089-NLR-NLR-V-07-Re-Last-Will-of-GABRIEL-SOYSA-SILVA-v.SOYZA.pdf
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1904.June 30.
Be Lafit Will of Gabriel Soysa.
SILVA v. SOYZA.
D. C., Negombo (Testamentary)■
Last will made in 1867—Application for probate after thirty years—Propercustody—Presumption of genuineness—Evidence Ordinance, s. 90.
The word “ document, " as defined in the Evidence Ordinance, is largeenough to include a will, and therefore the presumption created bysection 90 applies to the case of a will thirty years old.
. Where a will is found in the custody of the testator’s widow and suchcustody has a legitimate origin, the Court should presume in favour ofits genuineness, even if the best and most proper custodian of the will isthe Court itself.
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N this suit the petitioner sought to propound a will dated the28th December. 1867.
The District Judge dismissed the petition, holding that as thelast will was not produced in Court within six months of thetestator’s death, it could not nog be said to come from propercustody.
The petitioner appealed.
H. J. C. Pereira, for appellant.—The will was in the custody
*of th£ widow, and therefore it was in proper custody. She did not
produce it in ttme, as the document was mislaid.
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30th June, 1904. Wendt, J.—
This is an application by the .executrix for probate .of the lastwill of her husband Gabriel de Soysa, who died in 1868. The will isdated 28th December, 1867, andthe question is whether it has
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been proved. The notary who attested it is certainly dead, and itis alleged (what is probable enough) that the attesting witnessesare dead too. No attempt, however, was made to prove the hand-writing of the testator or of the notary or witnesses, and thepetitioner had to depend on the fact that the instrument was overthirty years old and came from proper custody. She is the executrixnamed in the will, and though she is not mentioned in it as one ofthe testators she says she signed it along with her husband. Asijrip of paper has been torn off the last leaf of the will, carryingwith it the greater part of the testator’s! signature and the whole ofthe petitioner’s signature and thos«v of the notary and one of thewitnesses. The District Judge accepts the explanation that thisstrip became detached and was accidentally lost, and the raggedstate of the document supports the explanation. The notaryappears to have duly preserved a duplicate of the will (dulyexecuted) in his protocol, and he being dead the protocol is in theLand Registry Office, and a copy of it has been produced.
There is nothing irregular or suspicious about the will or itscontents. The petitioner deposed that the instrument was withher husband till his death, and that thereafter it was with her;that she had forgotten its existence until, a short time ago, heryoungest son unearthed it among some other old papers in a chest.The District Judge considers petitioner a witness of truth, butfeels constrained to hold that, inasmuch as the will ought tohave been produced to the Court shortly after the testator’s death,it cannot now be said to come from proper custody when producedby the executrix.
“ Proper custody ” is explained in section 90 of the EvidenceOrdinance. A document is in proper custody if it is in the careof a person with whom it would naturally be, but no custody isimproper if it is proved to have a legitimate origin, or if thecircumstances of the particular case are such as to render suchan origin probable. Here the custody of the widow-executrix isproved, and that it had a legitijnate origin, and it is therefore notimproper custody, and I would go further and say that .theinstrument would naturally be looked for in her custody. Inthe case of Bishop of Meath v. Marquess of Westminster, 3 Bing.
N.S. 183, Tindal, C.J., speaking of documents found in a place i»which and under the care of persons with whqm such papersmight naturally and reasonably be expected to be found, says,“ This is precisely the custody which gives authenticity to documentsfound within it, for it is not necessary that they should be foundin^the best and most proper place of deposit. ” Accordingly, even ifthe Court would have been the best and most proper .custodian of this
1904…June 30.
Wendt, J.
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1904.will,yet the custody ofthe widow-executrix is alsoproper custody.
June SO.Andthe Court oughttherefore to presume infavour of the
Wm»DT, jgenuineness of the instrument. The question is only in regard to
the deceased testator Gabriel, and we decide nothing as to the willbeing possibly also that of the petitioner. We set aside the orderappealed from and direct the issue of probate to the petitioner indue course. The petitioner will have the costs of appeal.
Sampayo, A.J.—
I am of the same opinion. The word " document ” as defined inthe Evidence Ordinance is large* enough to include a will, and there-fore the presumption created by section 90 applies to the case of awillthirty years old.The corresponding sectionof the Indian
Evidence Act appears to have been construed in the same way inthe Indian Courts. Mukkerji v. Pal Sritiratna, I.L.B. 5, Cal. 886It has, however, been held in India, and I think rightly, that thepresumption should generally be drawn with caution, and thereshould be at least some evidence of transactions or states of affairsnecessarily or at least naturally referrable to it so as to free it fromthe suspicion of being fabricated. (See Prasad Bai v. ChandraBai, 6 W. R. 83; Dishit Moro v. Lakshman, I. L. R. 11., Bom. 89.)In this case evidence of execution is not absolutely wanting, for thewidow of the deceased swears to his having signed it. Further,transactions of the kind referred to are also shown to have takenplace, as it appears that the widow and the children who were benefi-ciaries under the will sold some of the property of the estate, andthe vendees have been in undisturbed possession for a great manyyears without opposition from the respondents to this appeal, whoare the children of the widow by a marriage contracted subse-quently to the death of the first husband, the deceased testator. Itherefore think that the requirements in the proof of a will of anancien.t. date have been sufficiently fulfilled, including the necessityfor the document to come from proper custody.