MAR

17

PANADURA LAWYER'S LASTWILL- WILL POSITIVELY ESTABLISHED- AUTHOR ACKNOWLEDGED AND APPROVED BY THE TESTATRIX BY HER PRIOR AND SUBSEQUENT CONDUCT.

THE RESPONDENT HAS NOT RAISED ANY QUESTION CONCERNING HER KNOWLEDGE AND APPROVAL OF THE CONTENTS OF THE WILL, EXCEPT A VAGUE DEFENCE OF

UNDUE INFLUENCE.THE FALSITY OF THE EVIDENCE GIVEN BY THE RESPONDENT NOT BEING TAKEN INTO ACCOUNT BY THE DISTRICT JUDGE IN EVALUATING THE WEIGHT ATTACHED TO

THE DEFENCE. FURTHER TO EVALUATE THE EVIDENCE OF THE RESPONDENT WITH A CRITICAL APPROACH.

DR AMRASINGHA'S LASTWILL

CLICK RVSION AFTR 8 YRS,

A.W.Abdus Salậm, J.

The petitioner-appellant (for purpose of convenience hereinafter referred to

as the "petitioner") invoked the testamentary jurisdiction of the district

court of Panadura in the above proceedings, to prove Last Will of his

mother A.P.Karunawathie Piyaseeli (hereinafter sometimes referred to as

the "testatrix”). The Last Will in question bearing No. 407 dated 17-11-83

has been attested by K.V.P. Jayathilaka, Notary Public of

Panadura. Admittedly, the heirs of the testator in the event of intestacy are

the children, i.e. the petitioner, respondent-respondent (hereinafter referred

to as the "respondent") and Leslie Peiris. The said Leslie Peiris did not

object to the Will being admitted to probate. Conversely, the respondent

opposed the application of the petitioner. He denied the genuiness of the

signature on the Last Will, purported to be that of the testatrix. In the

statement of claim he maintained that the signatures appearing in the

purported Last Will and the letter of instructions to the notary public

attached to the petition, were forged. The alternative position taken up by

him was that in any event the Last Will is not the act and deed of a free and

capable testatrix.

Six issues were recorded by court as being matters of controversy. Three of

them were recorded at the instance of the petitioner and rest at the

initiation of the respondent. For purpose of this judgment, suffice it would

be to reproduce three of the said issues recorded at the instance of the

respondent. They are as follows.

4. Was the signature on the Last Will is that of the

testatrix?

5. If so, has she signed the same unwillingly?

6. If so, is the Last Will invalid and of no effect in

law?

As regards issue No’s 4 and 5 the learned district Judge concluded that the

signature on the Last Will was that of the testatrix and it has not been

placed voluntarily. Hence, he determined that the said Last Will is invalid

in law and the mother of both parties departed this life intestate. This

appeal has been preferred by the petitioner, challenging the propriety of

the said findings, judgment and the decree that followed.

As a matter of law, the respondent has urged that the appeal should be

dismissed inlimine, inasmuch of the petitioner has failed to prefer it within

the appealable period. It is well recognized law that the petition of appeal

against a final judgment and decree pronounced by a court should be filed

in the Court of first instance within 60 days from the date of judgment. In

this case the judgment has been written by the learned district Judge on a

special appointment made by the Judicial Service Commission, after he

was transferred from the district court of Panadura, pending the

pronouncement of the judgment. As a result the judgment of the said

district Judge dated 20-05-98 has been pronounced with notice to the

parties by his successor on 02-07-98. The petition of appeal has been filed

on 27-08-98, within a period of 60 days from the date on which the

judgment was so pronounced. The contention of the respondent is that the

60 days contemplated by section 755(3) of the Civil Procedure Code must

be reckoned from the date of the judgment, as opposed to the date on

which it was pronounced. Applying the argument advanced by the

respondent, if the judgment of the learned district Judge who heard the

case was pronounced after notice to the parties, on the 61st day after it was

written, then the petitioner would have had no right of appeal against the

decision. In a situation such as this the maxim Actus curiae neminem

gravabit applies and in the light of the said maxim, and in my view the

objection appears to be baseless.

It has been contended on behalf of the respondent that the affidavits

annexed to the petition in the district court are invalid in as much as they

were alleged to have been signed before the instructing attorney at law of

the petitioner. The position that the affidavits in question had not been

signed before the justice of peace before whom they were purported to

have been signed was never put to the witnesses. The witnesses who

testified as to the due execution of the Last Will have only stated that the

said affidavits had been drafted by the instructing attorney at law of the

petitioner and they signed the same at her request. There is no evidence on

record to warrant the conclusion that the said witnesses had not signed the

affidavit in the presence of the justice of peace who purported to have

administered the oath on the deponents. Hence, the objection raised

against the validity of the affidavit by the respondent should necessarily

fail.

The Will referred to as P1 has been executed before a Notary Public, in the

presence of two witnesses namely M.J. Tikmond Silva and H.Alankarage

Piyadasa. Incidentally, all three of them were attorneys at law by

profession.

According to the evidence led at the inquiry, the Notary Public before

whom the Will has been executed was a senior practitioner at the Panadura

bar. He has been called to the bar in the year 1968. As regards the

circumstances in which P1 was executed, K.N.P. Jayathilaka has given

convincing evidence in the lower court. It was suggested to the notary that

P1 was prepared by the petitioner and the notary executed the same in

order to help the latter who was a colleague of the notary at the bar. The

Notary Public denied this allegation and gave cogent reasons recounting as

to how he came to be acquainted with the testatrix while he was on the

teaching staff at a Government School in Alubogahamulla, where the

testatrix lived. He further elaborated the conditions under which P1came to

be executed.

The subscribing witnesses also gave evidence in the like manner as to the

execution of the Will. M.J.Tikmond Silva who is one of the witnesses to P1

has started his career as a member of the legal profession way back in

1954. From the year 1962 to 1969 he has functioned as a president of

the Rural Court. In the year 1969 due to medical reasons he has retired

from judicial service and reverted back to private practice in 1971. He has

signed P1 as a witness at the specific request made by the testatrix that had

been conveyed through the notary who attested the Last Will.

Hewa Alankarage Piyadasa featured in P1 as the second witness. He too is

an attorney-at-law attached to the same bar. When P1 came to be executed,

Piyadasa had been in active practice for nearly 2 1/2 years. It is at the

request of the testatrix conveyed in the like manner Piyadasa witnessed the

Last Will. Incidentally, witness Piyadasa during the relevant period

functioned in the same office in which the petitioner also occupied as a

lawyer.

Even though there was overwhelming evidence relating to the execution of

P1, quite surprisingly the learned district Judge has totally ignored the

evidential value of the witnesses, testified on behalf of the petitioner and

without analyzing the evidence of the respondent and his witnesses,

accepted the respondent's version and dismissed the petitioner’s

application.

In regard to the evidence of the notary and the two subscribing witnesses

to P1, it has to be observed that the respondent has not been able to

discredit them in any manner. The suggestion put to them under cross

examination was that they were testifying in favour of the petitioner to

help a colleague at bar. This suggestion was strongly denied by all three

witnesses and until the conclusion of the inquiry it remained an

unsubstantiated suggestion.

The respondent has been quite critical of the lack of participation of any of

the family members of the testatrix at the execution of P1, without

appreciating the decision of the testatrix to keep even the petitioner away

from the execution of P1. The testatrix was the executor by nomination

under the Last Will of her deceased husband and an active Buddhist

worker in the area. Without the assistance of her husband and any of the

children she has successfully prosecuted a partition action in the district

court and also an appeal connected with it. With this experience, it appears

that the testatrix had decided not to disclose any information regarding her

testamentary disposition and strictly meant it to be kept a secret. The

learned district Judge has totally misapprehended the said decision of the

testatrix, when he viewed the execution of P1 as being tainted with doubt.

It is noteworthy that for reason of her own the testatrix has handpicked the

witnesses to P1. The learned district Judge does not appear to have

appreciated the importance of having people of standing as subscribing

witnesses to a Last Will, but commented adversely against the notary and

the two witnesses, as being partial towards the petitioner, without any

semblance of assertion to that effect either in the evidence of the

respondent or the statement of objection. As has been previously

mentioned it was only a baseless imputation made to them under cross

examination that the evidence regarding the execution of the Last Will was

influenced by their desire to extend a helping hand to a fellow practitioner

at the bar.

The importance of selecting witnesses of intelligence and respectability has

been stressed upon by several well-known jurists. In the case of

Wijewardena and another Vs Ellawala (1991) 2 Sri Lanka Law Report page

14 at page 22, Wijetunga J, in a painstaking judgment dealt in detail with

the competence of the witnesses in testamentary dispositions. According

to jurists the invitations extended to professionals to witness testamentary

dispositions is a salutary practice. The advantage seems to be that when

professional men subscribe as witnesses to a Last Will, it generally gives

rise to a assumption that every requirement to make the document legally

valid has been satisfied. Accordingly, the propounder of such a Will is at

an advantageous position to find such witnesses, without much difficulty.

Even if they are not among the living when the propounder seeks to prove

the Will, the degree of difficulty in proving their handwriting will be

negligible as opposed to the proof of handwriting/signature of a

nonprofessional.

The learned district Judge has failed to appreciate the significance attached

to men of standing subscribing their names as witnesses to testamentary

dispositions and also failed to evaluate the credibility attached to the

uncontradicted testimony of the notary and the two witnesses against

whom admittedly nothing impropriety has been proved either in regard to

their personnel conduct or professional uprightness. Moreover, the

respondent has admittedly retained the services of the Notary Public in the

latter’s capacity as an attorney at law, in relation to a civil case of his wife.

Quite unexpectedly, the respondent or his wife had not lost faith in their

lawyer, namely the notary who attested P1. In the circumstances, the

learned district Judge appears to have gravely misdirected himself by not

conferring the presumptive effect to the Last Will.

It is trite law that where a Will is in proper form and is duly executed the

presumption that arises in law is that all requirements attached to the Will

have been fulfilled. This presumption in law is termed as omnia

praesumuntur rite esse acta.

It is appropriate at this stage to reproduce some of the relevant passages

quoted by Wijetunga,J in Wijayawada's case (supra) that deal with the

consequences relating to proof of due execution of a Will. The relevant

passages read thus. “If a rational Will is produced, and shown to have been duly executed, the Jury ought to

be told to find in favour of the testator's competence. The legal burden rests on the party

who propounds the Will, but the rule that he does not have to adduce evidence of

capacity in the first instance is sometimes said to raise presumption of sanity in

testamentary cases."

CROSS ON EVIDENCE, 2ND EDITION AT PAGE 104.

If a Will is rational on the face of it, and appears to be duly executed, it is presumed, in

the absence of evidence to the contrary, to be valid. JARMAN ON WILLS (1951) 8TH EDITION, VOLUME I PAGE 50.

Our courts have always given effect to the presumption to a duly executed

Last Will rational on it’s face and when it did not shock the conscience of

court as being suspicious, save and except where an objector proved the

contrary position to defeat the Will. A leading case on this aspect is

Gunasekere v. Gunasekera, (1939) 41 NLR 351, where the propounder of a

Last Will proved due execution. It was specifically laid down that in such

a situation the presumption that the testator knew and approved of its

contents should be given effect to, unless suspicion a priori attaches to the

document by its very nature.

Since the Will produced by the petitioner was shown to be duly executed

and appeared on the face of it to be quite rational, the learned district Judge

was obliged to apply the principle relating to presumption of due

execution coupled with a presumptive sanity in testamentary dispositions.

Had the learned district Judge properly applied the said two principles to

the facts of the present case, he would have possibly not encountered any

difficulties in coming to the correct conclusion.

In the light of the evidence led at the inquiry by the petitioner it was quite

obvious that the testatrix was absolutely sane when she made the Will. She

had lived for nine long years having made it and there was no occasion for

her to complain against the notary, the subscribing witnesses or the

petitioner. During the said period, she has made no attempts whatsoever

to revoke or annul the Will.

Further during this crucial period the respondent and Leslie had met her

on numerous occasions. The respondent claimed that he met the testatrix

almost everyday. In the event of undue influence of any sort had been

exerted on her, the most suitable person she could have ever complained

against such conduct of the petitioner was none but the respondent. The

fact that the testatrix never complained to anyone either prior or

immediately after or in the least degree during any time after the execution

of P1, for a period of nine long years, puts the matter beyond doubt that P1

clearly is the act and deed of freely and willing author of a Last Will and a

clear and unequivocal wish was to effect a testamentary disposition to the

exclusion of other two children. What more, the evidence points to the fact

that for reasons of her own, the testatrix was determined to conceal the fact

of having signed the Last Will from all her children. She was sane not only

when she did execute it, but throughout the period of 9 years until she

came by the death. Upon a consideration of the above, it should be the

view of any person of prudence and reasonableness that the circumstances,

cry out for the application of the presumption that the testatrix was quite

sane and well aware of the nature and consequences of the testamentary

dispositions she made, special regard being had to P2.

P2 is the document obtained by the notary from the testatrix confirming

her verbal instructions. It is in the handwriting of the testatrix

herself. Neither the signatures on P1 and P2 nor the handwriting in P2

were seriously contested by the respondent except making certain

suggestions to the witnesses for the mere sake of denying the

signature. The learned district Judge has completely misdirected himself in

making his observation against the notary for having obtained P2. He has

also failed to consider the evidential value of P2. The document marked as

P2, is self explanatory as to the decision the testatrix had taken, in relation

to her testamentary disposition. The discretion exercised by her in the Last

Will, cannot be questioned or faltered however inequitable it may appear

to be on the face of it. For these reasons the learned district Judge should

have presumed that the testatrix was sane and she made a sensible

testamentary disposition, when she perfected the Will and it was for the

respondent to prove the allegation of undue influence.

A perusal of the judgment reveals that the learned district judge was

influenced to a great degree in his decision by the alleged undue influence

said to have exerted by the petitioner on the testatrix. There was no specific

issue raised as to undue influence. In order to establish the element of

undue influence, the respondent relied heavily on the special relationship

of confidence existed between the testatrix (mother) and the petitioner

(son). It was strenuously argued on behalf of the respondent that the kind

of relationship between testatrix and the petitioner was such which gave

rise to a presumption of undue influence and the petitioner by his silence

has failed to rebut the presumption.

Reliance was placed by the respondent in the judgment of the Supreme

Court, in Ratwatta Vs Gunasekara 1987 2 SLR 260, where it was held that

contract which may be rescinded on the basis of undue influence fall into

two categories, i.e. where there is no special relationship between the

parties and where special relationship of confidence exists and that in the

latter case undue influence is presumed to exist and the onus is on the

party taking the benefit to justify that it was free from undue influence.

Learned President's counsel of the petitioner has contended that the

authority relied upon by the respondent in proof of the proposition that

undue influence is presumed in case of special relationship of confidence

between the parties, is a clear misconception. On behalf of the petitioner it

has been further contended that the law as it stands today recognizes the

right of a child to importune a parent for a legacy as long as the

importunity does not amount to coercion or fraud.

The principle relating to importunity has been recognized in the judgment

of Parfitt Vs Lawless LR 2P&D 462. In the local case of Peiris Vs Peiris 9

NLR 14 @ page 24 the right of a child to importunity has been recognized

following the decision in Parfitt’s case. In Anderado Vs Silva 22 NLR 4 it

was held that the burden of proving undue influence is on those who

allege it.

The Will that is propounded in this case has been positively established to

have been sufficiently acknowledged and approved by the testatrix by her

prior and subsequent conduct. The respondent has not raised any question

concerning her knowledge and approval of the contents of the Will, except

a vague defence of undue influence.

The proposition of the law on this matter quoted with approval in the case

of Wijewardena (supra) is worth being re-quoted. It reads as follows. “that if a Will appears to be formally valid, the burden of proving that it is invalid lies

on the party who challenges it; and that a Will is invalid if the testator when he made it

was mentally incapable of appreciating the nature and effect of his act but the burden of

proving this rests on the person alleging it”. Lee: South African Law of Property, Family Relations and

Succession (1954 Edition) at pages 180 and 187

After the evidence of the witnesses for the petitioner was led, there could

not have been possibly any doubt with regard to the due execution of the

Will and the sound disposing mind of the testatrix. Further nothing

essentially unnatural in the document could arise when it is carefully

perused and examined. In such an event the burden undoubtedly shifts on

to the objector to show the contrary, namely the existence of undue

influence, etc.

It is convenient at this point to consider the extent to which the respondent

was able to prove the purported undue influence. The respondent has not

spoken to in his evidence of any particular incident of undue influence

being exerted on the testatrix. On the other hand, the witnesses who were

present at the execution of the Will had every reason to believe and in fact

they were of the firm belief that the testatrix signed in their presence with

the full knowledge as to what she was signing and its consequences. There

were no suspicious circumstances that existed at the time of signing the

Will or surrounding the preparation of the same. The allegation of undue

influence remained a mere allegation without any substance. Since there

was no such compelling reasons to accept that there was at least a

semblance of undue influence surrounding the circumstances of the

testamentary disposition in question, I am of the firm opinion that the

finding of the learned district Judge, as to the involuntariness of the

testatrix signing the Will is totally irrational and inconsistent with the

evidence led before him.

The next question to be addressed is whether the claim made by the notary,

the two subscribing witnesses and Jayanthi Peiris that they never disclosed

the fact of P1 being executed to the petitioner, would amount to conduct

expected of ordinary men. Section 114 of the Evidence Ordinance enacts

as follows. 114. The court may presume the existence of any fact which it

thinks likely to have happened regard being had to common course

of natural events, human conduct, public and private businesses

in relation to the facts of the particular case.

The court has to then determine the extent to which the learned district

judge could have invoked section 114 of the Evidence Ordinance to

presume the attitude of the witnesses towards the non-disclosure of the

making of the Will, as being contrary to ordinary human conduct. In

presuming thus he appears to have completely lost sight of the fact that the

notary and the two witnesses and also the witness named as Jayanthi were

not ordinary witnesses. All four of them were attorneys at law engaged in

active practice of law.

The main reason as to why the learned district judge appears to have

entertained a grave suspicion as to the genuiness of P1 was the strict

confidentiality maintained by them with regard to it’s existence. It is quit

unfortunate that the learned district judge has failed to address his mind to

the very nature of the confidentiality; the law has conferred on

testamentary dispositions such as P1. The implied objective of the several

provisions of the law contained in Notaries Ordinance, Registration of

Documents Ordinance etc. undoubtedly expect both lawyers and laymen to

maintain the highest degree of secret with regard to the making of a

Last Will, during the life time of the testator, particularly when the author

is desirous of having the fact of making the Will a secret or when other

circumstances may demand irrespective of the authors approach on that

matter. It is extremely inappropriate on the part of the learned district

Judge to have drawn the presumption that the conduct of the notary and

the witnesses was unusual. On the contrary taking into account the very

nature of the confidentiality a last Will deserves to be treated with, every

one who is acquainted with such a Will is bound not to publicize it.

It is to be observed that commenting adversely on the notary and the

witnesses of the petitioner the judge remarked in the following manner.

fï wkqj fm;AiïlrejkAf.A ish¨u idlAIslrejkAf.A idlAIsh wkqj tu yeisÍï idudkH

mqoA.,hkAf.A ls%hd l,dmh fkdjk nj wêlrkfhA ks.ukhfõ’ TjqkA

kS;s{jrekAjQ m,shg TjqkAf.A idlAIsh tA wkAoug ms,s.ekSug wêlrkhg

fkdyel’

The trial judge does not seem to have appreciated that information

regarding a will is usually withheld from the beneficiaries or legatees for

reasons of public policy. The rationale behind this thinking is to ensure the

safety of the author of the Will. Besides, the testator has an unquestionable

right to annul or revoke a Will. In that context the conduct of the notary,

two subscribing witnesses and that of Jayanthi who remained tightlipped

throughout, until the demise of the testatrix is quite consistent with the

attendant circumstances. Their exemplary conduct in relation to the Last

Will in question is in harmony with the ordinary conduct of persons

learned in the law. Besides, there was no proof before the trial judge as to

what the ordinary human conduct would be, of a person when possessed

with knowledge relating to the execution of a Last Will or any other similar

testamentary dispositions. Hence the trial judge was in error when he

disbelieved them, mainly on the basis that the act of withholding the

information which they were bound not to disclose, was not the ordinary

human conduct.

Further, the impugned judgment lacks proper analysis of the evidence of

the respondent with regard to his credibility. As has been averred in the

statement of objection, the signatures appear on P1 and P2 are

forgeries. Reasoning out his position, the respondent stated in his evidence

that his mother (testatrix) always used to sign her name as "adilin Piyaseeli

Peiris" and not in the way she has signed P1. The full name of the testatrix

in P1 is given as ‘Tudawage Adilin Perera Karunawathie Piyaseeli’ and she

has signed P1 in English as "T.E.K.Piyaseeli".

Even though the respondent made a serious allegation of forgery against

the petitioner in his desperate attempt to nullify the effect of the Last Will,

quite surprisingly no steps were taken by him to have the signature on the

impugned Will, examined for purpose of ascertaining it’s

genuineness. This he could have done by obtaining a commission on the

examiner of questioned documents, probably with a direction to compare

the impugned signature with the other signatures of the testatrix that may

have been placed on other documents.

P4 to P8 are five deeds signed by the testatrix jointly with the

respondent. When questioned as to the failure to have the signature on P1

examined through an EQD, the evasive answers given by the respondent

cannot simply be ignored. The explanation given by the respondent for his

lapse on that account was that he instructed his lawyers to do so but they

failed in their duty. This in my opinion should not have constituted a

reasonable explanation.

According to the petitioner, the testatrix usually signed her name in the

identical manner, as she did in P1 and P2. Conversely, as stated above the

respondent maintained that his mother always signed as Adilin Piyaseeli

Peiris. The petitioner in order to contradict the respondent, produced five

deeds marked as P4 to P8, all of them had been signed by the testatrix as

one of the vendors, in association with the respondent and Leslie Peiris.

When the signatures on these five deeds were shown to the respondent

where the testatrix (as one of the vendors) has signed as “T.E.K.Piyaseeli”

immediately above the signature of the respondent and in his presence he

(the respondent) had the shameless audacity to deny any knowledge of her

mother signing the deeds. Confronted with the difficulty of having to

admit the signatures of his mother, the respondent was eventually

compelled to state that he could not remember the transactions and that he

was unable to identify the signature of his mother. Regrettably the learned

district Judge has not posed the question within himself as to how the

respondent could then say that the signature on P1 is a forgery when he

could not identify the signature of his mother placed on deeds to which the

respondent was also a party. This clearly shows that the respondent has

taken up a baseless defence for the sake of attacking the Last Will.

As far as the respondent's case is concerned another matter that loomed

large was his frivolous defence, that the impugned Last Will could never

have been signed around 2:30 p.m. on 17-11-83. The reason attributed for

the alleged impossibility has to be carefully examined. According to the

respondent on 17.11.83 both the notary and M.J.T.Silva had appeared in a

civil trial, a case in which the wife of the respondent was a party. His

position was that M.J.T.Silva appeared for his wife. The matter being taken

up for trial on that day, had commenced at 11 AM and ended at 4:30

p.m. The respondent was quite emphatic that both the lawyers could not

have been able to participate at the execution of P1, since they were

engaged in the discharge of their professional duties as lawyers for both

sides in the said case. When counteracted by counsel of the petitioner with

details as to what happened in the said case, the respondent had to

reluctantly admit that on 17-11-83, the case in question was only mentioned

from the calling roll. He further admitted that everything in connection

with the said case was over around 11AM. The falsity of the evidence

given by the respondent on this matter has not at all been taken into

account by the learned district Judge in evaluating the weight attached to

the defence raised by the respondent. Further the learned district Judge in

evaluating the evidence of the respondent has not analyzed the same with

a critical approach.

The evidence of the respondent and the unsatisfactory defence raised by

him against the Last Will clearly point to the fact that the respondent was

not worthy of any credit. Even though the respondent attempted to

maintain that his mother was a timid person, suggesting that she could

easily be influenced, he was later compelled to admit that she is a person of

determination who had looked after the family with dedication.

Had the learned district Judge addressed his mind to the infirmities in the

defence and the unsuccessful attempt made by the respondent to mislead

Court to defeat the intention of the testatrix, he would never have arrived

at the findings he did arrive in this case.

In order to render the impugned judgment consistent with the principles of

law enunciated hereinbefore, I am compelled to conclude that the learned

district judge has completely misdirected himself as to the onus of proof

and generally of the law applicable to the proof of a last Will. His

evaluation of the evidence adduced at the inquiry is totally unsatisfactory.

The decision of the learned district Judge therefore is tainted with

multitudes of illegalities, resulting in a travesty of justice. The petitioner

would suffer irreparable loss and the desire of the testatrix, which is of

utmost importance, would be rendered absolutely meaningless, if the

findings of the learned district Judge are allowed to remain.

Hence, I feel obliged, in the exercise of the appellate jurisdiction, to set

aside the judgment, findings and decree, entered in this case. Undoubtedly,

such a power has to be exercised in an extreme case of necessity to avoid a

miscarriage of justice. As regards the grounds urged by the petitioner in

the instant appeal, it is my view that this is a fit case where such a course

should take precedence over the respondent’s baseless

assertion. Consequently, I set-aside the findings, judgment and decree of

the learned district Judge. In conclusion, I hold that the Last Will of the

testatrix as having been duly proved and accordingly direct the learned

district judge to admit it to probate.

The petitioner is entitled to costs.

Sgd.

Judge of the Court of Appeal

TW

---------------------------

IN THE COURT OF APPEAL OF THE

DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

C.A. 609/98 F

D.C. Panadura: 2386/T

Kathrithantri Hewage

Hitler Jayaweera Peiris,

“Srawasttri”

Alubomulla.

Petitioner-Appellant

Vs

Kathrithantri Hewage

Willington Dudley

Peiris, “Pushpa”,

Aruggoda,

Alubomulla.

Respondent- Respondent

Before A.W.A. Salậm, J.

Counsel

D.S.Wijesingha P.C with C.Ladduwahetti

for the petitioner-appellant and Riza Muzni with David Weeraratna for the

respondent-respondent.

Written Submissions Filed on : 04.03.2008.

Decided on : 16.06.2008

Posted 17th March 2012 by AWASalam

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UP U MAY ALSO CLICK < OR > ON TOP OF THE DOC Jan 1st

decisions 51-75 CLICK ON VIEW TO ACCESS DECISION decisions 51-75 CLICK ON VIEW TO ACCESS DECISION

Jan 1st declaration of title-estoppel by tenancy-admission in the pleadings- duty of the judge to ascertain the

admissions declaration of title-estoppel by tenancy-admission in the pleadings- duty of the judge to ascertain the

admissions Jan 1st

Budhist Temple- declaration of title-right of the viharadhipathi to file action Budhist Temple- declaration of title-right of the viharadhipathi to file action

Jan 1st AN INDEX OF JUDGMENTS AN INDEX OF JUDGMENTS

Jan 14th index 1-25 click on view index 1-25 click on view

Jan 2nd INDEX 26-50 click on view to access the decision INDEX 26-50 click on view to access the decision

Jan 2nd RIGHT OF APPEAL AND INTERLOCUTORY APPEAL RIGHT OF APPEAL AND INTERLOCUTORY APPEAL

Jul 12th Registration of Documents Ordinance - Section 7(2) applicability Registration of Documents Ordinance - Section 7(2) applicability

Jul 12th general power of attorney - transfer of land to the wife of power of attorney holder general power of attorney - transfer of land to the wife of power of attorney holder

Jul 12th FRAUD - QUANTUM OF PROOF AND BURDEN OF PROOF -PERVERSITY FRAUD - QUANTUM OF PROOF AND BURDEN OF PROOF -PERVERSITY

Jul 11th SECTION 66 MATTER - 44 OF 1979 SECTION 57 SECTION 66 MATTER - 44 OF 1979 SECTION 57

Jul 11th 1328 29 PARTITION FAILURE TO INVESTIGATE TITLE 1328 29 PARTITION FAILURE TO INVESTIGATE TITLE

Jul 2nd 1328 29 PARTITION FAILURE TO INVESTIGATE TITLE 1328 29 PARTITION FAILURE TO INVESTIGATE TITLE

Jul 2nd rei vindicatio- Land Development Ordinance- Palisena's case 41/99 Horana 7878 rei vindicatio- Land Development Ordinance- Palisena's case 41/99 Horana 7878

Jul 2nd wakfs tribunal-appeal- where should it be addressed to-154P of the constitution- right of appeal and

interlocutory appeal wakfs tribunal-appeal- where should it be addressed to-154P of the constitution- right of appeal and

interlocutory appeal Jun 27th May 30th May 30th Apr 10th Apr 10th

Apr 7th Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st

PARTITION- PRESCRIPTIVE POSSESSION- OUSTER PARTITION- PRESCRIPTIVE POSSESSION- OUSTER

Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st Apr 1st

PARTITION ACT TAMIL CONSOLIDATED UNOFFICIAL PARTITION ACT TAMIL CONSOLIDATED UNOFFICIAL

Mar 28th tamil consolidated partition- unofficial tamil consolidated partition- unofficial

Mar 28th PARTITION-LECTURE NOTES-AWA SALAM-DELIVERED AT HABARANA CHAYA PARTITION-LECTURE NOTES-AWA SALAM-DELIVERED AT HABARANA CHAYA

Mar 28th PARTITION LECTURE-WORD FORMAT PARTITION LECTURE-WORD FORMAT

Mar 28th ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO AND OTHERS - SUPREME COURT. ANGELA FERNANDO VS. DEVADEEPTHI FERNANDO AND OTHERS - SUPREME COURT.

Mar 18th defendant need not offer any explanation as to his absence to get the order made by the learned

district judge fixing the matter for ex-parte trial set aside, as this is an order made Per incuriam being unaware of the fact that the defendant had already filed the answer.

defendant need not offer any explanation as to his absence to get the order made by the learned district judge fixing the matter for ex-parte trial set aside, as this is an order made Per incuriam being

unaware of the fact that the defendant had already filed the answer. Mar 12th where possession of immovable property originally is not adverse, and in the event of a claim that it

had later become adverse, the onus is on him who asserts adverse possession to prove it. Then proof should be offered not only of an intention on his part to possess adversely, but a manifestation

of that intention to the true owner against whom he sets up his possession. where possession of immovable property originally is not adverse, and in the event of a claim that it

had later become adverse, the onus is on him who asserts adverse possession to prove it. Then proof should be offered not only of an intention on his part to possess adversely, but a manifestation

of that intention to the true owner against whom he sets up his possession. Mar 12th Mar 12th

plaintiff in a rei-vindicatio action cannot rely on the defects of the defendant's title or the infirmities of the defence as a ground to strengthen his case or to fill the omissions.

plaintiff in a rei-vindicatio action cannot rely on the defects of the defendant's title or the infirmities of the defence as a ground to strengthen his case or to fill the omissions.

Mar 12th BURDEN OF PROOF - REI VINDICATIO BURDEN OF PROOF - REI VINDICATIO

Mar 12th APPLICATION OF THE PRINCIPLE IN Wanigarathne Vs Juwanis Appuhamy 65 NLR 168 APPLICATION OF THE PRINCIPLE IN Wanigarathne Vs Juwanis Appuhamy 65 NLR 168

Mar 12th CONDITIONAL TRANSFER - CONSTRUCTIVE TRUST - DEED BEING A SHAM CONDITIONAL TRANSFER - CONSTRUCTIVE TRUST - DEED BEING A SHAM

Mar 1st Mar 1st

sec 66-private information-can he file counter affidavit sec 66-private information-can he file counter affidavit

Mar 1st PARTITION LAW - A GUIDE PARTITION LAW - A GUIDE

Mar 1st rei vindicatio- burden of proof rei vindicatio- burden of proof

Mar 1st 1 to 25 index -YOU MAY CLICK ON THE WORD "view" AND ACCESS THE RELEVANT

JUDGMENT 1 to 25 index -YOU MAY CLICK ON THE WORD "view" AND ACCESS THE RELEVANT

JUDGMENT Jan 1st Oct 24th

AFFIDAVITS- DECIDED CASES AFFIDAVITS- DECIDED CASES

Aug 27th whether an action for ejectment can be maintained without the plaintiff first seeking a declaration of

title to the property of which the defendant is alleged to be in wrongful possession whether an action for ejectment can be maintained without the plaintiff first seeking a declaration of

title to the property of which the defendant is alleged to be in wrongful possession Aug 27th

exparte trial law applicable exparte trial law applicable

Aug 27th 125 99 DC Galle 125 99 DC Galle

Aug 27th prescription among close relatives prescription among close relatives

Jul 17th partition prescription partition prescription

Jul 17th partition - exclusion partition - exclusion

Jul 10th

rei vidicatio rei vidicatio

Jul 9th partition partition

Jul 5th Jun 14th Jun 14th Jun 14th

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