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,
Sri Lanka Latv Reports
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

De Silva v. Seneviratne (Ranasinghe, J.)
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.
Sri Lanka Lm Rtports
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.