Sri Lanka Law Reports
11990] 1 Sri L.R.
CHANDANIPERERA AND OTHERS
COURT OF APPEAL.
S. B. GOONEWARDENE, J. (P/CA) AND WEERASEKERA. J.
C. A. No. 223/77 (F) – D. C. COLOMBO 23984/L,
NOVEMBER 20 AND 21, 1939.
Last Will -Burden of proof on propounder- Forgery – Suspicious circumstances- Con-science of the Court – Burden of proof re-allegation of forgery – Evidence of handwritingexpert.
The deceased died leaving a Last Will whereby he bequeathed all his estate in equal halvesto his illegitimate child and his legitimate child. The deceased's brother was the Executorbut the mistress sought probate of the will. The Will was attacked by the widow (3rdrespondent) as a forgery who claimed also that the Will was not the voluntary or true actand deed of the deceased.
Lily Perera v. Chandani Perera and Others
The onus probandi is upon the party propounding the will. He must prove that the Willsought to be proved is the act and deed of a free and capable testator and if there exist factsand circumstances which arouse the suspicion of the court, he must remove such doubts.The conscience of the Court must be satisfied.
Despite the evidence of the handwriting expert, the Judge considered all the evidenceand held that the impugned Will was the act, and deed of a free and capable testatoralthough the testator was in hospital at the time. Whether or not the evidence satisfies theconscience of the Court is always a question of fact. The Appellate Court will not interferewith such findings unless the plainest considerations justify such interference.
The evidence of the handwriting expert is a relevant fact but will to used only to assistthe Judge himself to form his opinion. It is not in the class of the opinion of a finger printexpert. The Judge as he was entitled to do held that the evidence of the handwriting experthad to yield to the other positive evidence in the case.
As on the evidence the District Judge held that the Will had been duly executed by thedeceased the burden shifted to the 3rd respondent to show that is was a forgery. Thisburden she failed to discharge. The District Judge held that the propounder had success-fully staved off what was alleged as suspicious circumstances and there was no justifica-tion to disturb this finding in the absence of compelling reasons.
Cases referred to:
Barry v. Buthin 2 Moore P. C. 480.
Peiris v. Wilbert 59 NLR 245.
De Silva v. Seneviratne (1981] 2 Sri LR 07.
Robins v. National Trust Co. 1927 AC 515.
Harmes and Another v. Hinkson (1946) 62 TLR 445.
Samarakoon v. The Public Trustee 65 NLR 100.
Gratiaeri Perera v. The Queen 61 NLR 522.
Charles Perera v. Motha (1961)65 NLR 294. 296.
Stale of Gujarat v. Vinaya Lai Pathi AIR 1967 SC 778, 1967 Crim. L. J. 668.
Bhagawan v. MaharajAIR 1973 SC 1246.
Kishore Chand v, Ganesh Prasad AIR 1954 SC 316.
Nachchia v. Mohideen Kader 49 NLR 21.
APPEAL from judgment of the District Judge of Colombo.
Manix Kanakaratnam with K. S. Ratnavale lor 3rd respondent- appellant.
P.Naguleswaran for substituted- petitioner.
Cur. adv. vult.
December 15. 1989.
S. B. GOONEWARDENE, J. (P/CA)
This appeal arises out of proceedings taken in the District Court toadminister the estate of one Omattage Ebert Perera who died on the 5thday of February, 1968.
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These proceedings were initiated upon an application to prove whatwas propounded as the Last Will and Testament of the deceased ascontained in a document notarially attested by H. W. Gunasekera aNotary Public bearing No. 15168 dated 5th January, 1968 (P1) in thepresence of two witnesses Hapuarachchige Carolis Jayatilleke andBamunuaratchige Don William.
The petitioner by the name of Miileniyage Lilian Costa who producedthis alleged Will P1 before the District Court and obtained an order nisideclaring it proved was neither the executor named therein nor abeneficiary under it. She however had been the mistress of the deceasedand her illegitimate child the 1 st respondent born to her by her associationwith him was left upon the face of P1 one half of his estate. The other halfonce again upon the face of P1 was left to his other child the 2ndrespondent born in wedlock with the 3rd respondent. The relationshipbetween the parties therefore was that the petitioner had been thedeceased’s mistress, the 1st respondent the child born to her out of thisunion, the 3rd respondent his widow and the 2nd respondent the child byhis marriage with the 3rd respondent. The 4th respondent was theexecutor named in P1 a brother of the deceased who according to thepetitioner was not taking the steps required of him with dilligence toadminister the estate of the deceased and hence her application forLetters of Administration cum testamento annexo in respect of suchestate in which she also complained that the 3rd respondent wasdisposing of assets belonging to the estate and disputing the right of the1st respondent.
The petitioner had died while proceedings were pending in the DistrictCourt and the 1st respondent substituted in her place, but to avoidconfusion I will continue to refer to the petitioner and the 1 st respondentby those appellations.
The 4th respondent filed papers asking that P1 be admitted to probateand also asking that he be appointed executer in terms of it.
The application for Letters of Administration on the basis that P1 wasthe Last Will of the deceased was resisted by the 3rd responde nt, who likethe petitioner upon the face of it received no benefit, upon grounds set outin her statement of objections dated 29th July, 1970, based upon which
Lily Perera v. Chandani Perera and Others (Goonewardene, J.)
inter alia the following issues had been raised when the inquiry com-menced on 27th October, 1970
Is the Last Will No. 15168 a forgery?
Is the said Last Will the voluntary or true act and deed of thedeceased?
Was the said Last Will obtained fraudulently and/or dishonestlyand/or by undue influence?
As the District Judge himself had occasion to observe in the course ofhis judgment, there was an element of inconsistency in an assertion thatP1 was a forgery and at the same time that it had been executed by thedeceased in circumstances which rendered it worthless as a documentof testamentary disposition, and apparently in realisation of this Counselfor the 3rd respondent had withdrawn at the inquiry the third of the issuesshown above. The District Judge had thereafter proceeded upon anexamination of the evidence before him against the background of thetwo issues remaining and has held with the petitioner that P1 was the actand deed of the deceased who at the time of executing it was of soundmind and understanding and that no element of suspicion attached tosuch Will. This appeal is taken against such finding.
At the hearing before us Counsel for the 3rd respondent- appellantsubmitted that he was limiting his case in appeal to the ground of forgeryalone and what we are therefore called upon to determine in this appealis whether the finding of the District Judge that P1 was not a forgery butin fact the act and deed of the deceased should be sustained or not.
There was before the District Judge evidence to the following effect:At the material time when P 1 was alleged to have been executed thedeceased was a patient warded in the General Hospital, Colombo, havingbeen admitted some time previously on 27th December, 1967, with ahistory of Uremia, a condition of kidney malfunction. He had left thehospital on 22nd January, 1968 against medical advice and had died on5th February, 1968.
It would appear that the 4th respondent a brother of the deceased bythe name of Wilbert had put up some buildings on land that belonged tothe deceased and that there had been a discussion about this in thehospital at which a decision had been reached that the deceased should
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convey to his brother this land improved by him and receive in exchangefrom him a bare land. To give affect to this Notary H. W. Gunasekera hadbeen summoned and he had visited the General Hospital on 3rd January,1968. This Notary had had about 35 years experience in the practice ofhis profession, attested over 23,000 deeds and bore an unblemishedrecord pertaining to his work (as the District Judge accepted). He (theNotary) had spoken to Dr. Gonsalkorale the House Officer attached toWard No. 24 in which the deceased was hospitalised and informed himthat he wanted to see the deceased about a legal matter. Thereafter theNotary Mr. Gunasekera had attested the deeds of exchange executedbetween the deceased and the 4th respondent (P3 and P5). Prior to thisevent the deceased had expressed a desire to convey two boutiquerooms at Borelasgamuwa junction to his two children the 1st and 2ndrespondents. For that purpose he had instructed that the title deedsrelating to these properties be brought to him from the custody of his wifethe 3rd respondent. He had been informed subsequently that she hadhowever been unwilling to part with them and that had aroused his angerso that on the occasion when P3 and P5 were executed he had directedthe Notary to prepare his Last Will and had given necessary instructionswhich the Notary had recorded on P2 the protocol copy of one of thedeeds of exchange referred to. These instructions had been that hedesired to leave all his property equally to his two children the 1 st and 2ndrespondents. On 5th January, 1968 Notary Gunasekera had visited theGeneral Hospital again and having spoken once again to Dr. Gonsalko-rale, proceeded to attest the Will P1 after the deceased had approved ofits contents and executed it in his presence and in the presence of the twowitnesses Carolis Jayatilleka and William.
Before the District Judge the Notary H. W. Gunasekera had given hisevidence as had the two attesting witnesses Carolis Jayatilleke andWilliam. He (the District Judge) has expressed his satisfaction as to thecorroboration he found in the testimony of the Witnesses, of the evidenceof the Notary which he accepted. The District Judge has accepted thetestimony of Dr. Gonsalkorale who had also corroborated the Notary’sevidence that the latter spoke to him on both occasions, that is on 3rdJanuary, 1968 and 5th January, 1968
This was briefly the effect of the evidence as to the execution of P1itself, the evidence of importance particularly in view of the claim offorgery. This and the other evidence in the case the District Judge
Lily Perera v. Chandani Perera and Others (Goonewardene, J.)
examined against a background ot principles stated by him in hisjudgment thus:—
‘The ‘Onus probandi’ in a case of this nature lies upon the partypropounding a will and he must satisfy the conscience of the Court thatthe instrument sought to be propounded is the Last Will of a free andcapable testator, if, however, there is an element of suspicion in a Willa Court must be vigilant and jealous in examining the evidence insupport oi the instrument in favour of which it ought not to pronounceunless the suspicion is removed and judicially satisfied that the paperpropounded does express the true will of the deceased."
That this formulation embodies a correct statement of legal principlethe authorities support.
The law in this country in probate matters being the same as the lawin England this principle referred to in the leading case of Barry v. Butlin
had been adopted in this country and consistently followed (Vide forexample Ihe case of Peiris v. Wilbert (2).
Ranasinghe, J. (as His Lordship the present Chief Justice then was)in the Court of Appeal in De Silva v. Seneviratne (3) cited with approvalthe words of Viscount Dunedin in Robins v. National Trust Co. (4) thatthose who propound a will must show that that will of which probate issought is the will of the testator and that the testator was a person oitestamentary capacity, and summarising the effect of the authorities heldthat the propounder of a will must prove inter alia that the document inquestion is the act and deed of a free and capable testator and that if thereexist facts and circumstances which arouse the suspicion of the Court inthis regard it becomes the duty of the propounder to remove such doubts(in order that the conscience of the Court thereby becomes satisfied).
The District Judge has proceeded to examine the evidence of the 3rdrespondent and the witnesses who supported hercontention ihat P1 wasa forgery and has concluded that to this mind no element of suspicionattached to the Will P i. He has considered the evidence of the 3rdrespondent to the effect that P1 could not have been executed on the dayand at the time it was said to have been executed since on that day andat that time it was said to have been executed she was with the testatorand no such execution took place. The District Judge has taken ihe view
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that having regard to her stated mo<ements of that day she could notreasonably be expected to have been present there at that time andtheretore could not possibly have personally known whether the de-ceased executed P1 or not. He has rejected her claim that the circum-stances narrated by her had the effect of showing that P1 was a forgery.The District Judge has considered the evidence of Roland Tiliekeratnewho had claimed that he was such a close friend of the deceased that hadthe latter executed P1 he would have informed him of that fact but hasconcluded, for good reason, that such relationship could scarcely havebeen as close as claimed and has also rejected his evidence that hevisited the deceased every day in the morning hours in hospital consid-ering that he was an employed man who had to be at his place of workdaily. The District Judge has been unimpressed by the testimony ofCarolis the father of the 3rd respondent who he has held was untruthfuland had been giving evidence to fall in line with that of the 3rd respondentwhen he claimed to have been present with the deceased all the timeduring his stay in hospital.
These findings of the District Judge with respect to the evidenceproduced for the various parties are ultimately findings on questions offact. As was laid down by the Privy Council in Harmes and Another v.Hinkson (5) whether or not the evidence is such as to satisfy theconscience of the Court must always in the end be a question of fact.
Ranasinghe, J. (as His Lordship the Chief Justice then was) in hisexhaustively researched judgment in De Silva v. Seneviratne (supra) ajudgment with which I am in complete agreement summarised the correctposition in law (at page 17) thus :—
“On an examination of the principles laid down by the authoritiesreferred to above it seems to me: that, where the trial Judge's findingson questions of fact are based upon the credibility of witnesses, on thefooting of the trial Judge's perception of such evidence, then suchfindings are entitled to great weight and the utmost consideration andwill be reversed only if it appears to the Appellate Court that the TrialJudge has failed to make full use of the priceless advantages given tohim of seeing and listening to the witnesses giving viva voce evidenceand the Appellate Court is convinced by the plainest consideration thatit would be justified in doing so
Lily Perera v. Chandani Perera (Goonewardene, J.)
As I understood Counsel for the 3rd respondent-appellant it was notthat he endeavoured to contend in argument before us that the DistrictJudge drew any wrong inferences from established facts on the issuerelating to forgery. Rather he endeavoured to assail the finding by theDistrict Judge on a primary fact that Pi was not a forgery. What Counselcontended was that there were suspicious circumstances demonstratedby the evidence to have existed, which the petitioner failed to remove, andas such P12 ought not to have been held to have been proved. In hisargument he placed great emphasis upon the evidence of the hand-writing expert Mr. Samaranayake who had been called as a witness forthe 3rd respondent and who at the material time was the GovernmentExaminer of Questioned Documents although he was acting on thisoccasion in a non official capacity. This witness had testified that he hadexamined inter alia the signature on P1 and on the deeds of exchange Ihave already referred to P3 and P5, and he had expressed his opinionthat the signatures on them upon comparison with certain admittedsignatures he found not to be those of the deceased. The District Judgehas rejected this evidence as he was entitled to do and he has alsocommented upon the fact that it did not appear that Mr. Nagendra anotherhand-writing expert previously consulted by the 3rd respondent had beenprepared to go along with such a conclusion. I do not intend, nor is itnecessary to analyse the evidence of Mr. Samaranayake here ; that theDistrict Judge had done and in my view adequately.
In the case of Samarakoon v. The Public Trustee (6) with reference tothe testimony of hand-writing experts there is cited with approval (at page114) the following passage from the earlier case of Gratiaen Perera v. theQueen (7):
“I think the modern view is to accept the expert's testimony if thereis some other evidence, direct or circumstantial, which tends to showthat the conclusion reached by the expert is correct, provided, ofcourse, the Court, independently of the expert s opinion, but with hisassistance, is able to conclude that the writing is a forgery".
In his treatise “The Law of Evidence” 2nd Edition (1989) Volume I insumming up the effect of the authorities, E.R.S.R. Coomaraswamy (atpage 627) states thus:-
“The correct position as to the value of the evidence of the hand-writing expert seems to be that his evidence must be treated as a
Sri Lanka Law Reportsp990J I Sri L.R.
relevant fact and not as conclusive of the fact of genuineness orotherwise of the handwriting: His opinion is relevant but only in orderto enable the Judge himself to form his opinion (Charles Perera v.Motha) (1961) 65 N.L.R. 294 at 296 (8) State of Gujarat v. Vinaya LaiPathi A.I..R. (1967) S.C. 778; (1967) Crim L.J. 668 (9). It is not in theclass of the opinion of the finger print expert (Bhagwan v. MaharajA.I.R. (1973) S.C. 246) (10)".
The District Judge upon a review ot the evidence of Mr. Samaranayakehas concluded that this was not a case where an expert could haveexpressed a definite opinion and has advised himself not to accept thatevidence. Indeed he has preferred to accept the other evidence suggest-ing that P1 contained the signature of the deceased as he was wellentitled to do. As was held in the case of Kishore Chand v. GaneshPrasad (11) conclusions based upon mere comparison of handwritingmust at best be indecisive and yield to the positive evidence in the case.
Counsel's next argument was connected with the name of the 2ndrespondent as it is incorrectly said to be stated in P1 as Sunil ArunaShantha whereas his correct name as shown on his birth certificate readsWipul Aruna Shantha. Counsel contended that no father would make amistake as to his son’s name and that this shows that P1 could not havebeen prepared on the instructions of the deceased and was thus aforgery. The District Judge for his part has not considered this a suspi-cious circumstance and I do not disagree with him. It could well be thatthe Notary took down the name wrong and that it escaped the notice ofthe deceased when P1 was read and explained to him his attention beingconcentrated upon the manner of disposition to see that his two childrenshared his estate equally; just as much as it can well be said that the 3rdrespondent when she filed her Statement of Objection dated 29th July1970 had in the caption of her papers adopted the incorrect name of the2nd respondent as it appears in the papers filed by the petitioner withoutseeking to correct it either in the caption or by pointing out in suchobjections that such incorrect name had been used since her attentionwould have been on the substance of her objections rather than on suchname.
Counsel next contended that the Will P1 was an unnatural Will as itexcluded the 3rd respondent the widow from getting any benefit under it.On the contrary I am of the view that it was quite a natural one where the
CALily Perera v. Chandani Perera (Goonewardene. J.)
deceased thought of benefiting only his two children perhaps not unmind-ful of the possibility of his relatively young widow the 3rd respondententering upon another marriage after his death; not forgetting at this pointof course, his displeasure at her refusal to release upon his request thetitle deeds of two boutique rooms at Boralesgamuwa to which I havealready made reference.
One or two other matters Counsel referred to in his submissions asdemonstrating the presence of suspicious circumstances. One was whathe referred to as conflicting testimony relating to what was said to havetaken place when instructions were given by the deceased for the Notaryto prepare his Will. Another was the non disclosure to the 4th respondentby the Notary after the death of the deceased that such Will had beenexecuted. The District Judge has not considered these as important andupon consideration neither do I. These in any event are pure questionsof fact the consideration of which was primarily within the province of theDistrict Judge and his conclusions thereon should as far as possibleremain undisturbed save in the presence of compelling reason to dootherwise, none of which I see.
In the case of Nachchia v. Mohideen Kader (12) Soertsz S.P.J. inconsidering the question as to the burden of proof where a Will waschallenged as a forgery said (at page 22) thus:-
“The 6th respondent, who was the husband of the deceased,objected to the will being admitted to probate on the ground, substan-tially, that it was a forgery. That being the case of the objecting husbandno question of undue influence or of any other kind of influence thatCourts are wont to examine with careful scrutiny arose. The sole issueupon which the inquiry was held was whether the will was executed bythe deceased and this issue fell to be determined in accordance withthe principles applicable to the determination of a fact in issue in civilproceedings. The initial burden of proof was, undoubtedly, upon thepetitioner who brought the will into Court. She led evidence to showthat the will was executed by the deceased. We must assume that thelearned District Judge was satisfied that she had discharged the initialburden because he called upon the respondent to enter upon his
case That means that he found the burden of rebutting the
petitioner's case had now devolved upon the respondent.”
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On this basis Soertsz S.P.J. allowed the appeal and directed that theLast Will in question in that case be admitted to probate.
If one approaches the instant case against the formulation adopted bySoertsz, J. in the case before him, upon the findings of the District Judgeon the evidence before him that P1 had been duly executed by thedeceased, the burden shifted to the 3rd respondent to show that P1 wasa forgery a burden which once again upon the findings of the DistrictJudge she failed to discharge.
I take the view that the District Judge's approach to the questionsbefore him was a correct one and that upon the evidence in the case hearrived at acorrect decision. I would therefore concur with his conclusionson the facts and his determination that P1 was the act and deed of thedeceased and that no element of suspicion attached to it.
I would thus affirm the judgment of the District Judge and dismiss thisappeal with costs payable to the 1 st respondent in the original application,who has since been substituted in the room of the deceased petitioner.In consequence I would direct that the order nisi be entered declaring P1to be the Last Will and testament of the deceased Omattage Ebert Pererabe made absolute and that probate be issued in respect thereof to the 4threspondent as directed by the District Judge after compliance with theusual formalities required by law.
WEERASEKERA, J. — I agree.
LILY PERERA v. CHANDANI PERERA AND OTHERS