1944 Present : Soertsz and Hearne JJ.

ARULAMPIKAI, Appellant, and THAMBU, Respondent

59-D. C. (Testy) Jaffna, 1036

Last will-Incapacity of person writing a will from taking under it-Subsequent confirmation-Burden of proof on propounder of will-Point raised for the first time in appeal-Roman-Dutch law.

The principle of the Roman-Dutch law-that a person who writes out a will for the testator cannot take any benefit under it, unless the testator either adds a clause in his own handwriting to the effect that he dictated the will and acknowledges is correctness or in some other manner confirms the disposition-is in force in Ceylon. Such confirmation may take place, apart from the will itself, as for instance in a subsequent and independent codicil or by some satisfactory proof of confirmation.

Where a strong suspicion arises in consequence of the will being wholly in the handwriting of the beneficiary who is the father of the testatrix, a young woman living under his roof in a state of estrangement from her husband, it is incumbent on the propounder to dissipate the suspicion by leading evidence of the confirmation of the will.

The Supreme Court may decide a case upon a point raised for the first time in appeal where the point might have been put forward in the Court below under one of the issues raised and where the Court has before it all the material upon which the question could be decided.

APPEAL from a judgment of the District Judge of Jaffna. The facts appear from the argument.

N. Nadarajah, K.C. (with him V. K. Kandaswamy), for the defendants, appellants.-The petitioner to whom probate has been issued in this case, is the father of the testatrix, and the 1st and 2nd respondents, who are the appellants, are her child and husband. The will in question was written in the handwriting of the petitioner and makes him the sole beneficiary. It was executed on March 1, 1941.

The rule of the Roman-Dutch law is that a person who writes a will for another cannot take any benefit under it-Benischowitz v. The Master [1 S.A.L.R.(1921) A.D.589.]; Mellish v. The Master [2 S.A.L.R.(1940) T.P.D.271 to 277.]; Steyn's Law of Wills in S. Africa (1935 ed.) p. 16; Nathan's Common Law of S. Africa, Vol. 3, p. 1811; Van Der Keesel's Select Theses, Arts. 292 (Lorenz's Translation); Walter Pereira's Laws of Ceylon (1938 ed.) p. 407. In English law, if a party writes or prepares a will under which he takes a benefit, the burden is on him of proving that the document really expresses the mind and intention of the testator-Fulton v. Andrew [3 L.R.7 H.L. 448 at 461]; Tyrrel v. Painton [4 L.R.(1984) P.D.151]; Finny v. Govet [5 (1908) 25 T.L.R.186.]. In Ceylon it has been held that where a suspicion attaches to a will, the Court must be particularly vigilant in examining the evidence-The Alim Will Case [6 (1919) 20 N.L.R. 481.]; Andrado v. Silva et al.[7 (1920) 22 N.L.R.4.]
 

Section 11 of the Prevention of Frauds Ordinance (Cap. 57) declares that gifts to attesting witnesses and to their wives or husbands are void. That section, however, only adds to, and would not limit, the list of person who are executed by the Roman-Dutch law from taking under a will. It is the Roman-Dutch law which will be applicable on such a question as the one involved in these case-Nagamma v. Sathappa Chetty et al. [1 (1903) 9 N.L.R. 246.]; Rabot et al. v. de Silva et al. [2 (1909) 12 N.L.R. 81.]; de Silver et al. v. de Silva et al. [3 (1938) 40 N.L.R.228.] ; Pearl Assurance Co. v. Government of the Union of S. Africa [4 L.R.(1934) A.C.570 at 578.]; Samed v. Seguthamby [5 (1924) 25 N.L.R. 481 at 496.]; Thurburn v. Steward [6 L.R.(1869-71) 3 P.C. 478 at 511.]; Weerasekere v. Peiris [7 (1932) 34 N.L.R.281 at 285.]; Lee's Introduction to Roman-Dutch Law (3rd. ed.) pp. 2, 26.

A pure point of law can be raised for the first time in appeal.-Appuhamy v. Nona [8 (1912) 15 N.L.R. 311.]; Fernando v. Abe