( 214 )
In the Matter of the Estate of the late Sinne TambyPo OtHEPILLAI.
D. G., Jaffna (Testamentary), 702.
Probate by foreign Court—How far it is binding on Courts in Ceylon—•CivilProcedure Code, s. 533—Objections to application for probate.—Framing of issues.
Although a District Court is not bound, as a matter of course, tofollow the decision of a foreign Court as to grant of probate of the -will of a deceased person, yet it will and ought to do'so, unlessgood reason is shown to the contrary. Where probate has beengranted by the foreign Court, it is bound to presume, in the absenceof any evidence to the contrary, that the foreign Court satisfieditself that the w<ll was the will of the testator, and had been dulyexecuted.
In the case of an application for probate, before the Court framesissues as provided for in section 533 of the Civil Procedure Code, itmust be satisfied that a primd facie case against granting the appli-cation has been made out. It is not sufficient for the Court to besatisfied that somebody objects, or for somebody to get up and saythat the will is a forgery : something more is necessary from whichthp Court can infer that a substantial case- against the applicationhas been made out.
fJ'HE facts of the caseappear in the judgment of Bonser, C.J.
Ramanathan, S.-O., with Sampayo and J ayawardene, for appellant.
Wendt, for respondent.
17th September, 1896. Bonser, C.J.—
This is an appeal against an order of the District Judge of Jaffna,who has rejected an application, which was made by a widow, forletters of administration to the estate of her late husband, andgranted the counter application of the son and brother of thedeceased that probate should be granted to them, the first andsecond respondents, as executors of his last will. It appears thatthe deceased had for many years past lived in Madras, where hecarried on the business of a broker. The petitioner was his secondwife, and lived separate from him at Jaffna, where the deceasedhad formerly lived himself, and had a considerable amountof property. He died on the 24th September, 1895, at Madras.The widow at once took steps to obtain administration of .herhusband’s estate as upon an intestacy. On the 28th of Septemberlast she presented a petition to the District Court of Jaffna, asthe Court having jurisdiction, praying that letters may be granted,to her. On the 7th of January, 1896, an order wist wasmade and citation issued to the son and the other next of kin.Upon this citation the son and the two brothers of the deceasedappeared and filed their ground of objection to the order mist Being:
made absolute, the grounds being that the deceased had left a. will, and that probate of that will had been duly granted to themby the High Court of Madras. With their ground of objections theycombined an application for grant of probate to themselves asexecutors of the will. This was on the 6th of March, 1896. Thecounsel for the petitioner was present in Court. Thereupon theDistrict Judge, instead of making an order nisi for grant of probateand directing it to be served on the petitioner, which he wouldhave done had she not been represented in Court, dispensed withthat formality and set the case down for hearing on the 10th April.But before that day arrived application was made by both partiesfor a postponement, on the ground that they were negotiating fora settlement. Ultimately the parties being unable to agree to asettlement, the case came on for hearing on the 3rd August. Onthat day the petitioner’s counsel submitted that the issues in theease were:—
Whether the domicile of the deceased S. Poothepillai
was Jaffna or Madras.
That if Madras be proved to be the domicile of the deceased,. whether the will has been duly proved there.
After some argument the District Judge made his order. Hebegan by stating that it was not necessary to enter into the questionof domicile. He referred to sub-section (c) of section 539of the Code, which provides that, where a will has been duly provedout of the Island, probate may be granted on a proper exempli-fication of the foreign probate. He said that that conditionhad been satisfied, and that he therefore declined to embark uponany investigation as to domicile, or with regard to the genuine-ness or otherwise of the will’itself. He stated that the petitioneralleged that the will was a forgery, but held that the Court wasnot competent to review the authenticity of the will or the wisdomof the High Court of Madras in granting probate. Thereforehe ordered that the application of the petitioner be rejected, andthat probate be granted to the executors named in the will..In my opinion that was a right order to make under the circum-stances, although I am unable to accede entirely to the viewthat the District Judge takes of the authority of a foreign Court.In my opinion this Court is not bound, as a matter of course; tofollow the decision of a foreign Court as to probate; but though. it is not bound to do so, yet it will, and ought to do so, unlessgood reason is shown to the contrary, It is bound .to presume, inthe absence of any evidence to the bontrary, that the foreign Courtdid satisfy itself that the will was the will of the testator, and wasduly executed. . Section 533 of our Code provides that “ if on the
( 216 )
I8M. “day to which it may have been duly adjourned, the respondent .
September 17. «« or any persop. upon whom the order nisi has been directed to be
Bonseb.C.J. “served, or any person then appearing.to be interested in the“ administration of the deceased’s property, satisfies the Court that“ there are grounds of objection to the application, such as ought“ to be tried bn viva voce evidence, then the Court shall frame the“ issues which appear to arise between the parties.” * * * Now,that does not mean, in my opinion, that it is sufficient if the Courtis satisfied that somebody objects. It means that the Courtmust be satisfied that there is a prima facie case made againstgranting the application. It is not enough that somebody gets upand says that the will is a forgery ; something more is necessary fromwhich the Court can infer that a substantial case against theapplication haB been made out. In the present case 1 am notsatisfied that the petitioner ever intended to raise the question of 'forgery. Her counsel submitted two issues—ope as to domicile,and one as to due proof of the will. I notice that it is recordedthat counsel on the other side replied that the authenticity of thewill was not disputed, and I do not find that counsel for the petitionerdisputed that. The only reference to this question which itis now desired to raise is contained in the order of the Judge,in which it is stated parenthetically that the petitioner statesthe will to be a forgery. From that I would infer that itwas not seriously intended to raise the question as to the genuine-ness of the will, and that it was only when the petitioner’s advocatefound himself in difficulties that he olung to this last strawin the hope of being able to delay the proceedings. In myopinion, as I said before, on the materials before the DistrictJudge, he was quite right in the order he made. As he pointedput, this order will not affect the construction of the will or therights,of the parties, nor indeed would it prevent the widow fromapplying to the High Court of Madras to have the will proved insolemn form.
I agree in affirming the judgment. As at present advised Ithink the District Judge had jurisdiction to try and determine,thequestion, whether the will was not a genuine document, had thatissue been properly raised and settled.. This probate it is to beobserved is in common form, and the administration is limited tothe assets in the jurisdiction of the High Court of Madras. Hisfinding, the will a forgery wotlld not of itself affect the Madrasgrant of probate, . But in this case there was no objection of thekind, open to him to consider. Mr: Solicitor suggested that the
( 217 )
Judge ought to have decided the question of the genuineness ofthe will as an issue for him to try and determine. He wrote down,it was urged,' only two issues, and omitted, to introduce thisthird one. Supposing he had introduced this issue as suggested,the Judge would have had no power to determine it because thatissue had no proper foundation. The Court has not been satisfiedby evidence that there was a primd facie case for suspicion againstthe genuineness of the document. Without such evidence theCourt could not frame the issue, much more determine it.
There is nothing to prevent the petitioner) if so advised, fromtaking steps to apply to the Madras Court to have the will provedin solemn form.
September 17.Withers, J.
In the Matter of the Estate of the late SINNE TAMBY POOTHEPILLAI