Lord S. T. Leonards & Others (3) it was heldtha^ wljere a Will had not been destipyed by tfie testator with theintention’of revoking, T>ut is missing* and is lost, parol evidence of thecontents of the lost Will may be received ; otherwise, as Cockburn, C.
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J. said- 'it would enable any person who desired, from some sinistermotive, to frustrate the testamentary disposition of a dead man, bymerely getting possession of the Will to prevent the possibility of the7tyill of the deceased being carried into execution’
In a case reported in Ramanathan Reports (4) it was held that wherethe Will has, after the death of the testator, been irretrievably lost ordestroyed, its contents may be proved by secondary evidence, andprobate granted of a copy embodying the terms of the Will. Probatewas granted of the draft of the Will corrected by the testator, andwhich was with the attesting Notary.
These two cases establish the proposition that where thecircumstances giving rise to the presumption – destruction by thetestator animo revocandi- are absent, and the Will has beenirretrievably lost or destroyed, its contents may be proved bysecondary evidence. In the former case it was proved by paroleyidence ; in the latter, by the production of the draft of the Will. Aprotocol is a copy of the original Will (per Gratiaen, J. (supra)). Theappellant has identified her husband's signature on the protocol andhas admitted that her husband did write a Last Will on 20.12.65. It isnot her position that (R 2) is not the protocol of the Last Will executedby her husband. The Court was competent, therefore, to issueprobate of a protocol which is a copy of the original Will.
Finally, learned President’s Counsel submitted that though the entiretrial and addresses were before Mr. L. H. de Alwis, D. J., theijudgment was delivered by the Additional District Judge, as at theend of the judgment appears the designation 'A.D.J.'; that there*being two versions before Court – spoken to by Stanley Weerasinghe,tjemunu and Koranelis and denied by the appellant arid Piyasena – the.question of demeanour of witnesses and the credibility of theirEvidence become important.
V*Wwve called for and perused the record of the case. I find that thejudgment has been signed by Mr L. H. de Alwis but has beenpronounced by another Judge. It is the judgment of the Judge whoheard the Case. A Judge may pronounce a judgment written by hispredecessor? but not pronounced (s. 185, Civil Pro. Code). This finalsubmission also fail*
MOONEMALLLE, J. – I agree.Appeal dismissed with costs.