136-NLR-NLR-V-39-RAJASURIAR-v.-RAJASURIAR-et-al.pdf
494
HBARNE J—Rajasuriam v. Rajasuriar.
1937Present: Maartensz and Hearne JJ.
RAJASURIAR v. RAJASURIAR et al.
119—D. C. Jaffna, 256.
TV-ill—Onus of proof in case of suspicion—Statements made by the testatrixregarding the disposition of property—Admissibility—Evidence Ordi-nance, ss. 14 and 32.
Where, on an application for probate, suspicion attaches to a will aCourt should not pronounqe in favour of it unless the suspicion is-removedand the Court is judicially satisfied that the paper propounded doesexpress the true will of the deceased.
Statements made by a testatrix shortly after the execution of her willto the effect that she had given all her property to her child are admissibleunder section 14 of the Evidence- Ordinance.
PPEAL from an order of the District judge of Jaffna
F. A. Hayley, K C. (with him P. Navaratnaraja), for appellant.
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and T. K. Curtis),fpr second and third respondents.
Cur. adv. vult.
October 27, 1937^ ''Hearne J.—
The petitioner propounded the document marked P 2 as the last willof his deceased daughter, and probate Was refused on the finding of theJudge that the deceased was not aware of the contents and nature of thewill when she set her signature to it. He held that it was the intentionof the testatrix to bequeath her property to her minor son with :a lifeinterest to her parents and by implication that the disposition of her
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HE ARNE J.—Rajasuriat v. Rajasuriar.
property, according to the tenor of P 2, "to her son and father andmother ” was contrary to the instruction she gave the Notary whodrafted P 2.
The onus of proving a will lies upon the party who propounds it. Thecanons of proof vary according as the will is a reasonable and naturalone or the reverse. *• Where a suspicion attaches to a will, a Court mustbe vigilant and jealous in examining the evidence in support of theinstrument, in favour of which it ought not to pronounce unless thesuspicion is removed, and it is judicially satisfied that the paper pro-pounded does express the true will of the deceased. ” In thesecircumstances the person propounding a will must, as it is said, “ satisfythe conscience of the Court” not only that a testator was in such a stateof mind as to be able to authorize, and to know that he was authorizing,the execution of a document as his will, .but also that he knew andapproved of the contents of the document.
In regard to the first point I agree with the Judge that the will was thereverse of reasonable and natural. I endorse the reasons he gives insupport of his view and it is unnecessary to reiterate them here. Clearlythe petitioner appreciated the unreasonableness of the bequest to him aridhis wife of two-thirds of the testatrix’s estate and it was undoubtedly forthis reason that he stressed, if it is true, the unhappy relations existingbetween the testatrix and her husband. But- as the Judge correctlypointed out this part of his evidence was irrelevant. Even assuming thetestatrix was on bad terms with her husband this-is no reason for divertingfrom her only child who, according to the evidence, was very dear to her,two-thirds of . her disposable estate to her aged parents.
In regard to the second point the circumstances were such as mostproperly awakened the vigilanpe of the Court. Two-thirds of the propertyaccording to P 2, would become the property of the testatrix’s father andmother and their heir was a yoiing man who was married to the daughterof the Notary who prepared P 2. P 2 is alleged to have been read andapproved by the testatrix before the witnesses .to her signature came intoher sick room. The persons who gave evidence to this effect were thepetitioner and the Notary both of whom are interested parties and thesister-in-law of the petitioner who may have been prevailed upon to givefalse testamony. After the witnesses to the execution of the “ will ”had been brought in one copy is alleged to have been read by the Nc*arywhile the other is stated to have been in the hands of Dr. Mills, butDr. Mills, who was one of the witnesses, and Mr. Swaminathan, who wasthe other, deny this. Much has been said to cas£ doubt on the veracityof Dr. Mills and Mr. Swaminathan but on a review of the whole case, andtaking Mr. Hayley’s objections into consideration, I think that the Judgewas entitled to believe them in regard to the circumstances preceding theexecution of P 2. A point was made of the fact that it was not suggested-to the Notary in cross-examination that he had failed to carry out thetestatrix’s instructions. This is true but it must not be . given anexaggerated importance. The Notary had deposed to the reading cf thewill in the presence of the testatrix. The object of this evidence was toshow that he had carried out her instructions, for had he no' done svvhewould not have dared read P 2 in the presence of the testatrix with
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HEARNE J.—Rajasuriar v. Rajasuriar.
Dr. Mills in a position to verify what he was reading. On this mostimportant point he was strongly attacked in cross-examination, and theevidence of Dr. Mills and Mr. Swaminathan which the Judge believednegatived his evidence.
Although no comment is made by the Judge on this aspect of the caseI do not understand why the will was not executed on February 7.According to the Notary when he was at the hospital on the 7th thetestatrix “ pressed me to get her signature that day ” and he adds, s“ ifthe witnesses were there I should have attested the will that day itselfSurely two witnesses could have been found in a large private hospital ?The doctor in charge and the nurses were available. But he did not havethe will executed. He came back three days later. This was a long timefor the engrossment of a simple will and although he is a Notary it wasnot till he went to the hospital on February 10, that “he thought ofwitnesses”. The petitioner, however, had seen to-the matter. He hadspoken to Mr. Swaminathan the previous day and the Notary brought inDr. Mills. The activity of the petitioner of which one is consciousthroughout the evidence is not one of the least suspicious elements in thecase. He knew of the ^dispositions beforehand, he was present at theexecution, he had read P 2 before it was “ shown to' and read by ” thetestatrix, he was present when the Notary received his instructions, hehad “ volunteered to ask Mr. Swaminathan to sign as a witness ”, hekept the. will and finally he was in some unexplained way responsible, touse his own word, for the “ commotion ” oh February 7 which frustratedthe testatrix’s desire to complete the execution of her will on that day.
It is unfortunate that the Rev. Mr. Selvaratnam was not a witness. Hisevidence might have rendered less obscure the happenings on the.7th.
On the other -hand what has been stressed by Mr. Hayley is the activityof Dr. Chelliah, the brother of the testatrix’s husband. His interest,however, has this to commend it. It is disinterested. Nothing isclaimed by him or his brother. Their case is that the testatrix’s intentionwere that her parents were to receive a life-interest only and her son the .entire property. There can be no doubt that his suspicions regardingthe integrity of the Notary were roused and according to the findings ofthe Judge he was justified in his suspicions.
A point of law arose but it was not pressed. . The testatrix is alleged tohave referred to the will she had executed after its execution. Accordingto the evidence of her night nurse whose impartiality has not beenseriously impugned the testatrix told her she had “ given all her propertyto her child ”. • Dr. Chelliah’s evidence is that she told him “ she hadwritten everything in favour of the‘child”, while A. R. Paul'and thehusband say she said she had bequeathed her property to her childsubject to a life interest in favour of her parents. It is possible that shedid not give full details of her “ will ” to the nurse and Dr. Chelliah forreasons which it would be futile to conjecture. The question is whetherher declarations, according to these witnesses, that she had bequeathedall her property to her child are admissible in evidence. In Doe v. Hardy Littledale J. thought the declaration of the testator were admissible toshow his- intentions where the defence was either fraud, circumvention or
. } M.ik Rob. 525,
HEARNE J.—Rajasuriar v. Rajasuriar.
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forgery. In the present case fraud is alleged. In Ceylon we are governedby our own Evidence Ordinance. Are these declarations admissibleunder this Ordinance? It has been argued that statements of deceasedpersons can only be proved under section 32 of the Ordinance the pro-visions of which are inapplicable in the present case. Illustration (m) tosection 14 appears to me to be an answer to this. “ The question is,what was the state of A’s health at the time when an insurance on hislife was effected. Statements made by A as to the state of his health' ator near the time in question are relevant facts ”. This illustrationfollows English Law. The case of Aveson v. Lord Kinnaird and others ’was an action by the husband upon a policy of insurance on the life of hiswife. It was held “that declarations made by the wife when lying inbed apparently ill, stating the bad state of her health at the period of hergoing to M (whither she went a few days before in order to be examinedby a surgeon, and to get a certificate from him of good health preparatoryto making the insurance) …. are admissible in evidence to showher own opinion, who best knew the fact, of the ill state of her health atthe time of effecting the policy …. ”. It is in accordance with
English law that whenever the mental feeling of an individual is materialthe expression of such feeling made at the time in question may beproved. “ If it is the natural language of the affection it furnishessatisfactory evidence and often the only evidence of its existence. Thequestion whether it was feigned or real is for the Jury to determine.”So under section 14 of our Ordinance the declarations of the testatrix are,in my opinion, admissible as statements from which it could be inferredthat a particular state of mind which gave validity to a particular physicalact (the signing of P 2) did or did not accompany the doing of that act.
I now turn to R 1 and P 9. Shortly after the “ will ” was executedthe husband paid a visit to the deceased “ when there appears ” as theJudge remarks “ to have been an incident between the husband and thepetitioner ”. After the husband had returned to Point Pedro where hewas stationed the deceased wrote to him. In the letter occur these words“Do not take seriously the behaviour of the foolish old man- ….
I did not write anything in such a foolish way. Will I do anything toharm my child? Everything can be done when I come there ”. Thehusband’s letter to his wife contains these sentences. “ I warned you' tobe careful. You have done good to the daughter of Sinnathamper (he is4 the Notary) by signing away happily (?) to do harm afterwards to thechild. You did not understand what you did. ^ You wrote
and gave to your father to please him ”. These quotations are trans-lations from Tamil and it is possible that they may have lost some of themeaning intended or have gained some unintended force in the process oftranslation. The Judge who is himself a Tamil gentleman and whowould therefore be able to read the originals does not appear to haveattached much significance to them. It has, however, been pressed uponus that they indicate that the testatrix had told her husband that she hadgiven her property to her child and her parents, and that his letter andthe visit of Dr. Chelliah show a determination on the part of the husbandand Dr .'.Chelliah to induce her to make another will.
1 6 Bast. 188.
498
Perera v. Soysa.
I do not think that the testatrix’s letter to her husband necessarilybears this construction. If she had told him, as he says she told him,that she had left her property to her child with a life-interest to herparents she would be quite capable of saying that she had not doneanything to harm the child and that, if this had been done by giving alife-interest to her parents, the will could be altered after she had recoveredand returned to him. The husband’s reply was undoubtedly one he had.written in resentment. Away from his influence his wife had made awill the effect of which would be to exclude him even from the manage-ment of the property during the minority of his son! In this frame ofmind it is quite possible that he would have suggested that the childmight be harmed and the petitioner’s son and the latter’s wife benefitedby the petitioner having a life-interest. It is true the husband’s answersat page 107 of the typescript are unhappily worded. They may havesuffered in translation. I do not, however, think his letter can be regardedas conclusive of knowledge on his part that his wife had left her propertyto her child and her parents.
In my opinion the Judge was right in refusing probate. The appli-cation for probate of P 2 in its entirety was the only application beforehim, and I would dismiss the appeal with costs. It would, I think, bein the interest of the child if the Public Trustee intervened in this matterand I understand from Mr. Perera that such a course would commenditself to the father of the child. On intestacy the entire property of thetestatrix would devolve on the child and this, I think, would be in accord-
ance with her wishes.
Maartensz J.—I agree.
Appeal dismissed.