Legal Services and Laws of Sri Lanka
SLR - 1981 Vol.2, Page No - 7
DE SILVA AND OTHERS
SENEVIRATNE AND ANOTHER
COURT OF APPEAL
RANASINGHE, J. AND VICTOR PERERA, J.
C. A. (S.C.) 26/77 (F)- D.C. BALAPITIYA 418/T.
Appeal-Finding of fact by trial judge- Principles applicable to the review of such findings by Appellate Court-Constitution
of Sri Lanka, 1978, Article 138 (1).
Last Will-Burden on propounder- Suspicious circumstances- Duty of Court in considering such question.
The petitioner instituted these proceedings on 25.5.1971 praying for Probate of a Last Will dated 31.8.1966 which heclaimed
to have been executed by his deceased brother and attested by five witnesses.ThisLastWilllefttheentiretyofthe
deceased's estate to his brother and sisters leaving out the deceased's widow and the minor childrenofthedeceased.The
said children were however born after this Will had been executed. The widow had herself instituted proceedings on11.5.1971
praying for Letters of Administration in respect of this same estate. The learned District Judge held that the said Willhad
been duly executed and that the petitioner was entitled to Probate thereof.
It was contended on behalf of the appellants that the learned District Judge had wholly failedtoaddresshimselftothe
important rule that when there are suspicious circumstances the Court should be vigilant and view the evidence withjealousy
and should not pronounce the Last Will to be valid unless the conscience of the Court is satisfied that itistheactand
deed of a free and capable testator. On the other hand, it was contended for the original petitioner (respondentinappeal)
that no suspicious features arose in regard to the Last Will sought to be propoundedandthelearnedDistrictJudgehad
therefore not been called upon to consider the Principles applicable to such a case. ItwascontendedthattheAppellate
Court should not interfere with the findings of the learned District Judge on what were all questions of fact.
(1) Where an Appellate Court is invited to review the findings of a trial judge on questions of fact, theprinciplesthat
should guide it are as follows:-
(a) Where the findings on questions of fact are based upon the credibility of witnesses on the footing of thetrialjudge's
perception of such evidence, then such findings are entitled to greatweightandtheutmostconsiderationandwillbe
reversed only if it appears to the Appellate Court that the trial judge has failed to makefulluseofhisadvantageof
seeing and listening to the witnesses and the Appellate Court is convinced by the plainest considerations thatitwouldbe
justified in doing so
(b) That however where the findings of fact are based upon the trial judge's evaluation offacts,theAppellateCourtis
then in as good a position as the trial judge to evaluate such facts and no sanctity attaches to such findings of factofa
(c) Where it appears to an Appellate Court that on either of these grounds the findings factbyatrialjudgeshouldbe
reversed then the Appellate Court "ought not to shrink from that task".
(2) The propounder of a Last Will must prove that the document in question istheactanddeedofafreeandcapable
testatorthat the testator was not only aware of but also approved of the contents of the said documentthatthetestator
intended the document to be his Last Willthat the said document had been duly executed according to law.
(3) If there exists facts and circumstances which arouse the suspicion of the Court in regard to any matter which hastobe
proved by the propounder then it is the duty of the propounder to remove all such doubts and prove affirmatively thevarious
elements which must be proved by him and the Court should then scrutinize the evidence led by thepropounderwithjealousy
and should pronounce the alleged Last Will to be valid only if its conscience is satisfied in regard to the said matters.As
to whether the evidence so placed before the Court is such as tosatisfytheconscienceoftheCourtisultimatelya
question of fact for the trial judge.
(4) The learned District Judge in the present case had rightly answered the issues in favour of the petitioner and heldthat
the said Last Will had been duly executed and the petitioner entitled to Probate thereof. Even though he hadnotconsidered
this a case in which there are suspicious features, yet a consideration of the entirety of evidence led at the trial andthe
facts and circumstances revealed by such evidence showed that even if there werecircumstancesgeneratingsuchsuspicion,
still the learned District Judge had he properly directed himself would have found in favour of petitioner and heldthathe
was entitled to Probate of the Last Will.
Cases referred to
(1) Fradd v. Brown & Co. Ltd., (1918) 20 N.L.R. 282.
(2) Powell v. Streatham Manor Nursing Home, (1935) A. C. 243.
(3) Munasinghe v. Vidanage, (1966) 69 N.L.R. 97.
(4) Watt v. Thomas, (1947) 1 All E. R. 582.
(5) Benmax v. Austin Motor Co. Ltd., (1955) A.C. 370(1955) 2 W.L.R. 418,- (1955) 1 All E. R. 326.
(6) Attorney-General v. Gnanapiragasam, (1965) 68 N.L.R. 49.
(7) The Glannibanta (1876) 2 P.D. 45 46 L.J. P. 75 36 L. T. 27
(8) Coghlan v. Cumberland, (1898) 1 Ch. 704
(9) Falalloon v. Cassim,(1918) 20 N. L. R. 332.
(10) K. M. Perera v. Martin Dias, (1957) 59 N. L. R. 1.
(11) Yuill v. Yuill, (1945) 1 All E. R. 18329 C L. W 97.
(12) Gunawardena v. Edirisinghe, (1960) 64 N. L. R. 27960 C L. W 40.
(13) S. S. Hontestroom v. S. S. Sagaporack, (1927) A. C. 37.
(14) Mahavithana v. Commissioner of Inland Revenue, (1962) 64 N. L. R. 217.
(15) Abdul Sathar v. Bogstra, (1954) 54 N. L. R. 102.
(16) Selvaguru v. Thaialpagar, (1952) 54 N. L. R. 361.
(17) Barry v. Butlin, 2 Moore P. C. 48012 E. R. (P. C.) 1089.
(18) Tyrrel v. Painton, (1894) P.D. 151.
(19) The Alim Will case, (1919) 20 N. L. R. 481.
(20) Guardhouse v. Blackburn, (1866) L. R. 1 P. and D. 109.
(21) Atter v. Alkinson, (1869) L. R. I P. and D. 66520 L. T. 40433 J.P. 440.
(22) Peries v. Perera, (1947) 48 N. L. R. 560.
(23) Samarakone v. The Public Trustee, (1960) 65 N. L. R. 100.
(24)John Pieris v. Wilbert, (1956) 59 N.L.R.245.
(25)Meenadchipillai v. Karthigesu, (1957) 61 N.L.R. 320.
(26) Robins v. National Trust Co., Ltd., (1927) A. C. 515,- (1927) All E.R. Rep. 73.
(27) Harmes and another v. Hinkson, (1946) 62 T. L. R. 445.
(28) Davis v. Maynew, (1927) 96 L.J. P. 140137 L. T. 61243 T L. R. 648.
(29)Sithamparanathan v. Mathuranayagam, (1970) 73 N.L.R. 53.
APPEAL from the District Court, Balapitiya.
C. Ranganathan, Q.C., with E. D. Wikramanayaka, L. R. Candappa and C. Selvaratnam, for the 7th, 8th, 9th respondents -
H. W. Jayewardene, Q.C., with Bimal Rajapakse, Miss P. Seneviratne and Lakshman Perera, for the petitioner -respondent.
March 11, 1981.
These proceedings, which relate to the Estate of a deceased named Mawathage Victor Perera Seneviratne, who had beencarrying
on business as a hard-ware merchant at Elpitiya for quite some time prior to his death on 15.3.1971, have been institutedon
25.5.1971 by the petitioner- respondent, (who will be referred to hereinafter asthepetitioner)abrotherofthesaid
deceased, praying for Probate in respect of a last will, dated 31.8.1966, and attestedbyfivewitnessesandwhichsaid
document has been produced marked "A". According to "A" the entirety of the deceased's Estate has been left tohisbrothers
and sisters, who are the petitioner and the 1st to 6th respondents -respondents.
The petitioner's application for Probate is opposed by the 7th, 8th and 9th respondents-appellants who are,admittedly,the
widow and the two minor children of thesaiddeceased.The7threspondent-appellant(hereinafterreferredtoasthe
appellant) had herself instituted proceedings on 11.5.1971 for the grant of Letters of. Administration to her inrespectof
the Estate of the deceased on the basis that the deceasedhaddiedintestateleavingbehindherandtheirtwominor
children, the 8th and 9th respondents-appellants, and of whom the 9th respondent-appellant was born on 11.11.1971, afterthe
death of the deceased, as his only heirs.
The two issues which the learned trial judge was called upon to consider were: -
(1) Did Mawathage Victor Perera Seneviratne die leaving (as set out in paragraph 3 of the petitioner's petition dated
26.10.71) a last will duly executed on 31.8.1966?
(2) If so, is the petitioner entitled to Probate of the said last will ?
After trial the learned District Judge has answered both issues in favour of the petitioner.
Learned Queen's Counsel appearing for the appellants has contended that the learned District Judgehasmisdirectedhimself
in law in that he has wholly failed to address himself to the important rule that, when therearesuspiciouscircumstances
the Court should be vigilant and-view the evidence with jealousy and should not pronounce the last will tobevalidunless
and until the propounder satisfies affirmatively the conscience of the Court that the said last will is the act anddeedof
a free and capable testator: that the learned District Judge has misdirected himself on the facts:thatseveralfactsand
circumstances, which tend to throw considerable amount of suspicion in regard to whetherthedeceaseddidsignthesaid
document "A" intending that it should be his last will, have been brought to light by the evidence: that thepetitionerhas
completely failed to dispel and remove the doubts and suspicion so raised: that the petitioner has thereby completelyfailed
to discharge the burden which, in law, rested upon the petitioner.
The position taken up by learned Queen's Counsel appearing for the petitioner on the other hand, is: that this is not acase
where any suspicious features arise in regard to the lastwillsoughttobepropounded:that,therefore,thelearned
District Judge was not called upon to consider the principle applicable in a case where there are suspiciousfeatures:that
in this case the capacity of the deceased at the relevant time was not in doubt and was unchallenged: that thesignatureof
the deceased on the document in question was unchallengedthat therefore all that the petitioner had to provewasthedue
execution of the said document, which in this case amounted totheproofofthedeceased,andeachoneofthefive
witnesses, having signed the said document at one and the same timeinthepresenceofoneanother:thatthelearned
District Judge has accepted the evidence of the witnesses who testifiedonbehalfofthepetitioner,andrejectedthe
evidence of the witnesses called by the appellants: that the questions which arose for consideration by the learnedDistrict
Judge were all questions of fact: that the findings of the learned DistrictJudgearesupportedbytheevidenceplaced
before him: that therefore this Court should not interfere with the judgment of the learned District Judge.
I shall at the very outset, consider the principles which should guide an appellate Court reviewing the findings ofatrial
judge in regard to what are clearly questions of fact, as both learned Queen's Counsel addressedthisCourtatlengthon
Article 138 (1) of the Constitution which deals with the jurisdiction of the Court of Appeal provides that :
"The Court of Appeal shall have and exercise subject to the provisions of theconstitutionorofanylaw,anappellate
jurisdiction for the correction of all errors in fact or in law which shall be committedbyanyCourtofFirstInstance
Provided that no judgment decree or order of any Court shall be reversed orvariedonaccountofanyerror,defector
irregularity, which has not prejudiced the substantial rights of the parties or occasioned a failure of justice."
The nature and the extent of the authority attached to the findings of fact of a trialjudgeweresetoutbythePrivy
Council in the case of Fradd vs. Brown & Co. Ltd. (1) at p. 283 :
"It is rare that a decision of a Judge so express, so explicit, upon a point of fact purely, isover-ruledbyaCourtof
Appeal, because Courts of Appeal recognize the priceless advantage which a Judge of first instance hasinmattersofthat
kind, as contrasted with any Judge of a Court of Appeal who can only learn from paper or from narrativeofthosewhowere
present. It is very rare that, in questions of veracity so direct and so specific as these, a Court of Appealwilloverrule
a Judge of first instance."
In the case of Powell vs. Streatham Manor Nursing Home (2), it was stated that the appellate Court:
"will not depart from the rule it has laid down that it will not over-rule the decision of the Court below on aquestionof
fact in which the Judge has had the advantage of seeing the witnesses and observing theirdemeanorunlesstheyfindsome
governing fact which in relation to others has created a wrong impression."
In the case of Munasinghe vs. Vidanage (3) where the findings of a trial judge had been set aside by the SupremeCourt,the
Privy Council, in restoring the judgment of the original court, stated:thatitwasacaseofrathercomplicatedand
difficult facts andthere was a good deal to be said on each side: that,uponanexaminationoftheevidenceandthe
judgments, the findings of the trial judge were not found to be unreasonable: that, as the trial judge had the verymaterial
advantage of seeing and hearing the witnesses, the Supreme Court should not have set aside the findings of thetrialjudge.
Their Lordships of the Privy Council quoted with approval an extract from the speech of Viscount Simoninthedecisionof
the House of Lords in the oft-quoted case of Watt vs. Thomas (4), at p. 583-4:
"Apart from the class of case in which the powers of the Court of Appeal are limited todecidingaquestionoflaw(for
example, on a case stated or on an appeal under the County Courts Acts) an appellate Court has, ofcourse,jurisdictionto
review the record of the evidence in order to determine whether the conclusion originally reached upon thatevidenceshould
standbut this jurisdiction has to be exercised with caution. If there is no evidence tosupportaparticularconclusion
(and this is really a question of law) the appellate Court will not hesitate so to decide. But if theevidenceasawhole
can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusionhasbeen
arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court willbearinmind
that it has not enjoyed this opportunity and that the view of the trial judge as to where credibilityliesisentitledto
great weight. This is not to say that the judge of first instance can be treated as infallible in determining whichsideis
telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but itis
a cogent circumstance that a judge of first instance, when estimating thevalueofverbaltestimony,hastheadvantage
(which is denied to Courts of Appeal) of having the witnesses before him and observing the manner in which their evidenceis
Lord Thankerton did, in the course of His Lordship's judgment in the same case at page 587, analysetheprincipleembodied
in the earlier judgments of the House of Lords dealing with this question and stated it in three propositions, viz:
(i) Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himselfby
the judge, an Appellate Court which is disposed to come to a different conclusion on the printed evidence shouldnotdoso
unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard thewitnessescould
not be sufficient to explain or justify the trial judge's conclusion.
(ii) The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position tocome
to any satisfactory conclusion on the printed evidence.
(iii) The appellate Court, either because thereasonsgivenbythetrialjudgearenotsatisfactoryorbecauseit
unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage ofhishavingseenand
heard the witnesses, and the matter will then become at large for the appellate Court.
Viscount Simon did, in the case of Benmax vs. Austin Motor Co. Ltd. (5) at 373, elucidate the guiding principle in regardto
this matter as follows:
"This does not mean that an appellate Court should lightly differ from the finding of a trial judge on aquestionoffact,
and I would say that it would be difficult for it to do so where the finding turned solely on the credibility ofawitness.
But I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of aspecific
fact and a finding of fact which is really an inference from facts specifically found or, asithassometimesbeensaid,
between the perception and evaluation of facts."
H. N. G. Fernando, S. P. J. (as His Lordship the Chief Justice then was) in the caseofTheA.G.vs.Gnanapiragasam(6)
quoting the observations of Lord Reid, in the case of Benmax vs. Austin Motor Co. Ltd. (supra), that:"wherethepointin
dispute is the proper inference to be drawn from proved facts, an AppealCourtisgenerallyinasgoodapositionto
evaluate the evidence as the trial judge and ought not to shrink from that task", interfered with thefindingsoffactof
the trial judge, where such findings were in " no way based upon credibilityordemeanourandwerereferablesolelyto
inferences and assumptions. . .".
It has however to be noted that, whilst the authoritative nature of the findings of a trialjudgeuponquestionsoffact
have been stressed, qualifications of this principle have also been laid down. Having quoted with approvalthejudgmentin
the case of The Glannibanta (7) where it was stated:
"Now we feel the great weight that is due to the decisionsofajudgeoffirstinstancewhenever,inaconflictof
testimony, the demeanour and manner of the witnesses who have been seen andheardbyhimarematerialelementsinthe
consideration of the truthfulness of their statements. But the parties to the cause are neverthelessentitled,aswellon
questions of fact as on questions of law, to demand the decision of the Court of Appeal, and that Court cannot excuseitself
from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it shouldalwaysbear
in mind that it has neither seen nor heard the witnesses, and should make dueallowanceinthatrespect,"andalsothe
judgment in the case Coghlan vs. Cumberland (8) where Lindley M. R. observed:
" Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to re-hearthe
case, and the Court must consider the materials before the Judge with such other materials as it may have decidedtoadmit.
The Court must then make up itsownmind,notdisregardingthejudgmentappealedfrom,butcarefullyweighingand
considering it, and not shrinking from over-ruling it, if on full consideration the Court comes to theconclusionthatthe
judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses whohavebeenexaminedand
cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearingthem.Itis
often very difficult to estimate correctly the relative credibility of witnessesfromwrittendepositions andwhenthe
question arises which witness is to be believed rather than another, and that question turns onmanneranddemeanour,the
Court of Appeal always is and must be guided by the impression made on the Judge whosawthewitnesses.Buttheremay
obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statementiscredibleor
notand these circumstances may warrant the Court in differing from the Judge even on a questionoffactturningonthe
credibility of witnesses whom the Court has not seen".Bertram C. J. stated, in the case of Falalloon vs. Cassim (9)atpage
"With regard to this contention, it is sufficient to say that, while a CourtofAppealwillalwaysattachthegreatest
possible weight to any finding of fact of a Judge of first instance based upon oral testimony given before that Judge, itis
not absolved by the existence of these findings from the duty of forming its own views of the facts, more particularlyina
case where the facts are of such complication that their right interpretation depends, not only onanypersonalimpression
which a Judge may have formed by listening to the witnesses, but also upon documentary evidence, and upon theinferencesto
be drawn from the behaviour of these witnesses, both before and after the matters upon which they gave evidence."
The circumstances in which an appellate Court would interfere with the findings of a trial judge were also considered bythe
Privy Council in the case of K. M. Perera vs. Martin Dias (10) where TheirLordshipsrecalledthe"wisewords"ofLord
Greene M. R. in Yuill vs. Yuill (11) at p. 188-9:
"We are reminded of certain well-known observations of the House of Lords dealing with the positionofanappellateCourt
when the judgment of the trial judge has been based in whole or in part on his opinion onthedemeanourofwitnesses.It
can, of course, only be on the rarest occasions and in circumstances where the appellate Court is convinced bytheplainest
considerations that it would be justified in finding that the trial judge has formed a wrong opinion. But when theCourtis
so convinced it is, in my opinion, entitled and indeed bound to give effect to its conviction."
That the appellate Court may reverse the trial judge's conclusion on a pure question of fact ifthereasonsgivenbythe
trial judge are not satisfactory, or if it unmistakably so appears from the evidence, was laid down by the SupremeCourtin
the case of Gunawardena vs. Edirisinghe (12). Basnayake, C. J. in the course of the judgment in the said casealsoreferred
to the approach adopted by Lord Sumner to this question in the case of S. S Hontestroom vs. S. S.Sagaporack,(13),atp.
"The material questions to my mind are: (1) Does it appear from the president'sjudgmentthathemadefulluseofthe
opportunity given him by hearing the vivavoceevidence?(2)Wasthereevidencebeforehim,affectingtherelative
credibility of the witnesses, which would make the exercise of hiscriticalfacultiesinjudgingthedemeanourofthe
witnesses a useful and necessary operation? (3) Is there any glaring improbability about the storyaccepted,sufficientin
itself to constitute 'a governing fact which in relationtoothershascreatedawrongimpression',oranyspecific
misunderstanding or disregard of a material fact, or any 'extreme and overwhelming pressure' that has had the same effect".
Another authority, which needs must be referred to in considering this question, is the judgmentof(H.N.G.)Fernando,J.
(as His Lordship the Chief Justice then was) in the case of Mahawithana vs. Commissioner ofInlandRevenue(14)wherein
dealing with the question as to when an appellate Court would interfere with thefindingsofatribunalontheprimary
questions of fact, at page 223, it was stated that it was open to an appellate Court toreconsidersuchfindingsoffact
"(a) If that inference has been drawn on a consideration of inadmissible evidence or after excluding admissible andrelevant
(b) If the inference was a conclusion of fact drawn by the Board but unsupported by legal evidence, or
(c) If the conclusion drawn from relevant facts is not rationally possible, and isperverseandshouldthereforebeset
This question was once again considered by the Privy Council in the year 1952 in two cases which went up in appealfromour
Courts: In Abdul Sathar vs. Bogstra (15), it was stated that, where the disbelief of a witness is based onthegroundthat
the witness has contradicted himself and where on examination the contradictions do notamounttoanythingmorethanan
incapacity to explain or remember certain facts, an appellate Court is entitled to examine the evidence afresh and arriveat
an independent decision, but that, where the trial judge's acceptance of the story toldbyoneofthepartiesisbased
largely on his impression of the demeanour of thatpartyandnotsolelyonthegroundthattheoppositepartyhas
contradicted himself the appellate Court will not disturb the finding of fact of the Court of first instance :inSelvaguru
vs. Thaialpagar(16) it was laid down that an appellate Court will set aside the findings of a trial judgewhenthereasons
given by him for accepting a party's story are contrary to what is plainly proved by documents produced inevidencebythe
On an examination of the principles laid down by the authorities referred to above, it seems to me:that,wherethetrial
judge's findings on questions of fact are based upon the credibility of witnesses,onthefootingofthetrialjudge's
perception of such evidence, then such findings are entitled to great weightandtheutmostconsideration,andwillbe
reversed only if it appears to the appellate Court that the trial judge hasfailedtomakefulluseofthe"priceless
advantage" given to him of seeing and listening to the witnesses giving vivavoceevidence,andtheappellateCourtis
convinced by the plainest consideration that it would be justified in doing so: that, where the findings offactarebased
upon the trial judge's evaluation of facts, the appellate Court is then in as good a position as the trial judge toevaluate
such facts, and no sanctity attaches to such findings of fact of the trial judge: that, if on eitherofthesegrounds,it
appears to the appellate Court that such findings of fact should be reversed, then the appellate Court "ought nottoshrink
from that task".
I shall now proceed to consider the legal principles relevant to the submission made on behalf of the Appellant that thisis
a case where there are several suspicious features surrounding the said last will "A" which required the learned trialjudge
to view the evidence, led on behalf of the petitioner in order to propound the said last will, with "great jealousy"andto
call upon the petitioner to prove affirmatively that the said document "A" was executed,inaccordancewiththerelevant
provisions of law, by the deceased of his own free will not only with a full knowledge of its contents but also intendingit
to be his last will.
The earliest discussion, according to the authorities cited to us by learned Counsel,oftherelevant"wellestablished"
rule has been by Baron Parke in 1838 in the case of Barry vs. Butlin (17) where His Lordship stated:
"The rules of law according to which cases of this nature are to be decided do not admit of any dispute so farastheyare
necessary to the determination of the present appeal and they have been acquiesced in on both sides.Theserulesaretwo:
The first that the onus probandi lies in every case upon the party propounding a will and he must satisfy theconscienceof
the Court that the instrument so propounded is the last will of a free and capable testator. The second is thatifaparty
writes or prepares a will under which he takes a benefit,thatisacircumstancethatoughtgenerallytoexcitethe
suspicion of the Court, and call upon it to be vigilant and jealous in examining the evidence in support oftheinstrument,
in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied thatthepaper
propounded does express the true will of the deceased."
This principle was discussed in 1893 in the case of Tyrell vs. Painton (18) where Lindley, L. J. stated, in respectof
the second of the two rules laid down by Parke, B (supra), that it is not "confined to the single case inwhichawillis
prepared by or on the instructions of the person takinglargebenefitsunderit,butextendstoallcasesinwhich
circumstances exist which excite the suspicion of the Court."
This principle was considered by the Supreme Court in 1919 in The Alim Will Case (19) where Bertram,C.J.atpage494
whilst elucidating the said principle, as set out in the English decisions of, interalia,Barryvs.Butlin(supra)and
Tyrrell vs. Painton (supra), stated :
". . . The principle does not mean that in cases where a suspicion attaches to awillaspecialmeasureofproofora
particular species of proof is required. (See Barry vs. Butlin (supra). ) It means that insuchcasestheCourtmustbe
'vigilant and jealous in examining the evidence in support of the instrument, in favour of which it oughtnottopronounce
unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true willofthe
deceased.'......but the principle is that wherever a will is preparedundercircumstanceswhichraiseawell-
grounded suspicion that it does not express the mind of the testator, the Court oughtnottopronounceinfavourofit
unless that suspicion is removed."
Bertram, C. J. did also, at page 495, refer to the case of Guardhouse vs. Blackburn (20) which,theChiefJusticestated,
was not concerned with that class of case to which the above discussedprincipleapplied,andthatthereLordPenzance
considered only those cases "where a will had been admittedly executed and admittedly read over to thetestator,andwhere
the real question to be determined was whether the testatorknewandapprovedwhathehadsigned,ortospeakmore
precisely, the whole of what he had signed." The Chief Justice also proceeded,atpage496,toobservethatwhatLord
Penzance really meant to lay down has been expressed concisely by Lord Penzance himselfinthelatercaseofAttervs.
Alkinson (21). "Once get the facts admitted or proved that a testator is capable, that there is no fraud, that thewillwas
read over to him, and that he put his hand to it, andthequestionwhetherheknewandapprovedofthecontentsis
The principles set out in the said judgments of Barryvs.ButlinandTyrellvs.Paintonwerealsoreferredtoby
Canekaratne, J. in the case of Peries vs. Perera (22). At page 567 His Lordship quoted from Barry vs. Butlin as follows:
" It is clear, first that the onus of proving a will lies upon the party propounding it and, secondly, that he must satisfy
the conscience of the court that the instrument so propounded is the last will of a free andcapabletestator.Todevelop
this last rule a little further, he must show that the testator knew and approved of theinstrumentashistestamentand
intended it to be such.
In all cases the onus is imposed on the party propounding a will, it is in general discharged by proof of capacity andthe
fact of execution from which the knowledge of and assent to the contents of the instrument are assumed.
The question is whether the testator knew the effect of the documenthewassigning.Thecircumstancesattendingthe
execution of the document may be such as to show that there is a suspicion attaching to the will, in whichcaseitisthe
duty of the person propounding the will to remove that suspicion, this is done by showing that the testator knewtheeffect
of the document he was signing."
and, at page 568, quoted from Lindley, J. :
"The rule in Barry vs. Butlinextends to all cases in which circumstances exist which excite the suspicion of the court
and whenever such circumstances exist, and whatever their nature may be it is for those who propound the will to remove such
suspicion and to prove affirmatively that the testatrix knew and approved of the contents of the document."
The observations of Lindley, J. in Tyrell vs. Painton (18) were cited with approval by Weerasooriya,J.inthecaseof
Samarakone vs. The Public Trustee (23) at p. 115:
"......where there are features which excite suspicion in regard to a will, whatever their nature may be itisforthose
who propound it to remove such suspicion. Suspicious features may be a ground for refusing probate evenwheretheevidence
which casts suspicions on the will, though it suggests fraud, is not of such a nature as to justify the Court in arrivingat
a definite finding of fraud. It has also been stated that the conscience of the Court must be satisfied inrespectofsuch
In the case of John Pieris vs. Wilbert (24) Gratiaen, J., following the principles set out in the aforementionedcasesof
Barry vs. Butlin and Tyrell vs. Painton, held that upon the evidence the petitioner in that case had failed to dischargethe
burden of removing the suspicions attendant on the making of the will, and further held that it is no partofthedutyof
Court to see that a testator makes a just distribution of his property, and solongasitisprovedthatthetestator
executed the will intending it to be his will theCourtcannotrefusetograntprobateonthegroundofsuspicious
In the case of Meenadchipillai vs. Karthigesu (25) at p. 321, Sansoni, J. stated:
"The rule of law is clear enough. In all cases where circumstances exist whichexcitethesuspicionoftheCourt,
whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively
that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is
thrown on those who oppose the will to prove fraud or undue influence or whatever else they relyontodisplacethe
case made for proving the will". . .
and at page 324:
"Ultimately of course, it is a question of fact for the trial judge to decide whetherthesuspicionsurroundingthe
will was removed and the adverse presumption affecting the will rebuttedunless hewasfinallysatisfiedthathis
initial suspicion were unfounded the burden of proof which lay on the propounder of the will remained undischarged".
Viscount Dunedin, in Robins vs. National Trust Company (26) at 519 pointed out:
".........Those who propound a will must show that the will of which probate is sought is the willofthetestator,and
that the testator was a person of testamentary capacity. In ordinary cases if there is no suggestion to the contrary anyman
who is shown to have executed a will in ordinary form will be presumed to havetestamentarycapacitybutthemomentthe
capacity is called in question then atoncetheonusliesonthosepropoundingthewilltoaffirmpositivelythe
testamentary capacity. Moreover, if a will is only proved in common and not in solemn form, the same rule applies . . . ."
The Privy Council did also, in the case of Harmes and another vs. Hinkson (27) lay down that:
" The conscience of the Court' must be satisfied. Whether or not the evidence is such as to satisfy the conscienceofthe
tribunal must always be, in the end, a question of fact."
That the circumstances which excite the suspicion of the Court must primarily be circumstancesexistingatthetime
when the alleged will was executed, and have a direct bearing on the question whether the testator then knew and approvedof
its contents was laid down in the case of Davis vs. Mayhew (28) at 148.
This principle was once again discussed by Their Lordships of thePrivyCouncilinthecaseofSithamparanathanvs.
Mathuranayagam (29) where it was held that: where, in an application for probate of awill,thetestamentarycapacityor
disposing mind of the testator at the time of the execution of the will iscalledinquestion,theonusliesonthose
propounding the will to affirm positively the testamentary capacity, even in the absence of apleaofundueinfluenceor
fraud: whether or not the evidence is such as to satisfy the conscience of the Court that the will was the actanddeedof
the deceased in the sense that he was competent to make the will, is a pure question of fact.
On a consideration of the principles elucidated in the judgments referred to above, it is clear: that the propounder of
a last will must prove that the document in question is the act and deed of a free and capable testator:thatthetestator
was not only aware of but also approved of the contents of the said document: that the testator intended the documenttobe
his last will: that the said document has been duly executed according to law: that, if there exist factsandcircumstances
which arouse the suspicion of the court in regard to any of the matters referred to above, which have tobeprovedbythe
propounder, then it is the duty of the propounder to remove all such doubts andproveaffirmativelythevariouselements
which must be proved by him: that, in such a case even though there is no requirement of a specialmeasureofproofora
particular species of proof, the Court should scrutinize theevidenceledbythepropounderwithjealousyandshould
pronounce the alleged last will to be valid only if its conscience is satisfiedthatthesaiddocumentisinfactthe
voluntary act and deed of the deceased, who was in law capable of executing a last will and that the said documenthasbeen
executed by the deceased with the full knowledge of itscontentsandintendingthatitshouldbehislastwilland
testament: that whether the evidence so placed before the Court is suchastosatisfytheconscienceoftheCourtis
ultimately a question of fact for the trial judge.
As already stated, learned Queen's Counsel for the appellant submitted that there wereinthiscaseseveralsuspicious
circumstances which raise a doubt as to whether the document "A" was signed by the testator intending it to beoperativeas
his last will. The circumstances so relied on are: the deceased not having had the said document formally executedbeforea
notary: the alleged last will being an unnatural will in that the widow and thetwominorchildrenofthedeceasedget
absolutely nothing from the deceased's estate, which has, in the petition filed by the petitioner, been valued inMay,1971
by the petitioner himself at Rs. 114,899/91 : the circumstances in which the said document is stated to have beenfoundand
the failure to inform the appellant of the finding of the said document: the delay inproducingthesaiddocumentbefore
court: the beneficiaries under the alleged last will being persons who had allopposedthedeceased'smarriagewiththe
appellant: that, whilst there is nothing to show that there had been any discord between the deceased and the appellant,the
deceased and the appellant had, admittedly, been always living together right up to the time of the death of the deceased.
It will be useful to set out certain facts and circumstances which have emerged from the evidence led at the trial, beforeI
proceed to consider the aforementioned circumstances relied upon by the appellant.Theevidencehaddisclosed:thatthe
deceased had, for several years prior to his death, been carrying on a business, which by local standards wasconsideredas
being successful, at the Elpitiya bazaar: that the deceased married the appellant, who was then a school teacher of about38
years of age, on 24.4.1964 at the Galle Kachcheri : that the Petitioner and the 1st to 6th respondents, who are thebrothers
and sisters of the deceased, had not approved of the said marriage: that, apart fromAnton,the6threspondent,whowas
assisting the deceased in the management of the deceased's business, the petitioner and the 1st to 5threspondentshadhad
very little to do with the petitioner after the said marriage and had visited the deceased thereafteronlyabouttwiceor
thrice: that two daughters were born to the deceased by the appellant, the elder (the 8th respondent)on14.10.67andthe
younger (the 9th respondent) posthumously on 11. 11. 1971 : that, afterthemarriage,thedeceasedlivedwiththethe
appellant in her parental house about 10 miles from Elpitiya: that thereafter the deceased built a house, alsoafewmiles
away from Elpitiya, in which he lived with the appellant right upto the 15th March, 1971,thedayonwhichthedeceased
suffered the fatal heart attack: that the deceased's funeral took place three days later, on the 18th March, 1971 : thatthe
appellant went to the deceased's shop which had remained closed ever since the deceased died, on 24.3.71 and opened thesafe
and noted the cash which was inside the safe and thereafter handed over the key of the safe toAnton,requestingAntonto
look after the shop "now that the deceased is no more": thattheappellantherselfinstitutedtestamentaryproceedings,
praying for the issue of Letters of Administration in respect of the EstateofthedeceasedincaseNo.417/Tofthe
District Court of Balapitiya, on11.5.71,whichisonlyafortnightbeforethepetitionerhimselfcommencedthese
Ariyadasa Sri Wijayananda, a Notary, who had been practising for a period of about 18 years, andwhowascalledbythe
petitioner, stated that : he had known the deceased for about 10 years: the deceased once asked him whether itwaspossible
to write a last will in any manner other than by writing a deed: he did inform the deceased that it was possible to do soin
the presence of five or more witnesses and that, in such an event, he (the deceased) and such witnesses shouldallsignat
one and the same time: he then prepared a draft last will, embodying the particulars supplied by the petitioner himself,and
which was to be signed in the presence of five or more witnesses: thatthesaiddraftisthedocumentwhichhasbeen
produced marked "A" : that the body of the said document, together with the jurat, is allinhisownhandwriting,whilst
certain blanks, which were left by him such as for the date, have since beenfilledinbysomeonewhosehandwritinghe
cannot identify. The evidence of this witness, which has been accepted by the learned DistrictJudge,quiteclearlyshows
that, sometime prior to 31.8.1966, the deceased had wanted to execute a last will, and that the contents of"A"wereknown
to and approved of by the deceased, and that the deceased had been advised by this witness as to how a lastwillcould,in
law, be executed otherwise than in the presence of a notary. The express inquiry madebythedeceasedinregardtothe
possible ways of executing a last will is an indication of his desire to know whether suchanactcouldbedonewithout
giving it publicity. Even if the fact that the deceased in this case had,evenaftercontactingaNotary,proceededto
execute a last will in the presence of five lay witnesses is a circumstance which shouldbeconsideredtobesuspicious,
yet, it appears to me that, having regard to the evidence of the Notary, any such suspicionhas,inthecircumstancesof
this case, been dispelled.
There is no question but that, if the document "A" is held to be the last will and testamentofthedeceased,thenthe
deceased's widow the appellant and her two minor children, the 8th and 9threspondents,whoarewithoutdoubttheonly
children of the deceased, would stand completely disinherited and receive nothing from the estate of the deceased,andthat
it must, therefore, be treated as an unnatural will. It must, however, be noted that neither of these two childrenhadbeen
born at the time the document "A" is said to have been signed on 31.8.66. Both children were born only thereafter,withthe
younger child in fact being born only after the death of the deceased. Thus, at the relevant time, only theappellant,whom
the deceased had married about two years prior to that and who would then have been about 40 years of age. was inexistence.
The petitioner contended that there had in fact been discord and dissension between the deceased and the appellantatabout
the time the deceased did execute the said last will. The Petitioner had pointedtothreeinstancesinsupportofthis
contention. One was where the deceased had got down his meals from outside consequent upon an incident betweenthedeceased
and the appellant on the occasion a relative of the deceased called on them. The learned District Judgehas,however,held
that this particular item has not been proved. The other two instances are oftwobrothersoftheappellantinstituting
proceedings before the Labour Tribunal against the deceased, and the deceased wanting tosellthehousehehadrecently
built and in which he had only shortly before that taken up residencewiththeappellant.Thesetwoitemsstandingby
themselves are such that there is considerable substance in the submission made on behalf of the appellant that theydonot
tend in any way to show the existence of such a degree of displeasure between the deceased and the appellantaswouldmake
the deceased to take steps to disinherit the appellant, particularly where the deceased has, admittedly,continuedtolive
with the appellant even after such incidents. Even so, it appears to me thatthereisanitemofevidencewhichquite
clearly shows the state of the relationship, at any rate at or aboutthetimethedocument"A"issaidtohavebeen
executed, between the deceased and the appellant. The witness Upaneris Silva, who is said to be oneofthefiveattesting
witnesses to "A" and who, though on the list of witnesses for the petitioner was called totestifyatthetrialonlyon
behalf of the appellant, stated in his evidence that, when he questioned the deceased as to why he was so executing thesaid
last will, the deceased told him...
It is no doubt true that the learned District Judge has rejected the evidence of this witness in regardtothesigningof
the document "A". Even so, it appears to me that, as this witness was called to testify at the trialbytheappellantand
has not been treated as an adverse witness at any stage of his testimony, the petitioner is entitled to thefullestbenefit
of any item of evidence, which is favourable to him, given by this witness whilst testifying at the inquiry as a witnessfor
the appellant. It may well be that subsequently, as time went on and a child was born, the deceased's feelingstowards,and
his relations with the appellant underwent a changeyet as far as the issue in this case is concerned the relevant pointof
time is the time at or about the day on which "A" is said to have been executed. The deceased may have, with thepassageof
time, wanted to revoke the document "A"but, if he had not done so, then the said document-which upon Anton'sevidencewas
in the custody of the deceased at the time of his death-if it was, in law, valid at the time of itsexecutionon31.8.1966
would then continue to retain its validity and become operative upon the death of the deceased -however harditmaybeby
the appellant and her minor children.
It is the position of the petitioner that the document "A" was found by his brother, the aforesaid Anton, on theeveningof
the 24th March, 1971, in the safe which was in the deceased's shop and which said safe Anton had opened withthekeywhich
the appellant had handed to him earlier that evening when she came to the shop to have the shop re-opened forbusiness.The
appellant has attacked this evidence as being wholly unworthy of credit. The evidence shows that, when the appellant cameto
the shop that evening, she had brought the key of the safe, which had been with the deceased,andthattheappellanthad
opened the safe. The evidence of Anton on this point is:"
According to Anton after he so discovered the said document "A" he had immediately taken it to his brother,thepetitioner,
who was residing at Ratmalana. It has to be remembered that, intheAppellant'sownadmission,Antonwasonewhohad
maintained very cordial relations both with her and the deceased at a time when theotherbrothersandsisterswerenot
favourably disposed towards them. Anton, it must be noted, seems to have continued to maintain hispreviousgoodrelations
with the appellant even after the death of the deceased, so much so that, on the 24th March,1971,theappellanthadnot
only requested Anton to continue to be in charge of the deceased's business but had also entrustedthesafetogetherwith
the money, which was in it. to Anton. According to the evidence it would appear that the relations between the appellantand
her brothers-in-law and sister-in-law even after the death- of the deceased and upto the date of the finding of thedocument
"A" were the same as they had been prior to the date of the death of the deceased. There does not seem to have been eventhe
hint of a claim by the petitioner, and or his brothers and sisters, to the Estate of the deceased prior tothe24thMarch,
the date on which, according to Anton, he found the document "A". The conduct of Anton after he says he found"A"isquite
consistent with that of a person who had not been upto that timeawareoftheexistenceofsuchadocument.Thenon
-communication of the finding of a document such as "A" to the appellant herself isquiteunderstandable,particularlyin
view of the relations which existed at that time as between the Petitioner and all the brothers and sisters of thedeceased,
excepting Anton, on the one hand and the appellant on the other. Furthermore, it cannot besaidthattherehasbeenany
inordinate delay in the part of the petitioner to bring the document "A" before Court. The document "A" is said to havebeen
found on 24.3.71. The testamentary proceedings have been instituted by the petitioner on 25.5.71,only14daysafterthe
commencement of proceedings by the appellant herself. The deceased, as already stated, had passed awayon15.3.1971.Ido
not think that there is room for suspicion on these grounds either.
It was also contended that it is most unlikely that the deceased would have chosen as his beneficiaries agroupofpersons
who had opposed his marriage. Although it is in evidence that the deceased's brothers and sistersdidnotapproveofthe
deceased marrying the appellant, there is no evidence thattheirattitudehadgonebeyondthestageofmerepassive
disapproval. There is no evidence of any untoward incidents between the deceasedandhisbrothersandsistersoverhis
marriage. There is, however, evidence of visits even though they had beenfewandfarbetween,paidbythedeceased's
brothers and sisters to the deceased and the appellant. Besides, Anton, had, admittedly, continued asearlierindicatedto
be very close and helpful to the deceased right upto the death of the deceased. Furthermore, there is alsotheevidenceof
the aforesaid witness Upaneris Silva, already referred to, of what the deceased himself had told UpanerisSilvaastowhy
he, the deceased, was executing the document "A". That statement of the deceased clearly shows what the deceased'srelations
with his brothers and sisters were at and about the time "A" was signed by the deceased.
Even though the learned District Judge has not considered this case as one in which there are suspicious features, yet, ona
consideration of the entirety of the evidence led at the trial and the facts and circumstancesrevealedbysuchevidence,
and about which there can be little or no doubt, it appears to me that any suspicion generated bythecircumstancesrelied
on on behalf of the appellant have been dispelled, and that, had the learned District Judgeproperlydirectedhimself,he
could and would still have found: that "A" is a document which had been drafted on the instructions of the deceasedhimself:
that "A" was signed by the deceased in the presence of the five witnesses referred to therein all of whom had also signedit
at the same time and place as the deceased and inthepresenceofoneanother:thatthedeceasedhadtherequisite
testamentary capacity: that at the time the deceased so signed "A", he was not only fully aware of anddidapproveofthe
contents of "A", but did also intend the said document to be his last will : that the deceased diedwithouthavingrevoked
the said last will. Viewing the case as a whole, I am of opinion that the document "A" does express the truewishesofthe
deceased, as on 31.8.1966, in regard to how his Estate should devolve on his death, and that theaforementionedfailureon
the part of the learned District Judge has not, in the circumstances of this case, either prejudiced thesubstantiverights
of the appellant, and of her two minor children, or occasioned a failure of justice.
For these reasons, I am of opinion that the appeal must fail. The judgment of the learned District Judgeisaffirmedand
the appeal of the appellant is accordingly dismissed, but, having regard to the circumstances of this case, without costs.
(VICTOR) PERERA, J.-I agree.