PERIES et al., Appellant, and PERERA et al., Respondents

172-NLR-NLR-V-48-PERIES-et-al.-Appellant-and-PERERA-et-al.-Respondents.pdf


560
Peries v. Ferera.
1947Present: Canekeratne and Dias JJ.
PERIES et ah, Appellants, and PERERA et al., Respondents.
S. C. 75—D. C. (Inty.) Colombo, 10,322.
Will—Probate—Allegation of suspicious circumstances—Fraud—Burden ofproof.
It is no part of the duty of Court to see that a testator makes a justdistribution of his property, and so long as it is proved that the testatorexecuted the will intending it to be his will the Court cannot refuse togrant probate on the ground of suspicious circumstances.
When there is a written memorandum in a will stating, among otherthings required by the statute, that the will had “ been duly read over ”this would be prima facie evidence that the will was read over before,and not after, the signature of the testator was placed.
Before fraud can be inferred in regard to the preparation of a willby the notary the fraudulent conduct must be clearly alleged and proved.
^^PPEAL from an order of the District Judge, Colombo.
One Edwin Perera left a will leaving his property to his sister Catherine,his adopted daughter Somawathie, to Newman who was one of his twosons, and to a servant girl. Reasons were given in the will for not makingprovisions for the wife and the other son, Walter. When applicationfor probate was made by the executors, the widow and two sons of thedeceased filed objections. The only issue framed at the inquiry was :“ Is the will sought to be proved the act and deed of the deceased W. DonEdwin Perera ? ” The learned District Judge dismissed the applicationfor probate. The petitioners thereupon appealed.
F. N. Gratiaen, K.C. (with him H. W. Jayewardene), for thepetitioners, appellants.
A. Hayley, K.C. (with him C. Thiagalingam), for the objectors,respondents.
Cur. adv. vult.
CANEKERATNE J.—Peries v. Per era.
561
September 25, 1947. Canekeratnk J.—
This is an appeal by the petitioners from an order dismissing theirapplication for probate of a will signed by one Edwin Perera. Thewill in question in this case is dated February 5, 1942. The testatordied on January 1, 1943, leaving him surviving his widow, two sons,Walter and Newman and an adopted daughter Somawathie. Thewill was propounded for probate by the executors as an uncontestedwill, and on February 2, 1943, an order nisi was made for the grant ofprobate to them. Shortly afterwards on March 11, 1943, the heirs of thetestator, the widow and two sons, presented a statement of objections,and prayed for the dismissal of the appellants’ application. They gavefour grounds. The widow had previously made an application for agrant of letters of administration in respect of the estate of the deceased.With that application she filed a motion R19 signed by the two sons,whereby they gave their consent to a grant of administration being madeto her subject to these terms :(1) the widow is not entitled to any
share of the immovable property and cash (moneys in bank, securitymoneys) left by the deceased but the same were to belong to the two sonsin equal shares, (2) the contracts of the deceased were to be shared bythe three, each to get one-third share.
The only issue framed at the inquiry was—is the will sought to beproved the act and deed of the deceased W. Don Edwin Perera ?Counsel for the objectors stated that the grounds on which they saythat the will was not the act and deed of the deceased were those statedin paras. 2 to 5 of the statement of objections. These grounds are asfollows : —
the will is not duly attested.
the deceased was not of sound and disposing mind at the time
of the execution of the alleged will.
the will does not express the true intentions of the deceased.
One further point suggested by the objectors during the course of theinquiry appears to be that the signature on the will had been forged,and they called as a witness a person described as a handwriting expert.The trial Judge was not impressed by the evidence of this witness andhe was unable to see any difference between the admitted signatures andthat on the will. Mr. Hayley contends that the trial Judge has arrivedat a conclusion adverse to the petitioners after seeing the witnesses, thatthe question involved in the case is one of fact, and that this Court hasno right to interfere with the findings of fact: he refers, in this connectionto the decision in Fradd v. Brown & Co. Ltd.'. It was argued on the otherside that the expression “ questions of fact ” comprises three distinctissues: What facts are proved ? What are the proper inferences tobe drawn from facts which are either proved or admitted ? and whatwitnesses are to be believed ? In regard to the first two questions nospecial sanctity attaches to the conclusion of a Court of first instance;—Perera v. Peiris *. Mr. Gratiaen states also that the Judge has acted onwhat he considers are the probabilities and that this Court is in as good
* (1946) 47 N. L. R. 59.
1 (1918) 20 N. L. R. 282.
562
CANEKERATNE J.—Peries v. Per era.
a position as the trial Judge in considering the probabilities of thecase. He further contends that the trial Judge has com' to a wrongconclusion on the facts due in great part to the long delay betweenthe conclusion of the inquiry and the judgment. The question involvedin the case relates more to the proper inferences to be drawn from theevidence.
The deceased was carrying on business as a contractor of labour to theIrrigation Department, to one or two Sanitary Boards and an UrbanCouncil: he also supplied some materials to some local authorities.He had been ailing for some time suffering from high blood pressureand on January 31, 1942, at about 11.20 a.m. he was taken to the PrivateHospital, Slave Island, Colombo, owned and managed by Dr. E. V.Ratnam. F. G. de Silva is a Proctor Notary who was about 12 years inpractice at the time ; he was well known to the deceased and had beendoing work professionally for the deceased for several years.
The alleged will was executed about 1 p.m. of February 5 at theHospital. Of the persons present on that occasion in the room, twopersons gave evidence at the trial in support of the will. They heardwhat the testator said. They saw what he did. There could be nodoubt that the testator was then perfectly competent. The otherattesting witness was one D. Simon who was employed as an attendantat the Hospital at this time. There is, however, no evidence that he wasimproperly kept back—he had left the Hospital and his whereabouts areunknown. Two other persons were called in support of the will—Dr.E. V. Ratnam and Abeysekera, a clerk at the Kachcheri, Colombo.Dr. Ratnam saw the testator from the day he was admitted till longafter the date in question. iUjeyesekera saw the testator on business onFebruary 4. He says that=^Ene testator then conversed with him veryfreely for about 5 minutes and talked very sensibly. He requested himto be a witness to his last will but he excused himself from acceding tothis request.
Instructions for the will were, according to the notary, given onFebruary 1. The testator sent for de Silva on that day. He went in theevening. Perera told him he wanted to make his will. The notary wasbetween one and two hours at the Hospital before he could take hisinstructions. It is denied by the objectors that de Silva saw thetestator on this day. The Judge states that he was not satisfied thatinstructions were given on this day ; he seems to have been influencedby the testimony of a Buddhist priest called by the objectors. De Silvatestified that he went to the Hospital on receipt of a message. AfterPerera spoke to him about making his will he remained there till Dr.Ratnan: came and obtained his opinion about the condition of thepatient ; then as chanting of pirith had started he had to wait till thepriest had finished it. De Silva is a member of the Roman Catholicfaith and in all probability would not have been then very near the'room. Dr. Ratnam corroborates de Silva about the conversation buthe is unable to give the correct date. There can hardly be any doubtthat de Silva saw the Doctor before the execution of the will.
The priest’s version is this :—he went to see the deceased on threeoccasions, on February 3 between 7 and 9 p.m. (pages 212 and 220 of the
CANEKERATNE J.—Peries v. Perera.
563
record), then on the morning of February 4, lastly on the evening of thesame day. The fact that the priest did not see de Silva or any one introusers at the time—if this incident took place on February 1—is not ofvery much importance. If he was chanting perith, it is not likely he, asa priest, would have paid any attention to persons outside the room, onestranger would not be distinguishable from the rest. The priest’sevidence is that the day he went to see the testator was not February 1but February 3. If de Silva was not delayed by the chanting of pirith,is it likely he would have mentioned an imaginary incident in examination-in-chief ?
De Silva does not seem to have thought that there was any immediatenecessity for hurrying on the completion of the transaction. Theinstructions were given on February 1, but it was not until noon ofFebruary 4 that the draft was brought to the testator for his approval.Perera gave full directions for the disposal of his property after his death ;he also wanted to transfer an undivided share of a property in BarberStreet to his sister Catherine, the first appellant, who was also present.The notary was for some time taking his instructions on a piece of paper.The will was drafted and typed by de Silva.
The will prepared by de Silva from the instructions which were givento him was brought to the testator on February 4. The draft (theprotocol copy), it seems, was read over to the testator clause by clauseby de Silva and its contents were explained to him. The evidence ofDr. Ratnam shows that de Silva spoke to him between 5 and 7 in theevening (p. 93), this could hardly have happened on February 4, for noone says that de Silva came on the evening of the 4th ; and corroboration,though slight, is afforded by the request made to Podisingho by thedeceased to be a witness and the impression left on Abeyesekera’s mind.If de Silva did not come on the 1st to see the deceased and take hisinstructions he must have come on the 2nd or 3rd.
Even if de Silva did not get instructions from the testator before the4th, there can be no doubt that de Silva saw the deceased on February 4 ;he saw him at a time when clerk Abeyesekera was at the place and theJudge so finds. The deceased then discussed his will with de Silva andthe date of execution of the will was fixed. It is clear that Perera wasin a sufficiently rational state on February 4 and 5 to make a will. Dr.Ratnam’s evidence makes this clear. The will was read over whenbrought to the testator for execution in the early afternoon of February 5.The two attesting witnesses were in the room at the time. After the willwas read over and the clause of attestation had been filled the will wasexecuted by the testator and the attesting witnesses signed it. One ofthe attesting witnesses was Podisingho. He was called as a witness atthe trial, and seems to Have given his evidence very fairly and the Judgeapparently accepted his evidence. In cross-examination he says he wastold on February 4 that Perera wanted him. He Went up to Perera’sbedside and asked him why he wanted him. Perera said there was awill of his to be signed next day, and he wanted the witness to sign. Hewas sent for on February 5, about 1 f.m. he went to the room, de Silva andthe other witness were there, and the testator*was seated at a table nearthe bed. Perera said this was his will, he. added the words “ for the-
564
CANEKERATNE J.—Peries v. Per era.
children ”, he said he was making a gift of a property to his sister whowas present (there was a deed also). Perera put his signature tc fivedocuments. A last will attested by a notary must be in duplicate—the protocol which the notary keeps with his notarial documents and theoriginal, a deed must be in triplicate—one part sent to the Registrar ofLands and kept in the Registry. He added that the notary explainedthe will and the deed to the testator only after the testator had signedthe five dccuments. The notary duly preserved the duplicate copy of thewill signed by the testator and witnesses, and this protocal was producedat the trial. There is a written memorandum stating, among otherthings required by the statute, that the will had “ been duly read over ”,this would be prima facie evidence that it was read over before thesignature was placed. The presumption is consistent with the manifestprobabilities of the case. The testator was a shrewd man of business,he apparently was not ignorant of the manner of executing documents,it is very unlikely that he would have put his signature to the will or thedeed before they were read over or explained to him. The matter is putthus—“ It is right next to inquire whether it may reasonably be supposedas not unlikely, that the exact particulars and course of the transactionmay not have accurately been remembered by the witnesses—theythink that it may. One cannot avoid observing his station in society,his probable habits of life, his probable degree of education ; one cannotbut be aware how very difficult it is for any man of whatever class (notgifted with uncommon faculties of mind) to remember with precisionand clearness the exact particulars and order of a set of circumstances,not involving his own feelings or interests, at a distance of some monthsfrom their occurrence; where no memorandum has been made, andwhere the circumstances are not of a kind or description, with which hisown habits of life have rendered him conversant and familiar ”.—Cooperv. Bockett
The supposed fact thus stated by the attendant is, in its nature, veryimprobable. “ It is not according to the general notions or habits ofmind of well informed persons, whether professional or unprofessional,to have a document which requires a party’s signature, attested by awitness before its signature by the party and for the party to sign itafterwards—such a course is neither businesslike nor customary”.—Cooper v. Bockett (supra). It is not consistent with probability that alawyer who was fully aware of the legal formalities, on the occasionin question, could have acted or could have been capable of acting in suchp manner.
The trial Judge has accepted the evidence of Dr. Ratnam, Abeyesekerathe clerk and Podisingho. De Silva has been lacking in frankness onsome points and his evidence on certain matters has not been acceptedby the trial Judge. On these matters he has preferred the versionsgiven by Walter or the widow. Obviously he was not prepared toaccept everything these two said. It is difficult to follow the trialJudge on a few points : and for some of his findings he has given noreasons or inadequate reasons. On the day of the meeting de Silvaproduced the .will from his custody and read and explained its contents» (1X40) 4 Moo. P. C. 419 at pp. 43S, 439.
CANEKERAfNE J.—Peries v. Perera.
565
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to the widow and Walter. The testator, it seems, left the will and alsohis deeds with de Silva. Some time in May, 1942, at de Silva’s requestthe testator removed his deeds but kept the will with de Silva. It is notuncommon for testators to leave their wills with their proctors if theyhave confidence in them and the latter are acting professionally for them.One cannot consider it at all unnatural that he did not keep the will in hiscustody, especially if, as is not improbable the testator did not want hiswife to know that he had made a will and as he had at least a suspicionthat his wife was not disinclined to meddle with his things if not removethem. (See P 17). It is worth remembering that if a last will is notforthcoming at the death of the testator, a presumption may be drawnthat it had been revoked.
Newman was bom on November 6, 1919, and was 22 years old at thetime of the making of the will. He had been to a school to study Englishbut had not made much progress and at this time he was at home doingnothing. The trial Judge applies the term wastrel to him: he was notwithout his faults. The elder son was employed in his father’s businesswhile the younger was utterly helpless and not fitted to earn his liveli-hood. The unfortunate position of Newman may well have evoked thecompassion of the father as he was lying on his sick bed and may inducehim to make fair provision for him.
What Newman is alleged to have done in August, 1942, is not a prettystory to begin life with and one might have expected that his anxietywould have been to live it down. But just after his father’s death henegotiated, according to Walter, the sale of a lorry that belonged to theold man, to one Jayewardene and appropriated the money : he gave thepurchaser a writing, as required by law, to effect a transfer of a motorvehicle, purporting to be signed by the deceased man and dated January1, 1943. After this incident Newman was hardly in a position to dealwith his brother and mother on equal terms when one comes to thetransactions of January 11. An arrangement by which a son agrees togive some share of the estate to the mother is not one that can be pressedtoo far. The natural love and affection that exists between a son and amother would be doubly increased by the piteous condition presentedby the spectacle of a woman just bereaved of her husband telling her sonwhat the effect of the will was. The Judge in attributing the inactionof Newman to knowledge on his part that there was something inthe document which prevented him from putting it forward as genuinelythe will of the testator was, in my opinion, conjecturing only.
The only date at which his testamentary intentions are to be regardedis, of course, the date on which the document was executed. At thattime his estate was not a large one, the value would be about Rs. 12,000.He gives premises No. 10, the residing house, to the daughter Somawathie.also a sum of Rs. 1,000 out of money in the Bank to her—a sum of Rs. 100to a servant girl. It is by no means improbable that the testator wouldgive a small gift to a servant girl if she was one who was trustworthy.It would be the most natural thing to make some provision for the girlSomawathie. That he had an idea of making some provision for hermay be gathered from what he told, the police on July 7, 1941—there are
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CANEKERATNE J.—Peries v. Perera.
daughters—and it would have been surprising if he had forgotten orfailed to make sonje provision for her. The old man and his wifeadopted; Somawathie-when she was about 13 months old and she wasbrought up as one of their children. The deceased seems to have beenvery fond of this girl Somawathie, his affection being heightened by hisidea—a not uncommon one in the case of men of this class—that she hadin his view brought him luck. Reasons are given in the will for notmaking provision for the wife and for Walter. The first point thatstrikes one is—that the “ ill-will ” of the testator against either of theseis not well founded, is immaterial. Even though one may consider thereasons given by him insufficient for the course he took it is no part of theduty of the Court to see that a testator makes a just distribution of hisproperty, so long as he properly appreciates what he is doing—and ifthese reasons were actually furnished by the testator there is nothingfurther to be said on the matter. There is a danger of importing one’sown views to transactions of this kind between these people. One isdealing not with a family of well founded repute and standing but withpersons of a different class of life. Had the testator grounds for leadinghim to think that he had made provision for her ? The idea that hewould have to justify his action before a tribunal would hardly strike him.He says he has already purchased properties and invested moneys in thename of his wife. The evidence shows that the testator was the personwho arranged the transfer of the two lands to the wife and the investmentof moneys in her name. The widow says that it was her moneys thatwere so used. As regards the land No. 76 her version is that she withdrewRs. 3,500 from the Savings Bank on March 17, 1938, and gave it to thetestator. One should not forget that the testator is not in a position togive his own account of these transactions. But there are two documentswhich have a bearing on this point and which tend to corroborate thestatement of the testator. On March 29, 1938, a cheque of his forRs. 3,500 has been presented for payment and cashed (R 12). Then inP 17 he states on July 7, 1941, “ I bought a grass field at Baseline RoadNo. 76 in her name for Rs. 3,500 ”.
As regards Walter the reason he gives in the will is “ I have also madeprovision to my son ”. The language used is different. From a changeof language one should, in the absence of other considerations, infer achange of meaning. The evidence shows that the deceased exertedhimself in arranging a suitable marriage for his son, the wife bringing ados (or dowry) on her marriage. It is a very common thing for theparents of the bride to give a suitable dowry on her marriage, the amountof the dowry may depend on the position in life of the bridegroom.
The reasons which induced him not to give any property by his will toWalter are less easy to conjecture. It is possible, perhaps likely, thathe thought he had arranged a good dowry for his son, and that he advancedhim in life and he was thus in a position to look after himself. Thoughhe left the business to Newman he appealed, the Judge states, to theIrrigation Engineer about December, 1942, to let Walter continue thebusiness he had been doing with the Irrigation Department. In thefirst place this change of mind on his part applies only to one part of hisbusiness, contracts with one person. Next one can only indulge in
CANEKJERATNE J.—Peries v. Per era.
567
conjecture as regards the reasons that may induce a testator to changehis mind as regards some particular item of his will.
The . evidence of the proctor called by the objectors shows that thetestator was seen by him twice after his illness in the house of Catherine,and that though there was a displeasure between the brother and sisterthis did not continue right through. Relations between the deceasedand his sister were, the Judge states, not cordial: this seems a mistake,for had he correctly examined the evidence given by the proctor, hewould have modified his view. As regards the transfer of the quartershare to Catherine, the evidence of Podisingho shows that the testatorwas making a gift to his sister. This statement shows in the first instancethat his feelings towards her had undergone a great change compared towhat they were when his mother’s will was produced in Court. Theproperty which he gave consisted of three tenements in one of whichCatherine was living at the time and he may have thought of giving herhis quarter share. It is not uncommon for persons desiring to make agift of immovable property to put the transaction in the form of a deedof sale.
“ It is clear, first, that the onus of proving a will lies upon the partypropounding it and, secondly, that he must satisfy the conscience of theCourt that the instrument so propounded is the last will of a fee andcapable testator. To develop this last rule a little further, he must showthat the testator knew and approved of the instrument as his testamentand intended it to be such.
“ In all cases the onus is imposed on the party propounding a will, it isin general discharged by proof of capacity, and the fact of executionfrom which the knowledge of and assent to the contents of the instrumentare assumed.
“ The question is, whether the testator knew the effect of the documenthe was signing. The circumstances attending the execution of thedocument may be such as to show that there is a suspicion attaching tothe will, in which case it is the duty of the person propounding the willto remove that suspicion, this is done by showing that the testator knewthe effect of the document he was signing ”—Barry v. Butlin '.
This was applied first to the case where a party makes or prepares awill under which he takes a benefit. “ It is then a circumstance thatought generally to excite the suspicion of the Court and it calls upon itto be vigilant and jealous in examining the evidence in support of theinstrument in favour of which it ought not to pronounce unless thesuspicion is removed. The facts of a case may show whether the takingof a benefit is a suspicious circumstance or not. In some cases it may beof no weight at all, as where a man of one hundred thousand poundsgives a legacy of fifty pounds to his attorney. The quantum of thelegacy and the proportion it bears to the property disposed of may showthat there are suspicious circumstances. It does not amount to morethan a circumstance of suspicion demanding the vigilant care andcircumspection of the Court—Barry v. Butlin (supra).
The same rule was applied when the will is prepared on the instructionsof the person taking large benefits under it. This was the state of the
1 (1838) 2 Moo. P. C. 480.
48/43
568
CANEKERATNE J.—Peries v. Perera.
law for some time. In 1893, the case of Tyrrell v. Painton1 (the case onwhich the Judge bases his view of suspicion) came before the Courts. OnNovember 7, 1892, the solicitor of the testatrix went to her house, andfrom her instructions prepared a fresh will by which she gave the bulkof her property to the plaintiff, her cousin, whom she appointed the soleexecutor. On the 9th T. P. a son of the defendant J.P., in whose favourshe had made a will in 1884, appears to have found out that the will of the7th had been made and what was its nature, and he brought to thetestatrix another will which was in his handwriting, by which she pur-ported to devise and bequeath away the whole of her property to thedefendant J.P. absolutely, and to appoint as sole executor the defendant
J.R.P., another son of J.P. There was evidence to show that uponNovember 7, and upon other days after the 9th, the testatrix hadexpressed continued hostility towards J.P. and satisfaction at havingexecuted the will of the 7th under which he took nothing. The Doctorwho was her medical attendant stated that upon November 9, the testa-trix was in an exhausted condition and drowsy. She also complainedof T.P. having brought a strange young man to her room. “ Can anyone doubt that the testatrix did not know what she was doing when sheexecuted the will ? It was executed under such suspicious circumstancesthat the Judge ought to have said—Do the propounders affirmativelyestablish that the testatrix knew what she was doing when she executedthis will ? ”" On that day T.P. produces to the testatrix a will drawn up
by himself, leaving out the disposition in favour of the plaintiff, andsubstituting one in favour of his father, J.P., and no one is present buthimself and a young friend whom he called in to be an attesting witness.It would require much more than the evidence of T.P. and P.R. consider-ing the grave suspicion surrounding the will of November 9, to satisfy methat Mrs. Bye knew what she was about when she signed the will. ” Inthe course of the judgment Lindley J. said “ The rule in Barry v. Butlinextends to all cases in which circumstances exist which excite thesuspicion of the Court ; and wherever such circumstances exist, andwhatever their nature may be it is for those who propound the will toremove such suspicion, and to prove affirmatively that the testatrixknew and approved of the contents of the document. ” One must lookat the hypothesis of fact upon which the case was decided- The factof the case show that the capacity of the testatrix was doubtful at thetime of execution and the instrument was obtained by a party materiallybenefited.
In Wilson v. Bassil", the plaintiff, a niece of the testatrix, propounded alater will, dated May 28, 1900. The testatrix went to reside with theplaintiff in March, 1899, paying her twelve shillings a week for board.After the testatrix had an apoplectic seizure which paralysed her rightside in May, 1900, the plaintiff’s husband called on W (not a solicitor) andasked him to go and take instructions for a will. He took her instructionsfor a new will leaving everything to the plaintiff, who was present duringthe interview. On W’s advice the plaintiff went to see a solicitor andasked him to prepare a will on the instructions given to W. The solicitorattended upon the testatrix whom he had never seen before, on May 28,
* (1903) P. D. S39.
(1894) P. D. 151.
CANEKERATNE J.—Periea v. Perera.
569
1900, taking with him a fair copy will. He and her Doctor gave evidencethat she knew perfectly well what she was doing. There was also otherevidence to show that she was perfectly rational. The plaintiff did not,even when the defendant announced that he would proceed to prove thewill of 1892 unless there were a later will, mention the will of 1900. Onthe evidence of the witnesses called by the-plaintiff it was held that thesuspicion attaching to the will was removed. The circumstances whichexcite the suspicion .of the Court must primarily be circumstances existingat the time when the alleged will was executed, and have a direct bearingon the question whether the testator then knew and approved of itscontents—Davis v. Mayhew
Had the will been found in the possession of the .testator at his death,it can hardly be disputed that on proof of the signature of the testatorand of the attesting witnesses and of the notary, the presumption omnia■ rite esse acta would have applied, and the will would have been admittedto probate without any further evidence.
In the first place it is a fact beyond dispute that the deceased at allevents meant that the will should be openly executed in the presence ofat least one very respectable witness. He certainly applied to Abeye-sekera for that purpose but unsuccessfully.
The Judge’s view was that the deceased’s mind was clear enough thoughhe was ill and from the evidence given by Dr. Ratnam, Abeyesekera andPodisingho he came to the conclusion that the deceased was in a positionto know exactly what he was doing on February 4 and 5.
The Judge had not had his mind clearly brought to the proved factsof the case. It is proved that the will has been read over to a capabletestator and that he then signed it: it is proved that he executed thedocument intending it to be his will: on the evidence it must be heldthat he signed it after it was read over to him : the facts are very strongevidence, that the words found in the document P were known andapproved by the testator. The Judge states that the testator used thewords “ the daruwanta ”, i.e., he intended by the will he signed onFebruary 5 to give his property to “ the children ”. He was speakingto Podisingho about “ the daruwanta Is he likely to tell Podisinghowhat he was exactly doing by his will or was his desire merely togive him a general idea ? One does not normally tell a witness who thebeneficiaries under the will are. The word “ daruwanta ” may meanall the children or the children. It is an undisputed fact that Somawathiewas treated and recognised as a child. If the testator intended by thewords he used in his conversation to show he gave the property to twoof the children the will as signed by him carries out his intentions. Hasit been established that he intended to benefit all three children ? Ifone tries to seek his intention to benefit all three from the words said tohave been spoken by the deceased to Podisingho, one is left in completeuncertainty. It would be mere guessing to say that he intended togive benefits to all the three children. If he meant to give the propertyto all the three children, then the will as signed does not carry out hisintentions exactly : the notary must then have deliberately omitted thename of one of the intended beneficiaries. This would be fraudulent
« (1927) 96 L. J. P. 140 at p. 14S.
570
HOWARD CJ.—The King v. Sellathurai.
conduct on the part of the notary. There was no allegation that thewill Was obtained by fraud; fraud must be alleged and proved and if thematter is left in doubt when all the evidence has been heard the partywho ought to take on himself the burden must fail. As a correctiveto the procedure adopted in this case, it may be useful to add the followingpassage—“ I should be very sorry if the rule adopted by Lord Cairnsin Fulton v. Andrew ” (or I might add the rule referred to in Tyrrell v.Painton) “ were used as a screen behind which one man was to be atliberty to charge another with fraud or dishonesty without assumingthe responsibility of making that charge in plain terms. ”—Low v. Guthrie The appeal is allowed with costs in both Courts. Judgment to beentered in favour of the petitioners in terms of prayer (a) of the petition.
Dias J.—I agree.
Appeal allowed.