Samarakone V. Public Trustee

1980 Present : Weerasooriya, J., and H. N. G. Fernando, J.

R. P. W. SAMARAKONE, Appellant, and THE PUBLIC
TRUSTEE and others, Respondents

S. C. 87 B of 1957-D. C. Colombo (Testy.), 16308

Will-Issue of forgery-Burden of proof-Evidence of handwriting expert-Admissibility of evidence of another expert in rebuttal-Civil Procedure Code, ss. 163, 166-Evidential value of evidence of expert-Power of Judge to examine relevant signatures himself-Suspicious features as ground for refusing probate.

Pending an application for probate of a will No. 3911 dated 10th February 1950, there was found a will No. 541 dated 13th June 1954 purporting to have been executed by the deceased and revoking all previous testamentary instru­ments. The Public Trustee, who was appointed the sole executor under will No. 3911, and those heirs of the deceased who opposed the grant of probate to will No. 541, took up the position that will No. 541 was a forgery. Inquiry was thereafter held on the single issue which was formulated as follows : " Was the Last Will No. 541 of 13.6.54 the act and deed of the deceased ? ". The 5th respondent, being the propounder of will No. 541, was the party that led evidence first. The only witnesses called by him were the Proctor who attested the will and the two attesting witnesses. The case for the 5th respondent was then closed. Among the documents put in evidence a3 part of his case were the letters 5R3, 5R4 and 5R5 alleged to have been written by the deceased to the Proctor in connection with the will. The Public Trustee next adduced his evidence and called, among others, the Government Examiner of Questioned Documents, who, giving evidence as an expert, expressed an opinion that the purported signatures of the deceased on the will No. 541 as well as on the letters 5R3, 5R4 and 5R5 were not genuine. After the case for the Public Trustee was closed, Counsel for the 5th respondent moved to call another handwriting expert in rebuttal of the evidence of the Government Examiner of Questioned Documents. This was objected to by the Public Trustee and the Court upheld the objection and refused to allow the evidence in rebuttal.

Held, (i) that the 5th respondent was not entitled to lead in rebuttal the evidence of a handwriting expert, whether under section 163 or se3tion 166 of the Civil Procedure Code. When the Public Trustee and those heirs of the

deceased who opposed the grant of probate of the will No. 541 took up the posi­tion that it was a forgery, they did no mare than put the 5th respondent, as the propounder of the will, to the proof that the deceased signed it. In such a case the provisions of section 163 of the Civil Procedure Code for admitting rebutting evidence are not applicable.

The Alim Will Case (20 N. L. R. 481), distinguished.

(ii) that, on an issue of forgery, the Court may accept a handwriting expert's testimony, provided that there is some other evidence, direct or circum­stantial, which tends to show that the conclusion reached by the expert is
correct.

(iii) that a Judge is not precluded from himself making comparisons of rele­vant signatures for the purpose of deciding whether the reasons given by a handwriting expert are acceptable or not.

(iv) that where there are features which excite suspicion in regard to a will, whatever their nature may be, it is for those who propound it to remove such suspicion. Suspicious features may be a ground for refusing probate even where the evidence which casts suspicion on. the will, though it suggests fraud, is not of such a nature as to justify the Court in arriving at a definite finding of fraud. The conscience of the Court must be satisfied in respect of such matters.

APPEAL from a judgment of the District Court, Colombo.

Sir Lalita Rajapakse, Q.C., with H. A. Koattegoda, for the 5th Respondent-appellant.

H. V. Perera, Q.C., with Walter Jayawardena, for the 1st Respondent.

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