Peries Et Al. V. Perera Et Al.,

1947 Present : Canekeratne and Dias JJ.

PERIES et al, Appellants, and PERERA et al, Respondents.

S. C. 75-D. C. (Inty.) Colombo, 10,322.

Will-Probate-Allegation, of suspicious circumstances-Fraud--Burden of proof.

it is no part of the duty of Court to see that a testator makes a just distribution of his property, and so long as it is proved that the testator executed the will intending it to be his will the Court cannot refuse to grant probate on the ground of suspicious circumstances.

When there is a written memorandum in a will stating, among other things required by the statute, that the will had " been duly read over " this would be prima facie evidence that the will was read over before, and not after, the signature of the testator was placed.

Before fraud can be inferred in regard to the preparation of a will by the notary the fraudulent conduct must be clearly alleged and proved.

APPEAL from an order of the District Judge, Colombo.

One Edwin Perera left a will leaving his property to his sister Catherine, his adopted daughter Somawathie, to Newman who was one of his two sons, and to a servant girl. Reasons were given in the will for not making provisions for the wife and the other son, Walter. When application for probate was made by the executors, the widow and two sons of the deceased filed objections. The only issue framed at the inquiry was: ** Is the will sought to be proved the act and deed of the deceased W. Don Edwin Perera ? " The learned District Judge dismissed the application for probate. The petitioners thereupon appealed.

E. F. N. Gratiaen, K.C. (with him H. W. Jayewardene), for the petitioners, appellants.

F. A, Hayley, K.C, (with him C. Thiagalingam), for the objectors, respondents.

Cur. adv. vult.

September 25, 1947. CANEKERATNE J.-

This is an appeal by the petitioners from an order dismissing their application for probate of a will signed by one Edwin Perera. The will in question in this case is dated February 5, 1942. The testator died on January 1, 1943, leaving him surviving his widow, two sons Walter and Newman and an adopted daughter Somawathie. The will was propounded for probate by the executors as an uncontested will, and on February 2, 1943, an order nisi was made for the grant of probate to them. Shortly afterwards on March 11. 1943, the heirs of the testator, the widow and two sons, presented a statement of objections, and prayed for the dismissal of the appellants' application. They gave four grounds. The widow had previously made an application for a grant of letters of administration in respect of the estate of the deceased. With that application she filed a motion R19 signed by the two sons, whereby they gave their consent to a grant of administration being made to her subject to these terms : (A) the widow is not entitled to any share of the immovable property and cash (moneys in bank, security moneys) left by the deceased but the same were to belong to the two sons in equal shares, (2) the contracts of the deceased were to be shared by the three, each to get one-third share.

The only issue framed at the inquiry was-is the will sought to be proved the act and deed of the deceased W, Don Edwin Perera ? Counsel for the objectors stated that the grounds on which they say that the will was not the act and deed of the deceased were those stated in paras. 2 to 5 of the statement of objections. These grounds are as follows :-

(a) the will is not duly attested.

(b) the deceased was not of sound and disposing mind at the time of the execution of the alleged will. (c) the will does not express the true intentions of the deceased.

One further point suggested by the objectors during the course of the inquiry appears to be that the signature on the will had been forged, and they called as a witness a person described as a handwriting expert. The trial Judge was not impressed by the evidence of this wi

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