Present: Bertram C.J. and De Sampayo J.

THE ALIM WILL CASE.

124 and 125-D. C. Colombo, 6,175.

    Burden of proof-Power of Court to call evidence after case is closed- Last will-Probate-Suspicion.

In a contest arising out of an application for probate a single issue was framed, viz., " Was the will duly executed by the deceased? " The party seeking probate contented himself with proof of the execution. The respondent called evidence to prove that the signature was obtained by fraud.

Held, that the party beginning had a right to call evidence in rebuttal on the question of substitution.

Under section 163 of the Civil Procedure Code it is not necessary that the right to call evidence by way of rebuttal should be expressly reserved by the party beginning.

The Court has a discretion at any period in a case to allow further evidence to be called for its own satisfaction, even though it is doubtful whether it is admissible, on the request of the party desiring it as of right.

A respondent who wishes to support a petitioner for probate should call his evidence at the conclusion of the petitioner's case. He is not entitled to wait until the opposing respondents disclose their whole case, and then to start a fresh case for the purpose of upholding the will in reply to the evidence of the opposing respondents.

Where a suspicion attaches to a will, the Court must be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.

THE facts appear from the judgment.

Bawa, K. C (with him A. Drieberg), for the petitioner, appellant.

A. St. V. Jayawardene, for second and third respondents.

Elliott and B. F. de Silva, for fifth respondent.

Hayley (with him F. H. B. Koch and Keuneman), for first, sixth, seventh, eighth, nineth, eleventh and twelfth respondents.

Schneider (with him Rutnam), for fourth respondent.

Samarawickrama, for tenth respondent.

Cur. adv. vult.

February 26, 1919. BERTRAM C.J.-

Before approaching the consideration of the issues of the case, it is necessary to deal with certain questions of procedure, and for the purpose of dealing with those questions, it will be convenient to narrate the history of the case from the time of its inception. The document propounded by the executors as a will purported to be a will of an old and wealthy Moslem, known, by reason of his religious habits, by the name of " the Alim," who had built up an extensive business, and had a numerous family derived from three successive marriages. The principal beneficiaries under the will are the two executors, sons of the deceased, and one of their brothers. These three brothers were the three managers in charge of the business. Two opposing affidavits were filed by other members of the family: one on February 14, 1918, by Muhiseen, a young son of the deceased, disputing the execution of the will; and one a fortnight later by one of the elder brothers, Abdul Majeed, alleging that the signatures of the deceased were obtained by fraud, or false representations made to him; that the document and its protocol were copies of a deed of gift which the deceased had entrusted Isdeen, one of the executors, to get ready.

At the trial the District Judge proceeded to settle issues in accordance with section 533 of the Civil Procedure Code. Mr. Bawa, for the propounders of the will, suggested the following issue: " Was the will dated October 22, 1917, duly executed by the deceased, C. L. M. A. L. Marikar Alim? " All the respondents agreed to this issue. But it appears that Mr- H. J. C. Pereira, leading counsel for the members of the family who were attacking, the will, observed that he understood the issue to embrace all the defences set up by the respondents in their affidavits, and no ob