SELLAMMAH et al., Appellants, and SELLAMUTTU et al., Respondents

085-NLR-NLR-V-59-SELLAMMAH-et-al.-Appellants-and-SELLAMUTTU-et-al.-Respondents.pdf

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SIKXET.AJfBV, J.—Sellouttnah v. Sellamuttu
1957Present : Weerasooriya, J., and Sinnetamby, J.
SELLAMMAH cl al., Appellants, and SELLAIMUTTUel al., Respondents
S. O. 24 (Inly.’)—D. O. Jaffna, 4SfT
11'ill—Prolate—Suspicions created bt) alterations in a tci:l—Burden on propounderto remove them—Xotarics Ordinance {Cap. 01), s. 30 (20) (21)—Prevention ojFrauds Ordinance (Cap. 57), s. 7—Civil J’roccdure Code, ss. 521, 526.
Certain obvious alterations were noticeable in a will in regprd to tlio name ofone of tho devisees. The alterations were not attested or authenticated by thosignatures of tho notary or tho testator and tho witnesses in terms of eithersection 30 (21) of tho Notaries Ordinance or section 7 of tho Prevention ofKrauds Ordinance. When application for probate of tho will was mado therewas much difficulty in obtaining on affidavit from tho attesting notary andwitnesses.
Held, that the trill should not bo admitted to probate in view of the failureof tho propounde-rs in the first instance to remove tho suspicions created by thealterations, the knowledge of which must necessarily bo imputed to them.
-APPEAR from all order of the District Court, Jaffna.
G. Thiagalingam, Q.G., with V. Arulambalctm, for the 1st and 2ndrespondents-appellants.
,S. Nadesan, Q.C., with Walter Jayawardena and Neville Wijeralne,Tor the respondents.
Cur. adv. vult.
February 13, 1957. Sjxxetamby, J.—
The petitioner in this ease, one Sellamuttu, applied for probate of awill marked X bearing Xo. 2372 and alleged to have been executed byone Appiah who died on 10/3/55. The petitioner is the mistress of thesaid Appiah who was married to the 1st respondent Sellammali and the2nd respondent Pcrambalam is their son. The 3rd respondent is anillegitimate son of Appiah by the petitioner and, being a minor, wasrepresented by a guardian, the 4th respondent.
On Order Xisi being served on them the 1st and 2nd respondents-appeared and opposed the grant of probate. The issues on which theparties went to trial are as follows :—'
Is the Last Will dated 7/12/51 attested by S. Ratnasingham,
Notary Public, under Xo. 2372 t-lic act and deed of thedeceased Yaithilingam Appiah ?
Did the deceased understand and approve the contents of the
said Last Will ?-
Was the said Last Will duly executed ? '
SnSTXKTAMBY, J.—Sctlammah v. Sellamuttu
377
Was tlie instrument sought to be propounded as a Last Will
the act of a capable testator ?
Was the document signed by the deceased, the notary and the
two witnesses all being present at one and the same time atthe notary’s office in Jaffna on 7/12/51 ?
The learned judge held with the petitioner on all the issues and thisappeal is against those findings. In coming to his decision the learnedjudge quite rightly addressed his mind also to the question of whetherthere were any suspicious circumstances affecting any oho of the matterswhich it is incumbent on the propounders of the will to jirove and cameto the conclusion that there were not.
Learned counsel for the appellants canvassed in the course of hisargument all the findings of the learned judge and although speakingfor iii3 self there is much ground in support of his arguments in regardto some of these matters wc do not think it necessary to come to a decisionon them in view of the opinion wc hold on another question of vitalimportance, viz., that there are suspicious circumstances affecting theexecution of the will which the propounders have failed to remove.
The most superficial examination of the original will “ X ” revealsthat (here are alterations of a kind which could not have escaped theattention of anyone with even an elementary knowledge only of theTamil language. Learned counsel for the respondents very readily andquite properly agreed that there were alterations of certain words whichfor convenience of easy reference by my brother and myself I did in thecourse of the hearing underline in pencil. The will though notspecifically numbered has 13 paragraphs. In para 3 the testator deviseshalf share of a certain land to Paramasamy, an illegitimate son by hismistress the petitioner subject to certain conditions and in para 4 devisesthe remaining half share to “ my wife Sellanmttu subject to the conditionshereinafter mentioned. ” The word “ Sellamuttu ” which is the nameof the petitioner has been altered from the word “ Sellammah ” whichis the name of the 1st respondent. Para 5 imposes a restriction againstalienation on Paramasamy and the translation of para G reads as follows:
" The said Sellamullu shall maintain the three minors ” etc., etc. Itwas admitted by counsel on both sides that this translation was wrongand should read as follows :
until the said Paramasamy, and Sivapakiam and Thanaledchimy…. attain majority Sellamuttu, the mother of the said children
and the said Paramasamy shall maintain them out of the income of the
The word “Sellamuttu '’ in tin's paragraph is not altered and appearsas such in the original.'
In paragraph 7 appear the words “ that the said Sellamuttu shallhold, jiossess and enjoy the property devised to her and shall settle the
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SI2STNTETAMBY, J.—Sellammah v. Sellamutlu
same on her child or children. " The translation here too was admittedto be wrong and should have read as follows :
“ the said Scllamuttushall …. andafterthe
said Sellamuttu has enjoyed the same etc”.
The name “ Sellamuttu ” occurs twice in the jiaragraph and has beenaltered in both places.
In paragraph 11 the will provides as follows :
“ I do hereby nominate and appoint Sellamuttu daughter ofNagalingam as executor. ”
No alteration occurs here in regard to the word “ Sellamuttu ”.
It was admitted by learned counsel on both sides that wherever theword “ Sellamuttu ” is altered it has been altered for “ Sellammah ”,which is the name of the 1st respondent, the legally married wife of thetestator. The alterations vitally affect the dispositions of the testatorand have the effect of altering the beneficiary from the legally marriedwife to the mistress. They have not been authenticated by the initialsor signature of the testator or the notary. The Notaries Ordinance(Cap. 91) contemplates alterations and erasures prior to execution andprovides by section 30 (20) that they should be specifically mentionedin the attestation clause and by section 30 (21) that they should beauthenticated by the initials of the notary. In the present case noneof these provisions have been observed and it is remarkable that thesame alterations that appear in the original also appear in the protocol.
Neither in the original nor in the protocol ha ve the requirements of theNotaries Ordinance been observed and having regard to the fact thatthe will in question bears No. 2372 it can reasonably be inferred thatthe knowledge and experience of the notarj' is such that if the alterationshad the approval and authority of the testator they would have beenreferred to in the attestation clause.
In this connection the provisions of section 7 of the Prevention of^Frauds Ordinance Cap. 57 are also relevant. This section which is thesame as section 21 of the Wills Act provides as follows :
“ No obliteration, interlineation, or other alteration made in anywill, testament, or codicil after the execution thereof shall be validor have any effect, except so far as the words or the effect of the will,testament, or codicil before such alteration shall not be apparent,unless such alteration shall be executed in like manner as hereinbeforeis required for the execution of the will, but the will, testament, orcodicil, with such alteration as part thereof, shall be deemed to beduly executed if the signature of the testator or testatrix, and thesubscription of the witnesses be made in the margin or some otherpart of the will, testament, or codicil opposite or near to such alteration,or at the foot or end of or opposite or near to such alteration, or atthe foot of or end of or opposite to a memorandum referring to suchalteration, and written at the end or ■ some other part of thewill, testament, or codicil. ”
SINXET-AMBY, J.—Scllammah v. Scllaniutfu
379
The effect of these provisions is that, save in a ease falling within theexception contained in the words: “ except so far as the words or theeffect of the will, testament or codicil before such alteration shall notbe apparent,” an alteration after execution is ineffective unless it isduly attested or is authenticated by the signatures of the testator andthe witnesses. Mr. Xadcsan did not seek to bring the presentcase within the exception, but he submitted that effect should be givento the will in its unaltered state. This we cannot do in view of theevidence that the intentions of the testator were otherwise and alsobecause, for the reasons that will be presently stated, in our opinion thewill should not be admitted to probate even in its unaltered form.
Where these provisions have not been complied with the presumptionis that the alteration was made after the due execution of the will—videJarmin (Sth ed. Yol. 1 pl74). This presumption can of course be re-butted and the provisions of section 7 of Cap. 57 would not apply if itis satisfactorily established that the alterations were made before exe-cution. Having regard to the provisions of the Notaries Ordinancethis burden must necessarily be a heavy burden in the circumstancesof this case almost impossible to discharge.
It is, however, strange and remarkable that these changes and alter-ations in the will were not referred to in the course of the trial. Learnedcounsel for the axpjcllants stated that they accepted the translationfiled with the petition and affidavit of the propounder as correct and didnot examine the will itself which was in the custody of the Court—theprocedure in the case of impugned documents is for the documents tobe kept in safe custody to prevent the loss of the document and to pre-vent allegations that the document has been tampered with. Whateverexcuse may be offered on behalf of those opposing the will the samecannot be said of the projrounder and her legal advisers. The will wasin tlieu- custod}1- and t-hey produce it. They had it translated and hadmuch difficulty in obtaining air affidavit from the attesting notary andwitnesses to be filed with the original application for probate. Theyshould undoubtedly have examined the will and scrutinised it veryca re fully when, according to them, the notary refused to give them hissupporting affidavit. The alterations could not have escaped theirattention and it was their primary duty to dispel the suspicions whichinevitably would follow upon discovery.
Learned counsel for the respondents urged that we should send thecase back for a rehearing or at least to enable him to lead evidence toprove that the alterations were made before execution and to removethe suspicions that inevitably arise from the fact of alterations which arein favour of the propounder. "We have considered this application verycarefully and. have come to the conclusion that it is neither necessarynor desirable to do so.
Under the provisions of our Civil Procedure Code a person seekingto obtainprobate of a will must do soby petition and establish prima facieproof to satisfy the Court of the execution of the will—vide sections 524and D2G. This is usually done by filing affidavits of the notary and the
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SIIvfsETAMBY, J.—Sellammah v. Sella mult u
attesting witnesses. Xn the present case the proctor for the propounderdid not file with his petition the supporting affidavits to establish due-execution : instead he filed a motion stating that the notary who attestedthe Hast Will and the witnesses refused to “ swear an affidavit ” andmoved “ for a notice on the said notary and witnesses to appear in Courtand sign the said affidavit. ” The Court allowed this application andissued notice without taking any precautions to see that the notice wascorrectly worded. The notices which actually issued peremptorilycalled upon the notary and witnesses to appear in Court and sign theaffidavit leaving with them no option but to comply with the order.The order of the learned judge in issuing notice was the subject of muchadverse criticism. While we see nothing fundamentally and basicallywrong in the Court ordering the notice to issue we do think that the formin which it actually issued was highly unsatisfactory. It would have-left in the minds of the parties noticed that they had no alternative butto sign the affidavit. We also think that before issuing the notice the-learncd judge should have satisfied himself of the truth of the statements-containcd in the motion filed by calling for evidence either viva voceor in the form of affidavits in support of the alleged refusal. It mustbe remembered that at this time there was not the slightest indicationthat there would be opposition to the grant. Applications for probatebeing prescribed to be by way of summary procedure, at this early stage-n 11 steps taken must necessarily be ex parle and we see no force in the-contention that the learned judge was wrong in proceeding ex parleto satisfy himself of due execution befoz-e entering Order Nisi. Whatis wrong is the form in which the notices issued. In any event when thenotary and witnesses appeared in Court, according to the journal entriesin the case, they expressed willingness to sign the affidavits and did so.The notary in the course of his evidence says that he was asked by the-judge whether he had any objection to signing the affidavit. He repliedin the negative and signed the affidavit without even knowing what itscontents were : indeed, his evidence is that at no stage did he refuse-io sign an affidavit nor was he ever asked to do so by the petitioner or anyone on her behalf. The witness Sellaturai gave substantially the sameevidence and added that the contents were communicated to him by theapplicant’s proctor after he signed. The cross-examination of thiswitness on this point did apparently so embarrass the learned judge thathe refused to allow any further questions on the subject-.
It is inconceivable that an applicant for probate wonkl not havemade endeavours to secure in the form of affidavits jirima facie proof ofdue execution and in my own mind I have no doubt that the statementscontained in the proctor’s motion arc correct in spite of the notary’sand the petitioner’s evidence to the contrary. I find it difficult to agreewith the learned judge that the notary and the witness Sellaturai werespeaking the truth when they asserted that at no time did they refuseto sign the affidavits. In any event having regard to the motion sub-mitted to Court by the petitioner’s own proctor it is not in her mouthto deny the truth of what the motion stated. Even if she personallywas not aware of it her advisers and her proctor knew of the attitudeadopted by the notary and the witness to the will and that fac-t should
SIXXJ3TA5IOY, J.—Sellammah v. Sellamuttu
381
havo put them on their guard and made it incumbent on themto scrutinise the will more searehingly with a view to ascertaining thereason for the notary’s conduct. Had they done so, and I find it difficultto proceed on any other hypothesis than that they did what any prudent,reasonable person who seeks to prove a will would necessarily have done,they would have and certainly should have seen some obvious alterationsin the name of one devisee. It was their duty if they expected to succeedin their application to remove the suspicion in regard to due executioncreated by the alterations in the will they sought to" propound". Theymade no attempt whatever to do so. Instead with the will was filed atranslation which they should have known was incorrect and which hadthe effect by its incorrectness of confirming that the devisee was correctlynamed.
The first occasion on which the name Sellammah has been altered to
Sellamuttu is in para I of the will. Sellamuttu is therein referred to as“ wife ”. The Tamil word used isLofssrsSi (manaivee) :an expression which, despite the view expressed by the learned judge,no Jaffna man would use in a formal document to describe his mistress.The notary himself admits that he would not use the expression lo'SsstsS)to describe the petitioner and that he made a mistake in so doing. Healso states that the deceased at no stage referred to the petitioner as“wife”. but described her as GzisuuuniLiSL&S) (Vaipattichch.ee)or mistress. A mistress is in a formal document described as daughter 'of so and so or the mother of so and so. The petitioner has been sodescribed later in para 11 of the will as daughter of-Nagalingam. Theuse of the description “my wife ” clear]}– suggests that the originalperson named was “ Sellammah ” which subsequently has been alteredto “ Sellamuttu ”. It cannot ever be suggested that the alteration tookplace between the date on which instructions were alleged to have beengiven and the date of the alleged execution as the notary’s evidence isthat the original instructions he received were to bequeath the propertyto Sellamuttu and not Sellammah.
In para 6 the translation reads “ the said SeUamullu ” which suggeststhat “ Sellamuttu ” has been referred to earlier in the. document andconfirms that the devise in para 4 is to Sellamuttu and not to Sellammah.Apart from the reference in para 4 Sellamuttu has not been referred toa 113*where else in the document prior to the reference in para 6. Thecorrect translation of para 6 shows that the word “ said” qualifiesParamasamy who has been referred to earlier in para 3 and not Sella-muttu. It was suggested that the wrong translation was deliberatelymade to mislead the Court and there seems to be much force in thatcontention." It is curious, however, that a translation made on behalfof the respondents who opiAose this application is in the same terms butit was suggested that the translator instead of translating the originaldocument merely copied what alread}r existed..'
" In regard to the application of learned counsel for the petitioner andrespondents that the ease should be sent back for a rehearing Ave takethe view that it Avas incumbent on the propounders in the first instance
■ 382Sencviralne v. OunarahiA
to remove the suspicions, created by alterations,'the knowledge of which-must ne.cessarily be imputed to them. Having regard to the far-reachingeffects of the alterations it was their duty if the alterations were madebefore due execution to have led some independent evidence to establishthat the deceased, during his lifetime confirmed the dispositions madein the will. • This was necessary to meet the charge that the testatordid not .know and approve of the contents'of the will. In the words ofSoertsz, J., in the case of Arulambikai v. Thambu1" to send the case back'now would be tb expose the parties to a stronger temptation than theyappear to be able to resist. ”
In the result we set aside the order of the learned District Judge anddirect that the estate of the deceased be administered on the basis ofan intestacy. The appellants would be entitled to the costs both of thisCourt and in the Court below.-.
Weebasooriya, J.—I agree.
Appeal allowed.