HOWARD C.J.—Ango Nona v. MiUhthirulappa Pillai.
1947Present: Soertsz S. P. J. and Canekeratno J.
NACHCHIA, Appellant, and MOHIDEEN KADER,Respondnet.
S. C. 56—D. C. Inty. Jaffna, 432.
Last Will—Petition for probate—Will challenged as forgery—Burden of proof onpetitionerExtent of burden—Removal of suspicions.
The burden of proof on an applicant for probate of a last will which ischallenged as a forgery does not extend to the removal of suspicions in regardto the execution of the will. The issue as to its execution is one whicH mustbe determined in accordance with the principles applicable to the determinationof a fact in civil proceedings.
SOERTSZ S.P.J.—Nachchia v. Mohideen Kader.
Appealfrom a judgement
of the District Judge, Jaffna.
N. E. Weerasooria, K.C. (with him H. W. Thambiah) for the petitioner,appellant.
S. J. V. Chelvanayagam, K.C. (with him C. Shanmuganayagam) for the6th respondent
Cut. adv. vult.
October 22, 1947. Soertsz S.P.J.
This is an appeal from an order made by the District Judge, Jaffnarefusing to admit to probate a document produced before him as thelast will of one Mohamed Nachchia and purpoting to have been executedby her on October 16, 1942, five days before her death. The solebeneficiary under the will was one Pathumma Nachchia, the aunt andfoster-mother of the deceased woman. The properties devised by thewill were the properties that came to the deceased from this aunt andfoster-mother. 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 issuein civil proceedings. The initial burden of proof was, undoubtedly,upon the petitioner who brouhgt the will into Court. She led evidenceto show that the will was executed by the deceased. We must assumethat the learned District Judge was satisfied that she had dischargedthis initial burden because he called upon the respondent to enter uponhis case. In the course of his judgement he said that at least one of thewitnesses who attested the will was an uncle who knew the executantand that, so far as he was concerned, there could be no question of hismistaking the identity of the executant. This witness declared thatit was the deceased who put her mark to the will. The learned Judgedid not reject that evidence . In regard to the other attesting witness, thelearned Judge thought that he was not sufficiently acquainted with thedeceased to be able to say that she was the true executant. The Notarywas unable to say whether the woman who put her mark to the documentwas the deceased woman or some other woman. But the fact remainsthat upon that evidence the Judge felt called upon to direct the respond-ent to lead his evidence . That means that he found . the burden ofrebutting the petitioner’s case had now devolved upon the respondent.The respondent’s case was that certain . circumstances he relied uponnegatived the fact alleged by the petitioner that the deceased was thewoman who put her mark to the will. The learned Judge, however,put some questions to the respondent to ascertain whether .it couldhave happened that in the house in which the deceased lived a woman
SOERTSZ S.P.J.—Nachchia v. Mohirleen Kader.
could have been made to impersonate the deceased and to put her mark,to the will -without the other members of the respondent’s familynamely, his parents and his sisters, who lived under the same roof, althoughin a different portion of the building, becoming aware of such an imperson-ation or of such a “ drama ” to adopt the Judge’s descriptive word.The apparently unexpected answer of the respondent was that such adrama would not have been possible without the connivance of theother inmates. Thereupon the learned Judge appears to have adopteda theory of his own, namely, that it might well be that the “ drama ” wasenacted in some other building and some woman there mad to imperso-nate the deceased. There was not a scintilla of evidence to support oreven to suggest such a theory. The evidence of the respondent is thatthe Notary knew the house of the deceased quite well. If that be so,it is most unlikely that the Notary would not know that he had beentaken to a different house. The notary himself although he spokewithout a positive assertion, said that it was in this house of the deceased’sthat he took the mark to the will, indicated sufficeintly that it was thehouse. . The result might have been different if the learned Judge had.rejected the evidence of the Notary on the ground that it was evidence^■ given in a suspiciously cautious manner, like the evidence of one whoderives only a fearful joy from.a forgery to which he was a party. Butthat was not the way the learned Judge dealt with his evidence. Heaccepted it or, at least, did not reject it.
In the end the learned Judge refused probate on the ground that hehad suspicions—not even doubts—in regard to the execution of thewill and that the petitioner had not dispelled those suspicions. In otherwords, he imposed upon the petitioner a heavier burderuihan that whichrests upon a prosecutor in a criminal case. In toy view, the learned Judgehas misdirected himself in the way in which he dealt with the issue inthe case. In my opinion, apart from the direct testimony relied uponby the petitioner and not rejected by the Judge, the circumstancessupport the petitioner’s case. It is most improbable that if the petitionerand her-confederates were embarking upon a plot of impersonation theywould go to a Notary who had about a year earlier drawn up a deedwhich the deceased woman had signed. To say the least, they weretaking a great risk and their consciences would have, at least,made cowards of them all. Likewise, it is most improbable that theywould have led the Notary to a different house. That again would havebeen an eneterprise fraught with peril. They would, in a case like that,have sought the assistance of a different Notary, unless, of course, thecase be that this Notary was himself in the plot. But that, as I havealready observed, was not the view of the Judge as recorded by him.
I am unable to accept the suggestion of Counsel that the Judge appearsto have disbelieved the Notary and suspected his complicity but that hedid not wish to say so in so many words. I refuse to believe that a Judgewould take such a course. In regard to the circumstance that thedeceased had signed a deed but that on the will only a thumb markappears, that is reasonably explained by .the fact that, at the date of thewill, this woman was very ill, almost on the point of death. The termscf the will are such that the Judge was satisfied that it was a “ natural ”
SOERTSZ S.P-J.—Nachchia v. Mohideen Kader.
will, that is to say, a will such as, in the circumstances, the deceased maywell have wished to make. She was giving back all her property to theaunt and foster-mother from whom she had got it. She and her husbanddo not appear to have got on well together and there were no childrenboro to them.
Cousel for the respondent asked that the case be remitted to theCourt below for a fresh inquiry, but I do not think we should accede tothat request. The estate is a very small one, of the value of aboutRs. 2,300 and the costs that will have to be incurred will be out of allproportion. But apart from that view of the matter, we are satisfiedon the oral testimony and the attendant circumstances that the petitionerhas discharged the burden that rested upon her. We would therefore,direct that the last will be admitted to probate. The 6th respondent,will pay the costs of the inquiry and of the appeal.
Oaneicebatne J.—I agree.