1956 Present: Basnayake, C.J., and K. D. de Silva, J.

C. A. H. DAVOODBHOY, Appellant, and M. J. M. FAROOK et al.,
Respondents

S.C. 49-D. C. Colombo, 6,419

Evidence Ordinance-Section 90-Document thirty years old-o" Proper custody "- Will executed in 1850-Proof thereof-Frauds and Perjuries Ordinance, No. 7 of 1840, s. 15.

The duplicate of a Will which is over thirty years old and which was duly admitted to probate in a testamentary case the record of which is missing is admissible in evidence under Section 90 of the Evidence Ordinance provided it is produced from the proper custody as contemplated by that Section.

Whether or not a particular custody is proper is a question of fact to be deter-mined according to the circumstances of each case. Proper custody does not necessarily mean legal custody. It is sufficient if the circumstances render it probable that the origin was legitimate.

The duplicate of a Will executed in the year 1850 was transmitted to the District Court by the Notary who attested it. The Notary transmitted it to the District Court because he had some reason to believe, though mistakenly, that such transmission was requi