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 required by law. The document was later trans-ferred to the Registrar-General, who produced it in the present case after it had been in the custody of the Land Registry for over 100 years.

Held, that the document was produced from proper custody within the meaning of Section 90 of the Evidence Ordinance.

APPEAL from a judgment of the District Court, Colombo.

H. V. Perera, Q.C., with G. D. C. Weerasinghe, for the defendant appellant.

C. Thiagalingam, Q.C., with T. Parathalingam, for the plaintiffs respondents.

Cur. adv. vult.

April 26, 1956. K. D. DE SILVA, J.-

This is an appeal by the defendant from an order made by the Additional District Judge, Colombo, admitting certain documents in evidence shaving overruled an objection taken by the defendant's Counsel that they were inadmissible. The documents in question are P9, P10, Pll, P14 and P15. At the hearing of this appeal the objection was confined to P14 and P15. The document P15 is claimed to be the duplicate of the Last Will No. 418 dated 22nd July, 1850, of one Mohideen Natchia who died in "the year 1855, while P14 is a certified copy of that document. It is necessary to set out, in brief, the respective claims of the plaintiffs and the defendant in this action in order to consider the question, raised, in this appeal in its correct perspective.

The plaintiffs instituted this action against the defendant for a declaration of title to the piece of land described in the schedule to the plaint and for consequential relief. It is common ground that this land originally belonged to Mohideen Natchia. According to the plaintiffs, Mohideen Natchia by Last Will No. 418 dated 22nd July, 1850, bequeathed her property including the subject matter of this action to her two sons, Hamidu Lebbe and Ahamadu Lebbe. She died on 24th July, 1855. Thereafter, plaintiffs allege, that her Last Will was admitted to probate in D. C. Colombo Testamentary Case No. 1734. It was contended by the plaintiffs that this Last Will created a fideicommissum in favour of the descendants of Hamidu Lebbe. If in fact no such fideicommissum was created the plaintiffs' action admittedly fails. Ahamadu Lebbe was the executor under the Last Will of his mother, and he by executor's conveyance P7 of 1856 conveyed to his brother Hamidu Lebbe the interests that the latter was entitled to under his mother's Last Will. Hamidu Lebbe died leaving three children namely Noordeen, Samsudeen and Cadar Umma and they by deed P8 of 1902 amicably partitioned the property which their father acquired under this Last Will. At this division, "the land in suit was allotted to Samsudeen who died leaving a son and a daughter namely Jaleel and Zubaida Umma. It is alleged that Jaleel has, not been heard of since the year 1942 and on t