Mr. Fernando in his evidence stated that the deceased hadtelephoned him about a week or 10 days prior to death. On thatoccasion the deceased had said (1) that he had telephoned thepetitioner several times and had asked her to come back ; (ii) that ifanything were to happen to him that Mr. Fernando should give his wifeall possible assistance ; (iii) that the Last Will is in his house ; that hiswife would meet with opposition from his relations and that MrFernando should assist her in the testamentary case.
The 1 st respondent gave evidence on her own behalf. She statedthat the petitioner and the deceased were not getting on well aftertheir return from the holiday abroad. According to her, the deceasedhad told her that the petitioner had misbehaved while she was abroadand he had to cut short his holiday and return home much' earlier thanexpected. On 27.1 1.73 there had been a quarrel between thepetitioner and the deceased, and the deceased had telephoned herand said that the petitioner had tried to kill him with a knife. The 1strespondent had immediately gone to the house by taxi. The deceased
had complained that the petitioner was constantly worrying him totake her. to England and that he has no money. Thereafter on
the deceased had informed her that the petitioner had leftthe house, taking with her all her belongings. He had also complainedthat she had smashed the articles in the house. The 1 st respondentclaims that the deceased had told her that he had burnt the Last Will.In short the 1 st respondent's evidence was that after their return fromthe holiday abroad, the deceased had lost all affection for his wife andhe no longer had any confidence in her.
The principal submission of Mr. Somatilakam was that the casemust be. sent back to the District Court for a fresh trial as the trialJudge has failed altogether to evaluate the oral evidence of the twomain witnesses, namely the petitioner and the 1st respondent. Mr.Somatilakam complained that nowhere in the judgment has theDistrict Judge expressed his views as to the credibility of theirtestimony. Mr. Somatilakam emphasised the fact that (a) it was the1 st respondent who had every opportunity to remove the Last Willfrom the house, for she it was who had the keys and who lived in the-house prior to the death of the testator; (b) that it was definitely to heradvantage to have removed the Last Will which the petitioner saw inthe house about two months prior to her.husband's death , (c) theevidence showed that at least the wedding ring of the deceased andcertain promissory notes were in the possession of the 1 st respondentafter the death of the testator; (d that the 1 st respondent admittedlywas never on good terms with the petitioner. It was Counsel’ssubmission that no part of this evidence which was in favour of thepetitioner's case was considered by the trial Judge. Mr. Somatilakamstrenuously contended that there was a total failure-on the part of thetrial Judge to analyse and assess the oral evidence of the two principalwitnesses and in the circumstances pressed for a fresh trial.
It is true that the District Judge has not expressly stated his findingsin regard to the credibility of either the petitioner or of the 1strespondent. His approach to the case is clearly seen from thefollowing passage in the judgment:
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It is important to note that the trial Judge was faced with twosharply conflicting versions as to the relationship between thepetitioner and the deceased. The petitioner sought to make out thatthe bond of affection between them continued right to the end. whilethe 1 st respondent insisted that the relationship was one ofestrangement. The conflict in the oral testimony was betweenwitnesses on the same plane of credibility. In these circumstances, theDistrict Judge deemed it prudent to found his judgment on theconduct of the testator himself as evidenced by the two significantdocuments R 1 and R 2. On a reading of R 1, which is a complaintmade by the deceased to the Police on 2.7.74, it is quite evident thatthe testator suffered a deep feeling of injury and disappointment whenthe petitioner deserted him on 26.6.74. In R 1 he states that on
he went and met the petitioner and invited her to come withhim but she had refused. He goes on to say that he has now decidedto live alone and that he is making the statement for his futureprotection. Whatever may have"been his relationship with thepetitioner at an earlier point of time, R 1 is a clear and safe indicationof his attitude towards the petitioner about two months prior to hisdeath. The execution of the power of attorney (R 2) on 8.7.74 infavour of the 1 st respondent, his sister, is a further indication of hisloss of confidence in the petitioner and his diminishing affection forher. In short, R 1 and R 2 are indicative of a sense of disillusionmentwith the petitioner.
It seems to me that the trial Judge s approach to the conflicting oraltestimony was right and proper in the circumstances of this caseinasmuch as he relied on two documents which emanated from arelevant source, namely the testator himself. Now, his reliance on R 1and R 2 meant that he impliedly rejected the evidence of the petitoneras to her relationship with the testator just prior to his death. Thiswould be the inevitable result of the court relying on R 1 and R 2.
As for Mr. Fernando's evidence, the District Judge has expressed aview which is both cautious and balanced. It is not his view that Mr.Fernando has given false evidence. All he says is that he is notprepared to act on his evidence' unless it is corroborated by other’evidence. Indeed Mr. Somatilakam (if I understood him rightly) did notseriously contend before us tl^.t this was an unreasonable view.
As I have stated earlier, on the facts of this case the presumptionthat the testator destroyed the Will animo revocandi arises and theburden is on the petitioner to rebut the presumption. She sought torebut that presumption, as submitted by Mr. H. L. de Silva, mainly byher own evidence and that of Mr. Fernando. If the trial Judge hadaccepted the evidence of those two witnesses it would haveestablished, firstly that there was no change in the testator's attitudetowards the petitioner after making the Will and prior to his death and,secondly, that the testator had spoken of the existence of the Will aslate as 16.8.74. But the trial Judge has preferred to rely on R 1 andR 2 which constitute independent circumstantial evidence which isinconsistent with the oral testimony of the petitioner and Mr.Fernando. In my opinion R 1 and R 2 are a safe index to the attitudethe testator had towards his wife at a relevant point of time.
Mr. Somatilakam, however, strongly urged that the District Judgehad failed to consider the evidence which showed that it was the 1 strespondent who had both the opportunity and the motive to removethe Last Will. Opportunity and motive alone, in my view, will not sufficeto show that it was the 1st respondent who removed the Last Will.Moreover, there is a presumption against fraudulent abstraction eitherbefore or after the testator's death – vide Allen v. Morrison (supra)On a consideration of the totality of the evidence led in the case iseems to me that the District Judge is justified in concluding that thepresumption has not been rebutted. It must be remembered that theremust be clear and satisfactory evidence to rebut thepresumption – vide paragraph 296, Vol. 50, Halsbury's Laws ofEngland, 4th Edition.
Finally, Mr. Somatilakam submitted that R 2 is inadmissible inevidence for the reason that it is a document required by law to beattested and not one of the attesting witnesses was called. Counselcited an unreported case, S.C. 25-26/70, D C. Colombo 8656/P,S.C. Minutes of 27.2.76, wherein Vythialingam, J. upheld theobjection that a deed of transfer of land in a partition action cannot bereceived in evidence as it was not proved as required by law. Referringto the rule that a party may by his conduct at the trial be precludedfrom objecting to inadmissible evidence, Vythialingam, J. observed :
‘But this rule has no application where evidence has beenreceived without objection in direct contravention of an imperativfe' provision of law and the principle on which unobjected evidence isadmitted, be it acquiescence, waiver or estoppel, is not availableagainst a positive legislative enactment*
Vythialingam, J. relied on the decision of the Privy Council in GopalDaser al v. Sri Thakuraji et al. (6).
It is relevant to note that Vythialingam, J. was dealing with a casewhere the party raising the objection in appeal had in- his writtensubmissions in the lower Court taken the objection that the deed hasnot been duly proved as the attesting witnesses had not been called,although no objection was taken at the time the deed was marked inevidence In the case before us, however, no objection was taken atanytime in the District Court to the admission of R 2.
Moreover, Vythialingam, J. makes no reference to the 'explanation*to section 154(3) of the Civil Procedure Code nor to the previousdecisions of the Supreme Court on this point. Mr. Somatilakam veryproperly and very correctly drew our attention to the judgment ofKeuneman, J. in Siyadoris v. D&noris (7) where the learned Judgeconsidered the relevant provisions of the Civil Procedure Code, andthe earlier decisions, and held that a deed once admitted in evidencewithout objection at the trial, cannot be objected to in appeal on theground that it has not been duly proved. Counsel also cited the case ofSeyed Mohamed v. Perera, (8) where Sinnatamby, J. and L. W. deSilva, A.J have carefully considered this question in the context oftrials conducted in the original courts and have chosen to follow thejudgment of Keuneman, J. in Siyadoris v. Danoris (supra). In the resultI hold that no objection to the admission in evidence of R2 can beentertained at the stage of appeal.
As I have said earlier, what Mr. Somatilakam strongly urged beforeus was that a re-trial should be ordered in view of the trial Judge'sfailure *to balance the evidence of the petitioner as against theevidence o£ the 1 st respondent and to take into account matters infavour of the petitioner's case', if I may use Counsel's own words. It isrelevant to note that these proceedings commenced as far back as
April 1975 when the Public Trustee referred the matters in dispute tothe District Court. On a consideration of all the evidence placed beforethe court, it seems to me that the trial Judge was right in his decisionto test the veracity of the conflicting versions given by the contending.parties in the light of the proved conduct of the testator himself asseen from R 1 and R 2. In the circumstances, a retrial after the lapseof ten years is not justified.
For these reasons the appeal in C.A. 37/77 (F) fails and isdismissed.
As regards the appeal in C.A. 512/77 (F) the only question thatarises for decision is whether the 1 st respondent is entitled to lettersof administration. Jhe answer to this question is clearly in thenegative. The preferential right to a grant of letters of administrationmay be claimed even by the attorney of a widow who is absent fromthe Island – Moosajee v. Carimiee (9). Accordingly this appeal toomust be dismissed.
In the result both appeals are dismissed. We make no order as tocosts of appeal.
JAMEEL, J. – I agree.
Both appeals dismissed.