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

037-NLR-NLR-V-58-C.-A.-H.-DAVOODBHOY-Appellant-and-M.-J.-M.-FAROOK-et-al.-Respondents.pdf

1956Present : Basnayake, C. J., and K. D. de Silva, J.
A. If. DAVOODBHOY, Appellant, and M. J. M. FAKOOK el al.,
Respondents
,S'. C. 49—D. C. Colombo, 0,419
Evidence Ordinance—Section 00—Document thirty years old—Proper custody ”—-Wilt executed in 1S50—Proof thereof—Frauds and Perjuries Ordinance,
Ko. 7 of 1840, s. 15.
■ Tho-duplicate of a Wilt which is over thirty years old and which was dulyadmitted to probate in a testamentary ease the record of which is missing isadmissible in ovidence under Section 90 of the. Evidence Ordinance providedit 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 tho circumstances of each ease. Proper custody docs notnecessarily mean legal custody. It is sufficient if the circumstances renderit- probable that tho origin was legitimate.
Tlio duplicate of a Will executed in the yenr 1S50 was transmitted to thoDistrict Court by tho Notary who attested it. The ^Notary transmitted it- to thoDistrict Court because ho bad some reason to believe, though mistakenly,that such transmission was required by law. Tho document was later trans-ferred to tho llegistrur-General, who produced it in the present ease after ithad been in tho custody of tho band Registry for over 100 years.
Held, that the document was produced from proper custody within themeaning of Section 90 of the Kvidenco Ordinance.
-jAlPPJSAL from a judgment of tlio District Court, Colombo.
• 'll. T Pcrera, Q.C., with G. D. C. Weerasinghc, for the <lefohdant-appellant.
C. Thiagaliiigani, Q.C., with T. Parathdlingam, for tlie plaintiffsfrespondcnts.
Cur. a<Iv. vult.
—April 26, 195G. X. D. l>k Su.va, J.—
This is an appeal by the defendant from an order made by the Addi-tional District Judge, Colombo, admitting certain documents in cvidencohaving overruled an objection taken by the defendant’s Counsel that theywere inadmissible. The documents in question are P9, P10, P1I, P14 andP15. At the hearing of this appeal the objection was confined to P14 andPin. The document P15 is claimed to be the duplicate of the Last WillHo. 41S dated 22nd July, IS50, of one Mohideen Xatchia who died inthe year 1S55, while Pit is a certified copy of that document. It isnecessary to sot out, in brief, the respective claims of the plaintiffs andthe defendant in this action in order to consider the question raised inthis appeal in its correct perspective.
The plaintiffs instituted this action against the defendant for a decla-ration of title to the piece of land described in the schedulo to the plaintand for consequential relief. It is common ground that this land origi-nally belonged to Mohidcen Xatc-hia. According to the plaintiffs, Mohi-•decn Xatc-hia by Last- Will Xo. 41S dated 22nd July, 1850, bequeathedher property including the subject matter of this action to her two sons,Hamidu Lcbbo and Ahamadu Lebbe. She died on 24th July, 1855.Thereafter, plaintiffs allege, that her Last Will was admitted to probatein D. C. Colombo Testamentary Case Xo. 1734. It was contended by theplaintiffs that this Last Will created a fidcicommissum in favour of thedescendants of Hamidu Lebbe. If in fact- no such fidcicommissum wascreated the plaintiffs’ action admittedly fails. Ahamadu Lcbbo was .theexecutor under the Last A Vi 11 of-liis mother, and ho by executor’s con-veyance P7 of 1S5G conveyed to his brother Hamidu Lebbe the intereststhat the latter was entitled to under his mother’s Last Will. Hamidu.Lebbe died leaving three children namely Xoordeen, Samsudecn and•Cadar Umma and they by deed PS of 1902 amicably partitioned the pro-perty which their father acquired under this Last Will. At this division,tho land in suit was allotted to fsamsudeen who died leaving a son and a•daughter namely Jalcel and Zubaida Umma. It is alleged that Jalcelhas not been heard of since the year 1942 and on the presumption thatlie is dead his rights devolved on his three children the 1st and 2nd plain-diffs and one Quirasha who died leaving as her heirs tho 3rd and 4th plam-diffs. Tho 6th plaintiff is a purchaser of certain rights from 1st and 2nd-plaintiffs. According to tho plaintiffs Zubaida Ununa left no issuo and
her share devolved on her brother Jaleel "whose rights passed to the plain*tiffs. The defendant claims the entire land by right of purchase on deedPI3 of 1917 from Jaleel who had already acquired the share of his sisterZubaida Uimna on deed Pi2 of 1917 from the latter’s husband. . Thedefendant does not admit that Mohideen Natchia left a Last Will or that-such a Will was admitted to probate. Even if such a Will was provedhe contends that it did not create a fideicommissum. He also' takes upthe position that neither the Will nor the probate relied on by the plain-tiffs was registered and that therefore he acquired an absolute title to thewhole land on PI 3.
At the trial the plaintiffs’ Counsel raised, inter alia, the following,issues :—
Hid the Last Will No. 41S dated 22.7.1S50 create a fidci commissum
for four generations ?
Was the said Last Will duly admitted to probate ?
Was tlio property in the hands of Hamidu Lebbe Samsudeen
subject to a fideicommissum for ever in favour of his children
and descendants ?
If so, arc the plaintiffs entitled to the entirety of the property in
dispute in the shares set out in paragraph 9 of the plaint ?
Some of the issues raised by the defendant’s Counsel were :—
I (a) Was Mohideen Natchia the owner of the premises in question ?
(6) Did she execute tlio Last Will No. 41S dated 22.7.1S50 ?
(a) If not, is this action maintainable ?
(b) Is this action maintainable unless the probate of the said LastWill is produced ?
In the course of the trial the Counsel for the plaintiffs sought to produce,. document which purported to be a certified copy of the Last WillNo. 418.
Mr. Wcerasooria, Q.C., the Counsel for the defondant objected to theproduction of this document. This objection was upheld. Thereafterthe plaintiffs’ Counsel stated to Court that he wished to summon theRegistrar-General to produce the original of the duplicate of the LastWill. The learned Judgo accordingly adjourned the trial. When thetrial was resumed on 1.1.’54 the 1st plaintiff stated that the Last Willof Mohideen Natchia was admitted to probate in Testamentary CaseNo. 1734 of the District Court, Colombo, but that the record of that casewas missing.. In support of his statement he produced P5, a letter, dated13.9.’52 of the Secretary of tlio District Court, Colombo, in which it isstated that according to an inventory prepared somo years ago the recordof D. C. Colombo Testamentary Case No. 1734 is missing. Ho alsoproduced P6 which, is’ a certified extract from' the Testamentary IndexRegistor of the District Court, Colombo, which shows that the estato ofMohidin Natchic was administered in Case No. 1734. Thereafter one
Z>. S. Pern's a clerk of the Land Registry produced Plo tho duplicate ofLast Will No. 418 dated 22nd July, 1850 and P14 a certified copy of thatduplicate. Mr. Weerasooria objected to the production of these twodocuments. After hearing tho arguments of the Counsel for plaintiffsand the defendant the learned Judge made the following order :—
“ J admit in evidence Last Will 41S of 22.7.1S50. I shall give myreasons in my judgment. ”
It is from this order that the defendant has appealed. Further trial hasmot been proceeded with in view of this appeal.
Mr. H. V. Perera contended :—
that P15 is only a copy of the Last Will.
that it is not a public document within the meaning of Section 74
of tho Evidence Ordinance (Cap. 11).
■Therefore he argued that it is inadmissible in evidence. Mr. Thiaga-lingam on the other hand maintained that this document should be•regarded as the original Will and that in any event it is a public documentwithin the meaning of Section 74 (b) of the Evidence Ordinance as a publicrecord of a private document and that on either of these two grounds itwas admissible. I would first deal with the question as to whether ornot this document is admissible under Section 90 of the Evidence Ordi-nance. That Section provides that any document thirty years old pro-duced from any custody which the Court in the particular case considersproper, may be presumed to bo genuine both regarding to its contentsand its due execution. Tho explanation appearing under that Sectionreads : —
“ Documents arc said to be in proper custody if they are in tho placein which, and under the caro of the person with whom they wouldnaturally be ; but no custody is improper if it is proved to have had alegitimate origin, or in tho circumstances of the particular case arcsuch as to render such an origin possible. ”
There is no doubt that the word “ document ” in this Section refers to the•original.document. -Mr. Perera contended that P15 is not the originalWill. Although Mr. Thiagalingam at one stage suggested that PI5 maywell be the very document which was admitted to probate in Case No. 1,734■there does not appear to be any merit in that contention. In fact theplaintiffs' case in the Court below was that the original Will admitted toprobate had been lost and that Plo was its duplicate lying at the LandRegistry. Plo itself shows that the Last Will of Mohideen Natchia wasattested in triplicate, for the attesting Notary states therein :—
“ In witness to the declaration and execution of this Last Will and.Testament the signature and seal were affixed to three of these samepresents in the presence of Pakirthamby Sesma Lebbe of Old Street,Colombo, and Kunji Mohamadu Nagutha Segu Fareed of New Street,Colombo, on the date and year aforesaid. ”
Therefore I •would proceed to treat this document as a duplicate and con-sider' the question of its admissibility on that basis. The duplicate of-any document is necessarily identical with the original in regard to its'contents. Both the original and the duplicate are prepared and signed,at the same time and by the same parties. It was held in Kiri JMenika vzDuraya 1 that a duplicate of a' deed is not a copy but must be treated as-the original itself. Lascelles C.J. stated in that case :—
“ The document in question cannot, in my opinion, be treated as a-copy of tlio original deed. This document, no less than the deed whiclrpassed to the grantee, was signed by the parties and attested by theNotary. It is in all respects an original deed. ”
That was the duplicate of a deed over thirty years old and the learned"Chief Justice held that it was admissible in evidence provided it came fromthe proper custody. On the analogy of that decision Mr. Thiagalingam-submitted that the learned District Judge was cori-ect in admittingP15. Mr. Perera, however, contended that the reason why the duplicateof that deed was admitted was because every deed has to be executed ’in duplicate and the duplicate must be forwarded to the Registrar ofLands and it Was that duplicate which was sought to bo produced in thatcase. It does not appear, however, from the judgment that the reasonfor treating the duplicate as the original itself was due to the legal require-ment that deeds should be executed in duplicate. The reference in thatjudgment to the legal requirement that deeds must be executed in dupli-cate was made in considering the question whether the document camefrom the proper custody. The character of the duplicate of a documentis not dependent on whether or not the law requires that t he particular -document should be executed in duplicate. The original and the dupli-cate are contemporaneous in execution, identical in terms and signed bythe same iiarties. Apart from that parties to the document intend to-t-reat them alike. Although there is no legal requirement that a Willshould bo attested in duplicate there is nothing to prevent it being soattested if the testator desir es to do so. A duplicate is not tho same as a-protocol. In Iialiya, Ummav. Mohamad-, Gratiacn J. said r—
“ As to the argument concerning the protocol, I concede that atestator may, for greater security, execute his Will in duplicate—cither retaining both instruments himself, or retaining one and.committing tho other to the custody of someone else. In such cases,the disappearance of the duplicate retained by t-lie testator would giverise to various gradations of presumption ’ according to thecircumstances of the particular case— ”.
In that case Gratiacn J. seems to have taken the view that although aprotocol of a Will is not admissible to prove the contents of the Will theduplicate is entitled to take the place of the original. I am thereforeof the view that the duplicate of a Will over thirty years old is admissibleunder Section 90 of the l£vidcnce Ordinance provided it is produced fromthe proper custody as contemplated by that Section. The Will in question.
purports to have been attested in tho year 1850. Therefore it is overthirty' years old. But docs Plo come from .tho proper custody ? Accord-ing to Mr. Pcrera it does not. He submitted tlxat at tho relevanttime there was no provision either to attest deeds in duplicate or to for-ward a duplicate to any Government office. 31r. Thiagalingam howeverargued that in the year 1S50 the law required duplicate of Wills to bedeposited in the District Court. I am unable to agree with him on thatpoint. It is Sccticn 4 of Tho Frauds and Perjuries Ordinance No. 7of IS34 which required deeds and Wills to be attested in duplicate. Thosame Section enacted that duplicates of deeds and Wills should be trans-mitted by the Notary to tho District Judge who was enjoined to preservethem. Section. S (G) of tho Notaries Ordinance No. 1 of 1S37 providedthat duplicates of all deeds and Wills should be transmitted to the DistrictCourt as required by Ordinance No. 7 of 1834. A breach of that require-ment was made punishable with a fine. This Ordinance was repealedby the Notaries Ordinance No. 4 of 1S39. Section G (4) of the latterOrdinance enacted that duplicates of all deeds and Wills should be seatby the Notary to the District Court “ as requird by law ”. The law ”referred to here is Ordinance No. 7 of 1S34. The Frauds and PerjuriesOrdinance No. 7 of 1S40 repealed Ordinance No. 7 of 1S34. Section 15of Ordinance No. 7 of 1S40 required every deed or other instrument exceptany Will to be executed in duplicate and that the Notary should at thoend of each month transmit the duplicate of all deeds or other instrumentsexecuted by him during the month to tho District Court. This Ordinancehowever did not expressly enact that Wills should not bo executed induplicate. But as Ordinance No. 7 of 1S34 was repealed by it the legalrequirement t-liat Wills shoidd be executed in duplicate ceased to exist.
So that at the time that Will No. 41S of Mohidecn Natchia was attestedit was not obligatory to attest Wills in duplicate. But, at that timeNotaries Ordinance No. 4 of 1S39 was still in operation. Although byreason of tho repeal of Ordinance No. 7 of 1S34 the requirement underSection G (4) of Ordinance No. 4 of 1839 for the transmission of the dupli-cates of Wills ceased to operate, notaries do not appear to have realized,that that necessity no longer existed because no specific reference wasmade in Ordinance No. 7 of 1840 to Section 6 (4) of Ordinance No. 4 of1S39. It would not be strange that if they thought that they werestill required to send duplicates of Wills to tho District Court for. thereason that OrdinanccXo. 4of JS39 had not been repealed. That probablywas the reason why the Notary who executed this Will transmitted aduplicate to the District Court. Ordinance No. 8 of 1S63 enacted thatDistrict Judges should send up the duplicates of all deeds and Wiltsin their possession to the Registrar of Lands. That is how thoseduplicates came into tho custody of the Registrar of Lands.
Does the fact that there was no legal requirement to transmit theduplicate of a Will—in this case—to the District Court make it .inad-missible in evidence on tho ground that it clocs.not come from tho propercustody 1 If there was such a requirement the custody from which thisdocument PI5 comes must-, without question, be held to. be. the propercustody. But the absence of such a requirement does not necessarilyfollow that the custody involved in this case is improper. The reason
why Section 90 insists on proper custody is to ensure the authenticity ofthe documents admitted under that Section. Whether or not a parti-cular custody is proper is a question of fact to be determined in the cir-cumstances of each case. Proper custody does not necessarily mean thebest or the strictly legal custody. It is sufficient if the circumstancesrender it pr obable that the origin was legitimate. In Bishop of Meath r.Marquess of Winchester1 which is a case decided by the House of Lords,rrinfln.l f! _.T. SfiiH
“…. for it is not necessary that they should be found
in the best and the most proper jrlacc of deposit. If documents conti-nued in such custody there never would be any question as to theirauthenticity ; but it is when documents are found in other than theproper place of deposit that the investigation commences, whetherit was reasonable and natural under the circumstances in the pai-ticulai-case, to expect that they should have been in the place where they areactually found ; for it is obvious that whilst there can be only oneplace of deposit strictly and absolutely proper, there may be various,and many that are reasonable, though differing in degree ; some more. so, some less ; and in those cases the proposition to be determined is,whether the actual custody is so reasonably and probably to be accountedfor that it impresses the mind with the conviction that the instrumentfound in such custody must be genuine. ”
The principle laid down in this case was followed by Wendt andcle Sampayo JJ. in Maria Silva v. Adoris Soysa
Ho the circumstances in this case suggest that the custody of Plo had alegitimate origin ? I think they do. It has been in the custody of theHand Registry for over 100 years. There are no suspicious circumstancesas to the manner that this Government Department came to possessit. The custody from which it comes is undoubtedly disinterested. Ithas been transmitted to the District Court by the Notary who attested it,at a time when he had some reason to believe—though mistaken—thatjsuch transmission was required by law. There is no reason at all to doubtthe authenticity of the document. Therefore I hold that P15 comes fromthe proper custody and it is admissible under the provisions of Section 90of the Evidence Ordinance. The certified copy P14, too, is admissible.It is not therefore necessary to consider the question whether P15 is a•nublic document.
Accordingly I dismiss the appeal with costs.
Basxayak e, C.J.—
• I have had the advantage of reading the Judgment prepared by mybrother de Silva with which I agree. As my brother has stated therelevant facts fully I shall confine my Judgment to the question of lawinvolved in this appeal.
s 1 Bulasinyham's ltcjiorts 4G.
The sole question for determination on this appeal is whether theYearned District Judge is right in admitting in evidence the duplicate«jf the Last Will Xo. 41S dated 22.7.IS50 produced from the custodyof the Registrar-General.
Section 90 of the Evidence Ordinance provides—
“ 90 : Where any document purporting or proved to be thirty 3-earsold is produced from an3r custody which the court in the particularcase considers proper, the court may presume that the signature and■every other part of such document which purports to be in the hand-writing of any particular person is in that person's handwriting, and, inthe case of a document executed or attested, that it -was duly executedand attested by the persons by- whom it purports to be executed andattested ”.
The will in question which is in Tamil is clearly over thirty years old-and purports to be signed by the testator and two -witnesses and attestedby a notary' public. It is produced from the custody of the Rcgistrar-•General. The evidence of the officer of the Registrar-GencraTs Depart-ment who produced the document in question is that- the will was in the-volume of deeds containing the duplicates of notary Iv. M. Mohammed .Lebbo for the years 1S49—1S51. He also stated that these documentswere originally' in the custody of the District Court of Colombo and waslater transferred to the Registrar-General. The learned District Judgeconsiders that on the facts of this case the custody from which the Willlias been produced is proper custody'. I am not prepared to say that on-the material before us the learned District Judge is wrong. In thatview of the matter the Court may presume the actual -attestation and-execution of the Will.
On the subject of the presumption created by' the section it is sufficient–to refer to the case of jtfunncilal v. Kashibai 1.
Appeal dismissed.
* (1S3G) 3 Bing. (-Y.C7.) 183.