011-NLR-NLR-V-65-E.-L.-PEIRIS-Appellant-and-M.-A.-DE-SILVA-Respondent.pdf
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Peirig v. De Silva
V.[In the Privy Council]
1902 Present: Lord Denning, Lord Hodson, Lord Devlin,
Mr. L. M. D. de Silva, and Sir Malcolm Hilbery
E. L. PEIRIS, Appellant, and M. A DE SILVA, Respondent
Privy Council Appeal No. 19 of 1960
S. C. 245 Inly, of 1956—D. C. Colombo, 15908
Privy Council—Concurrent findings of fact—Rule of practice that they should not bedisturbed—Rejection of evidence of professional men touching their professionalwork.
Where, on an Usue whether or not a will was a forgery, the trial Court dis-believed two professional men (proctors) on their oath in matters closelytouching their professional work, and the Supreme Court, on appeal, acceptedthe finding of fact—
Held, that the Judicial Committee of the Privy Council does not, as a matterof generality, disturb concurrent findings of fact.
LORt> B.0m01S—£>sirfs v. D» Sitea
Appeal from a judgment of the Supreme Covert.
Ralph Millner, for the appellant
E. F. N. Qratiaen, Q.C., with Walter Jayatoardejia, for the respondent.
Cur. adv. vult.
February 15, 1962. [Delivered by Lord Hodsoh]—
This is an appeal from a judgment of the Supreme Court of Ceylon dated19th December, 1956, dismissing an appeal from a judgment of the DistrictCourt of Colombo dated 28th September, 1956, "which dismissed a petitionby the appellant dated 20th October, 1954, whereby she prayed for therecall and revocation of the probate of the will of Mr. SellapperumageWilliam Fernando, which had been granted to the respondent on the 16thJune, 1954.
The deceased man died on the 22nd February 1954, and the twocontestants are his daughters. The appellant, Evelyn Peiris, is thedaughter of his wife Nancy, and the respondent, Millie de Silva, is thedaughter of a former wife. The position is that the respondent, whoclaims under a will of the deceased which was made on the 13th May 1950,established that "will as the last will of her father ; she is entitled to thewhole of the estate under that will.
After the death, the appellant sought to raise objections to the validity ofthat will; she first failed to establish her objections, but eventually inSeptember 1954, after the order absolute establishing the will had beenmade, she presented a petition against it, basing her opposition on thealleged existence of a later will of her father, which was not in the sameterms as the earlier will, but, after providing for legacies, left the estateequally between the two daughters. The date of the supposed later willis the 4th -June, 1951. That will was never produced, hut what is calledthe protocol of the will was produce d from the office of a proctor, who had,as he said, prepared the original of the will, which was duly executed by thedeceased and two witnesses, and who had given the original to the deceasedto take home, retaining the protocol in his own office. The protocols are,as a matter of practice, kept in bound volumes in the proctor’s offices, andthe document wbioh was before the court was said to be taken from onesuoh bound volume and Baid to have been brought into existence on theday on which it beai s date, which is the same date as the supposed will.
LORD HODSON—Perns o. De SUva
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The only issue before the court was whether or not the later will was aforgery. The issue was framed so as merely to ask the court to decidewhether the deceased duly executed the last will of the 4th June, 1951, butthe issue of forgery was clearly raised in the answer to the petition ; andthe court rightly dealt with the issue as raising sufficiently the question offorgery. It is upon that question, and that question only, that the resultof the case depended.
The learned judge who heard the case heard the evidence of the proctorwho was said to have prepared the will and the protocol, and disbelievedjt. He heard the evidence also of the first attesting witness, who wasalso a proctor, and he disbelieved that. He did not hear the evidence ofthe second attesting witness, because he had died. In connection with thelast attesting witness, he heard the evidence of a handwriting expert.Although he appreciated that the handwriting expert cast doubts on theauthenticity of the signature of the second attesting witness, he arrivedat his conclusion of fact without reliance on the evidence of the handwritingexpert, but simply on his disbelief of the witnesses called on behalf of thewill. Furthermore, he had the evidence of the appellant herself, who hadpurported to identify her father’s signature on the document, and herejected that evidence.
Forgery was the only issue in the case, although a great deal of timewas spent in exploring the history of the deceased man and his relationwith his wife and with his children over the years ; but the finding of factwas clearly stated by the learned judge, and, on appeal to the SupremeCourt, the learned judge’s finding of fact was accepted.
There are concurrent findings of fact, and Mr. Millner, on behalf of theappellant, has done all he could possibly do to seek to persuade the Boardthat this is a case in which an exception should be made to the rule ofpractice that concurrent findings of fact should not be disturbed; hismain argument has been that this is a case of such gravity, a criminalallegation being involved, that the Board ought to look closely even intoconcurrent findings of fact, especially having regard to the allegation thatprofessional men, the two proctors, have been disbelieved on their oathin matters closely touching their professional work. Their Lordshipsare of opinion that that submission is not of sufficient weight for thisBoard to depart from the practice that concurrent findings of fact shouldnot, as a matter of generality, be disturbed.
For these reasons, their Lordships will humbly advise Her Majesty thatthis appeal be dismissed. The appellant must pay the respondent’scosts of this appeal.
Appeal dismissed