R. P .W. SAMARAKONE, Appellant, and THE PUBLIC TRUSTEE and others, Respondents

023-NLR-NLR-V-65-R.-P-.W.-SAMARAKONE-Appellant-and-THE-PUBLIC-TRUSTEE-and-others-Respondents.pdf


100
Saoiarakona v. Tha Public Trustee,
Present: Weerasooriya, J., aad H, N. G. Fernando, J.
R. P. W. SAMARAKONE, Appellant, and THE PUBLICTRUSTEE and others, Respondents
S. C. 87 B of 1957—D. C. Colombo (Testy.), 16308
Witt—Issue of forgery—Burden of proof—Evidence of handwriting expert—Admissi-bility of evidence of another expert in rebuttal—Civil Procedure Code, ss. 163,166—Evidential value of evidence of expert—Power of Judge to examine relevantsignatures himself—Suspicious features as ground for refusing probate.
Pending an application for probate of a will No. 3911 dated 10th February1950, there was found a will No. 541 dated 13th June 1954 purporting to havebeen executed by the deceased and revoking all previous testamentary instru-ments. The Public Trustee, who was appointed the sole executor under willNo. 3911, and those heire of the deceased who opposed the grant of probatoto will No. 541, took up the position that will No. 541 was a forgery. Inquirywas thereafter held on the single issue which was formulated as follows : “ Wasthe Last Will No. 541 of 13.6.54 the act and deed of the deceased ? Tho5th respondent, being the propounder of will No. 541, was the party that ledevidence first. The only witnesses called by him were the Proctor who attestedtho will and the two attesting witnesses. The case for the 5th respondent wasthen closed. Among the documents put in evidence as part of his case worethe letters 5R3, 5R4 and 5R5 alleged to have been written by the deceasedto the Proctor in connection with the will. The Public Trustee next adducedhis evidence and called, among others, the Government Examiner of QuestionedDocuments, who, giving evidence as an expert, expressed an opinion that thepurported signatures of the deceased on the will No. 541 as well as on the letters5R3, 5R4 and 5R5 were not genuine. After the case for tho Public Trusteewas closed, Counsel for the 5th respondent moved to call another handwritingexpert in rebuttal of the evidence of the Government Examiner of QuestionedDocuments. This was objected to by the Public Trustee and the Court upheldthe objection and refused to allow the evidence in rebuttal.
Held, (i) that the 5th respondent was not entitled to lead in rebuttal thoevidence of a handwriting expert, whether under seotion 163 or seotion 166of the Civil Procedure Code, Whim the Public Trustee end those heirs of the
WEERASOORIYA, J.—SamaraJcone v. The Public Trustee
101
deceased who opposed the grant of probate of the will No. 541 took up the posi-tion that it. was a forgery, they did no more than put the 5th respondent, asthe propounder of the will, to the proof that the deceased signed it. In sucha case the provisions of section 163 of the Civil Procedure Code for admittingrebutting evidence are not applicable.
The Alim Will Case (20 N. L. R. 481), distinguished.
that, on an issue of forgery, the Court may accept a handwriting expert’stestimony, provided that there is some other evidence, direct or circum-stantial, which tends to show that the conclusion reached by the expert iscorrect.
that a Judge is not precluded from himself making comparisons of rele-vant signatures for the purpose of deciding whether the reasons given by ahandwriting expert are acceptable or not.
that where there are features which excite suspicion in regard tc a will,whatever their nature may be, it is for those who propound it to remove suchsuspicion. Suspicious features may be a ground for refusing probate evenwhere the evidence which casts suspicion on the will, though it suggests fraud,is not of such a nature as to justify the Court in arriving at a definite findingof fraud. The conscience of the Court must be satisfied in reBpect of Buch matters.
Appeal from a judgment of the District Court, Colombo.
Sir Lolita Rajapakse, Q.C., with E. A. Koattegoda, for the 5thRespondent-appellant.
E. V. Per era, Q.C., with Walter Jayawardena, for the 1st Respondent.
R. P. GocmetiUeke, with S. D. Jayasundere, for the 3rd and 4thRespondents.
Cur. adv. vult.
May 25,1960. Webrasooriya, J.—
One Don Simon Wijewickreme Samarakone, an elderly bachelor,died on the 22nd of November, 1954, leaving an estate valued atRs. 1,781,802.09. On the 2nd December, 1954, the Public Trustee, whois the first respondent to the present appeal, applied to the DistrictCourt of Colombo for probate of a last will (referred to as X in theseproceedings) No. 3911 dated the 10th February 1950, attested by S. R.Amerasekere, Proctor and Notary Public, and executed by the deceased,under which the Public Trustee was appointed the sole executor. Onthis application the Court entered order nisi declaring the will provedand also directed that the order be served on the respondents to theapplication, of whom the 5th respondent is the appellant in the presentappeal.
On the 30th December, 1954, there was found in one of the lockeddrawers of a writing desk in the deceased's residence, a last will No. 541,dated the 13th June, 1954, attested by D. A. J. Tudugalle, Proctor andNotary Public, purporting to have been executed by the deceased and
2sR 11584 (8/63)
102
WIOSBASOOBITA, 3.—£kwtartik<mti u. The Public (Frusta*
revoking all previous testamentary instruments. Under this will (whichis marked Y) the Ppblio Trustee and S. R. Amaraeakera are appointedco-executors (but the latter declined the office) and the 5th respondentand his three brothers (the nephews of the deceased) and their motherand sisters got the bulk of the estate in varying proportions. On the17th February, 1955, the 5th respondent made an application to theDistrict Court praying that the will Y be declared proved and for a grantto him of letters of administration of the deceased's estate. The PublicTrustee and two of the heirs of the deceased who were represented at thehearing of the appeal by Mr. Goonetilleke opposed this application onthe ground that the will is a forgery. These two heirs were the 3rd and4th respondents to the application of the Public Trustee for probate ofthe will X.
The matter proceeded to inquiry on the single issue which was formulat-ed as follows :“ Was the Last Will No. 541 of 13.6.54 the act and deed
of the deceased Don Simon Wijewickreme Samarakone ? ” After alengthy inquiry the learned District Judge answered the issue in thenegative. The present appeal by the 5th respondent is against thatfinding.
The 5th respondent, being the propounder of the will Y, was the partythat led evidence first at the inquiry. The only witnesses called by himwere Proctor Tudugalle who attested the will and A. C. Dias and Jaya-wardene who signed it as attesting witnesses. The case for the 5threspondent was then closed. Among the documents put in evidence aspart of his case were the letters 5R3, 5R4, and 5R5 alleged to have beenwritten by the deceased to Proctor Tudugalle in connection with theexecution of the will Y. The Public Trustee next adduced his evidenceand called, among others, Mr. Nagendram, the Government Examinerof Questioned Documents, who, giving evidence as an expert, expressedan opinion adverse to the case of the 5th respondent in regard to thepurported signature of the deceased on the will Y as well as on the letters5R3, 5R4 and 5R5. After the case for the Public Trustee was concluded,counsel for the 5th respondent moved to call another handwriting expert,one Mr. McIntyre, i.n rebuttal of the evidence of Mr. Nagendram. Thiswas objected to by counsel for the Public Trustee and the other opposingparties, and after hearing argument the District Judge upheld theobjection, and refused to allow the evidence to be led. An interlocutoryappeal (S.C. No. 87C) was filed by the 5th respondent against the orderof the District Judge. As a preliminary question relating to the allegedfailure of the 5th respondent to tender to the Secretary of the DistrictCourt, together with his petition of appeal, the proper stamps for thedecree of this Court, was awaiting decision in that appeal, it was notlisted for argument along with the present appeal. When the presentappeal was taken up, Sir Lalita Rajapakse who appeared for the 5threspondent requested that the hearing be deferred until the decision ofthe x>reliminary point in Appeal No. 87C, so that both appeals may baconsidered together in the event of that point being decided in favourof the 5 th respondent. Rut on Mr. H. Y. Per era objecting, and as it
WEERASOORIYA, J.—Samarakone v. The Public Trustee
103
was clearly open to the 5th respondent to canvass in the present appealthe correctness of the order disallowing the application made by the5th respondent’s counsel at the inquiry to lead evidence in rebuttal, wesaw no reason to accede to that request. The hearing of the present• appeal was, accordingly, proceeded with, and the question whetherrebuttal evidence should or should not have been permitted by theDistrict Judge was fully argued both by Sir Lalita Rajapakse andMr. H. V. Perera.
The preliminary point in Appeal No. 87C was subsequently decidedagainst the 5th respondent, and the judgment of this Court rejecting hisappeal is reported in 61 N. L. R. page 452.
In order to consider the submissions addressed to us on the questionwhether rebuttal evidence should have been permitted or not, it isnecessary to refer briefly at this stage to certain items of evidence.The will X, probate of which is applied for by the Public Trustee, wasattested by Proctor Ameresekere, who, it is common ground, had beenthe deceased’s legal adviser for several years prior to June, 1954, whenthe disputed will Y is alleged to have been executed. According toMr. Ameresekere, whose evidence has been accepted by the DistrictJudge, he continued to be entrusted with the deceased’s legal workright up to the deceased’s death. Mr. Ameresekere expressed thebelief that the deceased would never have revoked the will X withoutconsulting him. He said that in November, 1953, the deceased did infact give him instructions to prepare a new will revoking X, and shortlyafterwards he prepared the draft P7 which he sent to the deceased onthe 2nd December, 1953, for approval, along with the covering letterP7B, but he received no further communication regarding it from thedeceased, and, as far as he was concerned, the matter ended there. Healso said that he did not know the existence of the will Y until after itwas found on the 30th December, 1954, and that he came across thedraft P7 and the letter P7B on the 25th November, 1954, on a teapoy ina room of the deceased’s residence.
A comparison of the provisions in the draft P7 with those in the will Xdoes not reveal any differences of a substantial nature. Instead of eachof four of the employees in the deceased’s firm of Samarakone Brothersreceiving a legacy of Rs. 500 as provided in X, only one of them was toreceive that sum in P7. A direction in X for three of the daughters ofthe deceased’s brother Solomon being given a sum of Rs. 2,000 on marriagehas been altered in P 7 to a payment of that sum to only two daughters.Possibly the other daughter had married in the meantime. A clausein X providing for the erection of two monuments at a cost of Rs. 1,000each, in memory of the deceased’s parents (should the monuments nothave been erected previous to his demise) is omitted from P7. Thereason for the omission may be that the monuments bad already beenerected at the time when the deceased gave the instructions in the termsof which P7 was drafted. P7 also contains two new bequests whichare not in X, for the annual payment of a sum of Rs. 250 each to the
104
WEE&ASG ORIYAj J,—Bamarakoue v. The Public Trustee
Home for the Aged and the Home for Incurables, Colombo, and afurther direction for the recovery of & sum of Re, 500 per mensem as routfor premises Ho. 1022, 3rd Division, Maradana, from Mr. Y. ft Abey-gooneaekere (a nephew of the deceased) if he should choose to carry onthe business of Sam&r&kone Brothers at those premises. All the otherdispositions in the two documents are identical. Mr. Amsresekere wasunable to assign any reason why the deceased, having instructed him toprepare the draft P7, did nothing more about it, but it is possible thatthe deceased did not consider the matter as one of much importance orurgency.
The case for the appellant, on the other hand, is that the deceaseddid not proceed to execute a fresh will on the lines of P7 because be hadarrived at certain other decisions in regard to the disposition of bisproperty which were subsequently embodied in the will Y. It wasalso suggested by counsel for the appellant in the cross-examination ofMr. Ameresekere that his services were not availed of by the deceasedfor the attestation of Y because at the time Mr. Ameresekere had incurredthe deceased’s displeasure by having agreed to a reduction in the rate ofinterest from 8% to 6% per annum on a loan of one million rupees grantedby the deceased to one T. A. Fernando and in respect of which certainproceedings {vide copy 5R18) had been taken before the Board consti-tuted under the Debt Conciliation Ordinance, No. 39 of 1941. Butwhile Mr. Ameresekere agreed that the deceased was not pleased overthe reduced rate of interest ordered by the Board, he said that evenafter this incident the deceased entrusted a lot of work to him. Theevidence of Mr. Ameresekere on this point receives support from theletters PIT of the 7th June, 1954, P18 of the 16th August, 1954, P19of the 21st October, 1954, from the deceased to Mr. Ameresekere, fromP7 and P7A and also from at least one entry in the deceased’sday-book P9.
Mr. Tudugalle stated in evidence that the attestation of the will Ywas not the only occasion when his services were utilised by the deceased,and that even in 1942 he had attested, a will for the deceased. This isthe document 5R1, which is strongly relied on by the appellant assupporting his case that the'deceased did in fact execute Y. Accordingto this document, one of the attesting witnesses to the signature of thedeceased was Mr. D. E. Weerasooria, Proctor and Notary Public (whodied in 1953 and was, therefore, not available as a witness in these proceed-ings). But the handwriting expert, Mr. Nagendram, in his evidence inthis case hae expressed very definite views which if accepted lead to theconclusion that the signatures purporting to be those of the deceased aswell as of Mr. Weerasooria are forgeries ; and the District Judge has soheld.
In submi tting that the District Judge should have permitted the evidenceof Mr. McIntyre to be led in rebuttal of the evidence of the handwritingexpert called by the Public Trustee, Sir Laiita Rajapakae contended
WEERASOORIYA, J.—Samarakone v. The Public Trustee
105
that the appellant was entitled under section 163 of the Civil ProcedureCode to lead such evidence, or, in the alternative, the Court should haveacted under section 166 and allowed it as an exceptional case.
„The. relevant part of section 163 refers, however, to a case where
there are several issues the burden of proving some of which lies on theparty or parties other than the party beginning. But learned counselrelied on The Alim WiU Case where, too, there was only one issuespecifically raised, namely, whether the will propounded was dulyexecuted by the deceased. This Court ruled that in so far as the issuecould be regarded as including a question whether the deceased’s signaturewas procured by fraud, the party propounding the will was entitled tolead evidence in rebuttal of fraud after the opposing party, who hadalleged fraud and on whom lay the burden of proving it, had led evidenceon the point and closed his case. Sir Lalita Rajapakse submitted thatif rebuttal evidence is allowed where fraud is alleged, there is no reason. why it should not be allowed where forgery is alleged. But, in myopinion, the two cases are far from being the same. In The Alim WillCase the opposing party alleged that there was a fraudulent substitutionof the will in place of a deed of gift which the deceased had previouslygiven instructions to be drawn up, and which he was deceived into thebelief that he was signing. The reason underlying the ruling in thatcase is contained in the following passage from the judgment of Bertram,
J.:
“ The petitioners alleged that the will was duly executed. Therespondents, as part of their case, alleged that its execution was procur-ed by fraud. It was for the petitioners on their side to prove theexecution and for the opposing respondents to prove the alleged fraud. ”
When the Public Trustee and those heirs of the deceased who opposedthe grant of probate of the will Y took up the position that it was aforgery, in my opinion they did no more than put the appellant, as thepropounder of the will, to the proof that the deceased signed it. InThe Alim Will Case this Court found it possible, having regard to the alle-gation of fraudulent substitution of the document on which the deceased’sadmitted signature appeared, to take the view that the single issue framedreally consisted of two separate questions, the burden of proof in regardto the one (due execution; being on the petitioners, and in regard to theother (fraudulent substitution) on the opposing respondents. Buteven though the single issue raised in the present case—whether the will Ywas the act and deed of the deceased—also involves two questions, onebeing the deceased’s competence to make the will (or his testamentarycapacity) and the other, whether he signed it, the burden in regard toeach of them is clearly on the appellant, and was conceded to be so bySir Lalita Rajapakse. The question of the deceased’s competence wasnot seriously challenged. The main contest was whether he signed it.Bor the reason already stated by me, I am unable to agree with the
1(1919) 20N.L.S. 481.
106
WEBRASOOB3TTA, J.—tSotnarakons v. The Pttbiio Trustee
submission of Six Lalifca Rajapakse that the alleged forgery of thedeceased’s signature m T arose as a distfei®& and separate quesferoa, theburden of proof in regard to which was on the Public Trustee and theother opposing parties.
It is also to be noted that in The Alim WiU Case (supra) in dealing withthe question of the due execution of the will, and referring bo the fact thatcounsel for the petitioners had not called one Isdeen who was allegedby thexn to have been present at the execution of the impugned will,Bertram, C.J., took care to state as follows : “ He (counsel for thepetitioners) was not entitled to * split ’ his case on any one issue. Hecould not, having refrained from calling Isdeen on the question ofexecution, afterwards call him to rebut the evidence given by the respon-dents on that issue. But he was entitled to call Isdeen and the otherwitnesses he mentioned to rebut the evidence given by the respondentson the issue of fraud. ”
On the question whether the deceased signed the will Y, the appellantled the direct evidence of Proctor Tudugalle and the two attesting wit-nesses that they saw him sign it. There was also adduced a volume ofindirect evidence of a circumstantial nature which is relevant to thatquestion. I have already referred to certain items of this evidence(the letters 5R3, 5R4, 5R5 and the will 5R1 of 1942). The evidenceof the appellant's handwriting expert, although not led, also fell intothis category. I do not think that it was open to the appellant to call,in the fust instance, only a part of his evidence touching the questionwhether the deceased signed Y, and to postpone calling his expert untilafter the handwriting expert called by the Public Trustee had givenevidence. Even if Sir Lalita Rajapakse is right in the submission thatthere was a distinct and separate question of forgery arising on the issueframed, the appellant was not entitled to “ split ” his case in the mannerin which he sought to do.
In my opinion section 163 of the Civil Procedure Code does not availcounsel for the appellant in his contention that the appellant was entitledto lead in rebuttal the evidence of Mr. McIntyre relating to the impugnedsignatures on the wills Y and 5R1 and the letters 5R3, 5R4 and 5R5.
I shall now consider the alternative contention that the District Judgeshould have allowed such evidence to be led as an exceptional case undersection 166 of the Civil Procedure Code. That section provides that theCourt may for grave cause, to be recorded at the time, permit a departurefrom the course of trial prescribed in the earlier sections. The Court may,therefore, for grave cause permit a party to lead evidence in rebuttaleven though the party may have no right to do so under section 163.An obvious instance for the application of section 166 would be where aparty, having closed his case, is faced with evidence of a decisive naturearising ez improviso which he could not reasonably have foreseen. Inthe present case, however, the objections Sled by the Public Trustee tothe grant of probate of the will Y made it dear that forgery was the onlyground on which probate was opposed; and it was for this reason that
WEERASOORIYA, J.—Samardkone v. The Public Trustee
107
on the 16th February, 1955 (according to a journal entry made underthat date) the proctors for the appellant obtained the permission ofCourt for Mr. McIntyre to examine and take photographs of Y, and alsoof X and certain other documents, which he subsquently did on the-23rd-May, 1955. The Government Examiner of Questioned Documentsand the Assistant Government Examiner are mentioned as witnessesin the lists of witnesses filed by the Public Trustee and the other opposingparties. In the appellant’s own list of witnesses filed on the 27th May1955, appears the name of Mr. McIntyre. It may, therefore, be inferredthat the appellant’s lawyers knew long before the inquiry commenced onthe 14th October, 1956, that the principal issue in the case was whether thedeceased signed the will Y, and the importance of expert evidence relatingto handwriting in the decision of that issue. In the circumstances,appellant’s counsel could not have been taken unawares by any evidenceon that issue by the Public Trustee ; nor can he be heard to complainof surprise in respect of the evidence adduced by the Public Trustee onthe question whether the signatures on the will 5R1 purporting to bethose of the deceased and of Proctor D. E. Weerasooria are indeedtheir signatures, since in the cross-examination of Proctor Tudugalleregarding 5R1 it was sufficiently indicated that those signatures werealso impugned as forgeries.
In the course of the cross-examination of Mr. Nagendram, counsel forthe appellant elicited certain evidence regarding Mr. McIntyre’s compe-tence as an expert which was objected to by counsel for the PublicTrustee on the ground that Mr. McIntyre had not been called as a witness,but which the learned District Judge allowed in view of an undertakinggiven by appellant’s counsel to call Mr. McIntyre. The judge alsoallowed counsel for the appellant to put in evidence certain documents(5R19, 5R20, 5R21) on his undertaking to prove them, despite theobjections of counsel for the Public Trustee that the appellant’s casehad already been closed. It was at a much later stage of the inquirythat the District Judge gave his ruling that the appellant was not entitledto call any evidence in rebuttal, but Sir Lalita Rajapakse referred tothese antecedent matters as in some way reinforcing his contention thatthis was a proper case for the District Judge to have exercised his powersunder section 166 even if the appellant was not strictly entitled to callsuch evidence under section 163.
I do not think, however, that the wrong admission of the evidenceobjected to (which in no way caused prejudice to any party) can be putforward for our holding that the District Judge should have, in the exer-cise of his discretion, permitted to be done under section 166, that which theappellant could not have done under section 163. In my opinion, therewas no ground at all for the District Judge to have acted under section 166.No application in that behalf was made to him by appellant’s counsel.On the contrary, counsel expressly stated that he was not inviting theCourt to exercise a discretion in favour of the appellant, but that theapplication to call evidence in rebuttal was based on, what he contended,was a legal right to do so under section 163.
lOflWEEiBAAOOKIYA,norakona v. The Public Trustee
'V:
On the facts, the District Judge has expressed strong findings which arefatal to the case of the appellant that the will was executed by thedeceased. He described Mr. Todugalle, the Hotary who claims to have
attested the will Y, as a witness entirely lacking in candour, unworthy ofcredit and as “ the type of Notary who could be employed to fabricatea document ”. The evidence of this witness has many unsatisfactoryfeatures. He said that having made notes of the deceased’s instructionsregarding the will Y, he typed out a draft of it and sent it to the deceasedfor approval, and that the deoeasedreturned.it to him after making certainalterations in it in his ovm handwriting. But while Mr. Tudugaile hasproduced, marked 5R2, the notes alleged to have been made by him, hesaid that the draft with the alterations in the deceased’s handwriting wasdestroyed by him after Y was executed as he did not think it necessary topreserve it. He also said that on the 13th June, 1954 he was paid a feeof Rs. 80 in cash by the deceased for his services after the will was exe-cuted, but it is strange that no such payment appears in the deceased’sday-book, P9, which is for the period 1st April, 1954, to the 31st March,1955, although it shows various other legal disbursements during thatperiod.
Mr. Tudugaile seems to have created such an unfavourable impressionin the witness-box that even counsel for the appellant at the inquiry wasconstrained to admit that his evidence " if it stood by itself could not beaccepted The Judge also rejected the evidence of A. C. Dias andJayawardene, the only witnesses called by the appellant who were in aposition to support Tudugaile in regard to the execution of Y. Dias wasan attesting witness in the will 5R8 executed by the deceased in 1933,and claims to have been a longstanding friend of his. But of both Diasand Jayawardene the Judge has stated that their evidence was not of sucha nature as to enable him to act upon it despite the shortcomings of Tudu-galle as a witness. Very strong grounds would be required to reversein appeal the learned Judge’s finding of fact in regard to the credibility ofthis trio of witnesses. In my opinion, no such grounds have been shown toexist by Sir Lalita Rajapakse although he strenuously attacked thesefindings.
The decisioo of the District Judge that Y is not the actand deed of thedeceased is, however, not entirely based on his rejection of the evidenceof Tudugaile, A. C. Dias and Jayawardene. He also took intoaccount various o ther factors and items of evidence, in regard to the moresalient of which his conclusions may briefly be summarized as follows :—
(а)The provisions in the will Y are completely different from those inX, the draft will P7 and the will 5R8 of 1933, and are “ out of line ” withthe character of the testator. Y may even be termed an " unnatural ”will and needs the closest scrutiny.
(б)“ The circumstances in which the will Y was found are, to say theleast, most suspicions
WEERASOORIYA, J.—Samarakone v. The Public Trustee
109'
It is most unlikely that the deceased would have employedMr. Tudugalle to attest Y, ignoring his usual legal adviser,Mr. Ameresekere. The appointment of Mr. Ameresekere as co-executor inthat will is only a subterfuge adopted to explain why Mr. Ameresekere did
~not-attest it.
It is even more unlikely that the deceased would have employedMr. Tudugalle to attest the will 5R1 of 1942. 5R1 is an obvious forgery.The only purpose in fabricating it was to lend support to the will Y. Itfollows that Y too must be a forgery.
The letters 5R3, 5R4and 5R5 have also been fabricated in order tocreate the impression that Y is a genuine will.
(J) The fact that the numbers and dates of 5R1 and Y appear in thetwo returns made by Mr. Tudugalle to the Registrar of Lands for themonth of September, 1942, and June, 1954, respectively, do notnecessarily establish that 5R1 and Y are genuine.
, (g) The evidence of the handwriting expert, Mr. Nagendram, corro-borates the inferences arising on the other evidence in regard to 5R1and Y, and also 5R3, 5R4 and 5R5.
The District Judge’s conclusions at (a), and in particular the descriptionof Y as an “ unnatural ” will, were much criticised by learned counsel forthe appellant who submitted that the dispositions in Y in favour of thedeceased’s nephews, especially the appellant and the other sons of hisbrother David Samarakone, are fully in keeping with the evidence that hewas very fond of them and that they were living with him in his housein Pamankade prior to his death and looking after him. But this evi-dence was given by A. C. Dias whom the Judge disbelieved on the questionwhether the deceased executed Y. The Judge seems to have preferredthe evidence of Mr. Ameresekere that none of the deceased’s relations wereon good terms with the deceased. This somewhat sweeping statement is,however, not borne out by the deceased’s confidential clerk, Henry Dias,from whose evidence it may be inferred that the deceased was notunfavourably disposed towards some at least, of his relations. For instancethe deceased allowed his brother David Samarakone and his family to liveon his estate, Ambagahahena, and had, as far back as in 1933, under thewill 5R8, devised this same estate to David, subject to a fideicommissumin favour of David’s sons, Stanley, Vernon and Bertram. Even after thedeath of David his family continued to live there. Stanley was at one timeemployed as Superintendent of Ambagahahena Estate and three otherestates in the vicinity belonging to the deceased. Victor Abeygoonesekere,another nephew of the deceased and the 6th respondent to the applicationby the Public Trustee for probate of the will X, was employed asthe manager of the deceased’s office at Borella and was also associated withthe deceased in the firm of Samarakone Brothers.
I do not think that in view of this evidence, which was, perhap , over-looked by the District Judge, the will Y can be described as an“ unnatural ” one. But even so, there appears to be a striking disparity
11.0WBBRASOORrSTA, J.—^ormmbmc u. (Phn Public- Pmsice ‘-
between the provisions of Y whan compared with Pll of 1947, X of i960,both, of which were attested by Mr, Ajaetesakere, and the draft P7 whleh.he prepared <m As instructions of the deceased not many months beforeY is said to have been executed. In Pll, X and P7 the deceased'snephews have been left out entire'y in the cold. Even under the earlierwill, 5RS, although the deceased had to an extent provided for some ofthem, the bulk of his estate was bequeathed to his trustees for certainspecified objects to the exclusion of his relatives. But in Y, apart fromthe directions to the Public Trustee for the payment of a sum ofRs. 150,000 for the building and equipment of a hospital on a portion ofa land belonging to the deceased at Wewala, a sum of Rs. 5,000 forthe building fund of the Colombo Young Men's Buddhist Association, andsmall allowances to a few of the deceased's employees, practically theentire estate is distributed among his nephews and nieces, the appellantand the other sons of his brother David getting the lion’s share of it.Having regard to this disparity and the allegation of forgery of Y, I amnot prepared to say that the District Judge was wrong in addressing tohimself the caution that it should be subjected to the closest scrutiny.
In regard to (6), the circumstances referred to by the District Judgeare as follows :—Although the deceased died on the 22nd November, 1954,the will X was not to be found until eight days later. Mr. Ameresekere,who had attested it, stated that on hearing of the deceased's death heimmediately informed the Public Trustee who was the executor appointedunder X, of the existence of that will as Mr. Ameresekere bad no reasonto think that it had been revoked by the deceased. According toMr. Ameresekere, when the deceased gave him instructions in November1953, to prepare a fresh nail (and in terms of which instructions P7 wasdrafted) he also handed to Mr. Ameresekere the will X, and it was neverreturned to the deceased thereafter. But forgetful of the fact that it wasstill with him, Mr. Ameresekere went to the deceased’s residence inPamankade on the 22nd November with the Public Trustee and searchedfor the will. On that occasion the iron safe in the house was not examined,presumably, as it was locked and the key was not there. That safe wasforced open on the 26th November in the course of further search for thewill. Search was also made at Wewala Estate on the 27th Novemberand at the Maradana office of Samarakone Brothers on the 29th November.Not until the 30th November did it dawn on Mr. Ameresekere that thewill was in the safe in his office, whereupon he immediately wentthere and obtained the will and gave it to the Public Trustee, who on the2nd December, 1954, as stated earlier, filed it in the District Court ofColombo and applied for probate of it. He also applied for an order ofCourt under section 29 (1) of the Public Trustee Ordinance (Cap. 73)directing him to ooliect and take possession of the estate of the deceased,which order issued on 4th December, 1954. In pursuance of the orderthe Public Trustee went on the 6th December to take possession of thedeceased’s Pamankade residence but found the gates barred against him.This situation continued until the 23rd December, 1954, when the PublicTrustee was informed by some of the heirs of the deceased who were in
WEERASOORIYA, J.—Samarakone v. The Public Trustee
111
occupation of the Pamankade house that he or his representative couldcall over and make an inventory of the articles which were there.Accordingly, Mr. Selvanayagam, an officer from the Public Trustee’sDepartment went there on the 30th December and was met by the appel-lant,-who in the course of conversation, directed the attention ofMr. Selvanayagam to a writing desk in the office room on which the tele-phone was placed the drawers of which, the appellant said, may containpapers belonging to the deceased. The drawers were secured by meansof a flap which was fixed to one side of them. The flap was locked, butas there was no key that fitted the lock, the appellant forced open the flapwith a screw driver. In the top drawer were found among come otherpapers the letters PI, P2 and P3, and in a separate envelope, the will Y.
If Y is a forgery, as the District Judge has held, and it was fabricatedafter the deceased died, a drawer of the writing desk may well have beenregarded by those responsible for the fabrication as a suitable place fordepositing Y, because it did not occur to Mr. Ameresekere, or the PublicTrustee cr any of the other officers of his department, to examine thedrawers of this desk between the 22nd and the 30th November, 1954,which had remained locked throughout that period.
I think that the circumstances leading to the discovery of Y on the30th December, 1954, as stated in the preceding paragraph, are such as toexcite suspicion. This suspicion is in no way allayed when one considerscertain other matters connected with the alleged drafting and execution ofY. No satisfactory answer is forthcoming to the question as to why thedeceased did not get the will attested by Mr. Ameresekere. Seeing thatMr. Ameresekere is appointed a co-executor under the will, it is not opento the appellant to make much of the suggestion (to which I have alreadyreferred) that the deceased was at the time displeased withMr. Ameresekere. The learned Distrct Judge has expressed the view thatthose responsible for Y anticipated this obvious question when theyappointed Mr. Ameresekere a co-executor under it, and I think that thereis much to be Eaid for that view. Mr. Ameresekere said that he “ wouldbe the last man to become an executor of a willIt seems unlikely that
tb» deceased would have appointed him as such without having firstascertained that he was willing to accept the appointment.
Another question that'arises is why the deceased should have employedMr. Tudugalle in particular to attest the will Y. The reason putforward bythe appellant for the deceased having done so is that Tudugalle had alsoattested the earlier will 5R1, which the deceased is alleged to haveexecuted in 1942. This is a plausible reason which, if accepted, may go fartowards proving that Y is not'a fabrication. The District Judge has,therefore, rightly regarded 5R1 as a very important document in thecase. The evidence of Mr. Tudugalle is that the proctor who drafted thewill for the deceased was Mr. Weerasooria, but that as some of the bene-ficiaries under it were related to Mr. Weerasooria (he and DavidSamarakone, the brother of ihe deceased, are said to have married twosisters) he was reluctant to attest it and requested Mr. Tudugalle to do so.
112
WEERASOORIYA, J.—Barmrakona v. The Public Trustee
Mr. Tudugalie admitted that at the time he was in the thToes ofhis insolvency case. Allegations of fraud ware being made against himin that case, The District Judge was not prepared to believe thatMr. Weerasooria would have been so unmindful of the deceased’s interestsas to entrust the attestation of an important document like 5R1 toMr. Tudugalie who, he must have known, was under a cloud at the time.The only person who has given evidence that Mr. Weerasooria signed 5R1as a witness is Mr. Tudugalle. In signing his name Mr. Weerasooriaappears to have mis-spelt it and then corrected the error, which, accordingto the view of the learned District Judge, was an unlikely thing forMr. Weerasooria to have done.
The purported signature of Mr. Weerasooria on 5R1 has been comparedby the handwriting expert, Mr. Nagendram, with the signatures on thedocuments 3R.4 to 3R.23, which are motions admittedly signed byMr. Weerasooria and filed in D. C. Colombo (Guardian) Case No. 3826 in1942 and 1943. Enlargements of these signatures appear in P25.Mr. Nagendram has expressed the opinion that the signature “ D. E.Weerasooria ” on 5R1 is completely different from, and not even animitation of, the signatures on 3R4 to 3R23.
The purported signature of the deceased on 5R1 has been comparedby Mr. Nagendram with, the signatures of the deceased (identified as suchby Mr. Ameresekere) appearing on the documents Pll to P19, P26/1-25,X and 5R8. He has expressed the opinion that the signature on 5R1was not signed by the person who signed as “ D. S. W. Samarakone ”on Pll to P19, P26/1-25, X and 5R8. On a comparison of the docu-ments Y, Y1 (which is the protocol of Y) 5R3,5R4, oRo, with Pll to P 19P26/1-25, X and 5R8, Mr. Nagendram has also expressed the opinionthat the signature “ D. S. W. Samarakone ” on each of the documents Y,Yl, 5R3, 5R4 and 5Pv5, was not written by the person who signed assuch the documents Pll to PI9 and P26/1-25, and that there were simila-rities in the signature “ D. S. W. Samarakone ” on 5Rl, 5R3, R54and 5R5.
In regard to 5R1, there is yet another circumstance which appears tocontain an element of suspicion. Apart from X, Mr. Ameresekere hasattested two other wills fox the deceased, the earlier of which is No. 2652of the 1st August, 1935. It has not been produced in. these proceedingsbut is referred to in the latex will, which is Pll, dated the 17th March,1947. 5R1, if genuine, would have been executed between the executionof will No. 2652 and Pll. Clause 1 of Pll reads : “ I hereby revoke allLast Wills, Testaments, Codicils and Writings of a Testamentary natureheretofore made by me and in particular, Last Will No. 2652 dated the1st August, 1935 attested, by S. R. Ameresekere of Colombo, NotaryPublic, and declare this to be my Last Will and Testament. ” It will beseen that the last will particularly revoked is No. 2652, and not 5R1.Clause 1 of Pll is in the usual form which Mr. Ameresekere seems tohave adopted in the wills attested by him for the revocation of previousinstruments of a testamentary nature. There is a general revocation of all
v.WBERASOORIYA, J.—Samarctkone v. The Public Trustee113
such previous instruments, coupled with a particular revocation of the lastof them in point of time. See also clause 1 of X and clause 1 of P7. Oneexplanation for the fact that in clause 1 of PI 1 there is particular referenceto will No. 2652, and not to 5R1, may be that no such document as 5R1had been executed by the deceased. The other explanation is that in-drafting PU Mr. Ameresekere did not specially ascertain from the de-ceased whether he had executed any last will subsequent to No. 2652,and, being unaware of the existence of 5R1, had assumed that No. 2652was the most recent of the deceased’s wills. It is, perhaps, unfortunatethat Mr. Ameresekere was not questioned on the point when he was in thewitness-box. On the other hand, the deceased has been described as acareful and methodical man. It is very unlikely, therefore, that he wouldnot have scrutinised the several clauses in Pll, both in draft as well as inthe form in which he signed it. If he had previously executed 5R1,would it not have struck him that clause 1 of Pll contained an error inthat particular mention is made of will No. 2652 and not of 5R1, andwould he then not have requested Mr. Ameresekere to rectify it, even ifMr. Ameresekere had not, in the first instance, questioned him regardingthe matter ?
In the course of the cross-examination of Mr. Tudugalle on the subjectof the alleged execution of Y by the deceased, the following evidence givenby him may appear significant in view of his assertion that in 1942 heattested the signature of the deceased on 5R1 :—
“ Q : You have not seen the deceased sign before ?
A : I have seen him sign before. I have seen him sign papers whenI go there.
Q : All that you have seen him sign are papers, that is letters that aretyped and left there for him to sign ?
A: Yes.
Q : You have not seen him sign any other documents ?
A : No. This is the first formal document which I saw him sign
Two documents which require to be considered as pointing to theauthenticity of 5R1 and Y are the returns 5R6 and 5R7 for the months ofSeptember, 1942, and June, 1954, respectively, sent by Mr. Tudugalle tothe Registrar of Lands under section 30 (25) (a) of the Notaries Ordinance.5R1 bears the number 338 and is dated the 17th September, 1942. Thereturn 5R6 shows the execution of such an instrument. Likewise the return6R7 shows the execution of a will bearing the number and date of Y. But,as pointed out by the learned District Judge, in the case of a will the nameof the testator or other particulars relating to the instrument are not givenin the return, and it is, therefore, possible for a dishonest notary, withoutrunning a serious risk of detection, to give to a subsequently fabricatedwill the number and date of a will appearing in a previous return.
1HWEERASQ0RIYA, J.—Samara}bona a. Th* Public Trxulw
The reasons for the opinions expressed by Mr, Nagendram in regard tothe signature “ I). S, W. Samarakone ” on Y, Yl, 5B1, 5R3, 5fU and 5B5,the signature " 3D. M. Weastaeootie.19 on SRI, ere fully set out in his evi-dence, wMeh was subjected to a close cross-examination by learned counselfor the appellant. In order to illustrate the points made by him in hisevidence Mr. Nagendram produced photographic enlargements (P10, P20,P21, P21a, P22, P23, P24 and P27) of the signature “ D. S. W.Samarakone ” on some of the impugned documents and those used forpurposes of comparison.
Sir Lalita Rajapakse made no attempt to canvass the validity of thereasons given by Mr. Nagendram for the opinions expressed by him, buton this aspect of the case be contented himself with making certain legalsubmissions, one of which is that the District Judge attached too muchimportance to the evidence of the handwriting expert and accepted hisopinions too readily, and that in doing so he acted contrary to theprinciples laid down in Soysa v. Sanmugam 1 and Mendis v. Jayasuriya 2as to the manner in which expert evidence relating to the identity of hand-writing should be considered by a Court and the value to be attaohed tosuch evidence.
But, if I may say so with respect, some of the dicta in the two cases citedabove appear to go too far in that they unduly minimise the value of expertevidence relating to the identity of genuineness of handwriting ; and Iwould prefer to accept the following observations of my brother Sinnetam byin the recent case of Q-ratiaen Perera v. The Queen 3 as setting out morecorrectly the manner in which such evidence should be regarded by aCourt of law :—
“ I think the modern view is to accept the expert’s testimony if thereis some other evidence, direct or circumstantial, which tends to show thatthe conclusion reached by the expert is correct; provided, of course,the Court, independently of the expert’s opinion, but withhis assistance, is able to conclude that the writing is a forgery. ”
Prom a perusal of that portion of the judgment of the District Judgewhich deals with the evidence of Mr. Nagendram it does not appear to me,therefore, that the complaint of learned counsel in regard to the mannerin which that evidence was made use of by the Judge has beensubstantiated, for, after a discussion of certain of the reasons given bythe expert for the conclusions reached by him, the judgment proceeds asfollows : “ There are many other reasons set out in this evidence fromwhich, after a comparison of the signature on Y with genuine signatures,Mr. Nagendram concludes that the person who signed Y was not thedeceased, and further that it was that parson who also signed 5R1, 5R3,5R4 and 5R5.
His opinion corroborates the inferences that I have drawn from theother evidence discussed above. ”
1 (1901) 10 Lt S. 366.* (1932) 12 O. L. Rtc. it.
• (1960) 61 N. L. 3. 622.
WEERASOORIYA, J-—Samarakone v. The Public Trustee
113
Another submission of Sir Lalita Rajapakse was that, at least in regardto the question whether Mr. D. E. Weerasooria had signed 5R1, the DistrictJudge reached a conclusion adverse to the appellant chiefly on the basis ofa comparison which he himself made between the purported signature ofMr. Weerasooria on 5R1 and his admitted signatures on the documents3R4 to 3R23 ; and that the adoption of such a course was deprecated inCoder Saibo v. Ahamadu 1. But in that case the District Judge hadformed an opinion that a certain document was a forgery on a comparisonmade by him, unaided by an expert, of the signature on it with the genuinestandards that had been produced. In the present case the Judge hadbefore him the opinion expressed by the expert regarding the purportedsignature of Mr. Weerasooria on 5R1 and the reasons for that opinion.I do not think that the Judge was precluded from himself making com-parisons between the impugned signature on 5R1 and the signatures on3R4 to 3R23 and the photographic enlargements, P25, for the purpose ofdeciding whether the reasons given by the expert were acceptable or not.Indeed, it was incumbent on the Judge to make these comparisons in thecircumstances of this case. The fact that the learned Judge has expressedhimself somewhat strongly—perhaps too strongly—that 5R1 is a forgeryshould not, I think, be taken as an indication that he regarded himself ascompetent to form an opinion on the question of handwriting indepen-dently of what the expert may have stated.
The opinions expressed by Mr. Nagendram in regard to the impugnedsignatures, uncontradicted as they are by any other expert, are such that,in my view, they add to the tally of suspicious features to which I havealready referred in regard to 5R1 and Y.
As held by Lindley, L.J., in Tyrell v. Painton a, where there are featureswhich excite suspicion in regard to a will, whatever their nature may be,it is for those who propound it to remove such suspicion. Suspiciousfeatures may be a ground for refusing probate even where the evidencewhich casts suspicion on the will, though it suggests fraud, is not of such anature as to justify the Court in arriving at a definite finding of baud.It has also been stated that the conscience of the Court must be satisfiedin respect of such matters. These principles have been applied in severallocal cases, such as The Alim, Will Case (supia), John Pieris et al. v.Wilbert3 and MeenadchypiUai v. Karthigesu4. Of the suspicious featuresin the present case it is impossible for us to say that the appellant hassucceeded in removing them.
I have yet to deal with certain matters which Sir Lalita Rajapakseplaced at the forefront of his submissions when arguing this appeal.He complained that grave prejudice was caused to the appellant by, whathe contended were, the entirely unfounded suspicions with which thePublic Trustee viewed the will Y from the very day of its discovery onthe 30th December, 1954, and by the manner in which that will came to beforwarded to the District Court. Learned counsel drew attention to thefact that the Public Trustee had on his own responsibility sent Y and
1 (1948) 50 N. L. R. 303.3 (1956) 59 N. L. R. 245.
1 (1894) P. 151.4 (1957) 61 N. L. R. 320.
116
Petera it. Mathew
certain other documents containing the deceased’s signature to theGovernment handwriting expert for a report whether the signature “ D. S.W. Samar&kone ” on ¥ was that of the deceased; and, having received anegative answer from the expert, he produced Y in Court on the 20thJanuary, 1955, along with an application setting out, inter alia, the circum-stances in which Y was found, the reasons why he considered it necessaryto send Y to the Government handwriting expert for a report (which wasalso forwarded to Court) and praying foi a direction of the Court whetherthe will Y should be regarded as the genuine last will of the deceased andas revoking the will X (the application for the probate of which was thenpending) and also for an order that the will Y be impounded in Court.
In regard to the direction applied for, the District Judge informed thePublic Trustee that he " should decide as to what he proposes to do inthe matter No objection was taken by Sir Lalita Rajapakse to thisreply, but he submitted that the order which the District Judge made thatthe will Y be impounded and kept in the safe indicated that the Judge hadalready formed an opinion that Y was probably a forgery, and that inview of that order and the circumstances preceding the making of it, theDistrict Judge should not have heard the subsequent inquiry that tookplace into the genuineness of it. In my opinion, there is no substance inthese submissions. I am satisfied that none of the matters complained ofby Sir Lalita Rajapakse could have made any difference to the impartialconsideration of this case at the hands of the learned District Judge.
The appeal fails and is dismissed with costs payable to the PublicTrustee and the other respondents who were represented at the hearing ofit.
N. G. Fernando, J.—I agree.
Appeal dismissed.