048-NLR-NLR-V-51-VELMURUGU-Appellant-and-ARUMUGAM-Respondent.pdf
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JAYETILEKE S.P.J.—Velnmrugu r. Arumugam
1940Present: Jayetileke S.P.J. and Canekeratne J.VELMURUGU, Appellant, and ARUMUGAM, RespondentS. C. 137—D. C. Battkaloa, 569
Will—Revocation—Act of testator—Modes specified in Statute of Frauds—Chapter 57—Section 6.
A will can be revoked only in one of the modes spociiled in section 6 ofthe Prevention of Frauds Ordinance.
Appeal from a judgment of the District Judge, Batticaloa.
P.Navaratnarajah, for the second respondent appellant.
C, T. Olegasegarem, for the petitioner respondent.
Cur. adv. vult.
June 29, 1949. Jayetileeb S.P.J.—
The petitioner-respondent applied in this action to obtain probateof & will dated June 14, 1934, of Arumugam Valliamma who died onMarch 22, 1947. By this will the testatrix left all hor property to hertwo nephews, the petitioner-respondent and the first respondent. Thesecond respondent, who is a niece of the testatrix, opposed the applicationon the ground that the will was revoked by the testatrix in the year1937. The second respondent was adopted by the testatrix from herinfancy and she lived with the testatrix till the year 1934, when she gotmarried to one Kasupathy against the will of the testatrix. The testatrixexecuted the will shortly after the marriage of the second respondent.The evidence shows that in the year 1936 the second respondent madeup with the testatrix and returned to her house and lived there up to thedeath of the testatrix. The evidence as to revocation was that of oneAbubacker. He said that on several occasions the testatrix requestedthe petitioner-respondent to return the will to her so that she maydistribute the properties among the heirs, and, finally, in the year 1937she asked tho petitioner-respondent whethor he would return the will*or not. Thereupon the petitioner-respondent went into the room,opened a drawer and brought a long envelope and set fire to it saying“ Here is the will. It won’t be of any use either to you or to me.”
The learned District Judge has not expressed any opinion about theevidence of Abubacker in his judgment. He says that, assuming hisevidence to be true, it is not evidence of revocation within section 6 ofthe Prevention of Frauds Ordinance (Cap. 67).
The section provides that no will or codicil shall be revoked otherwisethan by another will or codicil or by a writing executed like a will or bythe burning, tearing or otherwise destroying the same by the testator ortestatrix or by some person in his or her presence or by his or her
JAYETILEKE S.P.J.—Vtlmwugu v. Arumugam
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direction with the intention of revoking the same. The language of thesection is identical with that of section 20 of the English Wills Act of1937. Theobold1 says that, though a testator may have done everythingwhich he considered necessary to revoke the will, the will is not revokedif he has not adopted one or other of the modes of revocation pointedout in the section.
Mir. Olegasegarem invited our attention to two cases which are veryhelpful. In Reed v. Harris3 the testator threw his will on the fire torevoke it, but his niece, Alice Harris, snatched it off without his knowledgeand put it away. Hearing that Alice had taken the will away thetestator asked her to give it up but she refused. Later she promised tobum the will herself and threw a piece of paper on the fire in the presenceof the testator saying “ Here it is finished.” A bench of four Judgesheld that the will was not legally revoked. Williams J. said—
“ It is argued that if a testator throws his will on the fire with theintention of destroying it, and someone, without his knowledge, takesit away that is a fraud which ought not to defeat his act. But so itmight be said that, if the testator sent a person to throw it on thefire, and ho did not, the revocation was still good. Where wouldsuch construction end ? The effect of them would be to defeat theobject of the Statute, which was to prevent the proof of a cancellationfrom depending on parol evidence. The will must be torn or burnt.”
Coleridge J. said
“ Here the fire never touched the will. It can only be said that thetestator’s intention to cancel was defeated by the fraud of anotherparty.”
In Cheese v. Lovejoy 3 a testator drew his pen through tho lines of variousparts of his will, wrote on tho back of it “ This is revoked ” and threwit among a heap of waste papers in his sitting-room. A servant took itup and put it on a tabic in the kitchen. It remained lying about in thekitchen till the testator’s death seven or eight years afterwards, and wasthen found uninjured. It was held that the will was not revoked. James
J. said:—
“ It is quite clear that a symbolical burning will not do, a symbolicaltearing will not do, nor will a symbolical destruction. There must bethe act as well as the intention. As it was put by Dr. Deane in theCourt below ■ all tho destroying in the world without the intentionwill not revoke a will, nor all the intention in the world withoutdestroying : there must be the two
There is no evidence in this case that any act specified in the sectionhas been done and it is therefore not possible for us to say that the willhas been revoked.
We would dismiss the appeal with costs.
Canekesatne J.—I agree.
Appeal dismissed
1 Law of Will* 10th Edition page 39.
6 Ad. E. 198.
L. R. (1877) 2 Probate Division 251.