Meenadchipillai V. Karthigesu

1957 Present: Weerasooriya, J., and Sansoni, J.

MEENADCHIPILLAI, Appellant, and S. KARTHIGESU and others,
Respondents

S. C. 499-D. o. Jaffna, 1712

    Will-Probate-Resistance to application--Suspicious circumstances-Burden of proof.

Where an application for probate of a will is resisted and circumstances exist which excite the suspicion of the Court, "whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will ."

The following circumstances were held to be suspicious in the present case, where it was shown that the testator died within seven hours after the execution of the will in a hospital :-(1) The testator was so ill at the time of execution that he was unable to speak or to hold a pen to write his signature. (2) The Notary did not take the obvious precaution of consulting a doctor at the time he took instructions from the testator or at the time of executing the will. (3) The petitioner, who was the widow of the testator and to whom the bulk of the property was devised, was a near relation of the Notary. (4) The witnesses to the will were not of independent character.

APPEAL from a judgment of the District Court, Jaffna.

H. V. Perera, Q. C., with S. Sharvananda and Miss Maureen Seneviratne, for the petitioner-appellant.

C. Ranganathan, with K. Shanmugalingam, for 1st and 2nd respondents

R. Manickkavasagar, for the 3rd to 6th respondents-respondents.

Cur. adv. vult.

April 11, 1957. SANSONI, J.-

This is an appeal from the judgment of the learned District Judge of Jaffna dismissing the application of the petitioner-appellant to have the will of her deceased husband Krishnapillai proved, and to have probate thereof issued to her. The application was resisted by the deceased's daughter by his first wife, and also by the guardian ad item of three minor children of the deceased by the petitioner; those children were 6, 4 and 3 years old respectively at the time of the application.

The estate of the deceased was valued by the petitioner at over Rs. 80,000, and except for a legacy of Rs. 10,000 to the 2nd respondent the whole of it has been devised to the petitioner. The deceased was about 55 years old at the date of his death. He seems to have fallen

ill some days before he entered the Moolai Hospital on the 27th November, 1952. Dr. Chacko who examined him on that day before admitting him as a patient was called as a witness by the respondents. He has stated that the patient's face was swollen (he had erysipelas) and that he was diabetic. Other details about the patient which were elicited from this doctor were that on 30th November and 1st December he was given a coramine injection as his heart was feeble, and he died on 1st December at about 2.30 p.m. Dr. Chacko seems to have been unable to remember any further details about the deceased because of the large number of patients he had treated in the hospital, and because he was giving evidence two years after the event. On being questioned about the deceased's mental condition he stated:-" I am not quite sure about the mental condition of the patient Krishnapillai. So I will not say anything about it".

The will was executed, according to the petitioner and her witnesses, at about 8 a.m. on 1st December that is about 6 1/2 hours before he died. As to what happened prior to the time of execution we have the evidence of the Notary who attested the will, the petitioner herself, and three other attesting witnesses, Krishnar, Manikam and Murugesu. I shall deal first with the Notary's account of how he came to get instructions for the drawing up of the will.

The Not

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