003-SLLR-SLLR-2007-V-1-RANJITH-WANIGARATNE-v.-KAGGODA-ARACHCHI.pdf
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Ranjith Wanigaratne v Kaggoda Arachchi
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RANJITH WANIGARATNE
v
KAGGODA ARACHCHI
COURT OF APPEALWIJAYARATNE, J. (P/CA)
CA 682/96 (F)
DC MT LAVINIA 1272/TJUNE 25, 2004SEPTEMBER 2, 2004JANUARY 12, 2005
Last Will – Not the act and deed of deceased – Forgery – Suspiciouscircumstances – Should the suspicious circumstances be pleaded or put inissue? – E.Q.D. Evidence – Is it conclusive proof of the fact of forgery? -Evidence Ordinance, section 101 – Suggestion of fraud – Burden on whom?
The petitioner-appellant-petitioner applied to Court in May 1985 to have thelast will of one K.P. bearing No. 683 proved and further sought the grant ofprobate. The Common Law wife and a legitimate child of KP objected to thesaid application on the grounds that the said will is not the act and deed of KPand the same is a forgery. The 1 st respondent stated that the deceased by alast will bequeathed all his property to her and the same is the subject matterof another testamentary case. The 2nd respondent sought letters to the estateof the deceased as the sole heir at law. The trial Judge found that the last will(No. 683) gave rise to suspicious circumstances and held that the last will is aforgery.
In APPEAL it was contended that –
Suspicious circumstances were not pleaded nor put in issue.
That as the suspicious circumstances were neither pleaded norwere put in issue the petitioner had to adduce evidence withoutprecisely knowing that such circumstances as providing suspiciouscircumstances were the case he had to meet.
That the District judge abdicated his jurisdiction as he consideredthe version of the EQD as conclusive proof of the fact of forgery.
That the EQD has not been believed previously therefore should nothave been believed.
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Held:
Every circumstance that is to be considered by Court need not beraised by way of an issue. The real issue that the petitioner wasrequired to meet was whether the impugned last will was a forgery.
– The allegation of fraud with regard to a last will is an instance whichfinds an exception to the rule of evidence that the party asserting(fraud) has to prove the fact.
The Rule set up by Courts through the line of authorities is thatwhen there is a suggestion of fraud even if the evidence is not ofsuch a nature as to justify a finding of fraud the burden is cast onthe propounder of the Will to dispel all suspicion if he were to havethe will proved and probate granted.
In considering the judgment as a whole and not part by part it isclear that the trial judge did not reject and dismiss the applicationto have the will proved, on the sole ground of forgery basedsingularly on EQO's evidence. He has analytically seencircumstances exciting suspicion through the totally of evidence onrecord which in his opinion was not sufficient to dispel suspiciouscircumstances.
EQD who was said not to have been believed previously hasexplained how he compared the signature on the impugned LastWill with admitted signatures appearing in documents read inevidence and the basis of his opinion founded according toscientific examination. Findings of the District Judge are rationaland lawful. If the EQD has not been believed in earlier judicialproceedings, it does not mean that he should always bedisbelieved if his evidence is based on scientific examination andjustified his opinion.
On the issue of forgery Court may accept a handwriting expert'stestimony provided that there is some other evidence direct orcircumstantial which tends to show that the conclusion reached bythe expert is correct.
Where there are features which excite suspicion in regard to a Willwhatever their nature may be it is for those who propound it toremove such suspicion.
Suspicious features may be a ground for refusing probate evenwhere the evidence which cast suspicion on the Will though itsuggests fraud is not of such a nature as to justify the Court inarriving at a definite finding of fraud. The conscience of the Courtmust be satisfied in respect of such matter.
The propounder should dispel all suspicion by explaining thecircumstances established by evidence that is pleaded on record.
Ranjith Wanigaratne v Kaggoda Arachchi
(Wijayaratne, J. P/CA)
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APPEAL from the District Court of Mt. Lavinia.
Case referred to:
(1) Samarakoon v Public Trustee – 65 NLR 100
Upali de Z. Gunawardena with Ms. C. Prematilaka, Deshani Jayatilleke forpetitioner-appellant.
Rohan Sahabandu with Athula Perera, Gamini Hettiarachchi and SandamalRajapakse for 2nd respondent-respondent.
Cur.adv.vult
January 19, 2007WIJAYARATNE, J. (P.C/A)
Let it be noted in the first place that this is a matter that has 01been argued before a bench comprising Justice AndrewSomawansa since elevated to the Supreme Court and the matteris mentioned before me to fix a date for re-argument when thelearned Counsel representing contesting parties agreed that thematter of the appeal be disposed of by way of written submissionthey have already tendered, though arguments have not takenplace before me, the submissions the Counsel has tendered docomprehensively deal with the matters to be determined in appeal.
The petitioner-appellant (petitioner) made application to Court 10in May 1985 to have the Last Will No. 683 attested on 14.12.1984by Samarapala Liyanage, Notary Public proved and to seek thegrant of probate of the said last will to the petitioner. The applicationnamed the 1 st respondent as the common law wife of the deceasedand the 2nd respondent as the heir at law of the deceased as hislegitimate child. The two respondents objected to the application onthe grounds that the purported last will No.683 is not the act andDeed of the deceased Wahalatantrige Karunasena Perera, and thesame is a forgery. The first respondent further stated that thedeceased by last will No. 31097 dated 21.2.1982 attested by 20W.M.P. Wijesundera N.P. bequeathed all his property to her and thesame is the subject of testamentary proceedings No. 1223/T of thesame Court. The 2nd respondent sought letters of administration to
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the estate of the deceased as the sole heir at law. Bothrespondents prayed that the application to have the will proved andthe grant of probate be dismissed. At the inquiry into the matters inissue, the petitioner, the propounder of the last will adducedevidence of the two attesting witnesses named in the attestation,the wife of the attesting notary, Donald Ranasinghe, Attorney-at-lawand Notary Public and the wife of the petitioner reading in evidenceP1 to P5, but avoided giving evidence though present in Court,without any explanation. On behalf of the 1st respondent sheherself gave evidence and called Examiner of the QuestionedDocuments, one Samaranayake and the 2nd respondent did notgive evidence nor adduce the evidence of any other witness, readdocument marked 2D1 in evidence. At the conclusion ofproceedings all the parties tendered submissions in writing. Thelearned District Judge having considered the same, made findingsthat the last will produced gave rise to suspicion which he based onthree grounds and the evidence of the EQD was so cogent, that thewill propounded by the petitioner is not the act and deed of thedeceased and answered the first issue to the effect whether thedeceased W. Karunasena Perera left the last will dated 14.12.1984in the negative and answered the rest of the issues too to the effectthat the last will produced was not the act and deed of thedeceased, and the same is a forgery and the application wasdismissed with costs, by his order dated 23.08.1996. Beingaggrieved by the said order, the petitioner preferred this appeal onthe several grounds specified therein.
The main thrust of the argument for the appellant was that thelearned District Judge considered these circumstances to besuspicious circumstances, when such circumstances of suspicionwere neither pleaded by the respondents in their statements ofobjections nor were they put in issue at the inquiry into the matterof application and objections thereto. The findings and theconclusion thereon were not supported by evidence and thereforeare not warranted, they are irrational and not justified by law. It wasalso urged that the learned District Judge abdicated his jurisdictionto determine the validity of the last will and the genuineness of thesame to the EQD whose evidence he considered as cogent andmisdirected himself in accepting the version of the EQD as
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conclusive proof of the fact of forgery when there is no otherindependent direct evidence on the matter of identification of thetestator's signature on the impugned Last Will. It was also notedthat the 1st respondent in the course of the passage of this appealaccepted the validity of the will.
For the 2nd respondent who persisted on the fact of thepurported last will being a forgery, it is submitted that the findingsmade by the learned District Judge is supported by the evidence onrecord and the circumstances disclosed by such evidence and 70referred me to the relevant parts or portions of the proceedings. Itis her position that the evidence on record or judgment could not betaken part by part but should be considered as a whole to makefindings and draw conclusions and the findings made and theconclusion drawn by the learned District Judge who has consideredthe evidence as a whole, compared the evidence of severalwitnesses to check the contradictions, improbabilities and lapsesand evaluate the total effect of all the evidence led and the failureof the propounder of the purported last will to give evidence withoutany explanation coupled with improprieties and irregularities of the soso called execution of the last will on the face of the documentitself, warranted the findings made and justified the conclusion thatthe purported last will is forgery, supported by the evidence and thereport of the EQD, which is based on scientific study he made onthe document comparing admitted signatures of the deceased.
Upon examination of the proceedings and the judgment I findthe conclusion of the learned trial judge that upon these groundsthe purported last will is open to suspicion. So far as ground onereferred to in the judgment, it is a matter of record, taking the facevalue of evidence adduced on behalf of the petitioner that the 90application to have the impugned will proved was made five monthsafter the date of death of the testator. According to such evidencethe last will was said to have been handed over to the wife of thepropounder, petitioner who being continuously in custody of the lastwill did not deposit it with the Court for over five months without anyexplanation as to any circumstance that prevented him fromdepositing the same in Court and making application to have itproved nor does the propounder of the will adduce any reason fordelay either. It is a matter of record that the presentation of the
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application and the will was after the notices in testamentary i®°proceedings in 1223/T of the same Court instituted by the firstrespondent appeared in daily news papers. The propounder whohad the full knowledge that he is the sole beneficiary under theimpugned last will having the custody of the same all that while didnot explain any circumstance or reason for delay. The effect of thetotality of such facts will drive any prudent judge to consider thesame as circumstance of suspicion. Such conclusion is bothrational and justified, specially in the circumstances of the wholecase.
The second and third circumstances of suspicion mentioned in 110the judgment, perse are open to criticism and challenge. However,they too taken along with other evidence are justified.
The learned Counsel for the petitioner urged that the learnedDistrict Judge has failed to consider the evidence given by DonaldRanasinghe, Attorney-at-law, which evidence was classified by theCounsel as uncontradictory and unchallenged. Be that as it may,theevidence in my view is revealing, though the learned District Judgedid not specifically refer to such evidence in his judgment.
The claim of this witness Donald Ranasinghe that thedeceased was his client over the past ten years is limited to such 120claim only. He could not refer to at least one instance of his servicesbeing availed by the deceased. On the contrary the three deedsmarked P3, P4 and P5 all attested during the three years past tothe so-called execution of the purported last will was by some othernotary public, one Wijesundara. If the deceased was his standingclient for ten years as claimed by Donald Ranasinghe, it is strangethat he did not avail of his services on any of those occasions butsought and obtained the services of Wijesundara. It is interesting tonote that Donald Ranasinghe does not at least say that he wasworshipping Lord Buddha on all those occasions compelling the 130deceased to seek the services of Wijesundara.
However, according to Donald Ranasinghe, he is not sure asto who, of the people who visited his office stated that an executionof the last will is urgently needed. However,he unwittingly stated theperson who told so told him that "uncle is entering hospital and lastwill is to be written. "And it is his admission that such a statement
Ranjith Wanigaratne v Kaggoda Arachchi
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could and should have been made only by the nephew who is thepetitioner. The witness then tried to say that deceased also said so,upon realizing that he spilled the beans.
The so-called uncontradicted evidence thus manifest that theneed as well as the urgency of writing a last will was on the part ofthe petitioner and not on the part of the so-called testator, whichjustify the view that the last will propounded is open to suspicion. Itis in these circumstances that the deceased who availed theservices of Wijesundara in execution of P5 the same year, runningto Donald Ranasinghe and then to Liyanage in Hulftsdorp give riseto suspicion, because there is nothing to suggest that the deceasedwas having a serious illness to anticipate death and rush to executea last will by a notary other than whose services he regularlyobtained. Of course there is no rule that the deceased should haveobtained the services of one notary only or that he could not havegone to any other, but the fact that he obtained the services ofWijesundara when is no urgency of executing P3-P5 and who isapparently his trusted notary, was not sought after in this hour ofurgency is most improbable and not in accord with the conduct ofan ordinary human being.
It is these circumstances that really justified and warranted theconclusion that these two circumstances are also circumstances ofsuspicion.
It is also a strange circumstance that Samarapala Liyanagethe notary said to have attested the impugned last will was notavailable to testify. He having attested over six hundred deeds issaid to have read over the last will in the presence of thebeneficiary as well as the witnesses. The irregularity revealed in thetestimony of the attesting witnesses though does not affect thevalidity of a last will, certainly will tend to create severe doubt as tothe genuineness of the execution, specially said to have beenwitnessed by two witnesses whose evidence on the surroundingcircumstances is teaming with contradictions.
According to the attestation neither witnesses nor the testatoris said to be known to the notary, who is quite experienced innotarial work. This along with the fact of the attesting notary notbeing available to testify would ordinarily excite suspicion.
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All these are matters the learned District Judge hasconsidered as giving rise to suspicion which a prudent judge willlegitimately entertain.
Learned Counsel for the petitioner who urged that the learnedDistrict Judge referring to the evidence of the EQD as ’cogent'evidence was solely guided by the same. He failed to appreciatethat evidence of an expert can only corroborate other evidence and 180the opinion of the expert itself is not substantial evidence uponwhich a finding could be based. He referred me to variousdecisions of the Supreme Court in support of his contention.Examination of the line of authorities reveal that the Courts havegradually deviated from the earlier view and contributed to themodern views that in the event of these being other evidence director circumstantial tending to show that the conclusions reached bythe expert is correct, the experts testimony is acceptable.
In the present case there is direct evidence of the firstrespondent, the common law wife of the deceased who lived with 190the testator for over nine years up to the time of his death, that thesignature appearing on the impugned last will No. 683 is not that ofthe deceased W. Karunasena Perera. In addition the circums-tances discussed above would tend to impress that the deceasedKarunasena Perera could not have been the author or theexecutant of the impugned last will.
The EQD who was said to have not been believed previously,has explained how he compared the signature on the impugnedlast will with admitted signatures appearing in documents read inevidence and the basis of his opinion founded according to 200scientific examination. Upon a reading of the testimony there is noreason disclosed in cross examination either, not to accept thesame. His testimony even as corroborative evidence is acceptableto corroborate the direct evidence of the 1st respondent and thecircumstantial evidence discussed above tending to show that thedeceased testator could not have executed the impugned will. Thelearned Counsel state that the EQD has not been believed in earlierjudicial proceedings; but that does not mean that he should alwaysbe disbelieved, if his evidence is based on scientific examinationand justified his opinion. Apart from such fact the learned Counsel 210attacking his evidence does not refer to any piece of evidence or
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reason why his evidence should be rejected. His main contention isthat the learned District Judge without forming a view himselfupon the due execution or of the fact of forgery has misdirectedhimself in letting the expert witness decide that the impugneddocument is a forgery. I am unable to agree with this contentionfor the reason that even going by the argument of the learnedCounsel for the petitioner the testimony which has ancorroborative value, does in fact corroborate the direct evidenceof the widow the 1 st respondent. This entitles the learned District 220Judge make the finding based partly or mainly on the testimonyof the EQD, that the impugned will is a forgery. There is no reasonin my view to interfere with such finding which is both rational andlawful.
In considering the judgment as a whole and not part by part, itis clear that the learned District Judge did not reject and dismiss theapplication to have the will proved, on the sole ground of forgerybased singularly on EQD’s evidence. He has analytically seencircumstances exciting suspicion through the totality of evidence onrecord, which in his opinion was not sufficient to dispel suspicious 230circumstances. I am in total agreement with the view expressed bythe learned District Judge. The findings made, the conclusionsdrawn and the judgment are in total accord with the more recentdecisions and the modern view with regard to the acceptance ofexpert testimony.
The learned District Judge does not state to have comparedthe signatures on the impugned will and the other documentscontaining the signatures admitted to be that of the deceasedKarunasena Perera, though he could have done so legally.However, he has formed the view and made the finding that the 240signature on impugned will is not that of the deceased W.Karunasena Perera based on direct and circumstantial evidencecorroborated by the testimony of the EQD. It is in perfect harmonywith the requirement of law and there is no reason to fault hisfinding based on such evidence and not on his personalcomparison. The learned District Judge has however, contrary tothe submission of the learned Counsel for the petitioner determinedthe question of genuineness of the signature and whether the willis a forgery.
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In the case of Samarakone v The Public Trustee 0) it was held 250that –
on an issue of forgery, the Court may accept ahandwriting experts testimony, provided that there issome other evidence, direct or circumstantial, whichtends to show that the conclusion reached by the expertis correct…
that where there are features which excite suspicion inregard to a Will, whatever their nature may be, it is forthose who propound it to remove such suspicion.Suspicious features amy be a ground for refusing probate 260even where the evidence which cast suspicion on the will,though it suggest fraud, is not of such a nature as tojustify the Court in arriving at a definite finding of fraud.
The conscience of the Court must be satisfied in respect
of such matter."
It is also urged in support of the appeal that the learned DistrictJudge had failed to explain away the three suspiciouscircumstances referred to in the order of which were neitherpleaded by the respondents nor were put in issue at the inquiry,thereby compelled the petitioner to adduce evidence without 270precisely knowing that such circumstances as providing suspiciouscircumstances were the case he had to meet.
I am unable to accede to this argument for the reason thatevery circumstance that is to be considered by a trial Judge shouldbe raised by way of an issue. The real issue that the petitioner wasrequired to meet was whether the impugned last will was a forgery.
The allegation of fraud with regard to last will is an instance whichfinds an exception to the rule of evidence that "the party asserting(fraud) has to prove the fact" Vide section 101 of the EvidenceOrdinance.280
The rule set up by our Courts through the line of authorities upto the case referred to above and the later cases, is that, whenthere is a suggestion of fraud, even if the evidence is not of such anature as to justify a finding of fraud, the burden is cast on thepropounder of the will to dispel all suspicion if he were to have the
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will proved and probate granted.
In view of such rule, the petitioner-appellant as the propounderof the impugned last will alleged as forgery by the respondent,should have been prepared to dispel all suspicions by explainingthe circumstances established by the evidence, that is placed on 290record. The position of the present case is unique because all thesecircumstances of suspicion were revealed in the course of theevidence for the petitioner himself and it is not in his mouth to saythat he was taken unaware of these circumstances, that wereconsidered and highlighted in the order refusing grant of probate,consequent to adjudication of the dispute of contesting parties thatthe will propounded is a forgery.
The Order of the learned District Judge refusing the grant ofprobate for reasons stated therein, is in total accord with the ruleset up by the above decision of the Supreme Court.300
As such I do not find any reason to interfere with the findingsmade or the conclusions reached by the learned District Judge inrefusing the petitioner's application for grant of probate.
In the result the appeal is dismissed with costs fixed atRs. 10,000/-.
Appeal dismissed.