SINNAPODIAN v. MUTTAN et al

092-NLR-NLR-V-38-SINNAPODIAN-v.-MUTTAN–et-al.pdf


410
Sinnapodian v. Muttan.
Present: Akbar S.P.J. and Koch J.
SINNAPODIAN v. MUTTAN et al.
144—D. C. Jaffna, 8,484.
Last will—Testamentary capacity—Minority of testator—Burden of proof—Wills Ordinance, No. 21 of 1844, ss. 1 and 2.
Where the validity of a last will is contested on the ground of theminority of the testator the burden of proving that the testator was offull age is on the person propounding the will.
T
HIS was an application for probate of the last will and testamentof one Ratnam in which he had bequeathed all his property to
■his father the petitioner, respondent. The respondents, who are unclesof the deceased, opposed the grant on the ground that the deceased wasa minor at the time he made the will. The learned District Judge afterhearing evidence held that in case of doubt the Court should presumein favour of majority.
R.L. Pereira, K.C. (with him N. Kumarasingham), for respondents,appellants.—The burden of proving testamentary capacity is alwaysori the propounder of the will. See Smee v. Smee Capacity includesage also. Under our law a will made by a person who is under 21 yearsof age is not valid. (Section 2 of Ordinance No. 21 of 1844). A personmust be competent to make the will—see section 1 of Ordinance No; 21of 1844. If the testator is not competent, the document cannot havein law the force of a will. In English law minority is dealt with as anincapacity—see Halsbury, vol. 28, Art. 1048; British & Empire Digest,vol. 44. The burden of proof is on the propounder. ("Woodroffe &Ameer Ali on Evidence (8th ed.), p. 733.) Krishnamachariar v. Krishna-•machariars is a case in point. See also Bhagirathi v. Viswanath
1 5 P. D. 84.* 11915) I. L. R. 38 Madras 166.1 7 Bomb. 92
AKBAR S.P.J.—Sinnapodian v. Muttan.
411
,‘In this citse neither the birth of Ratnam nor the death of MudalyWas registered. The certificates of registration would have been therfest evidence to prove these facts. Where a Statute casts a duty on aperson and penalizes the nonperformance of that duty the presumptionis that the provisions of the law have been complied with. The Regis-tration of Births and Deaths Ordinance casts such a duty and containssuch penal provisions. Proof of age otherwise than by the productionof the certificate of registration of birth requires very strong and cogentevidence. A horoscope cannot supply such proof nor a motor cardriving licence.
H. V. Perera, for petitioner, respondent.—The law applicable to theproof of a will is contained in section 524 of the Civil Procedure Code.All heirs will be cited as respondents. All that the propounder has to dois to place before the Court evidence “ proving that the will was dulyexecuted according to law ”, i.e., according to the formalities that havebeen prescribed by law. If minority is pleaded the party pleading it mustprove it, in the same way as, where undue influence is alleged the partyalleging it must prove it. See Hutley v. Grimstone', North v. North %Riding v. Hawkins’. The petitioner has discharged the burden on himby proving due execution under section 524 of the Civil Procedure Code.
R.L. Pereira, K.C., in reply.—What is to be proved is not merelydue execution, but execution according to law. Under our law a willmade by a minor is invalid and a document will not be considered a willin law unless the person who made it was competent to make it. Thepropounder must affirmatively establish the “ testamentary competency ”of the testator.
Cur. adv. vult.
May 29, 1936. Akbah S.P.J.—
The appellants who are the uncles on the mother’s side of the deceased,.
S.Ratnam alias Swakin, objected to the issue to the respondent (fatherof the deceased) of probate of the will of the deceased, in which Ratnamhad bequeathed all his lands to his father. If not for the will theproperties would have devolved on the brothers of the deceased’s deadmother Seethavy as the lands were her dowry property. The groundof objection was that the deceased was under 21 at the time he madethe will.
Under section 1 of Ordinance No. 21 of 1844 it is lawful for everyperson competent to make a will to devise, bequeath, and dispose of bywill all his properties to any person he likes. By section 2 no will madeby a male person under 21 shall be valid. The result of sections 1 and 2is that a person under 21 is to be deemed to be incompetent to makea will. According to the petitioner-respondent the deceased was bornon November 25, 1910, but no birth certificate was produced. As thewill was made on September 14, 1932, the deceased would be 22 yearsof age on November 25, 1932, and the will would be valid. The appellantson the other hand produced a birth certificate of a person called Mudaly,a son of the petitioner-respondent by Seethavy, in which the date ofbirth is given as August 16, 1912. The first appellant gave evidence,
1 SP. D. 24.» 25 T. L. R. 322.* 14 P. D. 56
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AKBAR S.P.J.—Sinnapodian v. Mutton.
•which was supported by the Police Vidane of Mallakam, that thiscertificate referred to the deceased and that the peitioner had only twochildren by Seethavy, namely, Ratnam alias Mudaly and a daughterwhose name is given in the birth certificate as Parky (R 5) who wasbom on October 26, 1921, and died on December 4, 1922 (R 3). Thename of this girl given in the death certificate is S. Pakiam. Accordingto the first appellant’s evidence Mudaly was usually called by the nameRetnam, just as Parky became to be called Pakiam. This evidencewas countered by the petitioner in this way. He stated that he hadtwo sons Ratnam and Mudaly and that Mudaly died within a month ofhis birth, but he produced no death certificate of Mudaly to corroboratehis evidence. The net result of petitioner’s evidence is that he has notproduced the birth certificate of his alleged eldest son Ratnam nor thedeath certificate of his alleged second son Mudaly. He has, however,called an astrologer to prove that he prepared a horoscope of the peti-tioner’s son Ratnam in which the date of birth is given as November 24,1910, and ola leaves of the horoscope have been produced.
The petitioner also produced a motor car driver’s certificate issuedto the deceased in the Federated Malay States on October 4, 1930, inwhich deceased stated he was 20 years. The will was made on September14, 1932, and was attested by K. V. Sinnathurai, Notary Public. OnOctober 3, 1932, the deceased signed a mortgage bond together withhis father before another Notary in favour of the fourth respondent,another uncle of the deceased. On the same day the deceased sold a landto one M. Murugesan for Rs. 100. These deeds P 5 and P 6 have beenput in evidence on behalf of the peitioner. The District Judge makesa point of the fact that only two of the four uncles have opposed theissue of probate. But it will be seen that it was to the interest of thefourth .respondent not to oppose probate as he had already committedhimself to the document P 5. As regards the other uncle Nagan accordingto petitioner’s petition dated July, 1935, Nagan died 1£ years ago aboutthe end of 1933 and his heirs were substituted in this case. So thatNagan was not alive to enable him to participate in this inquiry whichbegan by the filing of petitioner’s petition on January 2, 1934. Thepetitioner further stated that he was intimate with Seethavy beforemarriage and that when a marriage was proposed P 1 dated January23, 1910, was executed by the parents of Seethavy in her favour. Healso said that he insisted on a dowry deed after the marriage, whenSeethavy was pregnant of Ratnam, that he left his wife owing to therefusal of Seethavy’s parents to execute a dowry deed and that two or threemonths after Ratnam was bom the dowry deed P 2 (January 1, 1911)was executed. It will thus be seen that the evidence was well-balancedand the decision of the question of fact was beset with many difficulties.
Unfortunately the District Judge has not discussed the evidence givenby the witnesses but has contented himself by saying that he thinksthe balance of evidence would tend to show that the deceased was amajor. This sentence is immediately preceded by the following : —
“ I think in a case like this where the will is contested only on the groundthat the deceased was not a major at that time and if there is any doubtwhether the deceased was a major or not, I think the benefit of thedoubt should be on the side of the majority.”
KOCH J.—Sinnapodian v. Mutton.
413
The judgment of the District Judge was seriously affected by hisview that in case of doubt whether deceased was a major or not thebenefit of doubt should be in favour of majority. The question thatI have to decide is whether this view of the law was right, for if theDistrict Judge was wrong it is clear to my mind that he would havegiven judgment in favour of the appellants. A case exactly in pointis the case of Krishnamachariar v. Krishnamachariar1 in which boththe Chief Justice and Mr. Justice Tyabji were of opinion that where thedefence alleged minority as invalidating a will, the onus is on the partysetting up the will to show that the person who made the will was offull age when he made it. Both the Judges could see no reason why therule governing testamentary incapacity by reason of mental deficiencyshould not apply when the defence alleged is testamentary incapacityby reason of minority. Although this Indian case is not binding on me,I can see no reason why I should not follow it. Our Wills Ordinancestates that a person competent to make a will may leave his propertyto anyone and the same Ordinance says that a will made by a personunder 21 is invalid. This can only mean, in my opinion, that a personunder 21 is not competent to make a will and that therefore minorshave no testamentary capacity or “ testamentary competency ” in thewords of Bertram C.J. in Andrado v. Silva". Apart from the fact thatthe District Judge has wrongly misdirected himself on the law on thisquestion of burden of proof, the evidence when read carefully convincesme that the petitioner-respondent has failed to discharge the burdenwhich was on him. The driving licence proves nothing, as most youngmen are anxious to overstate their age for the purpose of getting thelicence. I may mention one fact. R 2, the death certificate of thedeceased, gave his age as 21 on his date of death, i.e., May 5, 1933, andthe informant was the petitioner. If the petitioner knew that his sonwas born on November 24, 1910, as he had his son’s horoscope with himwhy did he give his age as 21, which would fix his date of birth as May,1912 ? The learned District Judge has not considered this point andhe has gone wrong in his view that only two of the uncles have opposedthe will. And he has ignored the evidence of the Police Vidane. Iwould set aside the order of the District Judge and allow the appealwith costs here and the Court below.
Koch J.—
I am in entire agreement with my brother’s observations and hisdecision on the evidence in this case but I should wish to be permittedto briefly express my own reflections on the very important question oflaw that has arisen on this appeal. So far as I am aware, there is nolocal authority on the point. The learned District Judge would appearto have been of opinion that there is a presumption in favour of themajority of an executant of a will in proceedings in which such a willis sought to be proved. I do not agree. The Wills Ordinance, No. 21of 1844, in section 1 says that “ it ■ shall be lawful for every personcompetent to make a will to devise, bequeath, and dispose of by will
1 {1915) I. L. B. 38 Madras 166.
* 22 N. L. R. 4.
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KOCH J.—Sinnapodian v. Muttan.
all property and, &c. ”, and in the next section it says that “ No willmade by any male under the age of 21 years …. shall be valid. ”
It would follow, generally speaking, that the propounder who producesa will in Court and seeks probate of it should satisfy the Court that thewill has been made by a “ person competent to make it ”, unless there isanything in the context of the Ordinance to the contrary. There isnothing that I can so find that would lead me to infer that this is not anecessary element which has to be established before probate is granted.For example, take the hypothetical case of no respondent to the pro-ceedings appearing, will the Court be justified in granting probate withoutsatisfying itself in regard to the competency of the testator to make atestamentary disposition ? Is it not the duty of the Court, before holdingthe will proved, to ascertain whether it is a legal will, i.e., valid in law ?For otherwise, its order may deprive the intestate heir of his legal rights.
I do not sympathize with the argument that the intestate heir will undersection 524 of the Civil Procedure Code be necessarily made a partyand he will thereby be afforded the opportunity of disproving thecompetency of the testator. No doubt he would ex facie have thisopportunity but I am not so sure that in reality every intestate heirwill necessarily be before the Court. Section 524 only requires thepropounder to set out in his petition “ the heirs of the deceased tothe best of his knowledge ”. Further, one can conceive of a case wherethe sole intestate heir is an infant of tender years and his guardian ad litemmay be acting collusively with the propounder, for the guardian personallywill have nothing to lose thereby.
Chapter XXXVIII, of the Civil Procedure Code sets out the procedurefor proof of a will. I have already referred to section 524 but I wouldwish in this connection to refer to the last paragraph of that section,which is to the effect that the propounder should place before the Courtevidence “proving that the will was duly executed according to law”.Mr. H. V. Perera submitted that these words confined the proof to theact of actual execution, i.e., that the formalities that have been prescribedby law as to the actual act of execution only should be established, viz.,the attestation by and in the presence of a notary and two witnessesor by and in the presence of five witnesses and, &c., I am not so surethat the position is so clear as all that, although I quite appreciate thereasonableness of the argument. The words are, firstly, “proving thewill”. The document produced therefore must be a “a will ”, that is tosay, it must be the act of a competent person, for otherwise, under theWills Ordinance, No. 21 of 1844, it is not a will although it may purportin form to-be one. Secondly, the words continue “was duly executedaccording to law ”. The words are not merely “ was duly executed”but “was duly executed according to law”. The Ordinance I havejust referred to says that according to law what purports to be a willis not a valid will if executed by a minor, ie., is not a will in the eye ofthe law, so that the counter argument may well be that a Court before itholds the wfill proved has, under section 524, to satisfy itself not onlyin regard to the actual act of execution but also in regard to its beingin law what it purports to be, i.e., a will. So much for the help the CivilProcedure Code renders us.
KOCH J.—Sinnapodian v. Mutton.
415
In English law I find that Halsbury as well as Jarman and The EmpireDigest in treating with this matter under the head of “TestamentaryCapacity ”—which is the same as “ competency to make a will ” asdescribed by our Ordinance—groups minority with unsoundness of mindand other incapacities, and Halsbury, in vol. 28, Art 1048, thus expressesthe position: —
“Generally speaking, the law presumes sanity, and no evidence isrequired to prove the testator’s sanity if not impeached. When,however, it is impeached and the whole case is before the Court onevidence, the Court must pronounce against the validity of the willunless the evidence on the whole is sufficient to establish affirmatively- that the testator was of sound mind at the time of execution. ”
He depends on ample authority for this proposition. While Halsburycan in reason say that the law presumes sanity, it cannot with equalforce be said that the law presumes majority, but however this may be,the law would appear to be that in case the question of sanity arises andthe matter is before the Court the propounder must affirmatively establishthat the testator was of sound mind at the time of execution.
Applying the principle to what I consider is a stronger case, viz.,a case in which the “ majority ” of the executant is impeached, I havelittle hesitation in saying that the “ majority ” has to be affirmativelyestablished by the propounder and that is the case before us.
In probate suits in England the party on whom the onus lies beginsand it has been held that the party propounding a will begins if eitherits validity or the competency of the testator be impeached (Smee v.Smee’), but if these points are admitted and fraud, undue influence,subsequent revocation and, &c., be pleaded, the party so pleding begins(Hutley v. Grimstone*, North v. North*, Riding v. Hawkins*).
Mr. R. L. Pereira referred us to the Indian law and instanced the caseof Krishnamachariar v. Krishnamachariar*. Tyabji J. expresses himselfthus : “ In my view of this case, however, this circumstance ought notto affect our decision because I think that it is for the applicant in probateproceedings to prove that the testator was competent to make the willwhich is propounded While White C.J. says, “ So in view of whatI have said, if it is necessary to decide this matter, I should be stronglyinclined to hold that once the defence of minority is set up, it is for theparty propounding the will to prove that the alleged testator was a manof full age. ” This decision again bears out the general principle—putting the case at its lowest—that in proceedings in which the capacityof the testator is impeached, it is for the propounder to affirmativelyestablish the competency of the maker of the will sought to be proved.
I agree with my brother that had the learned District Judge a clearconception of this rule of law his decision might in every probability*have been in favour of the appeal.
The appeal will be allowed with costs in both Courts.
> 5 P.D. 84.3 5 P.D. 24.
s 38 Madras 166.
25 T. L. B. 322.
14 P. D. 56.