149-NLR-NLR-V-48-EMIS-SILVA-Appellant-and-LILINIA-SILVA-et-al.-Respondents.pdf
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CANEKERATNE j.—Emis Silva v. Lilinia Silva.
1947Present; Wijeyewardene and Canekeratne JJ.
EMIS SILVA, Appellant, and LILINIA SILVA et al., Respondents.
S. C. 163—D. C. Colombo, 105 S
WiU—Attested, by five witnesses—Application for probate—Degree of proof—Calling of witnesses.
Where probate is sought of a will attested by five witnesses it is notnecessary to call all the five witnesses to prove the due execution of thewill.
1 Lorenz 116, not followed.
^^PPEAL from a judgment of the District Judge, Colombo.
E. B. Wikramanayake (with him H. A. Kottegoda and Cyril S.Randunu), for the petitioner, appellant.
P. J. Kurukulasuriya (with him B. Senaratne), for the 5th, 9th,10th, and 13th respondents.
Cur. adv. vult.
September 24, 1947. Canekeratne J.—
This is an appeal by the petitioner who propounds a document allegedto be the last will of one K. A. Andtis Perera dated May 15, 1943. Thedeceased who is said to have been a carter was apparently living with thepetitioner, his nephew, for a considerable time. In September, 1941, hebought some properties in the name of the petitioner’s children. Andris» 13 Cox 126.= 14 Cox 101.
CANEKERATNE J.—Emis Silva v. Lilinia Silva.
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Perera who was about 80 years old got ill, it is said, on the morning ofMay 15 and some time in the course of the day he sent a message byone Agonis Perera, a brother-in-law of the petitioner, to a petitiondrawer in Colombo named Perera, whom he knew, to have a last willdrafted. Agonis Perera came to Dam street, Colombo, found thepetition drawer, got a draft in accordance with the instructions of thedeceased': about 2 p.m. the will was signed by the deceased in thepresence of five witnesses, the witnesses being Agonis Perera, one Maithi-pala, one Abeyesinghe, one Jayesinghe and one Podisinno Perera. Therespondents pleaded that the document propounded was not the actof the deceased and was a forgery.
By the will all the property was bequeathed to the petitioner’s children.The trial Judge does not think that the will in question is an unnaturalone but he came to the conclusion that the petitioner has not dischargedthe burden of proving that the document was duly executed by thedeceased. The chief reasons given by the Judge seem to be that there areserious discrepancies in the evidence given by the three witnesses as towhat actually took place at the time of the alleged execution of the willand the failure to call the petition drawer.
The three attesting witnesses who were called at the inquiry seem tobe ordinary uneducated villagers ; they were speaking to events thattook place about two years before the date of inquiry, events in whichthey were not greatly interested. The three accounts of the signing of thewill exhibit according to Counsel for the appellants, what is frequentlyfound in honest witnesses, agreement on the main features combined withsome difference in the details. A petition drawer having a table in theverandah of a boutique or shop in Dam street is like a lame man standing“ on the wrong leg ” and a Judge who pays serious consideration tocontradictions in the story narrated by three village witnesses is notlikely to be impressed by the version deposed to by a petition drawer.
The delay in making an order was due to the fact that a suggestion wasmade during the argument that the parties would be able to arrive at asettlement. In mercy to the parties we thought that we may spare theexpenses of a new trial as to this very small property and did not makean order for some time, but the hope of a settlement seems to haveevaporated. The judgment of the trial Judge can hardly be supportedand there is no other course but to send the case back for a re-trial. Theresult is that the inquiry may come on for trial, and in these circumstancesit is desirable that the Court should confine its opinion strictly to thematters necessary for the decision in appeal so as to avoid prejudicing thecase of either party hereafter.
One point argued in the Court below on the strength of a short judg-ment reported in 1 Lorenz 116, was that it was necessary that all the fivewitnesses to the will should be called to prove its due execution. Theauthority referred to in the reported case seems to be based on 1 Williamson Executors, p. 281. This decision was anterior to the enactment of theEvidence Ordinance and hardly deserved to be rescued from oblivion.The general rule is that no particular number of instruments of evidencefor proof of a thing is necessary. The testimony of a single witness
472Talagala v. Gangodawila Co-operative Stores Society, Ltd.
relevant for proof of the issue and credible is a sufficient basis for a case(Section 134, Evidence Ordinance). The rule has been well expressed.Testimony should be weighed not counted.
Williams on Executors (12th Ed.) p. 218 of Vol. 1 puts thematter thus :—Formerly the general rule was, that if a party be put toproof of a will, he must examine the attesting witnesses. But since thepassing of the Court of Probate Act, 1857, C 33, it has not been necessaryto call both the attesting witnesses to prove the execution, which maynow be proved by calling one only of the attesting witnesses.
It would be unfortunate if the rule was as Counsel contended in theDistrict Court. The experience of Courts shows that it is not uncommonfor a witness to pretend ignorance of what he stated in a declaration orwhat he said in another Court or to try to give a twist to what has beenpreviously stated. Thus disingenuous attempts to obtain evidence whichmight be useful hereafter may be made by an opponent who is not veryscrupulous in his methods. This question of the number of witnessesrequired has been decided adversely to the respondents and they will beprecluded from re-agitating it at the re-trial.
The appellants are entitled to the costs of appeal. All other costsshall be costs in the cause.
Wijeyewardene J.—I agree.
Sent back for re-trial.