DE SILVA AND OTHERS v. SENEVIRATNE AND ANOTHER

002-SLLR-SLLR-1981-2-DE-SILVA-AND-OTHERS-v.-SENEVIRATNE-AND-ANOTHER.pdf


CA
Da Silva v. Sanavitatna
7
OE SILVA AND OTHERS
v.SENEVIRATNE AND ANOTHER
COURT OF APPEAL
RANASINGHE.J. AND VICTOR PERERA.J.
C. A. IS.C.) 26/77 (F)-D.C. BALAPITIYA418/T.JANUARY 22,23.26,1961.
Appeal—Finding of fact by trial judge—Principles applicable 'to the review of suchfindings by Appellate Court—Constitution of Sri Lenka. 1978, Article 138 (V.
Last Will—Burden on propounder—Suspicious circumstances—Duty of Court inconsidering such question.
The petitioner instituted these proceedings on 25.5.1971 praying for Probate of aLast Will dated 31.8.1966 which he claimed to have been executed by his deceasedbrother and attested by five witnesses.' This Last Will left the entirety of the deceased'sestate to his brother and sisters lea'*irKf out the deceased's widow and the minor childrenof the deceased. The said children were however bom after this Will had beenexecuted. The widow had herself instituted proceedings on 11.5.1971 praying forLetters of Administration in respect of this same estate. The learned District Judge heldthat the said Will had been duly executed and that the petitioner was entitled to Probatethereof.
It was contended on behalf of the appellants that the learned District Judge hadwholly failed tohirnself to the important rule that when there are suspicious
circumstances the Court should be vigilant and view the evidence witii jealousy andshould not pronounce the Last Will to be valid unless the conscience of the Court issatisfied that it is the act and deed of s tree and capable testator. On the other hand, itwas contended for the original petitioner (respondent in appeal) that no suspiciousfeatures arose in regard to the Last Will sought to be propounded and the learnedDistrict Judge had therefore not been called upon to consider the Principles applicableto such a case. It was contended that the Appellate Court should not interfere with thefindings of the learned District Judge on what were all questions of fact.
Held
Where an Appellate Court is invited to review the findings, of a trial judge onquestions of fact, the principles that should guide it are as follows:—
la) Where the findings on questions of fact are based upon the credibility of witnesseson the footing of the trial judge's perception of such evidence, then such findingsare entitled to great weight and the utmost consideration and will be reversedonly if it appears to the Appellate Court that the trial judge has failed to makefull use of his advantage of seeing and listening to the witnesses and the AppellateCourt is convinced by the plainest considerations that it would be justified indoingso;
Id) That however where the findings of fact are based upon the trial judge'sevaluation of facts, the Appellate Court is then in as good a position as the trial
8
Sri Lanka Law Reports
(1981) 2 SLR.
judge to evaluate such facts and no sanctity attaches to such findings of fact of atrial judge;
(c) Where it appears to an Appellate Court that on either of these grounds the findingsfact by a trial judge should, be reversed then the Appellate Court "ought not toshrink from that task". ■
The propounder of a Last Will must prove that the document in question is the actand deed of a free and capable testator; that the testator mas not only aware of but alsoapproved Of the contents of the said document; that the testator intended the documentto be his Last Will; that the said document had been duly executed according to law.
If there exists facts and circumstances which arouse the suspicion of the Court inregard to any matter which has to be proved by the propounder then it is the duty ofthe propounder to remove all such doubts and prove affirmatively the various elementswhich must be proved by him and the Court should then scrutinize the evidence led bythe propounder with jealousy and should pronounce the alleged Last Will to be validonly if its conscience is satisfied in regard to the said matters. As to whether the evidenceso placed before the Court i's such as to satisfy the conscience of the Court is ultimatelya question of fact for the trial judge.
The learned District Judge in the present case had rightly answered the issues infavour of the petitioner and held that the said Last Will had been duly executed and thepetitioner entitled to Probate thereof. Even though he had not considered this a case inwhich there are suspicious features, yet a consideration of the entirety of evidence ledat the trial and the facls and circumstances revealed by such evidence showed that evenif there were circumstances generating such suspicion, still the teamed District Judgehad he properly directed himself would have found in favour of petitioner en«* heldthat he was entitled to Probate of the Last Will.
Cases referred to
(If Fraddv. Brown & Co. Ltd., (1918)20N.L.R. 282.
Powell v. Strealluim Manui Noising Home, (1935) A.C. 243.
Munasinghe v. Vidanage, (1988) 89 N.L.H. 9/.
(4» Watt ». Thomas, (1947) 1 All E. R. 58Z
Benmax v. Austin Motor Co. Lid., (1955) A.C. 37(1; (1855) 2 W1 R. 418; (1955)1 All E. R. 326.
Attorney-General v. Gnanapiragasam. (1965) 68 N.L.R. 49.
(71 The Glannibanta (1876)2P.D. 45;46L.J.P. 75;36L.T. 27(8I Coghlan v. Cumberland, (1898) 1 Ch. 704
(9) Falalloon v.Cassim.(1918) 20 N.L.R. 332.
(101 K. M. Perera v. Martin Dias, (1957) 59 N.L.R. 1.
Yuillv. Yuill, (1945) 1 All E.R. 183; 29 C.L .W. 97.
Gunawardena v; Edirisinghe, (1960) 64 N.L.R. 279;60 C.L.W. 40.
S. S. Hontestroom v. S. S. Sagaporack, (1927) A.C. 37.
Mohavithana v. Commissioner of Inland Revenue, (1962) 64 N.L.R. 217.
Abdul Sathar v. Bogstra. (1954) 54 N.L.R. 102.
Selvaguru v. Thaialpagar. (1952)54 N.L.R. 361.
Barry v.Butlin. 2 Moore P.C. 480; 12 E.R. (P.C.) 1089.
Tyrrel v. Pamton, (1894) P.O. 151.
The Alim Will case. (1919) 20 N.L. R. 481.
Guardhouse v. Blackburn, (1866) L.R. 1 P. and D. 109.
After v. Atkinson, (1869) L.R. 1 P. and D. 665; 20 L. T. 404; 33 J.P. 440.
Peries v. Perera. (1947) 48 N.L.R. 560.
123) Samarakone v. The Public Trustee, (1960) 65 N CR. 100.
John Pieris v. Wilbert. (1956) 59 N.L.R. 245.
Meenadchipillai v. Karthigvsu. (1957) 61 N.L.R. 320.
CA
De Silva v. Seneviratne (Ranasinghe, JJ
9
Robins v. National Trust Co., Ltd.. (1927) A.C SIS: (1927) AH E.R. Rep. 73.
Harmes and another a. Hinkson, (1946)62 T.L.R. 445.
Davit v. Mayrtew. (1927) 96L.J.P. 140; 137 L.T. 612;43T.L.R. 646.
Sithamparanathan v. Mathuranayagam, (1970) 73 N.L.R. 53.
APPEAL from the District Court, Balapitiya.
C. Ranganathan, Q.C.. with E. D. Wikramanayaka, L. R. Candappa and C. Selvaratnam,for the 7th, 8th, 9th respondents-appellants.
H. W. Jayewardene, Q.C.. with Bimal Rajapakse, Miss P. Seneviratne and LakshmanPerera. for the petitioner -respondent.
Cur. adv. wit.
March 11,1981.
RANASINGHE, J.
These proceedings, which relate to the Estate of a deceased namedMawathage Victor Perera Seneviratne, who had been carrying onbusiness as a hard ware merchant at Elpitiya for quite some timeprior to his death on 15.3.1971, have been instituted on 25.5.1971by the petitioner-respondent, (who will be referred to hereinafteras the petitioner) a brother of the said deceased, praying forProbate in respect of a last will, dated 31.8.1966, and attestedby five witnesses and which said document has been producedmarked “A". According to "A" the entirety of the deceased'sEstate has been left to his brothers and sisters, who are thepetitioner and the 1st to 6th respondents-respondents.
The petitioner's application for Probate is opposed by the7th, 8th and 9th respondents-appellants who are, admittedly,the widow and the two minor children of the said deceased.The 7th respondent-appellant (hereinafter referred to as. theappellant) had herself instituted proceedings on 11.5.1971 forthe grant of Letters of Administration to' her in . respect of theEstate of the deceased on the basis that the deceased had diedintestate leaving behind her and their two minor children, the8th and 9th respondents-appellants, and of whom the 9threspondent-appellant was born on 11.11.1971; after the death of.the deceased, as his only heirs.
The two issues which the learned trial judge was called upon toconsider were:-
Did Mawathage Victor Perera Seneviratne die leaving (asset out in paragraph 3 of the petitioner's petition dated26.10.71) a last will duly executed on 31.8.1966?
to
Sri Lanka Lm Reports
(198V 2 SLR.
If so, is the petitioner entitled to Probate of the said lastwill?
After trial the learned District Judge has answered both issuesin favour of the petitoner.
Learned Queen's Counsel appearing for the appellants hascontended that the learned District Judge has misdirected himselfin law in that he has wholly failed to address himself to theimportant rule that, when there are suspicious circumstancesthe Court should be vigilant and view the evidence with jealousyand should not pronounce the last will to be valid unless and untilthe propounder satisfies affirmatively the conscience of the Courtthat the said last will is the act and deed of a free and capabletestator; that the learned District Judge has misdirected himself onthe facts; that several facts and circumstances, which tend tothrow considerable amount of suspicion in regard to whether thedeceased did sign the said document "A" intending that it shouldbe his last will, have been brought to light by the evidence: thatthe petitioner has completely failed to dispel and remove thedoubts and suspicion so raised: that the petitioner has therebycompletely failed to discharge the burden which, in law. restedupon the petitioner.
The position taken up by learned Queen's Counsel appearingfor the petitioner on the other hand, is: that this is not a casewhere any suspicious features arise in regard to the last will soughtto be propounded: that, therefore, the learned District Judgewas not called upon to consider the principle applicable in a casewhere there are suspicious features: that in this case the capacityof the deceased at the relevant time was not in doubt and wasunchallenged: that the signature of the deceased on the documentin question was unchallenged; that therefore all that the petitionerhad to prove Was the due execution of the said document, whichin this case amounted to the proof of the deceased, and each oneof the five witnesses, having signed the said document at one andthe same time in the presence of one another: that the learnedDistrict Judge has accepted the evidence of the witnesses whotestified on behalf of the petitioner, and rejected the evidenceof the witnesses called by the appellants: that the questions whicharose for consideration by the learned District Judge were allquestions of fact: that the findings of the learned District Judgeare supported by the evidence placed before him: that thereforethis Court should not interfere with the judgment of the learnedDistrict Judge.
CA
De Silva v. Senaviratne (Raaaanghe, J.)
11
I shall at the very outset, consider the principles which shouldguide an appellate Court reviewing the findings of a trial judge inregard to what are clearly questions of fact, as both learnedQueen's Counsel addressed this Court at length on this question.
Article 138(1) of the Constitution which deals with thejurisdiction of the Court of Appeal provides that:
'The Court of Appeal shall have and exercise subject to theprovisions of the constitution or of any law, an appellatejurisdiction for the correction of all errors in fact or in lawwhich shall be committed by any Court of First Instance
Provided that no judgment decree or order of any Court shallbe reversed or varied on account of any error, defect orirregularity, which has not prejudiced the substantial rights ofthe parties or occasioned a failure of justice."
The nature and the extent' of the authority attached to thefindings of fact of a trial judge were set out by the Privy Councilin the case of Fradd vs. Brown & Co. Ltd. (1> at p. 283:
"It is rare that a decision of a Judge so express, so explicit,upon a point of fact purely, is over-ruled by a Court of Appeal,because Courts of Appeal recognize the priceless advantagewhich a Judge uJ 'it si instance has ir, matters of that kind, ascontrasted with any Judge of a.Court of Appeal who can onlyiearn from paper or-from narrative of those who were present.It is very rare that, in questions of veracity so direct and sospecific as these, a Court of Appeal will overrule a Judge offirst instance."
In the case of Powell vs. Streatham Manor Nursing Home (2),it was stated that the appellate Court:
"will not depart from the rule it has laid down that it will notover-rule the decision of the Court below on a question of factin which the Judge has had the advantage of seeing the witnessesand observing their demeanour unless they find some governingfact which in relation to others has created a wrong impression."
In the case of Munasinghe vs. Vidanage (3) where the findings ofa trial judge had been set aside by the Supreme Court, the PrivyCouncil, in restoring the judgment of the original court, stated:that it was a case of rather complicated and difficult facts and
12
Sri Lanka Law Reports
(1981) 2 S.L.R.
there was a good deal to be said on each side: that, upon anexamination of the evidence and the judgments, the findings ofthe trial judge were not found to be unreasonable: that, as thetrial judge had the very material advantage of seeing and hearingthe witnesses, the Supreme Court should not have set aside thefindings of the trial judge. Their Lordships of the Privy Councilquoted with approval an extract from the speech of ViscountSimon in the decision of the House of Lords in the oft-quotedcase of Watt vs. Thomas (4), at p. 583-4:
"Apart from the class of case in which the powers of theCourt of Appeal are limited to deciding a question of law (forexample, on a case stated or on an appeal under the CountyCourts Acts) an appellate Court has, of course, jurisdiction toreview the record of the evidence in order to determine whetnerthe conclusion originally reached upon that *•*£::;snouldstand; but this jurisdiction has to be exercised with caution.If there is no evidence to support a particular conclusion(and this is really a question of law) the appellate Court will nothesitate so to decide. But if the evidence as a whole canreasonably be regarded as justifying the conclusion arrived atat the trial, and especially if that conclusion has been arrivedat on conflicting testimony by a tribunal which saw and heardthe witnesses, the appellate Court will bear in mind that it hasnot enjoyed this opportunity and that the view of the trialjudge as to where credibility lies is entitled to great weight Thisis not to say that the judge of first instance can be treated asinfallible in determining which' side is telling the truth or isrefraining from exaggeration. Like other tribunals, he may gowrong on a question of fact, but it is a cogent circumstancethat a judge of first instance, when estimating the value ofverbal testimony, has the advantage (which is denied to Courtsof Appeal) of having the witnesses before him and observing themanner in which their evidence is given".
Lord Thankerton did, in the course of His Lordship's judgmentin the same case at page 587, analyse the principle embodied inthe earlier judgments of the House of Lords dealing with thisquestion and stated it in three propositions, viz:
Where a question of fact has been tried by a judge without ajury and there is nd question of misdirection of himself bythe judge, an Appellate Court which is disposed to come toa different conclusion on the printed evidence should notdc
CA
Oe Silva v. Seneviratne (Ranasmghe, J.)
13
so unless it is satisfied that any advantage enjoyed by thetrial judge by reason of having seen and'heard the witnessescould not be sufficient to explain or justify the trial judge'sconclusion.
The appellate Court may take the view that, without havingseen or heard the witnesses, it is not in a position to cometo any satisfactory conclusion on the printed evidence.
The appellate Court, either because the reasons given by thetrial judge are not satisfactory or because it unmistakablyso appears from the evidence, may be satisfied that he hasnot taken proper advantage of his having seen andheard the witnesses, and the matter will then become atlarge for the appeljate Court.
Viscount Simon did, in the case of Benmax vs. Austin MotorCo. Ltd. (5) at 373, elucidate the guiding principle in regard tothis matter as follows:
"This does not mean that an appellate Court should lightlydiffer from the finding of a trial judge on a question of fact,and I would say that it would be difficult for it to do so wherethe finding turned solely on the credibility of a witness. But Icannot help thinking that some eonfbsion may havearisen from failure to distinguish between the finding of aspecific fact and a finding of fact which is really an inferencefrom facts specifically found cr, as it has sometimes been said,between the perception and evaluation of facts."
N. G. Fernando, S.P.J. (as His Lordship the Chief Justice thenwas) in the case of The A. G. vs. Qnanapiragasam (6) quoting theobservations of Lord Reid, in the case of Benmax vs. Austin MotorCo. Ltd. (supra), that: "where the point in dispute is the properinference to be drawn from proved facts, an Appeal Court isgenerally In as good a position to evaluate the evidence as the trialjudge and ought not to shrink from that task", interfered with thefindings of fact of the trial judge, where such findings were in"no way based upon credibility or demeanour and were referablesolely to inferences and assumptions..
It has however to be noted that, whilst the authoritative natureof the findings of a trial judge upon questions of fact have beenstressed, qualifications of this principle have also been laid down.
14
Sri Larks Law Reports
11981)2 SLR.
Having quoted with approval the judgment in the case of TheGfannibanta f7) where it was stated:
"Now we feel the great weight that is due to the decisions ofa judge of first instance whenever, in a conflict of testimony,the demeanour and manner of the witnesses who have beenseen and heard by him are material elements in the considerationof the truthfulness of their statements. But the parties to thecause are nevertheless entitled, as well on questions of factas on questions of law, to demand the decision of the Courtof Appeal, and that Court cannot, excuse itself from the task ofweighing conflicting evidence and drawing its own inferences andconclusions, though it should always bear in mind that it hasneither seen nor heard the witnesses, and should make dueallowance in that respect,"
and also the judgment in the case Cogh/an vs. Cumberland (8)where Lindley M, R. observed:
" Even.where the appeal turns on a question of fact, the Courtof Appeal has to bear in mind that its duty is to re-hear thecase, and the Court must consider the materials before theJudge with such other materials as it may have decided toadmit. The Court must then make up its own mind, notdisregarding the judgment appealed from; but carefuiiyweighing and considering it, and not shrinking from over rulingit, if on full consideration the Court comes to the conclusionthat the judgment is wrong! When, as often happens, muchturns on the relative credibility of witnesses who have beenexamined and cross-examined before the Judge, the Court issensible of the great advantage he has had in seeing and hearingthem. It is often very difficult to estimate correctly the relativecredibility of witnesses from written depositions; and when thequestion arises which witness is to be believed rather thananother, and that question turns on manner and demeanour, thethe Court of Appeal always is and must be guided by theimpression made on the Judge who saw the witnesses. Butthere may obviously be other circumstances, quite apart frommanner and demeanour, which may show whether a statementis credible or not; and these circumstances may warrant theCourt in differing from the Judge even on a question of factturning on the credibility of witnesses whom the Court has not
CA
De Silva v. Seneviratne (Ranasinghe, JJ
IS
Bertram C. J. stated, in the case of Falalloon vs. Cassim (9) atpage 335:
"With regard to this contention, it is sufficient to say that,while a Court of Appeal will always attach the greatest possibleweight to any finding of fact of a Judge of first instance basedupon oral testimony given before that Judge, it is not absolved•by the existence of these findings from the duty of forming itsown views of the facts, more particularly in a case where thefacts are of such complication that their right interpretationdepends, not only on any personal impression which a Judgemay have formed by listening to the witnesses, but also upondocumentary evidence, and upon the inferences to be drawnfrom the behaviour of these witnesses, both before and afterthe matters upon which they gave evidence."
The circumstances in which an appellate Court would interferewith the findings of a trial judge were also considered by the PrivyCouncil in the case of K. M. Perera vs. Martin Dias (10) whereTheir Lordships recalled the "wise words" of Lord Greene M. R.in Yuill vs. YuiU (11) at p.188-9:
"We are reminded of certain well-known observations of theHouse of Lords dealing with the position of an appellate Courtwhen the judgment of the trial judge has been based in whole orin part on his opinion on the demeanour of witnesses. It can, ofcourse, only be on the rarest occasions and in circumstanceswhere the appellate Court is convinced by the plainestconsiderations that it would be justified in finding that the trialjudge has formed a wrong opinion. But when the Court is soconvinced it is, in my opinion, entitled and indeed bound togive effect to its conviction."
That the appellate Court may reverse the trial judge's conclusionon a pure question of fact if the reasons given by the trial judgeare not satisfactory, or if it unmistakably so appears from theevidence, was laid down by the Supreme Court in the case ofGunawardena vs. Edirisinghe (12). Basnayake, C. J. in the courseof the judgment in the said case also referred to the approachadbpted by Lord Sumner to this question in' the case of S. S.Hontestroom vs. S. S. Sagaporack, (13), at p. 50:
"The material questions to my mind are: (1) Does it appearfrom the President's judgment that he made full use of the
16
Sri Lanka Lm Raports
(198V2S.LR.
opportunity given him by hearing the viva voce evidence? (2) Wasthere evidence before him, affecting the relative credibility ofthe witnesses, which would make the exercise of his criticalfaculties in judging the demeanour of the witnesses a usefuland necessary operation ? (3) Is there any glaring improbabilityabout the story accepted, sufficient in itself to constitute 'agoverning fact which in relation to others has created a wrongimpression', or any specific misunderstanding or disregard of amaterial fact, or any 'extreme and overwhelming pressure' thathas had the same effect".
Another authority, which needs must be referred to inconsidering this question, is the judgment of (H.N.G.) Fernando, J.(as His Lordship the Chief Justice then was) in the case ofMahawithana vs. Commissioner of Inland Revenue (14) where indealing with the question as to when an appellate Court wouldinterfere with the findings of a tribunal on the primary questionsof fact, at page 223, it was stated that it was open to an appellateCourt to reconsider such findings of fact only :
“(a) If that inference has been drawn on a consideration ofinadmissible evidence or after excluding admissible andrelevant evidence,
If the inference was a conclusion of fact drawn by the Boardbut unsupported by legal evidence, or
(cj It the conclusion drawn from relevant facts is not rationallypossible, and is perverse and should therefore be set aside."
This question was once again considered by. the PrivyCouncil in the year 1952 in two cases which vyent up in appealfrom our Courts: In Abdul Sathar vs Bogstra (15), it was statedthat, where the disbelief of a witness is based on the ground thatthe witness has contradicted himself and where on examinationthe contradictions do not amount to anything more than anincapacity to explain or remember certain facts, an appellateCourt is entitled to examine the evidence afresh and arrive at anindependent decision, but that, where the trial judge's acceptanceof the story told by one of the parties is based largely on hisimpression of the demeanour of that party and not solely on theground that the opposite party has contradicted himself theappellate Court will not disturb the finding of fact of the Courtof first instance:in Selvaguru vs. Thaialpagar (16) it was laid down
CA
Be Silva v. Seneviratne (flanasinghe, J.l
17
that an appellate Court will set aside the findings of a trial judgewhen the reasons given by him for accepting a- party's storyare contrary'to what is plainly proved by documents produced inevidence by the opposite party.
On an examination of the principles laid down by theauthorities referred to above, it seems to me: that, where the trialjudge's findings on questions of fact are based Upon the credibilityof witnesses, on the footing of the trial judge's perCeption of suchevidence, then such findings are entitled to gre&t weight and theutmost consideration, and will he r«»or«»H nr<iy if it appears to theappellate Court liiat the trial judge has failed to make full use of’"priceless advantage" given to him of seeing and listening tothe witnesses giving viva voce evidence, anW' rf'.c appellate Court isconvinced by the plainest consideration that it would be justifiedin doing so: that, where.the findings of fact are based upon thetrial judge's evaluation of facts, the appellate Court is then in asgood a position as the trial judge to evaluate such facts, and nosanctity attaches to such findings of fact of the trial judge: that,if on either of these grounds, it appears to the appellate Court thatsuch findings of fact should be reversed, then the appellate Court"ought not to shrink from that task".
! shall now proceed to consider the legal principlesjrelevant tothe submission made on-behalf of the-Appellant that this is acase where there are several suspicious features surrounding thesaid last will "A" which required the learned trial judge to viewthe evidence, led on behalf of the petitioner in order to propoundthe said last will, with "great jealousy" and to call qpon thepetitioner to prove affirmatively that the said document "A" wasexecuted, in accordance with the relevant provisions of law, by thedeceased of his own free will not only with a full knowledge of itscontents but also intending it to be his last will. . ..
The earliest discussion, according to the authorities cited to usby learned Counsel, of the relevant "well established" rule hasbeen'by Baron Parke in 1838. in the case of Barry vs. Buttin (17)wHere-Wis Lordship.stated:
"The-rules of law according to which cases Of this natureare to be decided do not admit of any dispute so far as they arenecessary to the determination of the present appeal and theyhave been acquiesced in.on both sides. These rules are two: The
18
Sri Lanka Lent Reports
(198112 SLR.
first that the onus probandi lies in every case upon the partypropounding a will and .he rnust satisfy the conscience of theCourt that die instrument so propounded is the last will of afree and capable testator. The second is that if a party writes orprepares a will under which he takes a benefit, that is acircumstance that ought generally to excite the suspicion of theCourt, and call upon it tp be vigilant and jealous in examiningthe evidence, in support of the instrument, in favour of whichit ought not tp pronounce unless the suspicion is removed, andit is judicially satisfied that the paper propounded does expressthe true will of the deceased."
This principle .was diiscussed in 1893 in the case of Tyrell us.Painton (18) where Lindley, L J. stated, in respect of the secondof the two rules laid down by Parke, 8 [supra), that it is not"confined to the single case in which a will is prepared by or onthe instructions of the. person taking large benefits under it, butextends to all cases in which circumstances exist which excite thesuspicion of the Court."
This principle was considered by the Supreme Court in 1919 inThe Alim Will Case (19) where Bertram, C. J. at page 494 whilstelucidating the said principle,, as set out in the English decisions of,inter alia, Barry vs. Butlin (supra) and Tyrrell vs. Painton (supra),stated:
.. The. principle does not mean that in cases where asuspicion :attaches to a . will a special measure of proof ora particular species of .proof is required. (See Barry vs. Butlin(supra).)lt means that in such cases the Court must be 'vigilantand jealous :in .examining the evidence in support of theinstrument, in favour of which it ought not to pronounce unlessthe suspicion is removed, and it is judicially satisfied that thepaper propounded does express the true will of the deceased.'
..but the principle is that wherever a will is prepared
under circumstances which raise a well-grounded suspicion thatit does not express the mind of the testator, the Court oughtnot to pronounce in favour of it unless that suspicion isremoved."
Bertram, C. J. did also, at page 495, refer to the case of Guardhousevs. Blackburn (20) which, the Chief Justice stated, was notconcerned with that class of case to which the above discussed
CA
Oe Silva v. Semviratne (Ranasirtghe, JJ
19
principle applied, and that there Lord Penzance considered onlythose cases "where a will had been admittedly executed andadmittedly read over to the testator, and where the real questionto be determined was whether the testator knew and approvedwhat he had signed, or to speak more precisely, the whole ofwhat he had signed." The Chief Justice also proceeded, at page496, to observe that what Lord Penzance really meant to lay downhas been expressed concisely by Lord Penzance himself in the latercase of After vs. Atkinson <21). "Once get the facts admitted orproved that a testator is capable, that there is no fraud, that thewill was read over to him, and that he put his hand to it, and thequestion whether he knew and approved of the contents isanswered".
The principles set out in the said judgments of Barry vs. But/inand Tyretl vs. Painton were also referred to by Canekaratne, J.in the case of Peries vs. Perera (22). At page 567 His Lordshipquoted from Barry vs. Buttin as follows:
"It is clear, first that the onus of proving a will lies upon theparty propounding it and, secondly, that he must satisfy theconscience of the court that the instrument so propounded isthe last will of a free and capable testator. To develop this lastrule a little further, he must show that the testator knew andapproved of the instrument as his testament and intended it tobe such.
In all cases the onus is imposed on the party propounding awill, it is in general discharged by proof of capacity and thefact of execution from which the knowledge of and assent tothe contents of the instrument are assumed.
The question is whether the testator knew the effect of thedocument he. was signing. The circumstances attending theexecution of the document may be such as to show that there isa suspicion attaching to the will, in which case it is the duty ofthe person propounding the will to remove that suspicion, thisis done by showing that the testator knew the effect of thedocument he was signing."
and, at page 568, quoted from Lindley, J. :
"The rule in Barry vs. Buttin extends to all cases in whichcircumstances exist which excite the suspicion of the Court;
20
Sri Lanka Law Reports
(1981)2 SLR.
and whenever such circumstances exist, and whatever theirnature may be it is for those who propound the wifi to removesuch suspicion and to prove affirmatively that the testatrixknew and approved of the contents of the document"
The observations of Lindley, J. in Tyre// vs. Painton (18) werecited with approval by Weerasooriya, J. in the case of Samarakonevs. The Public Trustee (23) at p. 115:
"… where there are features which excite suspicion inregard to a will, whatever their nature may be it is for thosewho propound it to remove such suspicion. Suspicious featuresmay be a ground for refusing probate even where the evidencewhich casts suspicions on the will, though it suggests fraud, isnot of such a nature as tb justify the Court in arriving at adefinite finding of fraud. It has also been stated that theconscience of the Court must be satisfied in respect of suchmatters.”
In the case of John Pierisvs. Wi/bert (24) Gratiaen, J., followingthe principles set. out in the aforementioned cases of Barry vs.Butlin and Tyrell vs. Painton, held that upon the evidence thepetitioner in that case had failed to discharge the burden ofremoving the suspicions attendant on the making of the will, andfurther held that it is no part of the duty of Court to see that atestator makes a just distribution of his property, and so long as itis proved that the testator executed the will intending it to be hiswill the Court cannot refuse to grant probate on the ground ofsuspicious circumstances:
In the case of Meenadchipil/ai vs. Karthigesu (25) at p. 321,Sansoni, J. stated:
"The rule of law is clear enough. In all cases where circumstancesexist which excite the suspicion of the Court, whatever theirnature may be, it is for those who propound the will to removesuch suspicion and to prove affirmatively that the testatorknew and approved of the contents of the document, and it isonly where this is done that the onus is thrown on those whooppose the will to prove fraud or undue influence or whateverelse they rely on to displace the case made for proving thewill”…
and at page 324:
CA
De Sitva v. Seneviratne (Ranasinghe, J.)
21
"Ultimately of course, it is a question of fact for the trialjudge to decide whether the suspicion surrounding the will wasremoved and the adverse presumption affecting the willrebutted; unless he was finally satisfied that his initial suspicionwere unfounded the burden of proof which lay on thepropounder of the will remained undischarged".
Viscount Dunedin, in Robins vs. National Trust Company (26)at 519 pointed out:
Those who propound a will must show that the will ofwhich probate is sought is the will of the testator, and that thetestator was a person of testamentary capacity. In ordinarycases if there is no Suggestion to the contrary any man whois shown to have executed a will in ordinary form will bepresumed to have testamentary capacity but the moment thecapacity is called in question then at once the onus lies on thosepropounding the will to affirm positively the testamentarycapacity. Moreover, if a will is only proved in common and notin solemn form, the same rule applies…
The Privy Council did also, in the case of Harmes and anothervs. Hinkson (27) lay down that:
" 'The conscience of the Court' must be satisfied. Whether ornot the evidence is such as to satisfy the conscience of thetribunal must always be, in the end, a question of fact."
That the circumstances which excite the suspicion of the Courtmust primarily be circumstances existing at the time when thealleged Will was executed, and have a direct bearing on thequestion whether the testator then knew and approved of itscontents was laid down in the case of Davis vs. May hew (28) at148.
This principle was once again discussed by Their Lordships ofthe Privy Council in the case of Sithamparanathan. vs.Mathuranayagam (29) where it was held that: where, in ?application for probate of a will, the testamentary caparor disposing mind of the testator at the time of the execution cwill is called in question, the onus lies on those propo*the will to affirm positively the testamentary capacity,the absence of a plea of undue influence or fraud: whet*the evidence is such as to satisfy the conscience of thr
22
Sri Lanka Law Reports
(198V2S.LR:
the will was the act and deed of the deceased in the sense that hewas competent to make the will, is a pure question of fact.
On a consideration of the principles elucidated in the judgmentsreferred to above, it is clear: that the propounder of a last willmust prove that the document in question is the act and deed of afree and capable testator: that the testator was not only aware ofbut also approved of the contents of the said document : thatthe testator intended the document to be his last will: that thesaid document has been duly executed according to law: that, ifthere exist facts and circumstances which, arouse the suspicion ofthe court in regard to any of the matters referred to above, whichhave to be proved by the propunder, then it is the duty of thepropounder to remove all such doubts and prove affirmativelythe various elements which must be proved by him: that, in sucha case even though there is no requirement of a special measureof proof or a particular species of proof, the Court shouldscrutinize the evidence led by the propounder with jealousy andshould pronounce the alleged last will to be valid only if itsconscience is satisfied that the said document is in fact thevoluntary act arid deed of the deceased, who was in law capableof executing a last will and that the said document has beenexecuted by the deceased with the full knowledge of its contentsand intending that it should be his last will and testament: thatwhether the evidence so placed before the Court is such as tosatisfy the conscience of the Court is ultimately a question of factfor the trial judge.
As already stated, learned Queen's Counsel for the appellantsubmitted that there were in this case several suspiciouscircumstances which raise a doubt as to whether the document"A" was signed by the testator intending it to be operative as hislast will. The circumstances so relied on are: the deceased nothaving had the said document formally executed before a notary:the alleged last will being an unnatural will in that the widowand the two minor children of the deceased get absolutely nothingfrom the deceased's estate, which has, in the petition filed by thepetitioner, been valued in May, 1971 by the petitioner himself atRs. 114,899/91: the circumstances in which the said document isstated to have been found and the failure to inform the appellantof the finding of the said document: the delay in producing thesaid document before court: the beneficiaries under the allegedlast will being persons who had all opposed the deceased's marriage
CA
De Silva v. Seneviratne (Ranasinghe, J.)
23
with the appellant: that, whilst there is nothing to show thatthere had been any discord between the deceased and theappellant, the deceased and the appellant had, admittedly, beenalways living together right up to the time of the death of thedeceased.
It will be useful to set out certain facts and circumstances whichhave emerged from the evidence led at the trial, before 1 proceedto consider the aforementioned circumstances relied upon by theappellant. The evidence had disclosed: that the deceased had, forseveral years prior to his death, been carrying on a business, whichby local standards was considered as being successful, at theElpitiya bazaar: that the deceased married the appellant, who wasthen a school teacher of abbut 38 years of age, on 24.4.1964 atthe Galle Kachcheri: that the Petitioner and the 1st to 6th respondents, who are the brothers and sisters of the deceased, hadnot approved of the said marriage: that, apart from Anton, the6th respondent, who was assisting the deceased in the manage-ment of the deceased's business, the petitioner and the 1st to 5threspondents had had very little to do with the petitioner after thesaid marriage and had visited the deceased thereafter only abouttwice or thrice: that two daughters were born to the deceased bythe appellant, the elder (the 8th respondent) on 14.10.67 and theyounger (the 9th respondent) posthumously on 11.11.1371: that,after the marriage, the deceased lived with the the appellant in herparental house about 10 miles from Elpitiya: that Thereafter thedeceased built a house, also a few miles away from Elpitiya, inwhich he lived with the appellant right upto the 1bth March,1971, the day on which the deceased suffered the fatal heartattack: that the deceased's hineral took place three days later, onthe 18th March, 1971 : that the appellant went to the deceased'sshop which had remained closed ever since the deceased died, on24.3.71 and opened the safe and noted the cash which was insidethe safe and thereafter handed over the key of the safe to Anton,requesting Anton to look after the shop "now that the deceased isno more": that the appellant herself instituted testamentary pro-ceedings, praying for the issue of Letters of Administration inrespect of the Estate of tHe deceased in case No. 417/T of theDistrict Court of Balapitiya, on 11.5.71, which is only a fortnightbefore the petitioner himself commenced these proceedings.
Ariyadasa Sri Wijayananda, a Notary, who had been practisingfor a period of about 18 years, and who was called by thepetitioner, stated that: he had known .the deceased for about 10
24
Sri Lmka Law Reports
(198D2S.LR.
years: the deceased once asked him whether it was possible towrite a iast will in any manner other than by writing a deed:he did inform the deceased that it was possible to do so in thepresence of five or more witnesses and that, in such an event, he(the deceased) and such witnesses should all sign at one and thesame time: he then prepared a draft last will, embodying theparticulars supplied by the petitioner himself, and which was tobe signed in the presence of five or more witnesses: that the saiddraft is the document which has been produced marked "A":that the body of the said document, together with the jurat, isall in his own handwriting, whilst certain blanks, which were leftby him such as for the date, have since been filled in by someonewhose handwriting he cannot identify. The evidence of thiswitness, which has been accepted by the learned District Judge,quite clearly shows that, sometime prior to 31.8.1966, thedeceased had wanted to execute a last will, and that the contents of"A" were known to and approved of by the deceased, and that thedeceased had been advised by this witness as to how a last willcould, in law, be executed otherwise than in the presence of anotary. The express inquiry made by the deceased in regard to thepossible ways of executing a last will is an indication of his'desireto know whether such an act could be done without giving itpublicity. Even if the fact that the deceased in this case had, evenafter contacting a Notary, proceeded to execute a last will in thepresence of five iay witnesses is a circumstance which should beconsidered to be suspicious, yet, it appears to me that, havingregard to the evidence of the Notary, any such suspicion has, inthe circumstances of this case, been dispelled.
There is no question but that, if the document "A" is held tobe the last will and testament of the deceased, then the deceased'swidow the appellant and her two minor children, the 8th and 9threspondents, who are without doubt the only children of thedeceased, would stand completely disinherited and receive nothingfrom the estate of the deceased, and that it must, therefore, betreated as an unnatural will. It must, however, be noted thatneither of these two children had been born at the time thedocument "A" is said to have been signed on 31.8.66. Bothchildren were born only thereafter, with the younger child in factbeing born only after the death of the deceased. Thus, at therelevant time, only the appellant, whom the deceased had marriedabout two years prior to that and who would then have beenabout 40 years of age, was in existence. The petitioner contended
CADa Sifvt v. Sermintne (Rantsnghc. JJ25
that there had in fact been discord and dissension between thedeceased and the appellant at about the time the deceased didexecute the said last will. The Petitioner had pointed to threeinstances in support of this contention. One was where thedeceased had got down his meals from outside consequent uponan incident between the deceased and the appellant on theoccasion a relative of the deceased called on them. The learnedDistrict Judge has, however, held that this particular item has notbeen proved. The other two instances are of two brothers of theappellant instituting proceedings before the Labour Tribunalagainst the deceased, and the deceased wanting to sell the househe had recently built and in which he had only shortly before thattaken up residence with the appellant. These two items standingby themselves are such that there is considerable substance in thesubmission made on behalf of the appellant that they do not tendin any way to show the existence of such a degree of displeasurebetween the deceased and the appellant as would make thedeceased to take steps to disinherit the appellant, particularlywhere the deceased has, admittedly, continued to live with theappellant even after such incidents. Even so, it appears to me thatthere is an item of evidence which quite clearly shows the state ofthe relationship, at any rate at or about the time the document"A" is said to have been executed, between the deceased and theappellant. The witness Upaneris Silva, who is said to be one of thefive attesting witnesses to "A" and who, though on the list ofwitnesses for the petitioner was called to testify at the trial onlyon behalf of the appellant, stated in his evidence that, when hequestioned the deceased as to why he was so executing the saidlast will, the deceased told him…

It is no doubt true that the learned District Judge has rejectetf-the evidence of this witness in regard to the signing of the docu-ment "A". Even so, it appears to me that, as this witness wascalled to testify at the trial by the appellant and has not beentreated as an adverse witness at any stage of his testimony, thepetitioner is entitled to the fullest benefit of any item of evidence,which is favourable to him, given by this witness whilst testifyingat the inquiry as a witness for the appellant It may well be thatsubsequently, as time went on and a child was born, thedeceased's feelings towards, and his relations with the appellant -underwent a change; yet. as far as the issue in this case is concerned,
26
Sri Lanka Latv Reports
(138U2S.LR.
the relevant point of time is the time at or about the day on which"A" is said to have been executed. The deceased may have, withthe passage of time, wanted to revoke the document "A"; but, ifhe had not done so, then the said document—which upon Anton'sevidence was in the custody of the deceased at the time of hisdeath—if it was, in law, valid at the time of its execution on31.8.1966 would then continue to retain its validity and becomeoperative upon the death of the deceased—however hard it may beby the appellant and her minor children.
It is the position of the petitioner that the document “A" wasfound by his brother, the aforesaid Anton, on the evening of the24th March, 1971, in the safe which was in the deceased's shopand which said safe Anton had opened with the key which theappellant had handed to him earlier that evening when she came tothe shop to have the shop re-opened for business. The appellanthas attacked this evidence as being wholly unworthy of credit.The evidence shows that, when the appellant came to the shopthat evening, she had brought the key of the safe, which had beenwith the deceased, and that the appellant had opened the sate.The evidence of Anton on this point is
According to Anton after he so discovered the said document"A" he had immediately taken it to his brother, the petitioner,who was residing at Ratmalana. It has to be remembered that, inthe Appellant's own admission, Anton was one who hadmaintained very cordial relations both with her and the deceasedat a time when the other brothers and sisters were not favourablydisposed towards them. Anton, it must be noted, seems to havecontinued to maintain his previous good relations with theappellant even after the death of the deceased, so much so that, onthe 24th March, 1971, the appellant had not only requestedAnton to continue to be in charge of the deceased's business buthad also entrusted the safe together with the money, which wasin it, to Anton. According to the evidence it would appear that the

CA
De Silva v. Seneviratne (Ranasinghe, J.)
n
relations between the appellant and her brothers-in-law andsister-in-law even after the death .of .the deceased and upto thedate of the finding of the document "A" were the same as theyhad been prior to the date of the death of the deceased. Theredoes not seem to have been even the hint of a claim by thepetitioner, and or his brothers .and sisters, to the Estate 'of thedeceased prior to the 24th March, the date on which, accordingto Anton, he found the document "A". The conduct of Antonafter- he says he found "A" is quite consistent with that of aperson who had not been upto that time aware of the existence ofsuch a document The non-communication of the finding of adocument such as "A" to the appellant herself is quite under-standable, particularly in view of. the relations which existed atthat time as between the Petitioner and all the brothers and sistersof the deceased, excepting Anton, on the one hand and theappellant on the other. Furthermore, it cannot be said that therehas been any inordinate delay in the part of the petitioner to bringthe document "A" before Court. The document "A" is said tohave been found on 24.3.71. The testamentary proceedings havebeen instituted by the petitioner on 25.5.71, only 14 days afterthe commencement of proceedings by the appellant herself. Thedeceased, as already stated, had passed away on 15.3.1971. I donot think that there is room for suspicion on these groundseither.
It was also contended that it is most unlikely that the deceasedwould have chosen as his beneficiaries a gr.oup of persons who hadopposed his marriage. Although it is in evidence that the deceased'sbrothers and sisters did not approve' of' the -deceased marrying theappellant, there is no evidence that their attitude had gone beyondthe stage of mere passive disapproval. There is no evidence of anyuntoward incidents between the deceased and his brothers and.sisters over his marriage. There is, however, evidence of visits eventhough they had been few and far between, paid by the deceased'sbrothers and sisters to the deceased and the appellant. Besides,Anton, had, admittedly, continued as earlier indicated to be veryclose and helpful to the deceased right upto the death of thedeceased Furthermore, there is also the evidence of the aforesaidwitness Upaneris Silva, already referred to, of what the deceasedhimself had told Upaneris Silva as to why he, the deceased, wasexecuting the document "A". That statement of the deceasedclearly shows what the deceased's relations with his brothersand sisters were at and about the time "A" was signed by thedeceased.
28
Sri Lanka Lm Rtports
(198V2S.L8.
Even though the learned District Judge has not considered thiscase as one in which there are suspicious features, yet, on a con-sideration of the entirety of the evidence led at the trial and thefacts and circumstances revealed by such evidence, and aboutwhich there can be little or no doubt, it appears to me that anysuspicion generated by the circumstances relied on on behalf ofthe appellant have been dispelled, and that, had the learnedDistrict Judge properly directed hemself, he could and would stillhave found: that "A" is a document which had been drafted onthe instructions of the deceased himself: that "A" was signed bythe deceased in the presence of the five witnesses referred totherein all of whom had also signed it at the same time and placeas the deceased and in the presence of one another: that thedeceased had the requisite testamentary capacity: that at the timethe deceased so signed "A", he was not only fully aware of anddid approve of the contents of "A", but did also intend the saiddocument to be his last will: that the deceased died withouthaving revoked the said last will. Viewing the case as a whole, I amof opinion that the document "A" does express the true wishes ofthe deceased, as on 31.8.1966, in regard to how his Estate shoulddevolve on his death, and that the aforementioned failure on thepart of the learned District Judge has not, in the circumstances ofthis case, either prejudiced the substantive rights of the appellant,and of her two minor children, or occasioned a failure of justice.
For i'iiese reasons, i am of. opinion that the appeal must faii.The judgment of the learned District Judge is affirmed and theappeal of the appellant is accordingly dismissed, but, havingregard to the circumstances of this case, without costs.
{VICTOR) PERERA, J.-l agree.
Appeal dismissed.