Adliet Ratnayake, V. Ratnayake Et Al.,

1947 Present : Keuneman and Canekeratne JJ

ADLIET RATNAYAKE, Appellant, and RATNAYAKE
et al., Respondents.

20-D. C. (Inty.) Colombo, 10,504 T.

Last will-Probate-Evidence.

Where there is no doubt of the mental competency of the testator and no element of suspicion arises a will will held to be proved if the witnesses who speak to the due execution and attestation are believed by the court.

APPEAL from a judgement of the District Court, Colombo.

N. Nadarajah, K. C. (with him H. A. Koattegoda), for the 1st petitioner, appellant.

H. V. Perera, K.C (with him H. W. Jayewardene), for the 1st, 5th and 7th respondents.

Cur. adv vult.

March 6, 1947. KEUNEMAN J.-

The main question in this case was whether the alleged will (P1)of May 23, 1943, was duly executed by James Albert Ratnayake in the presence of five witnesses. The 1st petitioner who propounded the will was the mistress of Ratnayake, who had treated her as he would a married wife, and who had two children by her to whom he was devoted. The District Judge has held that the will itself was not an unreasonable will, and that no suspicion can attach to the will from the dispositions contained in it which were just and equitable, In fact it is not improbable that the will represented the wishes of the testator. No doubt the will was written in an unusual place, viz., an account book of the testator. But it is also to be noted that this moderately long will was written out entirely in handwriting strongly resembling that of the testator in this account book which contained pages of the testator's writing. If the will was a forgery, the forger was courting immediate detection. The will certainly was accepted for a time as genuine by the 2nd petitioner who is now a strong opponent of the will, and he signed the original affidavit asking for probate as one of the executors named in the will. The 2nd petitioner was familiar with the handwriting of the deceased.

One matter may be specially mentioned. The District Judge says "Grave suspicious arise on the evidence as to whether the will propounded was the act of the deceased". We have carefully examined the judgement and we do not think that in this case any element of suspicion relating to the will can be said to have arisen. The questions which did arise according to the findings of the District Judge related to matters which may have affected the credibility or the reliability of the various witnesses called and cannot be said to relate to the circumstances under which the will was made. We do not think that any suspicion with regard to the genuineness of the will can be said to have arisen.

In Shama Charu Kundu v. Kettromoni Dasi 1 [(I. L. R. 27 Cal. 522, at 528.] the Privy Council had to consider a similar problem. "In this case the suspicion, if there was one, would be that on the morning when the will was said to have been made the deceased was in an unconscious state and was unable either to sign he will or to understand what he was doing, that is that the witnesses in support of the will were not telling the truth. If they were their Lordships do not see anything to excite suspicion. The question was simply which set of witnesses should be believed".

In the present case the question was whether the alleged will was duly executed by the testator and attested by the five witnesses. It was a pure question of fact-as to whether the witnesses who spoke to the due execution and attestation were to be believed. If they were believed no element of suspicion arose. If they were not believed, then the will could not be held proved.

In our opinion the District Judge has been misled into the belief that there were elements of suspicion which it was the duty of the propounder to remove. This belief has influenced the District Judge into thinking that a heavier burden of proof rested on the propounder than the law had in fact imposed upon her. T

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