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IBRAHIM NEINA v. KOSUMMA et al.
NLR15V46
Present: Lascelles C.J. and Middleton J.
IBRAHIM NEINA v. KOSUMMA et al.
122-D. C. Batticaloa, 577.
Last will-Execution-Witnesses standing outside the room when deceased signed will, but able to see-Presence-Ordinance No. 7 of 1840, s. 3-Appeal-Security bond not stamped fully before the time allowed-Appeal does not abate-Civil Procedure Code, s. 756. The witnesses to a will were not actually in the same room as the deceased and the notary when the former signed the will, but were in a verandah opening into the room and saw and were conscious of what was taking place in the room.
Held, they were in the " presence " of the testator within the meaning of section 3 of Ordinance No. 7 of 1840.
Middleton J.-The wording of section 3 does not seem necessarily to imply that the attestation of the notary must be made in the presence of the witnesses. They all must be present at the execution by the testator and witness the signature and must duly attest such execution thereafter, as I read the clause.
This appeal was held not to have abated, though the appellants security bond was not fully stamped within the time allowed.
Lascelles C.J.-The bond was tendered and was accepted by the respondent's proctor within the appealable time, and there can be no doubt that, even if the District Judge had not allowed the deficiency to be supplied, the bond, at the expiration of the appeal able time, was a valid security, which could have been enforced on payment of the deficiency and penalty under section 36 of the Stamp Ordinance of 1909.
Middleton J.-I think that this security bond is not an instrument required by law to be stamped in every testamentary suit, as it is not included in Part III. of Schedule B of the Stamp Ordinance, No. 22 of 1909, and would not therefore come under the terms of section 87 of the Ordinance.
THE facts are set out in the judgment of Middleton J.
van Langenberg (with him Tissaveerasinghe) for petitioner, respondent.-The security bond furnished by the appellant for the appeal was not sufficiently stamped within the time limited for perfecting the bond. It has been held in Kandappa v. Elliott l that it was not sufficient for a party wishing to appeal from a judgment of a District Judge to tender security within twenty days, but that he must perfect the security by entering into the bond within the time limited. As the bond was not properly stamped it is invalid, and therefore the appeal has not been duly perfected. A Court has no
1 (1892) 2 C. L. R. 17.
power to extend the time within which the appellant is required: to tender security. Sulama Levai v. Iburai Naina. 1 The fact that full stamp duty was paid after the twenty days does not help the appellant. Counsel also cited Gunatilleke v. Punchy Hamy, 2 Henderson v. Daniel. 3
Bawa, for the respondent and intervenient, appellants.-The provisions of the Civil Procedure Code as to security in appeal are intended for the benefit of respondent parties, who may waive such benefit at their option. Jayasekera v. Jansz. 4 The respondent did not object to the bond when he was noticed. The cases cited by the respondent's counsel are not on all fours with the present. The question of stamp duty did not arise in those cases. Counsel cited Stamp Ordinance, sections 87 and 36.
[Their Lordships over-ruled the objection.] Counsel argued on the facts.
van Langenberg, for the respondent.-The will was not duly executed. This witnesses were not present in the same room when the will was signed by the deceased. The notary did not sign the will in the presence of the witnesses. The requirements of section of Ordinance No. 7 of 1840 have not been complied with.
The burden of proving the genuineness of the will is on the party propounding the will. The petitioner has not satisfied the District Judge that the will is valid. Counsel cited In re Last Will of Carolis Dias. 5
Bawa, in reply.-There should be strong proof befo
