In Re The Last Will Of Tissera Appuhamy Tissera Et Al. V. Gunatilleka Hamine

Present : The Hon. Sir Joseph T. Hutchinson,
Chief Justice, and Mr. Justice Middleton. Sept. 5, 1910

In re the Last Will of TISSERA APPUHAMY.

TISSERA et al. v. GUNATILLEKA HAMINE.

D. C, Kalutara, 258.

Application for recall of probate-Summary procedure-Civil Procedure Code, ss. 536 and 537-Proof in solemn form and in common form.

Where an order nisi declaring a will proved has been made absolute and probate granted, an application for the recall of probate cannot be made in the summary manner indicated by section 537, Civil Procedure Code. The person attacking the will must bring an action for the purpose in the ordinary manner and must prove his case.

Our Legislature has not adopted the English practice of proof in common form and in solemn form.

The direction in section 537 that all applications for recall of probate shall be in a particular way applies only to the applications which are authorized by section 536.

THE 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 the Said P. S. Tissera and M. Dona Simona Gunatilleke Hamine (the

appellant) be declared a forgery, and that the probate issued in . this case be recalled, unless sufficient cause be shown to the contrary on April 27.

Tissera died on October 19, 1900, leaving the appellant his widow. On January 22, 1901, she applied to the District Court for probate of his will, supporting her application by an affidavit sworn by her on January 17, 1901, in which she swore that he duly executed his last will jointly with her, dated January 23, 1900, and that his heirs were herself, one daughter by his first marriage, and six children by her; that all the children were minors; and that she had no reason to suppose that her application would be opposed by any one. She also filed another affidavit, sworn on January 17, 1901, by all the five attesting witnesses, proving the due execution of the will. On January 22, 1901, an order nisi was made; it orders that the will be declared proved, unless any person shall on or before a certain date show sufficient cause to the contrary. The Court directed the order nisi to be advertised as required by section 532 of the Civil Procedure Code; this was done; and on April 4, 1901, it was ordered that the order nisi be made absolute, and probate of the will was issued to the appellant. She filed her inventory on June 28, 1901, and her final account on March 13, 1902, when the Court declared the estate closed. Then on March 21, 1910, the present respondent, who is the daughter of Tissera by his first wife, applied to 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 her the same day, in which she stated that she was a minor at the time of commencement of the testamentary proceedings, and was not aware of them, and was under the appellant until she married about five months ago; and that she believes that the will was not the act and deed of her father, but was forged by the appellant. Upon the strength of this affidavit the District Court made the order now under appeal.

Sampayo, K. C., for the appellant.-It is only where probate of a last will has been issued on any order absolute in the first instance that the summary procedure indicated by section 537, Civil Procedure Code, may be availed of for the recall of the probate. In this case the District Judge ordered the order nisi to be advertised in the Gazette.

Seneviratne, for the respondents.-The application for probate did not name any respondents. The minors were not represented by guardians when application for probate was made. The advertising in the Gazette can in no sense

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