109-NLR-NLR-V-55-RALIYA-UMMA-Appellant-and-MOHAMED-et-al.-Respondents.pdf
GRATIAEN A.C.J.—Raliya XJmina v. Mohamed
385
1954Present: Gratiaen A.C.J. and Gunasekara J.
RAT,TV A TTMMA, Appellant, and MOHAMEDet al., Respondents
S. C. 133—D. C. Galle (Testy.) 8,434
Will—Loss of original document—Presumption of destruction by testator—Protocol—Not a duplicate—Prevention of Frauds Ordinance, s. 6—Evidence Ordinance,s. 114.
If a will is shown to have been, in the testator’s possession, and is not forth-coming at his death, it is presumed to have been destroyed by him animorevocandi. The presumption is applicable even where the missing documentis a joint will.
The protocol preserved by the attesting Notary under the provisions of theNotaries Ordinance cannot be regarded as an original document capable assuch of being propounded.
J/^~PT>TnAT, from a judgment of the District Court, Galle.
H. V. Perera, Q.C., with M. I. M. Haniffa, for the appellant.
S. Nadesan, with M. Rafeek, for the respondent.
Cur. adv. vult.
February 19, 1954. Gratiaen A.C.J.—
Abdul Mohamed Kafee died on 2nd October, 1951, and the appellant,who is his widow, made an application to administer his estate underthe terms of a notarially-attested joint will which they had admittedlyexecuted on 21st May, 1949. The original of the will could not- beproduced, and the deceased’s brother objected to probate. He reliedon the presumption that the will had been destroyed animo revocandi,and asked instead for letters of administration on the footing of anintestacy..
It is common ground that after the will had been executed and attested,it was handed to the deceased and placed by him in an iron safe whichwas in his bedroom. He kept the key of the safe, although it may beaccepted as true that the appellant herself had access to it froifi time totime.
If a will is shown to have been in the testator’s possession, and is notforthcoming at Ins death, it is presumed to have been destroyed by himanimo revocandi.—Atapattuv. Jayawardena h “Whether this should becalled a presumption of law or of fact does not seem material ”—perLord Davey in Allen v. Morrison 2. In Ceylon, the correct view, I shouldimagine, is that it is a presumption based on, the provisions of section114 of the Evidence Ordinance.
1 {1921) 22 N. L. R. 497.z (IQQO) A. O. 604,
17-LV''‘ “ ’
2*1111 J. N. 3 35993—1,590 (5/54)
386
GRATIAEN A.C.J.—Raliya Urnma v. Mohamed
The learned Judge expressly rejected that part of the appellant’sevidence, which, if true, would have established that the disappearanceof the will did not take place until after her husband’s death'. I see noreason for disturbing this finding of fact, and am therefore satisfied thatthe learned Judge properly applied the presumption relied on by therespondent, because the allegation that the respondent was given thekey of the safe in connection with the funeral arrangements has beendisbelieved. As the appellant herself did not destroy the will, the onlyperson who could have done so during the testator’s lifetime was thetestator himself. The alternative theory of a fraudulent abstractionby the respondent after the testator died must be ruled out. I alsoaccept the conclusion that the appellant has failed to rebut this presump-tion. No general rule can be laid down as to the nature of the evidencerequired to rebut such a presumption, and each particular case must bedetermined on the strength of the evidence laid before the Court which(whenever the presumption applies) must refuse probate unless it is“ morally convinced that the will was not destroyed by the testatoranimo cancellendi ”—ex parte Slade1.
It has been suggested for our consideration (1) that there is no roomfor applying the presumption where the missing document is a jointwill and (2) that in any event the protocol preserved by the attestingnotary under the provisions of the Notaries Ordinance ought to beregarded as an original document capable as such of being propounded.
I am unable to accept either proposition. A joint will, although it iscontained in a single document, operates in truth as the separate wills ofboth executants (unless it purports to be the will of the first-dying only)—Steyn on Wills p. 11. It can be revoked unilaterally by either executant,in so far as his own part of the will is concerned, by any mode of revocation(including destruction animo revocandi) recognised by section 6 of thePrevention of Frauds Ordinance. If, therefore, the original joint willwas traced to the possession of the first-dying executant during hislifetime but cannot be discovered after his death, there is room forapplying the presumption that he was the person responsible for itsdestruction.
As to the argument concerning the protocol, I concede that a testatormay, for greater security, execute his will in duplicate—either retainingboth instruments himself, or retaining one and committing the other tothe custody of someone else. In such cases, the disappearance of theduplicate retained by the testator would give rise to “ various gradationsof presumption ” according to the circumstances of the particular case—Jarman on Wills {8th Ed.) pp. 168—169. But a protocol is not a duplicatein that sense, for it is intended only to serve as a formal authenticatedrecord of the transaction in which the notary concerned had been pro-fessionally employed. Under our law, it is not an original documentbut only a copy of one.
I would dismiss the appeal with costs,
J,—I agree..
Appeal dismissed.
» {1922) T, P. D. 220,