Last will (1)

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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Jan 2nd
DELICT-DAMAGES INDEX ----CLICK ON LIGHT BLUE CHARACTERS FOR JUDGMENT TO POP-
UP U MAY ALSO CLICK < OR > ON TOP OF THE DOC
DELICT-DAMAGES INDEX ----CLICK ON LIGHT BLUE CHARACTERS FOR JUDGMENT TO POP-
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
Jul 2nd
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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