081-NLR-NLR-V-61-MEENADCHIPILLAI-Appellant-and-S.-KARTHIGESU-and-others-Respondents.pdf
320
SANS ONI, J.—Meenadchipillai v. IZarthigesu
1957Present:Weerasooriya, J., and Sansoni, J.
M!BIffNADCm PTTJAT, Appellant, and S. K ARTEEIGESTJ and others,
Respondents
S. C. 499—D. G. Jaffna, 1712
Will—Probate—Resistance to application—Suspicious circumstances—Burden ofproof.
Where an application for probate of a "will is resisted and circumstancesexist which excite the suspicion of the Court, “ whatever their nature may be,it is for those who propound the will to remove such suspicion, «nH to proveaffirmatively that the testator knew and approved of the contents of thedocument, and it is only where this is done that the onus is thrown on thosewho oppose tile will to prove fraud or undue influence, or whatever else theyrely onto displace the case made for proving the wfll
The following circumstances were held to be suspicious in the present case,where it was shown that the testator died within seven hours after theexecution of the will in a hospital:—(1) The testator was so ill at the time ofexecution that he was unable to speak or to hold a pen to write his signature.(2) The Notary did not take the obvious precaution of consulting a doctorat the time he took instructions from the testator or at the time of executingthe will. (3) The petitioner, who was the widow of the testator and to whomthe bulk of the property was devised, was a near relation of the Notary. (4)The witnesses to the will were not of independent character.
PPEAL from a judgment of the District Court, Jaffna.
H. V. Per era, Q. G.t with. S. STtarvananda and Miss Maureen, Senevi-ratne, for the petitioner-appellant.
G. Banganathan, with K. Shanmugalingam, for 1st and 2nd respondents.
Manickkavasagar, for the 3rd to 6th. respondents -respondents.
Cur. adv. wit.
April 11,1957. SAtsrsoin, J.-—
This is an appeal from the judgment of the learned District Judge ofJaffna dismissing the application of the petitioner-appellant to have thewill of her deceased hnshand ~RT-Hshnapillai proved, and to have probatethereof issued to her. The application was resisted by the deceased’sdaughter by his first wife, and also by the guardian ad litem of three minorchildren of the deceased by the petitioner ; those children were 6, 4 and3 years old respectively at the time of the application.
The estate of the deceased was valued by the petitioner at overRs. 80,000, and except for a legacy of Rs. 10,000 to the 2nd respondentthe whole of it has been devised to the petitioner. The deceased wasabout 55 years old at the date of his death. Re seems to have fallen
SANS OUT, J.—M. eenadchipillai v. .Karthigeozi
321
ill some days before he entered the Moolai Hospital on the 27th November,1952. Dr. Chacko who examined him on that day before admitting himas a patient was called as a witness by the respondents. He has statedthat the patient’s face was swollen (he had erysipelas) and that he wasdiabetic. Other details about the patient which were elicited from thisdoctor were that on 30th November and-1st December he was given acoramine injection as his heart was feeble, and he died on 1st Decemberat about 2.30 p.m. Dr. Chacko seems to have been unable to rememberany further details about the deceased because of the large number ofpatients he had treated in the hospital, and because he was giving evidencetwo years after the event. On being questioned about the deceased’smental condition he stated :—" I am not quite sure about the mentalcondition of the patient Krishnapillai. So I will not say anything aboutit ”.
The will was executed, according to the petitioner and her witnesses,at about 8 a.m. on 1st December, that is about 6^ hours before he died.As to what happened prior to the time of execution we have the evidenceof the Notary who attested the will, the petitioner herself, and three otherattesting witnesses, Krishnar, Manikam and Murugesu. I shall dealfirst with the Notary’s account of how he came to get instructions for thedrawing up of the will.
The Notary is a Proctor of 29 years standing who is also the Presidentof the Village Committee, Treasurer of the Hindu Board of Education,and a member of the Board of Management of the Moolai Hospital.According to this witness, he had met the deceased for the first time ata poojah ceremony on 20th November. On 29th November he wasfetched from his house by one Subramaniam, a relation of the petitioner,and he reached the hospital at about 5 p.m. He and the deceased werealone together when the deceased told bim that he had sent for him as hehad decided to execute his will. The deceased further told him that hewas very much worried at the thought of his sons, and he wanted to makeprovision for their education and maintenance. The instructions hereceived were that the testator’s daughter by his first wife should receivea legacy of “ not less than Rs. 10,000 ”. These instructions were notedon a piece of paper which he later destroyed. The testator told him thathis throat and tongue were affected and that he could not talk much.The witness has stated that he knew that the deceased was seriously illeven on that day. The Notary left the hospital at about 5.30 p.m.,having informed the testator that he would he hack at the hospital thenext morning with the will. He could not do this as arranged becausethere was a cyclone on the 30th November.
We now come to the events of the morning on which the will wasexecuted. The Notary travelled to the hospital in a car owned and drivenby Manikam. They both went to the ward in which the testator was, andfound the petitioner and Murugesu also there. According to the petitioner,the Notary on entering the ward asked her husband “ How are you ? ”and her husband just nodded his head. The Notary’s statement of whathappened in the ward begins with his telling the testator that he hadbrought the will prepared according to his wishes ; on being asked whether
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SAKTS.OHI, J.—MeenadchipiUai v. Karthigasu
he would execute it, the testator assented by nodding his head. It isperfectly clear from the evidence of this witness that the testator wasunable to speak at all that day. The Notary then sent for Krishnar,who was'the Senior Apothecaay^f-the-Hospitarh-tesignas a witness.His reason is best given in his own words :—“ I sent for him because hewas a respectable man. I sent for him to satisfy myself. If he wassatisfied he would sign the Will and I too would have been satisfied. ”
After the Notary had ascertained from the three men who had by nowassembled at the testator’s bedside that they were willing to sign the Willas witnesses, he asked the testator whether he approved, and the testatornodded his head again. The Will was then read out in the presence ofthe witnesses, and the Notary asked the deceased if it was written accord-ing to his wishes. The testator nodded again. T-Tia wife then raised 'himup in order that he might sign. Although a pen was offered to him,his hand trembled and he could not hold it. He showed the Notary hisright thumb, and after the Notary had daubed it with ink the testator putbis thumb impression on the original Will and protocol. The threewitnesses then signed it.
This is substantially the account related by the Notary, Manikam,Murugesu and the petitioner. Krishnar’s account of what took place isremarkable on account of its negative character. He pleaded ignoranceof almost every detail, and the only matters he seemed to rememberwere the setting of the deceased’s thumb impression to the Will and theprotocol, and the. fact that he and the two other witnesses signed them.He remembered, however, that the testator was unable to talk either onthat day or on the .previous day. He could not remember if he was ableto talk on 29th November.
The learned Judge has regarded the Will as one to which suspicionattached. He held that the petitioner had not proved due execution,or the mental competency of the testator, or that the testator understoodthe nature and the contents of the Will. Mir. Perera has submitted thatthe learned Judge has wrongly conjured up suspicions arising from theconflict of evidence, and that no suspic ous circumstances, surroundedthe execution of this Will. Mir. JEtenga athan argued that not onlywere there suspicious circumstances, but the evidence led by the petitioner,far from removing the suspicion, tended to confirm it.
. The rule of law is clear enough. In all cases where, circumstancesexist which excite the suspicion of the Court, “ whatever their nature maybe, it is"for those who 'propound the Will to remove such suspicion, andto prove affirmatively that the testator knew and approved of the contentsof the document, and it is only where this is done that the onus is thrownon those who oppose the will to prove fraud or undue influence, or whateverelse they rely on to displace the case made for proving the Will’’-1
Is this then such a case % . I think it is, and the very first matter whichstrikes me as suspicious is that this experienced Notary did not take theobvious precaution of consulting a doctor at the time he took instructions,from the testator or at the time of attesting the Will. Nothing would
1 {1394) P. <& p. 151.
SA2TS0NT, J.—Meenadohipillai v. Kcerthigesu
323
have been easier than to summon one of the doctors in this hospital. TheNotary had met the testator only once before—on 20th November.On
29th November on his own admission he knew that the testator wasseriously ill. He was with him for only about half an hour. The testatorcould not talk much and conversation must have been reduced to aminimum. It is questionable whether the Notary was able to judge thetestamentary capacity of the deceased on that occasion.
I think the Notary’s failure to take this precaution is more culpablein view of his relationship to the petitioner. The Notary and the petition-er’s father were first cousins. Mr. Renganathan even argued that theWill was bad for this reason : he relied on the rule of Roman Hutch Lawthat a will cannot be executed before a Notary whose son or father orother near relation is instituted heir therein (Yoet 28.1.22, 28 quotedin Steyn on Wills p. o). Without going so far as to hold that this Willis rendered invalid by that rule, I would say that the existence of suchrelationship is a circumstance of suspicion. The learned Judge has.described the Notary as an interested party and Mr. Perera argued that; 'the relationship is a matter which can only affect the Notary’s credibility.
I think it is something more than that. Certainly the Notary’s evidenceas to the instructions he received must, on account of this relationship^and the other circumstances under which they were taken, be viewed!with great caution.
Another circumstance of suspicion is the testator’s condition at the time–of execution of the will. One feature of his condition, which has been,admitted by all who saw him at that time, was his inability to speak. -AHhe could do, apparently, was to nod his head. The witnesses have-choseh to interpret the fact that he noddedhishead three or four times to*mean that he assented to the three or four questions that were addressed,feo him by the Notary. Nothing more seems to have passed between,the testator and the witnesses on that occasion. The question arises,whether it is satisfactory to construe the nodding ofhis head as a sign ofapproval. Whether the testator heard all that the Notary said, and alsounderstood what he heard, is by no means clear. His hand trembledso much that he could not hold the pen which Was offered to him. • The;Notary and the petitioner say that the testator showed his thumb and they.,interpreted this to mean that he wanted his thumb impression taken..When all these matters are taken with the proved fact that the testatordied within seven hours, the exact condition of the testator is left in.grave doubt.
There is also the significant admission of the Notary as to why he sentfor Krishnar when he already had two witnesses who could have attested-the will. One reason may be, as be has stated, that Krishnar is • a*respectable man. But that is not the only reason given by the- Notary.’He admittedly wanted Krishnar there in order to remove some- doubts?which existed in his mind. But what Krishnar did after he arrivedcannot have helped in that direction, and the doubt which existed. •only increases the sum total of suspicion attaching to the will.1
The learned Judge has commented on the position of the other attesting-’witnesses in.relation to the petitioner. He.-pointed out that Murages isis her unele. Krishnar is an employee of the hospital, and the Nbtarjr
324
SANSONT, J.—Meenadchipillai v. Marthigesu
is on the Board of Management of the hospital. Manikam appears to befriendly with the Notary and the petitioner. Mr. Perera characterisedthese comments as showing that the learned Judge was too suspicious.
I dare say that, the evidence of each witness, must not _be regarded with thesame degree of scepticism, but I cannot say that they were so regardedby the trial Judge. But it can be a point of suspicion that the witnessesto the will are not, as one would expect, of independent character (asBertram, C.J., said in the Alim Will Case T).
• Certain passages in the judgment under appeal are open to objectionand show that the learned Judge was sometimes scrutinizing the evidenceled for the respondents so closely that he found discrepancies where noneexisted. For instance, I see nothing in the affidavits of the Notaryand the attesting witnesses to suggest that instructions could not havebeen given on 29th November. To declare one’s intention to execute awill is not the same thing as to give instructions for the preparation ofthe will. The judgment contains a close analysis of the evidence, andalthough a more generous allowance might have been made for faultymemories and indistinct recollections, the Judge’s findings on the mattersof suspicion I have dealt with remain unshaken. Two matters arisingfrom the evidence are open to comment. One is that the cross markhas been made by a strong, firm hand, and the petitioner and her witnesseshave made no reference at all to the making of a cross mark by the testator.The other matter is the remarkably clear and well defined thumbimpression which the testator made on the documents, even though hishand was trembling so much that he was unable to hold a pen.
Ultimately, of course, it was a question of fact for the trial judge todecide whether the suspicion surrounding the will was removed and theadverse presumption affecting the will rebutted; unless he was finallysatisfied that his initial suspicions were unfounded the burden of proofwhich lay on the propounder of the will remained undischarged :see Harmes v. Hinkson z. “ The onus of proof may he increased bycircumstances such as unbounded confidence in the drawer of the will,extreme debility in the testator, clandestinity, and other circumstanceswhich may increase the presumption so much as to he conclusive againstthe instrument.” : see Parke v. OllaU 3. The trial judge was not satisfiedwith the evidence led for the petitioner and I cannot say that he was wrong.
Mr. Perera relied on the decision in Perera v. Perera 4. The principleapplied there was that if a testator has given instructions to a Solicitorwhen, he was able to appreciate what he was doing in its relevant bearings,and if the-Solicitor prepares a will in accordance with these instructions,the will is good though at the time of execution the testator is capable ofonly understanding that he is executing the will which he has instructedbut is no longer capable of understanding the instructions themselves orthe clauses in the will which give effect to them. The difficulty I have inapplying this principle to the present ease is the want of proof that thetestator had sufficient capacity to give instructions or was able to speakat all on 29th November. The evidence of Krishnar and Dr. Chacko,
i {2919) 20 N.. ju. 22. at p. 498.* {2946) A. I.M.P. C. 256.
(2825) 262 B. B. p. 2258.
{2902) A. C. 354.
Peiris o. De Silva
325
both of whom might have given disinterested evidence on those points, isentirely negative. The trial judge was not prepared to aet on the evidenceof the Notary and the petitioner who were the only two witnesses whoclaimed to speak to the testator's condition on that day, and I am unableto say that he was wrong in taking that view.
Even otherwise, it is doubtful whether the testator was in a fit condi-tion on the morning of 1st December to understand that he was executingthe will for which he had given instructions. Independent and reliableevidence on this point is woefully lacking. We know that the testatorcould not speak, he could at the most nod and raise a trembling hand,he was a dying man. I do not think it would be safe to rely on hisgestures as signs that he knew and approved the contents of the will.
I would dismiss this appeal with costs, but in the circumstances of thecase I would direct that the costs be paid out of the estate.
Weeuasooriya, J.—I agree.
Appeal dismissed.