Sinnapodian V. Muttan Et Al.,

Present : Akbar S.P.J. and Koch J.

SINNAPODIAN v. MUTTAN et al.

144-D. C. Jaffna, 8,484.

Last will-Testamentary capacity-Minority of testator-Burden of proof- Wills Ordinance, No. 21 of 1844, ss. 1 and 2.

Where the validity of a last will is contested on the ground of the minority of the testator the burden of proving that the testator was of full age is on the person propounding the will.

THIS was an application for probate of the last will and testament of one Ratnam in which he had bequeathed all his property to his father the petitioner, respondent. The respondents, who are uncles of the deceased, opposed the grant on the ground that the deceased was a minor at the time he made the will. The learned District Judge after hearing evidence held that in case of doubt the Court should presume in favour of majority.

R. L. Pereira, K.C. (with him N. Kumarasingham), for respondents, appellants.-The burden of proving testamentary capacity is always on the propounder of the will. See Smee v. Smee [1 5P.D. 84. ]. Capacity includes age also. Under our law a will made by a person who is under 21 years of age is not valid. (Section 2 of Ordinance No. 21 of 1844). A person must be competent to make the will-see section 1 of Ordinance No. 21 of 1844. If the testator is not competent, the document cannot have in law the force of a will. In English law minority is dealt with as an incapacity-see Halsbury, vol. 28, Art. 1048; British & Empire Digest, vol. 44. The burden of proof is on the propounder. (Woodroffe & Ameer Ali on Evidence (8th ed.), p. 733.) Krishnamachariar v. Krishna-machariar [2 (1915) I. L. R. 38 Madras 166. ] is a case in point. See also Bhagirathi v. Viswanath [3 7 Bomb. 92].

in this case neither the birth of Ratnam nor the death of Mudaly was registered. The certificates of registration would have been the Best evidence to prove these facts. Where a Statute casts a duty on a person and penalizes the nonperformance of that duty the presumption is that the provisions of the law have been complied with. The Registration of Births and Deaths Ordinance casts such a duty and contains such penal provisions. Proof of age otherwise than by the production of the certificate of registration of birth requires very strong and cogent evidence. A horoscope cannot supply such proof nor a motor car driving licence.

H. V. Perera, for petitioner, respondent.-The law applicable to the proof of a will is contained in section 524 of the Civil Procedure Code. All heirs will be cited as respondents. All that the propounder has to do is to place before the Court evidence "proving that the will was duly executed according to law ", i.e., according to the formalities that have been prescribed by law. If minority is pleaded the party pleading it must prove it, in the same way as, where undue influence is alleged the party alleging it must prove it. See Hutley v. Grimstone [1 5 P. D. 24. ], North v. North [2 25 T. L. R. 322. ], Riding v. Hawkins[3 14 P. D. 56] The petitioner has discharged the burden on him by proving due execution under section 524 of the Civil Procedure Code.

R. L. Pereira, K.C., in reply.-What is to be proved is not merely due execution, but execution according to law. Under our law a will made by a minor is invalid and a document will not be considered a will in law unless the person who made it was competent to make it. The propounder must affirmatively establish the " testamentary competency "" of the testator.

Cur. adv. vult.

May 29, 1936. AKBAR S.P.J.-

The appellants who are the uncles on the mother's side of the deceased,. S. Ratnam alias Swakin, objected to the issue to the respondent (father of the deceased) of probate of the will of the deceased, in which Ratnam had bequeathed all his lands to his father. If not for the will the properties would have devolved on the brothers of the deceased's dead mother Seethavy as the lands

Click Here to Read the rest of this document