D. M. ABEYSEKERA, Appellant, and VERNON DE LIVERA and another, Respondents

099-NLR-NLR-V-71-D.-M.-ABEYSEKERA-Appellant-and-VERNON-DE-LIVERA-and-another-Respondents.pdf


Abeysekera v. de Livera
465
1968Present: Alles, J.y and Wijayatilake, J.D. M. ABEYSEKERA, Appellant, and VERNON PE LIVERA andanother, RespondentsS.C. 1/67 (IrUy.)—D.C. Colombo,22712jT
Administration of estates—Testamentary action—Application for probate—Ordernisi—Objections as to authenticity of tTte Will—Burden of proof—Avermentof Undue Influence—Duty of objector to give sufficient particulars—CivilProcedure Code, ss. 146, 181, 386, 533.
i Where, before order, nisi is made absolute in an application for probate of aWill, the genuineness of the Will is challenged on the ground that the testatorhad no testamentary capacity in that he did not have a sound and disposingmind at the time of execution of the alleged Will, the burden of provingtestamentary capacity is on the propounder of the Will. It would be the task■ of the objector to rebut this fact by leading satisfactory evidence that it wasotherwise.
PP 006137 (98/08)
4G6
ALLES, J.—Abeyaekera v. de Livera
But if the authenticity of the Will is challenged on the ground thatthe deceased was induced to ^sign the Will by the exercise of undue influenceby a legatee, the objector must furnish sufficient particulars concerning thenature of the acts of undue influence, so as to enable the other side to meetthe case even after fresh issues are framed by the Court in terms of section 146of the Civil Procedure Code. The objections should not be “ loose andvague ” and must be “ clear and specific and calculated to raise a reasonabledoubt as to the genuineness or validity of the alleged Will
A.PPEAL from an order of the District Court, Colombo.
C. Ranganathan, Q.C., with H. D. Tambiah, for the Intervenient-Appellant.
Walter Jayaivardena, Q.C., with Lakshman Kadirgamar and AnandaParanavitane, for the Objector-Respondent.
H. W. Jayewardene Q.C. with 8. S. Basnayake for the Petitioner-Respondent.
Cur. adv. vult.
August 18, 1968. Alices, J.—
One Ellen de Livera died on 16th January 1966 leaving a last willand testament dated 3rd January 1966. The petitioner for probate,Ernest Cecil de Alwis, who is the second respondent to this appeal, wasappointed executor of the said will and Dulcie Mendis Abeysekera, theappellant, was one of the principal beneficiaries. Under the terms ofthe will the testatrix, who was a spinster, made certain devises to someof her nieces and certain charitable institutions, but the most valuableproperty, which consisted of a house at Wellawatte, was bequeathed byher to her niece, the appellant and her children. The second respondentto this appeal sought to prove the said will and to obtain probate fromthe District Court. Order nisi declaring the will proved was made on17th March 1966. Vernon de Livera the first respondent, a nephew of adeceased brother of the testatrix, intervened and on the returnable date—8th May 1966—moved for a date to file objections. The objections werefiled on 26th August 1966, in the nature of an affidavit which stated inparagraph 4 that ‘ the deceased did not have testamentary capacity anddid not have a sound and disposing mind at the time of execution of thealleged will The same paragraph further stated that the ‘ deceasedhad been induced to sign the document (said to be the last will) by undueinfluence ’ and that the affirmant was unaware that the deceased had infact signed the document. The matters referred to in the affidavit werefixed for inquiry ; the proctor for the objector filed his list of witnessesand documents, notice of which was given to the second respondent and on9th November 1966, the case was set down for inquiry before the
467
ALLES, J.—Abeyaekera v. de Livera
Additional District Judge of Colombo. On this date, the appellant wasadded as a respondent to the application. The petitioner objector andthe present appellant were all represented by Counsel and the recordreads as follows :—
“ Mr. Nadaraser (for the petitioner) frames the following issues :—
Is the document marked ‘ A ’ and filed of record, the last will
and testament of the deceased Ellen de Livera ?
Mr. Navaratnarajah (for the objector) frames the following issues :—
Was the deceased induced to sign the said last will by the
exercise of undue influence ?
Did the deceased have at the.time of the execution of the said
will, testamentary capacity and a sound disposing mind 1
Issue 2 is now amended by the addition of the words ‘exercised on her
by Mrs. Dulcie Mendis Abeysekera. * ”
Counsel for the appellant and Counsel for the petitioner objected toIssues 2 and 3. In regard to Issue 2 it was submitted by Counsel thatthe precise nature of the acts of undue influence should be given and alsothe dates and places of such acts and in regard to Issue No. 3, Counselsubmitted that it does not state why or how the testatrix did not have-testamentary capacity and why the objector says she did not have asound and disposing mind. The learned trial Judge, in spite of theseobjections, accepted the issues in the form in which they were raised.He has not set down any* reasons. The appellant has appealed from thisorder and prayed that the issues be rejected and that fresh issues beframed so as to give due notice of the alleged acts of undue influence*the manner in which the undue influence was exercised and the times,dates and places of the said acts and as to why or in what way the deceasedlacked testamentary capacity or a sound disposing mind.
In my view, subject to the observations I have to make in regard to theprocedure adopted by the learned Judge, Issue Nd. 3 might be accepted.The burden of proving this fact is on the propounder of the will and thenotary who executed the last will has filed an affidavit on 17th March1966 that to all appearances he verily believed the deceased to be “ofsound mind, memory and understanding ” at the time of the execution ofthe will. It would be the task of the objector to rebut this fact by leadingsatisfactory evidence that it was otherwise. The real complaint of theappellant is that she has been kept completely in the dark as to the precisenature of the acts of undue influence alleged against her and even of theapproximate times and places when and where this undue^influencewas exercised so that she may be able to get ready to meet the allegations..She further maintained that the first time that she became aware .that itwas alleged that she was t he person who exercised undue influence on thetestatrix was at the inquiry on 9th November 1966 .
468
AXiLES, J.—Abeyaekera v. de Livera
Section 533 of the Civil Procedure Code requires, inter alia, that if “ anyperson upon whom the order nisi has been directed to be served, or anyperson then appearing to be interested in the administration of thedeceased’s property, satisfies the court that there are grounds of objectionto the application, such as ought to be tried on viva voce evidence, then thecourt shall frame the issues which appear to arise between the parties,and shall direct them to be tried on a day to be then appointed, for thepurpose under section 386. ”
What was the material on which the court could have been satisfiedbefore the framing of issues, that there were grounds of objection to theapplication which required them to be tried by viva voce evidence ? Therewas evidence that the testatrix was 82 years of age at the time of herdeath ; that she was a spinster and that she had made certain devisesto her nieces and that the intervenient-appellant benefited most by herdeath. It was submitted by Counsel for the objector that this being afamily matter the objector by alleging undue influence had stated allthat was necessary. Mr. Ranganathan for the intervenient-appellantand Mr. Jayewardene for the petitioner (the present 2nd respondent)submitted that the material was inadequate to satisfy the Court thatthe will was executed under the exercise of undue influence. They reliedon the observations of Bonser, C.J. and Withers, J. in In the Matter of theEstate of the late Sinnetamby Poothepillai 1 where at p. 216 the ChiefJustice said—
K
“… that (section 533) does not mean …. that it is
sufficient if the Court is satisfied that somebody objects. It meansthat the Court must be satisfied that there is a prima facie casemade against granting the application. It is not enough that somebodygets up and says that the will is a forgery ; something more is necessaryfrom which the Court can infer that a substantial case against the• application has been made out. ”
And Withers, J. at p. 217 said if an issue of forgery had been raised theJudge would have no power to determine it because that issue had noproper foundation.
“ The Court has not been satisfied by evidence that there was aprima facie case for suspicion against the genuineness of t)je document.Without such evidence the Court could not frame the issue much moredetermine it. ”
Although these observations were made in a case in which the will wasattacked on the ground of forgery, the question arises whether they arenot equally applicable to a case of undue influence.
' (189b) 2 N. L. R. 214 cU 216.
ALLE8, J.—Abeysekera v. de Liven
469
Counsel supporting the appeal also submitted that in Ceylon thedoctrine of Undue Influence has been taken from the English Law andthat in order to establish Undue Influence there must.be either evidenceof coercion or fraud—vide Pieris v. Pieris 1, Gray v. Kretser,2 Perera v.Pissera, 8 and Fernando v. Petris. 4 They therefore contend that itwas insufficient for the objector to allege undue influence without statingin what manner that influence was exercised. Finally Counsel for thepetitioner-respondent brought to our notice the provisions of section 181of the Civil Procedure Code which states that in interlocutory applicationsan affidavit may admit the statement of an affirmant’s belief provided thatreasonable grounds for such belief are set forth in the affidavit—videSamarakoon v. Ponniah 5. It was open to the objector to allege that thewill was executed as a result of undue influence. But if so, the reasonablegrounds for such belief should have been set down. I am unable toagree with Counsel for the objector that the mere allegation of undueinfluence is a ‘ fact ’. Whether there was influence and if so whethersuch influence was undue are inferences that have bo be drawn from thefacts averred in the afiMavit. The present appeal however is not basedon a non-compliance orVv wrong compliance of section 533 by the trialJudge but is only confineaV) a prayer for a rejection of the present issuesand framing of fresh issuea\0 enable a fuller exposition of the mattersaffecting undue influence. It> was submitted however by Counsel forthe appellant that if the material could not have reasonably satisfied theJudge that the objection on the grounds of undue influence was sufficient,a fortiori for the same reason, the present issues are insufficient to arriveat a right decision in the case.
Counsel for the objector sought to support the present issues on whatmay be termed the historical approach; When the Charter of 1833 gavepower to the Judges of the Supreme Court to * frame, constitute andestablish ’ Buies and Orders for the procedure, practice and pleadingsupon all actions or suits in Court, no special Buies were drafted in regardto * testamentary proceedings. Therefore when section 533 of the CivilProcedure Code was drafted in 1889, the framers of the Code must havebeen guided by the practice of the Probate Division in England in regardto testamentary matters. This procedure did not provide that parti-culars of Undue Influence should be given to the other side..' In supportCounsel relied strongly on two decisions of the Probate Division decidedin 1883:—Lord Salisbury v. Nugent8 and Hankinson v. Bamingham7.In the former case the President had ordered the defendant to give thenames of the persons charged with undue influence, but declined to go' further and order particulars of the acts of undue influence and the timeand places where each of the said acts were alleged to have been committedto be given. Cotton, L.J. said that if he had to decide the case accordingto what he thought reasonable, he would say that where there is a longperiod involved, “ it would be better for the purposes of justice, and
(1904) 8 N. L. JR. 179 at 209 and (1906) 9 N. L. R.14 at 24.
(1918) 2 C. W. R. 190.5(1931) 32 N. L.R.257 at 258, 2 59.
(1933) 35 N. L. R. 257.*9 P. D. 23.
(1946) 47 N. L. R. 169.T9 P. D. 62.
470
ALLES, J.—Abeysekera v. de Livera
a saving of expense, for the party alleging undue influence to be obligedto show with reasonable particularity the nature of the case he intendsto make ” but in view of the prevailing practice of the Court followed byeminent Judges of the Court, he refrained from ordering that particularsshould be furnished. Lindley and Pry, L. JJ. also refused to interferein view of the long-standing and prevailing practice of the Court. Inthe latter case, Sir James Hannen declined to order particulars to be givenof an allegation that a person was of unsound mind. Both cases wereconsidered by Lord Esher in 1886 in Gave v. Torre 1 which was a case,not of Probate but one in which the defendant stated that he hadreasonable and probable cause that his brother-in-law, the plaintiff wasof unsound mind and ordered his removal to the lunatic asylum. LordEsher following the two Probate cases held that the defendant could notbe ordered to give particulars of the unsoundness of mind. In supportof his view, the learned Judge said that such particulars would first of all,be “ evidence only and not facts ; and, secondly, if it were facts, whyit is only increasing the expense to order particulars of circumstanceswhich might extend over years.,f
In 1901, by a Rule made under the Judicature Act, a specificamendment was made in the practice with regard to probate. OrderXIX, Rule 25A, required inter alia, it to be stated with regard to everydefence which is pleaded what is the substance of the case on which it isintended to rely . . . ’ The decisions in Lord Salisbury v. Nugent andHankinson v. Burningham came up for consideration in The Earl ofShrewsbury’s case 2 in 1922. In this, case reference was made to Rule 40of the Rules of Contentious Practice in Probate made in 1865 under
_ x
statutory powers. This Rule authorised the pleading of several defencesby defendants in probate actions, and as to one of such defences only,that of want of knowledge and approval of the contents of a Will, directedthat the party pleading the same should deliver with such a plea sufficientparticulars. This rule did not require particulars to be given in casesof Insanity and Undue Influence and sanctioned the practice followed inLord Salisbury v. Nugent and Hankinson v. Burningham. However, inthe Earl of Shrewsbury’s case, Rule 40 and the practice hitherto existingwere fully discussed and it was held in spite of an argument to thecontrary, that the decisions in Lord Salisbury v. Nugent and Hankinson v.Burningham must be considered as being overruled and that in view ofOrder XIX, Rule 25A, the requisite particulars must be given where eitherundue influence or unsoundness of mind is alleged. Sir Henry Duke,President of the Probate Division who delivered the judgment remarkedat p. 120 that “it is satisfactory to reflect that the practice actually inuse here as I have detailed it is that which Cotton, L.J. in the Court ofAppeal in Lord Salisbury v. Nugent…. thought to be most conduciveto just administration of the Law. ”
Unlike in England and in India our law has remained static since 1889and there has been no amendment of the Civil Procedure Code providingfor particulars to be stated in the pleadings of any misrepresentation,1 (1886) 54 Law Times 515 at 519.»(1922) P. D. 112, 126 Law Times 415 at 416.
A.LLES, J.—Abeysekera v. do Livera
471
fraud, breach of trust, wilful deceit or undue influence. It is the absenceof such an amendment that has made it possible for Counsel for theobjector to contend that in the interpretation of our law we should beguided by the practice that prevailed in England prior to the passing ofthe Judicature Act in 1901. In England the alteration has been effectedby the issue of Order 19, Buies 6 and 25A, and in India by Order 6, Buie4, of the Code of Civil Procedure in India.
I am however unable to agree with learned Counsel for the objectorthat in the absence of any amendment of our Civil Procedure Code onlines similar to those referred to above, we in Ceylon in the year 1968should still be guided by the English practice as it existed prior to 1901.It is a practice that has been abrogated in England by the issue of theOrders referred to earlier and the decision of the Probate Division in theEarl of Shrewabury'8 case. Indeed the authorities cited by Counsel forthe appellant and second respondent seem to suggest that we in Ceylonhad veered to a more, liberal view even before the-passing of the Judica-ture Act in 1901. In 1895, Withers, J. in In the matter of the Last Will andTestament of L. Carolis Dias 1 at p. 68 indicated that a party respondentmust satisfy the Court by evidence either by affidavit or oral testimonythat he has good cause to show against the order being made absolute andthat a Judge can and should discharge an order nisi if the party respondentto the order nisi satisfied the Court which granted the order that on thematerial before it, it was not competent to make the order. The sameJudge in the subsequent year in In the Matter of the Last Will and Testa-ment of the late Venasi EUupalayar 8 reiterated the same view when he saidthat an objection to the authenticity of a will should be supported byoral evidence on oath. In the same year, Bonser, C.J. in In the Matter ofthe Estate of Sinnetamby PoothepiUai (supra) made the observations towhich reference has already been made earlier in this judgment. Theissue in the case was whether the will was a forgery. This issue was notraised at the trial and Withers, J. who agreed with Bonser, C.J. statedthat unless there was a prima facie case of suspicion, no occasion arosefor the framing of issues. Finally in 1897 we have the decision of theSupreme Court (Lawrie and Withers, J.) in Perera v. Perera* Inthis case the objector led some evidence that although the will was signedby a mark, the testator could write his name; that he was very ill fordays prior to his death and that it was dated only five days before hisdeath. Lawrie, J. was of the view, in spite of these facts that theobjector had not made out a prima facie case and that the DistrictJudge was not wrong in refusing to be satisfied that there were groundsof objection. With regard to the grounds of objection under section533, Lawrie, J. made the following observations:—
“ It was urged by the appellantsthat the 533rd section of the Coderequired only a prima facie case to be submitted to the judge, thatdid not require an objector to set forth every fact and to give the nameof every material witness whom he intended to call at the trial, for that
1 (1895) 2 N. L. R. 66.* (1896) 2 N. L. R. 126.
* (1897) 7 Tambyah's Reports 105.
472
ALLES, J.—Abeyatktra v. de Liver a
would materially prejudice the objection by enabling the propounderof the will to concoct rebutting evidence. I agree but on the otherhand it is not sufficient for an objector to say I allege and offer to provethat the will was not signed by the deceased.
After the applicant has supported the application for probate by theoaths of the attesting witnesses no issue should be allowed unless therespondents satisfy the Court that they have at command evidence whichif believed will ensure the rejection of the application. ”
In the same case Withers, J. although he agreed that the case should beremitted to the District Judge for trial on certain issues, said :
“ The objections referred to in that section should in my opinionbe clear and specific and calculated to raise a reasonable doubt as tothe genuineness or validity of the alleged will. I cannot help thinkingthat the legislature intended that an opponent should bring forwardobjections such as will be found in forms of defence in the probatedivision of the High Court in England to an action by an executorwho claims a decree of probate of a will in solemn form of law andwhich should be supported by satisfactory evidence. I refer to suchdefence as non-conformity with the provisions of the statute regardingthe execution of wills, unsoundness of mind at the time of execution,undue influence and fraud, etc. ”
A consideration of the language used by the learned Judges in theabove decisions such as ‘ testimony that he has good cause to showagainst the order being made absolute, * * prima facie case made againstthe granting of the application,’ ‘ evidence which if believed will ensure therejection of the application, ’ and ‘ objections which should be supportedby satisfactory evidence ’ seem to suggest that a bare statement of thegrounds of objection—be it want of understanding or fraud or forgeryor undue influence—is not-sufficient. The only manner in which thetests mentioned above could be satisfied would be by furnishingparticulars of the fraud or misrepresentation or undue influence or othergrounds as the case, may be. I am therefore inclined to agree with thesubmission of Mr. Ranganathan and Mr. H. W. Jayewardene that thematerial supplied by the objector in this case was inadequate and shouldbe particularised further. Learned Counsel for the objector was con-strained to argue that it never was his case that particulars of the undueinfluence should not be made available to the appellant and the petitionerat the appropriate state. In his view this could be disclosed at the stagethe case is opened and a postponement granted to enable the other side,if they so desire, to meet the case. But this is most unsatisfactoryprocedure. Undue influence may take many forms—fraud, coercion,threats and the like—and it is most unsatisfactory that a case should beheard piecemeal. There is the further disadvantage, quite apart from theelement of surprise, that a person in the position of the appellant may bedeprived of the opportunity of obtaining evidence in his defence if he isnot made aware in time of the nature of the case he has to meet. It is aprinciple of elementary justice that when an allegation is made the party
ALLE8, J.—Abeyaeiem x de Zsivera
■ 475
making the allegation must give sufficient particulars to enable the otherside to meet the ease. In the instant case, quite apart from the absence^of particulars, the first time the name of the person exercising the undueinfluence was disclosed was on the date the issues were framed. It is theburden of the Court to frame issues on which the right decision of thecase appears to proceed (section 146 of the Code) and I would with respectagree with the observations of Bonser, C J. in In the Matter of the LastWiU and Testament of L. Carolis Dias (supra) that the procedure thatshould be followed under section 386 is the ordinary procedure in a regularaction. In the words of Withers, J. in Perera v. Perera (supra) theobjections should not be * loose and vague ’ and must be * clear andspecific and calculated to raise a reasonable doubt as to the genuineness orvalidity of the alleged will .
I am unable to agree with Counsel for the objector that section 146 ofthe Civil Procedure Code has no application to testamentary proceedings.The framing of issues is a matter for-the Court and as Gratiaen,
J.remarked in Mariya Umtna v. The Oriental Government Security LifeAssurance Co. Ltd.1, “ Section 146 imposes a special duty on the Judgehimself to eliminate the element of surprise which could arise when theprecise nature of the dispute is not clarified before the evidence isrecorded..;. He should have ordered the defence to furnish full particularsof its grounds for avoiding liability-(this was a case where an insurancecompany sought to avoid liability), and the issues for adjudication shouldonly have been framed after the Judge had ascertained for himself ‘ thepropositions of fact or of law ’ upon which the parties were at variance. ”Said Lord Halsbury in Sayad Muhammad v. Fattah Muhammad * “ What-ever system of pleading may exist, the sole object of it is that each sidemay be fully alive to the questions that are about to be argued, in orderthat they may have an opportunity of bringing forward such evidenceas may be appropriate to the issues …” (See alao.Natesan Chettiar v.Mariyayee Animal8.)
We think the second issue framed in this case is too vague to enable aCourt to satisfactorily arrive at a just decision in the case. 'Acting inrevision, we therefore direct the objector-respondent to furnish thenecessary particularsto enable Court to frame fresh issues as contemplatedin this judgment to give the intervenient-appellant and the petitionersufficient notice of the nature of the acts of undue influence said to havebeen exercised by the appellant on the deceased. If the objector failsto do so the ground of undue influence shall not be entertained by Court.The appeal of the intervenient-appellant is allowed with costs of appealpayable jointly to the appellant and the petitioner-respondent. Thocosts of inquiry will abide the final determination of the presentinquiry.
Whayahlake, J.—I agree.
Appeal allowed.
1 (1955) 57 N. L. B. 145,149.* Indian Appeals (1894) P. O. 4.
•A. 1. R. (1938) Madras 526.