SANJI PARARAJASINGHAM AND ANOTHER vs. DEVI PARARAJASINGHAM

031-SLLR-SLLR-2006-V-1-SANJI-PARARAJASINGHAM-AND-ANOTHER-vs.-DEVI-PARARAJASINGHAM.pdf


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SANJI PARARAJASINGHAM AND ANOTHERVS.DEVI PARARAJASINGHAMSUPREME COURTBANDARANAYAKE, J.
UDALAGAMA, J ANDFERNANDO. J.
SC(APPEAL)No. 74/2002CA No. 353/1999DC MT. LAVINIA No. 738/98TWITH
SC(APPEAL) No. 75/2002
CA No. 352/1999
DC MT. LAVINIA No. 707/97/T
15TH JUNE, 2005 AND 19TH AND 20TH JULY, 2005
Last will – Revocation by second marriage – Prevention of Frauds Ordinance,section 6 – Whether “subsequent marriage’ in section 6 includes a secondmarriage of the testator – Interpretation of statutes.
Muthiah Pararajasingham died on 02.11.1997, his first marriage to oneAsoka having been dissolved in July 1993. There were two children by the firstmarriage Sanji and Vinoji (appellants). On 24.08.1990 Muthiah made his last
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will making Sanji the sole heir and one Devi Pararajasingham (respondent)the executor.
The appellant Sanji complained to the District Court (Case No. 738/98A")that the executor(the respondent) failed to take steps to administer the estateand sought an order that the appellant (Sanji) was the sole heir to the estate.The respondent whom the deceased had married after making his will appliedto the District Court (Case No. 707/97/T) for letters of administration on a claimof 1/2 share of the estate to herself and 1/2 share to Sanji and Vinoji on thebasis that the deceased had died without leaving a last. will.
The District Judge appointed the respondent as the administrator of theestate of the deceased. The Court of Appeal affirmed it by dismissing anappeal by Sanji relying on section 6 of the Prevention of Frauds Ordinance andthe judgment in Mary Nona vs. Edward de Silva (50 NLR 73) which held that awill is revoked, inter alia, by a subsequent or second marriage of the testator,in terms of section 6 of the Prevention of Frauds Ordinance.
HELD:
The decision of the Court of Appeal was correct and the contrary viewexpressed in Johannes Muppu (SCC Vol. II No. 4,14) was obiter.
The plain and grammatical meaning of “subsequent marriage” insection 6 of the Prevention of Frauds Ordinance will include a secondmarriage of the testator for revoking a last will.
Per BANDARANAYAKE, J.“The words of a statute must prima facie be given their ordinarymeaning”
Court cannot alter the plain and clear meaning of the statute. Thecourt must administer it leaving it to the Legislature to give effect to itsintention or supposed intention.
Cases referred to:
Ludwig v Ludwig 2M 449
Shearer v. Shearer’s Executors (1911) CPD 813
Johannes Muppu SCC Vol II No 4, 14
Mary Nona v. Edward de Silva (1948) 50 NLR 73
Re Estate Koshen (1940) 2SR 174
Mudanayake v Sivanagasunderam (1931) 53 NLR 25
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Fernando v Perera (1932) 25 NLR 197
Sallis and another v. Jones 1936 Probate Division 43
Re Mainland Lloyds Bank Ltd. v. Mainland (1939) All ER 148
Miller v Solomons (1852) Exch 560
Nolon v Clifford 1 CLR 453
APPEAL from the judgment of the Court of Appeal
Rohan Sahabandu for appellants in SC No. 74/2002 and SC No. 75/2002
A. R. Surendran, P. C. with K. V. S. Ganesharajan and Nadarajan Kandeepanfor respondent in SC No. 74/2002 and for respondent in SC No. 75/2002
Cur. adv.vult.
October 14, 2005SHIRANI BANDARANAYAKE. J.
These are appeals from the judgment of the Court of Appeal dated31.05.2002. By that judgment the Court of Appeal affirmed the decision ofthe District Court dated 31.12.1998 and dismissed the appeal. Thepetitioner-appellant-appellant in S. C (Appeal) No. 74/2002 and respondents-appellants-appellants in S. C. (Appeal) No. 75/2002 (hereinafter referredto as the appellant)appealed to this Court where special leave to appealwas granted.
The facts of this appeal, albeit brief are as follows:
The appellant is a dauther of one Muthiah Pararajasingham, who hadpassed away on 02.10.1997. The appellant has a sister, Vinoji who is the2nd respondent-appellant-appellant in S. C. (Appeal) No. 75/2002(hereinafter referred to as Vinoji). The late Pararajasingham was earliermarried to one Asoka Wickramasinghe and they were divorced in July1993. During that marriage the appellant and Vinoji were born. The saidPararajasingham had executed his last will on 24.08.1990 appointing theappellant as his sole heir and appointing one Nithyalakshmi DeviPararajasingham, the respondent-respondent-respondent in S.C.(Appeal)74/2002 and petitioner-respondent-respondent in S. C. (Apeal)No. 75/2002 (hereinafter referred to as the respondent), as the Executor.Later the said deceased had married the respondent. According to the appellant,the said Executor had not taken steps to have the estate adminstered.The appellant had therefore petitioned the District Court and sought an
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order of court that the appellant is the sole heir to the Estate of the deceased(Case No. 738/98/T-S. C. (Appeal) No. 74/2002). Thereafter the respondentNithyalakshmi Devi Pararajasingham, the second wife of the late MuthiahPararajasingham and the step mother of the appellant had filed papers inthe District Court of Mr. Lavinia (Case No. 707/97/T-S.C.(Appeal) No. 75/2002) seeking an order to administer the property, claiming 1/2 share ofthe Estate of the deceased and the other 1/2 share to be given to theappellant and Vinoji, the two daughers of the deceased, on the basis thatthe deceased died without leaving a last will.
The appellant had objected to the said application of the respondent onthe basis that the deceased in terms of his last will had bequeathed hisEstate to the appellant as his sole heir.
The District Court considered both cases (Case No. 707/97/T and CaseNo. 738/98/T) together with one judgment binding the other and on31.12.1998 dismissed Case No. 738/98/T and appointed the respondentNithyalakshmi Devi Pararajasingham as the administrator of the Estate ofthe deceased on the basis that the last will was revoked by the subsequentmarriage of the Testator, which position was confirmed by the Court ofAppeal.
Both Counsel agree that the only question involved in this appeal is toconsider the meaning that should be given to section 6 of the Prevention ofFrauds Ordinance in order to decide whether the last will of the Testatorwas revoked by his subsequent marriage. They also agreed that bothcases could be considered together with one judgment binding the other.
Learned Counsel for the appellant strenuously argued that in terms ofSection 6 of the Prevention of Frauds Ordinance, there was no revocationof the impugned will by the marriage of the Testator to the respondent. Hisposition was that although ordinarily a last wi!! could be revoked by asubsequent marriage of the Testator by virtue of section 6 of the Preventionof Frauds Ordinance, this rule would be applicable only where an unmarriedperson contracts a marriage for the first time. Accordingly learned Counselfor the appellant submitted that the said provision would not be applicablein a situation where a person had married for the second time.
Section 6 of the Prevention of Frauds Ordinance is in the followingterms:
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“No will, testament or codicil or any part thereof shall berevoked otherwise than by the marriage of the testator ortestatrix or by another will, testament or codicil executed inmanner herein before required, or by some writing declaringan intention to revoke the same and executed in the mannerin which a will, testament or codicil is herein before requiredto be executed or by the burning, tearing or otherwisedestroying the same by the testator of testatrix or by someperson in his or her presence and by his or her directionwith the intention of revoking the same.”
The contention of the learned Counsel for the appellant is that under theRoman Dutch Law, the Testator’s second marriage will not have the effectof revoking his will and therefore section 6 of the Prevention of FraudsOrdinance should be construed in the light of the principles laid down inRoman Dutch Law. In support of his contention learned Counsel for theappellant relied on the decisions in Ludwig v Ludwig <’> and Shearer vShearer’s Executory where it was held that a will was not revoked orinvalidated by a subsequent change in the Testator’s circmustances.
He also referred to the writings of Wilte in Principles of South AfricanLaw, where he had stated that ‘a will cannot be revoked by the subsequentmarriage of the Testator’ and the opinion expressed by R. W. Lee in hisTreatise on Roman Dutch Law, where he had stated that 'a will cannot berevoked by the subsequent marriage of the testator’.
The contention of the learned Counse' for the appellant is that, thewords in section 6 of the Prevention of Frauds Ordinance is clear and if thelaw before the said Ordinance came into effect, was the Roman DutchLaw, it is quite evident that it is only an unmarried person’s will could berevoked by a marriage subsequent to the execution of a will. Therefore hesubmitted that there is no ambiguity relating to the meaning of the wordsin the relevant section and that the specific words in the Ordinance whichis “the marriage’ is diferent from the word ‘subsequent marriage’.
Learned Counsel for the appellant drew our attention to the observationsof Stewart, J. in Johannes Muppul3) and the decision in Mary Nona v.Edward de silva(4) and submitted that the Court of Appeal had relied onthe decision in Mary Nona (Supra). His posi‘ion was that, the observationsmade by Stewart, J., that the subsequent marriage of a surviving spousewould not revoked a will, is the better view out of the two different positionstaken in the aforementioned decisions.
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Having said that let me now turn to consider the first limb of thesubmission of the learned Counsel for the appellant that under the RomanDutch Law, the Testator’s second marriage subsequent to the executionof a will, shall not have the effect of revoking it. In other words learnedCounsel for the appellant’s position is that the word ‘marriage’ in section 6of the Prevention of Frauds Ordinance should be construed to refer only tofirst marriage and not to any other valid marriage the testator would haveentered thereafter.
R. W. Lee considering the methods of revocation of wills and legacies(An Introduction to Roman Dutch Law, 5th Edition, Clarendon Press, Oxford,at pg. 342) had stated that, in the modem law, in the absence of statutoryprovisions, ‘ the revocation of a will based on a marriage cannot beassessed as pointed out by Van der Linden, as it could vary. In his words:
“Van der Linden says that a will is revoked by subsequentmarriage forilowed by birth of issue. But the statement wantsauthority, and it does not appear that in the modern law, inthe absence of statutory provision, a will is revoked eitherby marriage alone or by marriage followed by birth of issue.
In Natal a will is generally revoked by marriage, unlessexpressed to be made in view of a contemplated marriage,or made in exercise of a power of appointment which doesnot affect the interest of the heirs ab intestato; but no jointwill is revoked by the marriage of the surviving spouse.”
it is thus clear that Van der Linden’s observations had not reached anyfinality and more importantly that Lee had not accepted Van de Linden’sversion on a will been revoked by a subsequent marriage followed by thebirth of a child. Moreover, none of these statements are authorities, whichproclaimed that only the first marriage of the Testator would revoke a previouswill and that there is no such revocation when there is a subsequentmarriage.
Learned President’s Counsel for the respondent, referring to the decisionin Johannes Muppu’s case (Supra) rightly submitted that even assumingwithout in any manner conceding that section 6 of the Prevention of FraudsOrdinance, should be read in the light of the Roman Dutch Law principles,there is no warrant for the appellants contention that section 6 should be
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construed as being applicable only to the first marriage of the Testator, inas much as the Roman Dutch Law only refers to revocation of wills by asubsequent marriage producing issues and not to any principle wherebyrevocation of a prior will is postulated only by the first marriage of theTestator. In support of his contention learned President’s Counsel for therespondent referred to the observations made by Stewart, J. in JohannesMuppu’s case (Supra). Referring to the words in section 5 of Ordinance,
No. 7 of 1840, that ‘no willshall be revoked otherwise than by the
marriage of the “testator or testatrix or by another will’, Stewart, J., observedthat,
“probably the grammatical and logical equivalent of the words”no will shall be revoked otherwise than by the marriage ofthe ‘testaror or testatrix” may be taken, rendered intoaffirmative language, as enacting’ that every will shall berevoked by the marriage of the testaror or testatrix’.”
Having said that, Stewart, J. further proceeded to observe that therewas no occasion for the purposes of Johannes Muppu's case (Supra) todetermine definitively whether the terms of section 5 of Ordinance No. 7 of1840 are sufficiently adequate to abrogate the Roman Dutch Law. In Stewart,J.’swords,
“ But as will be seen hereafter, there is no occasion for thepurposes of the present case to determine definitively whether theterms of the 5th section are sufficiently express to abrogate theRoman Dutch Law, according to which the person should not onlybe married when the will was made, bu; the subsequent marraigeshould be followed by issue to render the prior will void.”
In the light of the aforementioned, it is evident that although Stewart, J.,referred to the principles of Roman Dutch Law, which are applicble mainlyto joint wills and with regard to the application when there is a subsequentmarriage, he did not proceed to make any determination regarding theapplicability and the effect of any such principle on section 6 of thePrevention of Frauds Ordinance. On the contrary,Stewart, J., has madereference to the English Common Law in Johannes Muppu’s case (Supraand his reasoning had been solely on that basis. Consequently, the decisionby Stewart, J., in Johannes Muppu (Supra) cannot be taken as a bindingauthority in construing the provision in section 6 of the Prevention of Frauds
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Ordinance, which deals with the revocation of a will by a subsequentmarriage.
Learned President’s Counsel for the respondent, drew our attention tothe decision in Re Estate Koshen(s). This decision in my view, suggestsan interesting point. In that matter the Testator was a Muslim whocontracted two marriages by Islamic Rites; both of which were in terms ofIslamic Law potentially polygamous. His first wife died in 1930 and in 1932he had made a will which contained three (3) beneficiaries, namely his twosons and a nephew. In 1933 the testator married his second wife and hada large family by her. He died in 1954. The question arose as to the validityof his will made in 1932. Hathorn, j., considering that the case relates onlyto the succesion of property and that it also falls within the principles ofMehta’s case, held that the Testator’s marriage in 1933 was a marriagewithin the meaning of section 7 of the Deceased Estates Succession Actand in the absence of an endorsement as is described in that section thatmarriage renders null and void the will made by the testator in 1932.
This decision, thus clearly emphasises the fact that, priority had beenplaced for the governing provisions laid down in statutes and dueconsideration had been given to such provisions in interpreting the questionof the revocation of a will based on a subsequent marriage.
It is also pertinent to note, both Hathorn, J., and R. W. Lee have beenspecific that consideration should be given to relevant statutary provisionsin deciding the validity of a will executed prior to a second marriage of theTestator.
In such circumstances, the question arises as to whether there is anynecessity to consider the position which prevailed under the Roman DutchLaw, despite that being our common law, where there are specific statutoryprovisions which govern the question under consideration.
It is common ground that express provision has been made under thePrevention of Frauds Ordinance on revocation of a will. Accordingly, anysuch principle of Roman Dutch Law concerned with revocation of a willhas been superseded by the express provisions contained in the Preventionof Frauds Ordinance. In the absence of any doubt or ambiguity, there areno means for the appellant to rely on principles governed by Roman DutchLaw, to be applied in their favour.
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Referring to principles of interpretation, Sutherland (StatutoryConstruction, 3rd Edition, Vol. II, pg. 310) stated quite clearly that,
“where the words of an Act of Parliament are clear, there isno room for applying any of these principles of interpretation,which are merely presumptions, in cases of ambiguity inthe statute.”
Maxwell has confirmed this position by stating that it is not allowable tointerpret what has no need of interpretation (Interpretation of Statutes,10th Edition, pg. 4.). Stating that the ordinary and natural meaning to beadhered to in the first instance, Bindra had categorically stated that,
“The words of a statute must prima fade be given their ordinarymeaning. Where the grammatical construction is clear andmanifest and without doubt, that construction ought to prevailunless there be some strong and obvious reason to thecontrary.
When there is no ambiguity in the words, there is no room
for constructionNo single argument has more weight
in statutory interpretation than the plain meaning of the word.
‘If the meaning of the language be plain and clear, we havenothing to do, but to obey it – to administer it as we findit,observed Pollock CB in Millerv Salomons. If the languageof statute is clear and unambiguous, the court must giveeffect to it and it has no right to extend its operation in orderto carry out the real or supposed intention of the legislature(Interpretation of Statutes, 9th Edition, Bullerworths, pp 394-395)”
This position has been accepted by our Courts in several decisions.For instance in Mudanayake v Sivagnanasunderam(6) it was held that‘when the language of a statute speaks clearly for itself it is not permittedto rely on extraneous evidence in support of an interpretation, which thewords of the statute do not warrant’.
It is thus evident that, when the language of a statute is clear and hasno ambiguities, there is no provision for this Court to refer to any othermaterial in view of giving a different interpretation. The only role for the
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Court, when there is no ambiguity in the language and when it is plain andclear, is to do nothing, but to simply give effect to the statutory provision.It is thereby clear that the Court has no power to add any words to statutoryprovision which is clear, plain and unambiguous. The contention of thelearned Counsel for the appellant is that, the words, ‘the marriage’ insection 6 of the Prevention of Frauds Ordinance lays emphasis on‘marriage’. Learned Counsel submitted that ‘THE’ is a functional word toindicate that following a noun or a noun equivalent is definite or has beenpreviously specified by context or by circumstances.The resulting positionof the submission of the learned Counsel for the appellant in other termswould be to interpolate the word first’ between the words the’ and ‘marriage’in section 6 of the Prevention of Frauds Ordinance to read as by the ‘first’marraige.
It has been stated time and again as referred to earlier, that when thereis no ambiguity in the words in a statute there is no room for construction,if the language of a statute is clear and unambiguous, Courts must giveeffect to the words so stated in the statute, without attempting to obtainthe intention of the legislature. Moreover when the language is clear andmeaningful there is no authority for the Court to add to the language of astatute. This position was cosidered by Jayawardene, A. J. in Fernando vPereraW where it was held that,
“Courts have no power to add to the language of a statuteunless the language as it stands is meaningless or leads toan absurdity.”
It is thus evident that in view of the unambiguous language of section 6of the Prevention of Frauds Ordinance there is no necessity for interpretingthat section in terms of the Roman Dutch Law.
Having said that let me now turn to examine the meaning given in section6 of the Prevention of Frauds Ordinance in a situation where there is asecond marriage after Testator had executed his last will.
The second limb of the contention of the learned Counsel for the appellantwas that the court of Appeal should have followed the observationsof Stewart, J., in Johannes MuppUs case (Supra) and not thedecision in Mary Nona v Edward de Silva (Supra). Learned Counsel’s
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position was that the better view was of Stewart, J. in Johannes Muppu(supra) and not what was expressed by then Supreme Court in Mary Nonav. Edward de Silva (Supra).
In Johannes Muppu (supra) a husband and wife executed a joint willdisposing of their common property. The wife died and the husband marriedfor the second time. It was in evidence that after the first wife’s death thehusband executed conveyances of portions of the property dealt with bythe joint will to legatees under the will. The husband afterwards died leavingheirs surviving his second wife. An executor of the joint will having appliedfor probate after the husband’s death,the application was opposed by thesecond wife, who contended that the joint will was revoked by the secondmarriage.
The Court held that the husband had adiated the inheritance under thejoint will and that, that being so, the joint will was not revoked by thehusband’s subsequent marriage. It was further held that the provisions ofclause 5 of Ordinance No. 7 of 1840, with respect to the revocation of willsby subsequent marriage of the Testator’s not to apply to the case of thejoint wills made by spouses married before the passing of the Ordinance.
It is to be borne in mind that in Johannes Muppu’s case (Supra) thequestion was based on the validity of a joint will and Stewart, J., took theview that the said will is irrevocable in view of the husband adiating the in-heritance. In such circumstances there was no necessity for Stewart, J.to consider the application and scope of section 6 of the Prevention ofFrauds Ordinance and thereby his position became obiter dictum andcould not have been taken as authority on the applicability of section 6.
In Johannes Muppu'scase(Supra), Stewart, J., had considered the issuein hand on the basis of the corresponding statutory provisions in the EnglishStatute, namely section 18 of the Wills Act and came to the conclusionthat the will of the Testator is revoked only when a testator marries for thefirst time. Section 18 of the Wills Act states that, ~
“Every will made by a man or woman shall be revoked byhis or her marriage”
Section 18 of the Wills Act had been considered by several Englishdecisions where it has been stated that the Testator’s second marriage
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would revoke a will executed prior to the marriage. Considering this positionlearned President's Counsel for the respondent cited SallisandAnotherv.Jones<8) where the Testator who was a widower, by his will executed inJune 1927 appointed his two daughters his executrices. He married hissecond wife in Novemebr 1927. In the final sentence of his will the Testatorhad declared that ‘this will is made in contemplation of marriage.’ After hisdeath in 1936, testamentary proceedings for the grant of probate wereinstituted by his daughters on the basis of his will executed inJune 1927;the second wife resisted the application contending that in terms of section18 of the Wills Act, the said will was revoked by the testator’s marriage toher and that thereafter the testator died intestate.
Section 177 of the Law of Property Act of 1925, excluded the operationof section 18 of the Wills Act, if the will was made before a marriage isexpressed to be made in contemplation of a particular marriage and isfollowed by the solemnization of that marriage. However, in Sallis’s caseBennett, J., was of the view that, for the operation of section 177 of theLaw of Property Act, the will should contain ‘something more than adeclaration containing a reference to marriage generally’. Therefore Bennett,J., was of the view that the case had to be decided in terms of section 18of the Wills Act and it was held that the will in question was revoked by thesubsequent marriage of the deceased.
In Re Gilligan (deceased) the court had to consider the scope ofsection 18 of the Wills Act of 1837. The court while considering the purposeand effect of section 18 stated that the section provided that wills shall berevoked by subsequent marriage and more importantly was of the viewthat ‘the event which the section contemplates is the re-marriage of aperson who has made a will and the circumstances in which a will somade shall be revoked by such subsequent marriage.’
In Re Mainland, Lloyds Bank Ltd., v Mainland(9) the Testaror hadexecuted a will prior to entering into his second marriage. After his secondmarriage he had executed another will. Considering the validity of the willLord Greene, M. R. was of the view that,
“Section 18 provides that a will shall be revoked by marriage.
Here revocation takes place, not by virtue of some action ofthe testator directed to the revocation of the will, but as
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a collateral consequence, imposed by law, of an action
performed alio intuituunder section 18, where revocation
follows as a matter of law, whether or not the testator wishesit”.
The English Wills Act has no direct relevance to the matter in issue.However, the purpose of citing English authorities was for the reason thatas correctly pointed out by learned President’s Counsel for the respondent,Stewart,J., in his judgment in Johannes Muppu (Supra) had referred tosection 18 of the Wills Act in the process of determining whether thesubsequent marriage of Johannes Muppu had revoked the will executedprior to his second marriage.
All these decisions therefore clearly indicate that section 18 of theWills Act provides without any doubt that a will which had been executedprior to a second marriage would be revoked as a result of that marriage.In such circumstances, the view taken by Stewart, J„ in Johannes Muppu’scase (Supra) that in terms of section 18 of the Wills Act, the will of thetestator is revoked only when a testator married for the first time cannot beaccepted. Having given consideration to that decision I am not in agreementwith the view taken by the learned Counsel for the appellant that the Courtof Appeal should have followed the observations of Stewart, J„ in JohannesMuppu’s case (Supra).
Learned President’s Counsel for the respondent on the other handrelied on the decision of Mary Nona v Edward de silva (Supra) decided bythe Supreme Court in 1948, which had clearly disagreed with the viewexpressed by Stewart, J. in Johannes Muppu (Supra).
In Mary Nona’s case, the question arose in relation to a joint will madeby one Charles de Silva and his wife Elizabeth in 1921 .By clause A, bothmovable and immovable property belonging to both of them were given toone Margaret, a daugher of Charles by a previous marriage. Clause Bwent on to state that if Charles was the survivor he would be entitledabsolutely to all the property belonging to the joint estate, and that ifElizabeth was the survior she would be entitled to the control of all theproperty and to enjoy the rest and profits thereof, but that Elizabeth wouldnot be at liberty to sell or dispose of that property. Charles died in 1922and after Charles’s death Elizabeth contracted a marriage with oneWarakaulle who died in 1938 leaving Elizabeth considerable property.Elizabeth died in 1943. Considering the question whether the secondmarriage contracted by Elizabeth had revoked her will, Wijeyewardene, A.
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C. J., clearly stated that the second marriage she had entered into hadresulted in revoking her last will. Expressing his view, Wijeyewardene, A.C. J. further stated that,
“It was contended by Mr. H. V. Perera that section 6 of thePrevention of Frauds Ordinance, did not have the effect ofinvalidating a will of a married person by reason of a secondmarriage subsequent to the execution of the will, and herelied on the opinion expressed by Stewart, J., in Re theestate of K. D. Johannes Muppu (1879) 2 Supreme CourtCircular 14. That opinion was an obiter dictum, as it wasnot necessary for Stewart, J., to consider section 6 in viewof the definite decision reached by him that the last will inthat case had become irrevocable, since the testator andtestatrix there had massed their estates and the survivingtestator had adiated the inheritance. With due respect tothe learned Judge, I find myself compelled to disagreewith the view expressed by him as to the scope ofsection 6 (empahsis added)”.
Learned Counsel for the appellant submitted quite strenuously that, inMary Nona v Edward de Silva (Supra), although the Supreme Courtdecided that the opinion of Stewart,J.,in Johannes Muppu (Supra)was obiterand cannot be agreed upon, that there was no analysis of section 6 of thePrevention of Frauds Ordinance and that there was no comparison withother authorities like in Stewart, J.’s judgment.
It would not be correct to state that in Mary Nona’s case, (Supra) theCourt had not given due consideration to the applicability of section 6 ofthe Prevention of Frauds Ordinance or to applicable case law. The Courthad examined the issue in question and had referred to Johannes Muppu’sCase (Supra) as a decision relied on by the Counsel. After considering thesubmissions of the Counsel and the said decision, Court had held that theopinion of Stewart, J. was an obiter dictum. It appears that JohannesMuppu was the only authority available on the subject and therefore itwould not have been possible for the Court to have considered any otherjudgment, decided by our Courts.
Also if I may reiterate, when there is no ambiguity in a specific provisionthere will not be any necessity for any sort of construction. Pollock C. B.
, in Miller v Solomons m quite clearly stated that,
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“If the language used by the legislature be clear and plain, wehave-nothing to do with its policy or impolicy its justice or injustice,or even its, ‘absurdity’, its being framed according to our views ofright or the contrary, we have nothing to do but to obey it, andadminister it as we find it; and I think to take a different course isto abandon the office of judge and assume that of a legislator(emphasis added)”.
A similar view was expressed by Connor, J. in Nolon v Cliford(u) whenit was specifically stated that,
“The first and most important rule in the construction ofstatutes is to give effect to words according to their grammaticalmeaning. If that meaning is clear, then, whether an alteration ismade in the common law or the statute law or not, and whetherof a serious character or not, is of no moment, effect must begiven to the words the legislature has used.”
Considering the aforementioned position it is abundantly clear that thewords given in section 6 of the Prevention of frauds Ordinance withreference to the phrase ‘by the marriage of the testator or testatrix’conveys the meaning of more than one marriage of the Testator or theTestatrix and has not restricted itself only to the first marriage of the Testatoror the Testatrix. In such circumstances, out of the two decisions, whichconsidered the effect of the said provision, I am of the view that theobservation of Wijeyewardene A.C. J., in Mary Nona v Edward de Silva(supra) represents the correct position of the scope and applicability ofsection 6 of the Prevention of Frauds Ordinance that a will could be revokedby the second marriage of the Testator subsequent to the execution of thewill.
For the aforementioned reasons, I answer the issue in the affirmativeand state that the last will made by the Testator, namely the deceasedMuthiah Pararajasingham, was revoked on his subsequent marriage.
I accordingly dismiss the appeal and affirm the judgment of the Court ofApeal dated 31.05.2002.
There will be no costs.
UDALAGAMA, J., — I agree.
FERANDO, J., — I agree.
Appeal dismissed.