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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, Sept. 5,19i0and Mr. Justice Middleton.
Applicationfor recallof probate—Summaryprocedure—Civil Procedure
Code, ss. 536 and 537—Proof in solemn form and in common form.
Wherean ordernisi declaring a willproved has been made
absoluteandprobategranted,anapplication forthe recall of
probatecannot bemade in the summary manner indicated by
section537,CivilProcedureCode. Thepersonattacking the
will must bring anaction forthepurposein theordinary manner
■ and must prove his case.
Our Legislature has not adopted the English practice of proof in.common.form and in solemn form.
Thedirection insection 537 that allapplications for recall of
probateshallbe inaparticularwayappliesonly tothe applications
which are authorized by section 536.
HE facts are fully set out by the Chief Justice in his judgment
as follows :—This is an appeal by the widow of the late P. S.Tissera against an order dated April 12, 1910, that the will of thesaid P. S. Tissera and M. Dona Simona Gunatilleke Hamine (the
In re the Last Will of Tissera Appuhamy.
TISSERA et al. v. GUNATILLEKA HAMINE.
D. 0., Kalutara, 258.
* (1X95 2 N. T. »..?/?.
» 11SS5 3 N. L. R. 79.
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Sept, s, 1910 appellant) be declared a forgery, and that the probate issued inTieeera vcase be recalled, unless sufficient cause be shown to the contrary
OunaMeke on April 27.
Hamine Tissera died on October 19, 1900, leaving the appellant his widow.
On January 22, 1901, she applied to the District Court for probateof his will, supporting her application by an affidavit sworn by heron January 17, 1901, in which she swore that he duly executed hislast will jointly with her, dated January 23, 1900, and that his heirswere herself, one daughter by his first marriage, and six childrenby her; that all the children were minors; and that she had noreason to suppose that her application would be opposed by any one.She also filed another affidavit, sworn on January 17, 1901, by allthe five attesting witnesses, proving the due execution of the will.
On January 22, 1901, an order nisi was made; it orders that thewill be declared proved, unless any person shall on or before a certaindate show sufficient cause to the contrary. The Court directedthe order nisi to be advertised as required by section 532 of theCivil Procedure Code; this was done; and on April 4, 1901, it wasordered that the order nisi be made absolute, and probate of thewill was issued to the appellant. She filed her inventory on June 28,1901, and her final account on March 13, 1902, when the Courtdeclared the estate closed. Then on March 21, 1910, the present-respondent, who is the daughter of Tissera by his first wife, appliedto the Court for an order nisi on the appellant to show cause why..the probate should not be recalled and the will declared a forgery.In support of her application she filed an affidavit, sworn by herthe same day, in which she stated that she was a minor at the timeof commencement of the testamentary proceedings, and was notaware of them, and was under the appellant until she married aboutfive months ago; and that she believes that the will was not the actand deed of her father, but was forged by the appellant. Uponthe strength of this affidavit the District Court made the ordernow under appeal.
Sampayo, K.O., for the appellant.—It is only where probate ofa last will has been issued on any order absolute in the first instancethat the summary procedure indicated by section 537, CivilProcedure Code, may be availed of for the recall of the probate.In this case the District Judge ordered the order nisi to beadvertised in the Gazette.
Seneviratna, for the respondents;—The application for probatedid not name any respondents. The minors were not representedby guardians when application for probate was made. Theadvertising in the Gazette can in no sense be termed a notice to theminors. The probate must, therefore, be deemed to have beenissued on an order absolute in the first instance. Under the EnglishLaw proof of a will may be in common form or in solemn form.
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Where a will has been proved in common form, the executor may at Sept. 6*1910any time within thirty years be compelled to prove it per testes in Tieserav.solemn form. Probate granted on an order absolute in the firstinstance is proof in common form. The present application by wayof summary procedure for the recall of probate is therefore regular.
Cut. adv. vult.
September 5, 1910. Hutchinson C.J.—
His Lordship, after setting out the facts, continued as follows:—
The learned Judge says that the section of the Code relied on bythe petitioner (the present respondent) contemplates a case such asthis. The section appears from the journal entries to have beensection 537, which, however, says nothing as to the oases in whichan application for recall of probate can be made, The respondent'scounsel at first contended before us that section 536 applied, andthat the order granting probate was “ an order absolute in the firstinstance, " which seems to me to be unarguable. There does notappear to be anything in the Code to expressly allow an applicationfor recall of probate, except in the case mentioned at the end ofsection 536. And if there were, it would seem to be reasonable thatthe burden of proving that the probate ought to be recalled shouldbe on the applicant. It could not be right to order that, if nofurther evidence is given, a will which has been duly proved nineyears ago by the oaths of all the attesting witnesses and of theexecutor, and which has ever since been acted upon, shall bedeclared to be a forgery upon the mere allegation of one person,who gives no reason for her suspicion. There ought to be somemeans in a case like the present by which a person interested in theestate of the alleged testator may be allowed to prove that the willwas a forgery. But it is a serious matter; the will was duly proved,and was acted upon for many years; debtors paid their debts to theexecutrix, and people dealt with her on the faith of the will whichthe. Court had sanctioned; and the rights which innocent thirdparties thought they had acquired should not be taken from themwithout giving them a chance of being heard. The will cannot bedeclared a forgery on the mere allegation of suspicion; the applicantmust prove that it is a forgery.
Our Legislature has not adopted the English practice of proof incommon form and in solemn form. It has given full directions inchapter XXXVIH. as to the manner of proof, and this will wasduly proved in the manner so directed. And when the Legislatureenacted in section 536 that in certain eases (of which this is not one)a probate so granted can be recalled, I think it is implied that inno other case can it be recalled, and that the direction in section537, that all applications for recall of probate shall be made in a
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SepL 6, 1910 particular way, applies only to the applications which are authorizedHoTOBcmeoii ^ section 586. I think that the Legislature did not intend that inC.J. eases other than those mentioned in section 536 a grant or probateTisaera v. should be recalled in proceedings in the summary manner mentioned(hmatitteke in section 587. The person attacking the will must bring an actionHamne ^ purpose in the ordinary maimer, and must prove his case.
The order of April 12 should be set aside, and the respondent’sapplication to the District Court should be dimissed with costs inboth Courts.
Middleton J.—1 entirely agree.