Kanagaratnam V. Ananthathurai

1945 Present: Keuneman and Jayetileke JJ.

KANAGARATNAM, Appellant, and ANANTHATHURAI, Respondent.

28-D. C. (Inty.), Jaffna 84.

Will-Codicil-Application for probate-Objections by respondent-Duty of Court to frame issues-Testator's knowledge and approval of contents of will-Nature and degree of proof necessary-Party who prepared will a beneficiary-A circumstance of suspicion Civil Procedure Code, s. 533.

In an application for the issue of probate of a Will or Codicil it is the duty of Court, when the respondent shows grounds of objection to the application, to frame issues as required by section 533 of the Civil Procedure Code.

When considering whether a testator knew and approved of the contents of the Will the Court will take into consideration as a circumstance of suspicion (but in no case amounting to more than a circumstance of suspicion) that the party who wrote or prepared the will takes a benefit under the will. Further, with regard to the nature and degree of proof that is required, the testator's instructions for, or reading over, the instrument are not the only satisfactory description of proof by which the cognizance of the contents of the will may be brought home to the deceased.

APPEAL from a judgment of the District Judge of Jaffna.

H. V. Perera, K.C. (with him N. Nadarajah, K.C., and H. W. Tambiah), for the petitioner, appellant.

N. Kumarasingham for the respondent.

June 21, 1945. KEUNEMAN J.-

In this case the appellant produced will P 1 dated May 9, 1942, and asked for probate of that will. The present respondent produced further documents X 1 and X 2 which he alleged had been a later will or codicil duly executed by the deceased. X 1 and X 2 are said to have been executed on October 3, 1942. As regards the will P 1 the present respondent did not dispute the fact that probate should be issued in respect of it and the Judge's finding that probate should be issued in respect of the document P 1 must therefore be affirmed.

The only question is whether the Judge has rightly ordered probate to issue in respect of the documents X 1 and X 2. Now, it has been clearly laid down in our law (see Andrado v. Silva 1[22 N .L.R.4]) that " it lies upon the propounders to prove (1) the fact of execution, (2) the mental competency of the testator, (3) his knowledge and approval of the contents of the will. If the circumstances are such that a suspicion arises affecting one of these matters it is for the propounders to remove it ".

In this case the learned District Judge has failed to frame issues as he was required, to do under section 533 of the Civil Procedure Code,

and the case proceeded to trial on certain statements made by counsel. In the course of the proceedings Mr. Advocate Kulasingham, who appeared for the present appellant, said that he insisted upon the documents being proved in solemn form, that is, the proof of the making of the documents by the testator and her mental capacity to make it. Now, undoubtedly the use of the wards " in solemn form " appears to catch up all the three elements which are required as proof under our law, but the latter part of his statement may well be interpreted to restrict the elements to two and not three, namely, the making of the documents and the mental capacity of the testatrix and in view of this somewhat ambiguous statement it is possible that there may have been some misunderstanding by the parties. In fact one of the elements which is laid down as requisite under our law has not been sufficiently considered in the Court below or by the Judge himself, namely, whether the testatrix knew and approved of the contents of the will X 1 and X 2. The Judge has not directed his attention to the various pieces of evidence bearing upon the matter, nor has he analysed that evidence and stated his considered conclusions on that matter. In the circumstances it is difficult to uphold the finding of t

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