THE ALIM WILL CASE

098-NLR-NLR-V-20-THE-ALIM-WILL-CASE.pdf


( 481 )
Present: Bertram C.J. and De Sampayo J.
THE ALIM WILL CASE.124 and 125—iD. C. Colombo, 6,175.
Burden of proof—Power of Court to call evidence offer cose is closed—
Last toitt—Probate—Suspicion.
Ina contest arising oatof an applicationforprobate asingle
issue was framed, viz., “ Wasthe will duly executed by the
deceased? " The party seeking probate contented himself withproof of the execution. Therespondentcalledevidence to prove
that the signature was obtained by fraud.
Held, that the party beginning hadaright to callevidence in
rebnttal on the question of substitution.
Under section 163 of the Civil Procedure Code it is not necessarythat the right to call evidenceby wayofrebuttalshonldbe expressly
reserved by the party beginning.
The Court has a discretion at any period in a case to allowfarther evidence to be called for its own satisfaction, even thoughit . isdoubtful whether it isadmissible, on therequest of theparty
desiring it as of right.
A respondent who wishes to support a petitioner for probateshould call his evidence atthe conclusion ofthepetitioner'scase.
He is not entitled to wait until the opposing respondents disclosetheirwhole case, and thento start a freshcasefor the purpose
ofupholdingthe willin reply to the evidence oftheopposing
respondents.
Where a suspicion attaches to a will, the Court must be vigilantand jealous in examining theevidenceinsupportof theinstrument,
infavour ofwhich itought not to pronounce unlessthesuspicion
is removed, and it is judicially satisfied that the paper propoundeddoes express the true will of the deceased.
fJpHE facts appear from the judgment.
Bawa, K.C- (with him A. Drieberg)t 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 Butnam), for fourth respondent.
Samarawickrama, for tenth respondent.
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February 20, 1919. Bertram C.J.—
Before approaching the consideration of the issues of the csbo, itis necessary to deal with certain questions of procedure, and for thepurpose of dealing with those questions, it will be convenient tonarrate the history of the case from the time of its inception. Thedocument propounded by the executors as a will purported to be awill of an old and wealthy Moslem, known, by reason of his religioushabits, by the name of “ the Alim,” who had built up an extensivebusiness, and had a numerous family derived from three successivemarriages. The principal beneficiaries under the will are the twoexecutors, sons of the deceased, and one of their brothers. Thesethree 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 oneof the elder brothers, Abdul Majeed, alleging that the signaturesof the deceased were obtained by fraud, or false representationsmade to him; that the document and its protocol were copies of adeed of gift which the deceased had entrusted Isdeen, one of theexecutors, to get ready.
At the trial the District Judge proceeded to settle issues in accord-ance 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 thedeceased, 0. L. M. A. L. Marikar Alim?” All the respondentsagreed to this' issue. But it appears that Mr- H. J. C. Pereira,leading counsel for the members of the family who were attackingthe will, observed that he understood the issue to embrace all thedefences set up by the respondents in their affidavits, and noobjection appears to have been taken to this on behalf of thepetitioners. In addressing himself to the discharge of the onuswhich lay upon him,* Mr. Bawa, for the petitioners, contentedhimself with calling certain witnesses to prove the execution of thewill, that is to say, the notary- who attested the will and the twowitnesses who were said to have subscribed their names in hispresence. Isdeen, the principal executor and beneficiary, who tookan active part in .making the arrangements for the will, was notcalled. Mr. Bawa was asked. early in the case if he intended to callhim. He replied that at present he did not intend calling him, butthat, if necessary, he might call him, and Isdeen was thereuponasked to leave the Court. Mr. Ismail, the attesting notary, wascalled, and was examined and cross-examined at considerablelength, and the allegation that the supposed will was substitutedfor a document which the deceased intended to execute as a deedof gift was specifically and adequately put to him in cross-examina-tion. Mr. Bawa having closed his case, Mr. H* J. C. Pereira openedthe case for the respondents, and. among other things opened facts
pointing to, or at least providing, an opportunity for the fraudulentsubstitution above referred to. He intimated that among otherwitnesses whom he would call would be the wife, the widow of thedeceased, and Haniffa Hadjiar, one of the witnesses to a deed ofgift which was said to have been executed at the same time as thealleged substitution. (He called three witnesses, who gave veryimportant evidence with regard to this suggested substitution:Uduma and Majeed, sons of the deceased, who swore that he gaveinstructions to the notary to prepare deeds of gift in favour of hissons Haniffa, and Hassim, one of the executors, and Muhiseen, whoconfirmed the evidence of the other two witnesses on that point,and swore that he was present when the deed in favour of Haniffawas executed, and that a document purporting to be a deed of gift infavour of Hassim was executed at the sametime. This document,if it ever existed, has disappeared. Ultimately Mr. Pereira did notthink it necessary to call either the widow of the deceased or HaniffaHadjiar, the witness to the deed of gift to Haniffa, whom in hisopening he had intimated that he would call before the Court, andclosed his case. Mr. Bawa then proposed to call the two petitionersand Haniffa to lead evidence in rebuttal of the statements that awill had been substituted' in place of the deed of gift in favour ofHassim on October 18, and that instructions were given by the Alimfor a deed of gift in favour of Hassim. He also proposed to callcertain other witnesses not material at this point to mention. Therespondents opposed Mr. Bawa's right to caff these witnesses, andthe Judge refused to allow them to be called. The grounds of hisorder were subsequently explained in his judgment, and appear tohave been two.
The first reason was, in effect, that he had already formed twoconclusions : one against the petitioners on the question of the. execution of the will, and the other against the opposing respond-ents on the question of fraud. He considered that the petitionershad not proved the due execution of the will, and that their oppo-nents had not made out a case of fraud, but had only shown itspossibility or probability. He, therefore, ruled that. it would besuperfluous to hear evidence to nagative a case of fraud which hadnot been primd facie established. I do not think that it wascompetent for the learned Judge to take such a course at this stageof the case. He had not yet finally heard counsel for the petitionerson the question on which he had formed a conclusion against them.Although he was not satisfied that fraud had been proved, but onlyan opportunity for fraud, it appears, nevertheless, from the narrativein which he has embodied his views of the case, that he had madecertain incidental findings of fact bearing on that question. Heaccepts the evidence of Muhiseen, Majeed, and Uduma that theAlim instructed Isdeen to get prepared by Mr. Ismail two deeds of9gift: one in favour of Hassim, and the other in favour of Haniffa ;
( 484 )
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that documents purporting to be these deeds were presented to theAlim for execution* on October 18, and were executed by him oneafter the other. The supposed deed in favour of Hassim, if it wasexecuted, has entirely disappeared. The learned Judge also acceptsthe evidence of Mr. and Mrs. Rodrigo that on the morning of thisvery day, October 18, the draft will, which afterwards bore theAlim’s signature, was handed by them to Mr. Ismail, having beenhurriedly prepared by them in pursuance of his directions given tothem the previous evening. All this, it would appear, the learnedJudge had found as facts, but he bases his conclusion that the dueexecution of the will had not been proved, not on these considerations,but on the fact that he did not believe the evidence of Mr. Ismailand the attesting witnesses. Whether he was influenced in hisdisbelief by his incidental findings above mentioned he does notexpressly affirm or deny. But, in my opinion, he ought to havebeen profoundly influenced by them. It is impossible to dividethis case into separate partitions. If the learned Judge thoughtthat Mr. Ismail was perjuring himself, when he denied that he everreceived instructions for a deed to Hassim, that he ever presenteda document purporting to be this deed to the Alim, or that the Alimever executed such a document, how could Mr. Ismail’s credibilityon the question of its execution fail to be affected ? Similarly, ifthe learned Judge on hearing the evidence had come to the con-clusion that Hassim was not present on October 18 as alleged byMuhiseen, such a conclusion must materially have affected his viewas to the credit to be attached to the evidence given by Muhiseenof the Alim’s declared intentions and to his evidence on otherparts of the case. If, therefore, the evidence tendered by thepetitioners to rebut this whole story of the deed to Hassim wasotherwise relevant, it ought not to have been excluded merelybecause the Judge, though believing the story, thought that it fellshort of proving fraud. The two parts of the case were closelyintertwined, and the petioners were entitled to demand that beforeforming his conclusion, whether on the Issue of execution or on theissue of fraud, the Judge should hear the whole evidence, and beaddressed on the case as a whole. In holding that, unless he wassatisfied with the evidence of the execution of the will, he need notconcern himself with the question of fraud; the learned Judge wasunquestionably right in law, but in excluding the evidence whichhe excluded, he was, in my opinion, incidentally mistaken, inas-much as this evidence, in view of the course which the case hadtaken, had an important bearing on the question of execution.
The second ground on which the learned Judge rejected theevidence, if I rightly understand him, is a distinct one. It is, thatthe petitioners were not entitled in law to call rebutting evidence.The issue was a single issue. The onus was on the petitioners.** Our law,*' he says, “ provides for evidence to be led in rebuttal
( 486 )
when there are several issues, the burden on some o£ which is onone party, and on others on the opposing party. But here therewas only one issue, pure and simple, the onus of which was oh oneparty, the petitioners. I cannot understand how any one canseriously contend that this simple issue should be construed as twoissues, throwing the burden on both the petitioners and the opposingrespondents.” The learned Judge appears to consider that, thisbeing the position, Mr. Bawa was bound to produce his whole casebefore the respondents were called upon, and could not claim torebut any of the respondents’ evidence after the' respondents' casewas called. I do not think that this view of the case can be justified.The petitioners alleged that the will was duly executed. Therespondents, as part of their case, alleged that its execution wasprocured by fraud. It was for the petitioners on their side to provethe execution, and for the opposing respondents to prove the allegedfraud. In electing to confine his evidence, in the first instance, toevidence of execution, Mr. Bawa was acting entirely in accordancewith the principles which have been laid down on the subject in theEnglish Courts. (See the cases of Shaw v. Beck 1 and Penn v. Jack 2The observations of Pollock C.B. in Shaw v. Beck1 are almostexactly in point in this case: ‘1 But there are cases in. which, I think,the plaintiff is entitled, almost as a matter of right, to give evidencein reply. Where there are several issues, some of which are uponthe plaintiff and some upon the defendant, the plaintiff may beginby proving those only which are upon him, leaving it to the defend-ant to give evidence in' support of those issues upon which heintends to rely; and the plaintiff may then rebut the facts whichthe defendant has adduced in support of his defence. But it isurged that, in the present case, there are no pleadings, and that theplaintiff’s case is resolved into a single proposition, with which hemust deal at once, and that he was bound to go into the whole ofhis case upon receiving the intimation of the defence, and that suchan expression of opinion is to be found in the case cited in the Courtof Common Pleas. But I think that the plaintiff was entitled torely upon a primd facie case, by proving the execution of the deed,for that was all which it was incumbent upon him in the firstinstance to establish. Be had a perfect right to do so, and to leaveit to the defendant to impeach the consideration, and he was entitledin reply to rebut the defendant’s evidence. ” See also the obser-vations of Lord Brougham in Waring v. Waring,s There seemsno doubt, therefore, that, if the principles of English procedure areto be applied, Mr. Bawa ought to have been allowed to call hisrebutting evidence on the question of fraud. He was not entitledto “ split his case ” on any one issue. He could not, having re-frained from calling Isdeen on the question of execution, afterwardscall him to rebut the evidence given by the respondents on that1 8 Ex. 392.1 (1556) L. It. 2 Eq. 314.* Moore P.0.315
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ussue. But he was entitled to call Isdeen and the other witness he.•mentioned fcr rebut the evidence given by the respondents on theissue; of fraud. Beliance is, however, placed on section 16S of ourown Civil Procedure Code. This section declares that wherethere are several issues …. produced by the opposing partyas parties. ” There is no question that this section was intended toembody the principle of the English law above explained. On thewords of this section Mr. Hayley rqakes two points. . In the firstplace, he contends that section 168 of the Code, when it says thata party " may reserve ” the evidence, means that the reservationmust be made in express terms before the other party is called upon.Here Mr. Bawa said nothing. He simply closed his case, andnever mentioned the subject of rebutting evidence until the re-spondents’ case was closed. Mr. Hayley urged that it is the practicein Ceylon Courts, when such-an election is made, for it to be-madein express terms, and desired an opportunity of tendering evidenceas to this practice. My brother De Sampayo, who has an un-exampled experience of the practice of our Courts, knows no suchregular rule as that suggested by Mr. Hayley. We did not thinkit necessary to hear the evidence tendered. There is nothing in thewords of the Code itself to justify the plea that the election must beexpressly made. It is plain, from the English cases above cited, thatthere is no such principle observed in England, and I do not thinkthat such a principle ought to be imported into a provision whichwas clearly intended to embody the English law. In the secondplace, Mr. Hayley contends that the word “ issue ” in that sectionmust ^jbe interpreted as meaning an issue expressly framed inaccordance with section 386 of the Code, and that it cannot beinterpreted as meaning simply a question to be decided by theCourt. In this case he points out that only one “ issue ” wasframed, and consequently he says that there was no opportunity forthe application of the section. This is a highly technical contention.It is true that only a single issue was framed, but it was understoodby the parties that the issue covered all the points raised in theaffidavit, and one of those points was a distinct charge of fraud.Had the issues been more regularly framed, there would have beena separate issue on that point. It is unfortunate that any suchloose arrangements should have been tacitly come to. As is wascome to, it would not be in the interests of justice that it should berigidly interpreted. Technically speaking, Mr. Hayley*s point is a. good one. . But the Court, fortunately has it in its power to escapefrom such technicalities. The Court has . a discretion, at anyperiod in a case, to allow further evidence to be called for its ownsatisfaction, even though it is doubtful whether it is admissible,on the request of the party desiring it as of right. (See Budd v.Davison.x) Mr. Hayley protests that to act on such a principle
i 29 W. R. 192.
( 487 )
is to brush aside the terms of the Civil Procedure Code..' •. In gctyopinion so to act is not to brush aside the Code, but to intofprM' itaccording to its spirit, instead of according to its letter. Incase the learned Judge ought, in my opinion, to have exercised'his discretion to allow the evidence, even though Mr. BaWa, onthe strict terms of the Code, was not entitled to call it as of right;and if the learned Judge’s first reason for excluding the evidence,which I have discussed above, is to be taken as a reason for notexercising that discretion, I think that that reason is a mistaken one,in that it does not take account of the full facts of the case. It isrepugnant to one’s ideas of justice that evidence should be givencharging persons, who had hitherto borne a respectable position,with a gross fraud ; that the Judge should hold that it was possible,and indeed highly probable, that they had committed this fraud,and yet that they should be denied an opportunity of giving theirversion of the circumstances when they were anxious to do so,either because the Judge, though he thought it highly probablethat they had committed the fraud, did not think that it had beenproved that they had done so, or because of a technical interpreta-tion of the rules of procedure
Mr. Bayley, indeed, commented with some justice on the fact thatno application was made to recall Mr.* Ismail to give evidence inrebuttal. This was no doubt due to the fact that counsel for thepetitioners found themselves embarrassed by their own tactics.The charge of the alleged substitution had been definitely put toMr. Ismail in cross-examination, and he had formally denied it inre-examination. If Mr. Ismail had gone into the matter fully, inre-examination, there would have. been no plausibility in theirreserving the evidence of Isdeen for the purpose of giving evidencein rebuttal. Mr. Ismail, however, having dealt with the subjectin his evidence, there would have been no plausibility in asking forhim to be recalled in order to deal with it again. Similarly, theirdecision not to call Isdeen for the purpose of proving the executionof the will was no doubt influenced by their desire to reserve him forthe purpose of rebutting the charge of fraud, when it was fully laidbefore the Court. Those who advised the petitioners had no doubtvery good reasons for the course which they took, but they have hadto pay the natural penalty for taking it.
We were of opinion, therefore, that the learned Judge ought tohave heard' the evidence tendered, and Mr. Bawa contended thatif we took that view, he was entitled to a new trial. But by section35 of the Evidence Ordinance it is provided that the improperrejection of evidence shall not be a ground of itself for a new trial,if it shall appear to the Court that, if the rejected evidence had beenreceived, it ought*not to have varied the decision. It would havebeen obviously very difficult for us to have formed any conclusionas' to the effect of the evidence upon the case until it was actually
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heard. It seemed to us out of the question at that stage of the case,after twenty-five days’ trial in the Court below, and after more thanten days’ argument on the whole facts of the case before ourselves,to order a new trial for the purpose of having that evidence taken.We determined, therefore, following the example of the Court ofAppeal in Bigsby v, Dickinson,1 to take the evidence ourselves andto reserve any further action on the point until the whole argumenton the case was concluded.
We accordingly called the three witnesses whom Mr. Bawatendered in the Court below, namely, the two petitioners, Isdeenand Hassim, and the fifth respondent, Haniffa, and we directedthat their evidence should be confined to the points on which theirevidence was so tendered, namely, “ the rebuttal of the statementthat a will had been substituted in place of the deed of gift infavour of Hassim on October 18, or that any instructions were givenby the Alim for a deed of gift in favour of Hassim. ” In explaininghis reasons or objecting to the reception of this evidence in theCourt below, Mr. Hayley had urged that if he had raised no objectionto the evidence, he would have been bound to cross-examine thewitnesses, not only on the points on which they were called butalso on the whole case. We, therefore, directed Mr. Hayley, inthis Court to confine his cross-examination within the same limitsas those above indicated, except in so far as he desired to cross-examine the witnesses as to their credit. Mr. Hayley stronglyobjected to the course we had taken in calling these witnesses,and we took a note of his objection. But he raised no objection to thelimitation imposed upon his right to cross-examine. Mr. Bawa onthe other hand formally applied to us that the witnesses called bythe Court should be allowed to give evidence to contradict aseries of statements, which he enumerated, given in the course ofthe respondents* evidence. Those statements are as follows: —
Marginal page 258. The statement that the Alim expendedBs. 500 on charity.
Marginal page 260. The alleged attmept of Isdeen andNoordeen Hadjiar to get the Alim to write a will after September29, 1917.
Marginal page 263. That Isdeen and Majeed' mainly tried toget the Alim to write a will.
Marginal page 267. That on October 1 and 2 Isdeen camewith a paper showing properties to be given to the various children,and that the Alim refused to make a will) saying that it. was againsthis religion.
Marginal page 267. That the Alim said that he would give21, Colombo, street, to Hassim, &c.
Marginal page 268. That the Alim gave instructions to geta gift of the Kandy property prepared-.
1 (1876) 4 Ch. 2). 24..
Marginal page 269. That Isdeen asked Udtima Lebbe to getthe Alim to make a will at subsequent conversations.
Marginal page 275. That Muhiseen was present on October
38.Marginal page 275. That Ismail said -he had prepared a deedfor Hassim.
Marginal page 27. That more than .three documents wereput before the Alim.
Marginal page 276. That Hassim was present, and the othercircumstance Of the alleged transaction.
Marginal page 278. That the Alim told Isdeen to get readya deed of gift to Thassim.
(18) Marginal page 801. That after the will was read, Muhiseenasked to see it and was put off.
Marginal page 807. That Muhiseen told Majeed that hisfather had told him that two deeds-^one of them for Hassim—should be prepared.
Marginal page 316. That on December 13 Thassim andHaniffa asked Isdeen how the will came, and that Isdeen said,
“ Father had written a will secretly, " and that Muhiseen waspresent at the conversation.
Marginal page 338. The aileged conversation, two or threedays after the dowry feast, as to the religious scruples of the Alim.
Marginal page 338. That Isdeen said he had previouslytried to get the Alim to make a will and* failed.
Marginal page 341. The alleged conversation betweenIsdeen and Uduma on December 13.
Marginal page 342. The alleged disturbance at the readingof the will.
Marginal page 335. Uduma *s statement of his status in thefamily and his father’s affection for him.
Marginal page 368 seq. As to Majeed; the history of hisconnection with the firm.
Marginal page 377. That Majeed tried to persuade Isdeento settle the matter of the will.
Marginal page 378. That Isdeen said that nothing could bedone, but that the matter would be settled after probate.
Marginal page 386. Majeed’s valuation of the property.
'Marginal page 401. That Majeed said to Isdeen, “ What a.pity, ” Ac., and the rest of the conversation.
Marginal page 403. That when asked to attend the readingof the will, Majeed said, “ What nonsense; are you telling,” &c.
Marginal page 413. That after the reading of the will Majeedasked and was refused inspection.
Mr. Bawa's application was rejected and he was directedN toconfine himself to Nos. (5), (6), (8), (9), (10), (11) and (12) of thestatements which he enumerated.
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At this point we had to consider another question of procedureraised by Mr. ^Brooke Elliott, counsel for Haniffa, the fifth respond-ent, who was separately represented both in the District Court andon appeal. In the District Court counsel for the fifth respondentappeared in Court, and, from certain evidence taken before our-selves, it would appear, as was indeed natural, that he was actingin co-operation with the two petitioners. He acquiesced in thecourse taken by the two petitioners with regard to the proof oftheir case, that is to say, in their confining their case, in the firstinstance, to evidence of the execution of the will. At any rate, heraised no objection to this course. As evidence was called on behalfof the opposing respondents, counsel for the fifth respondent cross-examined the witnesses, taking his.turn in the order in which hestood on the record. When the opposing respondents had finishedtheir case, and before Mr. Bawa had made his application to callevidence in rebuttal, counsel for the fifth respondent proposed tocall general evidence on behalf of his client. The learned Judgehaving heard argument, refused to allow the fifth respondent tolead any evidence at that stage. No substantive application wasmade by counsel for the fifth respondent to call his client or anyother witness in rebuttal of the evidence of fraud. The learnedJudge gave his reasons for rejecting the evidence tendered on behalfof the fifth respondent in his judgment. (See marginal pages 553to 555). The position of a beneficiary under a will, who, for thepurposes of the testamentary action, is made a respondent underour Code, and who appears in Court solely for the purpose of support-ing the will, has never been definitely settled. He is not a party tothe issues joined between the petitioners and the opposing respond-ents, but he is a party to the case. Whether he is entitled' to takean independent line in the action, to object to the tactics adoptedby the executors propounding the will, to insist on calling additionalevidence, or to raise independent objections to the course taken bythose who oppose the .will, it is not necessary for us here to discuss.We are informed that in a local case a respondent, who appearedin support of the will was allowed by this Court to object to acompromise come to between the executors and the opposingrespondents, and justice certainly seems to require that he shouldbe allowed to be heard for this purpose. Mr. Elliot further pressedus with the case of Beardsley v. Beardsley} as' showing that such arespondent would be. estopped by a decision in the testamentaryaction as tes judicata against him. As I have said, however, it isnot necessary for us to discuss this question or to discuss the reason-ing of the learned Judge in his judgment, because it is quite clearthat, even if we accept the position that the fifth respondent wasentitled to tender independent evidence in support of the will, suchevidence ought to have- been tendered at the conclusion of the case. *
* (1899) 1 <?. B.D. 746.
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of those whom he was supporting. The proxy which the fifthrespondent signed in favour of his proctor was simply a proxy tosupport the will. The fifth respondent was not entitled to waituntil the opposing respondents had disclosed their whole case, andthen to start a fresh case for the purpose of upholding the will inreply to the evidence of the opposing respondents. Mr. Elliottcomplained that no definite charge of fraud was made against- hisclient until the opening speech of counsel for the opposing respond-ents, and pointed out that as soon as he was personally implicatedin the fraud he filed a special list of witnesses. This list of witnesses,however, does not differ substantially from the list filed by the. petitioners, with whom the fifth respondent was co-operating. Wewere informed on the last day of the argument that it containedthe name of one of the attendants, but no application was madeto us to call this attendant. With regard to the charge of fraud,against him, the fifth respondent was exactly in the same positionas Isdeen and Haniffa,, the two petitioners, who are also implicatedin the fraud. The aleged fraud was specifically put to Mr. Ismail:in his cross-examination on March 16. The name of Haniffa, thefifth respondent, was definitely mentioned* He knew at that date,even if he did not know before, that he was said to be involved inthe fraud. He was, therefore, fully in a position to take any actionon the matter when Mr. Bawa closed his case on March 28. It is*not possible to treat seriously the suggestion that he was misled bythe fact that he had cross-examined the witnesses in the order of'his place on the record into the belief that he would be entitled tocall independent evidence in support of the will in the same order.We thought, therefore, that the evidence on behalf of the fifthrespondent at the stage at which it was tendered was rightlyrejected.
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Before this Court Mr. Elliott claimed that, not having been heardin the Court below, he was entitled, if further evidence was adducedin this Court, to lead evidence on the whole case. He applied forpermission to call, in the first place, the fifth respondent himself;secondly, Mr. Leslie de Saram, to prove that Mr. Ismail had hadseveral conversations with him on the subject of certain legalbusiness on which he had been employed by the Alim; thirdly, awell-known auctioneer and valuer, Mr. A. Y. Daniel, who is saidto have valued the properties in the inventoiy to the will, to provehis valuation* The Court did not think it necessary to examineeither Mr. de Saram or Mr. Daniel. It was prepared to assumethat, with regard to the important business which had been entrustedby the Alim to Mr. Ismail, He would have had conversations withthe proctor for the purchasers. It was also prepared to assumethat the valuatiod of the properties contained in tile inventory wereduly and properly made. The Court was calling Haniffa of its ownmotion, and gave Mr. Elliott an opportunity of examining him in
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chief. Mr. Elliott further applied for leave to examine Isdeen onthe whole case. This application the Court rejected.
It may be incidentally mentioned on this point that, as Mr. Bawain his opening address to the Court laid stress upon what was saidby Mr. H. J. C. Pereira in his opening speech for the opposingrespondents in the Court below, and as Mr. Pereira has since leftthe Colony, we thought it best that the terras of Mr. Pereira’s speechshould be before us on affidavit. Mr. Hayley upon this desired totender a counter-affidavit as to the statement of Mr. Pereira abovereferred to, that he understood the issue settled to cover all thepoints raised in the respondents’ affidavits, and also generally onthe whole case, to rebut certain suggestions made by Mr. Bawa thatthe appellants were misled and prejudiced by the conduct of therespondents’ case in the Court below. We intimated to Mr. Hayleythat we considered that there was no occasion for him to submitan affidavit on these points. With regard to the first, we werecontent to rely upon the reference made by the learned Judge inhis judgment; and in regard to the other points, we did not considerthem substantial. Mr. Hayley also desired to tender evidence asto the supposed practice of practitioners in the Ceylon Courts, withregard to intimating an election, to reserve evidence under section163. We have dealt with this matter above.
These preliminary matters being disposed of, and the additionalevidence having been taken, we were in a position to consider thewhole of the evidence in the case for the purpose of our decisionon appeal- The case on this point could be approached in two ways.It would be possible for us, on the one hand, to say that the caseis throughout a question of fact; that the Judge had made certainfindings of fact; that he had accepted the evidence of some witnessesand distrusted the evidence of others, relying very largely on themanner and demeanour of those witnesses; and that all that weneed ask ourselves was, firstly, whether there was evidence in theCourt below to justify his findings; and, secondly, whether we thoughtthat those findings would have been affected by the additionalevidence given before ourselves. We might, on the other hand,approach the case directly, and ask ourselves what ought to be theview of the Court on the whole facts of the case as now disclosedbefore us.
With the greatest possible respect for the findings of fact of thelearned Judge, I prefer to approach the case in the second of thealternative manners above indicated. I should regard it as amisfortune, if a case of this nature, involving a charge of fraudagainst a professional man, an officer of this Court, should have tobe decided on appeal simply upon the basis of the impression whichthe manner and demeanour of witnesses made upon the Judge inthe Court below. In this case I recognize that the opinion of thelearned Judge on the manner and demeanour of the witnesses is
( 493 )
entitled to special weight. He is himself intimately acquainted withthe Tamil language, in which most of the evidence was given, and,by virtue of his practical acquaintance with the work of the legalprofession, he was well qualified to test the evidence of Mr. Ismailas a professional witness. Moreover, the nature cff the witnesses onwhose evidence he depended gives special force to his conclusions.Muhiseen was a young man barely of age, the son of a religious andconscientious father, with whom he was living at the time of hisdeath. Uduma was an elderly man, who had had a stroked of paralysisbetween his father’s death and his appearance in Court. Like hisfather, he was of religiious habits, and, if his evidence is to be believed,had been selected by his father to make a pilgrimage to the holycities on his- behalf. At the time when he gave his evidence hemight be considered as having one foot in the grave. Two suchwitnesses might well be supposed to be exempt from the corruptinfluences of that debased standard of truthfulness, which from timeto time proceedings in these Courts unfortunately force upon ournotice'. Nevertheless, if there are considerations other than thoseof manner and demeanour which can guide the Court, I would, insuch a case, prefer to be guided by them, or, at any rate, I wouldprefer not to act on impressions of manner and demeanour, unlessthey are confirmed by such other considerations* The manner anddemeanour of a witness must always depend on the moral standardof the witness and of the circles in which he moves. The confusionof a witness may be due, not to consciousness of guilt, but to nervous-ness under the dissection of a powerful cross-examiner. While, as Isay, I feel that the impression made by the witnesses upon the Judgein this case ought to receive special weight, I should feel rathermore confident in acting upon those impressions if they were lessenthusiastic and unqualified. In a case of this kind, where a largefamily is divided into two camps, each accusing the other of themost unscrupulous fraud and perjury, and where either side has notonly an acute personal, but also a substantial pecuniary interestin the result, I prefer to regard both parties with a certain suspicion.I prefer, in particular, to distrust the evidence of conversations with,the deceased testator. There is, I think, in this case' circumstantialevidence, which is decisive of the main issue of fact, and if it isnecessary that the Court should give a decision as between theconflicting evidence on that issue of fact, it affords some satisfac-tion to be able to base that decision upon considerations of thatcharacter.
Before proceeding to an analysis of the evidence, I would statebriefly what I understand to be the law upon the subject. It hasbeen established by a long series of decisions, the most important ofwhich are Barry v. Butlin,1 Balcer v. Butt* Fulton v,. Andrew,3 Tyrrell
1 {1838) 2 Moore P. C. 480.2 (1*39) 2 Moore P. C. 317.
*L.R. 7 H. L. 448.
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36
( 494 )
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v. Painton1 (see also Orton v. Smith,1 2 3 Dufaur v. Croft,2 Wilson v*Basil, 4 and Sukkir v. Kadar Nath s), that wherever a will is preparedand* executed under circumstances which arouse the suspicion of theCourt, it ought not to pronounce in favour of it unless the partypropounding it adduces evidence which would remove such suspicion,and satisfies the Court that the testator knew and approved of thecontents of the instrument. It is now settled that this principleis not limited to cases in which the will is propounded by a person• who takes a special benefit under it, and himself procured or con-,ducted its execution. It may very well be that a refusal to grantprobate in such a case may involve an imputation of fraud upon theparty propounding the will. This is no objection to the operationsof that principle. (See Baker v. Butt (supra),) The Court is notnecessarily bound to give a decision upon the truth or falsehoodof the conflicting evidence adduced before it upon the question offraud. What it has to ask itself is whether in all the circumstancesof the case it will give credit to the subscribing witnesses, or the otherwitnesses adduced to prove the execution. Nor is it an objectionto the operation of this principle that the evidence which castssuspicion on the will, though it suggests fraud, is not of such anature as to justify the Court in a finding of fraud. (See Tyrrell v-Painton.1) The principle does not mean that in cases where asuspicion attaches to a will a special measure of proof or a particularspecies of proof is required. (See Barry v. Butlin (supra).) It meansthat in such cases the Court must be “vigilant and jealous inexamining the evidence in support of the instrument, in favour ofwhich it ought not to pronounce unless the suspicion is removed,and it is judicially satisfied that -the paper propounded does expressthe true will of the deceased/’ There are two forcible expressionsused in the cases which emphasize this principle. One is, that it isthe duty of the party propounding the will “ to satisfy the conscienceof the Court and the other is, that the onus lies upon that party“ of showing the righteousness of the transaction/’ The law issummed up by Davey L. J. in Tyrell v. Painton (supra) as'follows:“ The question appears to me to be whether the learned Judgeapplied his mind to the right issue.. If the case had been tried bya jury, and he had directed them that what they had to try waswhether Tyrrell had made out to their satisfaction that the will ofNovember 9 was obtained by fraud, I should have said that thiswas a misdirection. There rests upon that will a suspicion whichmust be removed before you come to the plea of fraud- It mustnot be supposed that the principle in Barry v. Butlin 6 is confinedto cases where the person who prepares the will is the person whotakes the benefit under it: that is one state of things which raises
4 {1903) P. 329.
•-/. L. R. All. 405.
{1838) 2 Moore P. C. 490.
1{1894) P. D. 151.
2{1873) L. R.3P.& D. 23.
33 Moore P. C. 136.
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a suspicion; but the principle is that wherever a will is preparedunder circumstances which raise a well-grounded suspicion that itdoes not express the mind of the testator, the Court ought not topronounce in favour of it unless that suspicion is removed. Herethe circumstances were most suspicious, and the question a Judgehas to ask himself is whether the defendants have dischargedthemselves of the onus of showing the righteousness of the transac-tion, and, without going again over the circumstances which havebeen referred to, I am compelled to say that they have not."
Mr. Bawa, for the appellants, did not dispute these propositions.What he contended was that, properly considered, there wasnothing in the circumstances of the case to cast any suspicion onthe will at all. The various circumstances suggested were allcapable of easy and natural explanation. The will had been provedin the most normal and ordinary manner by the evidence of thenotary who drew it and the attesting witnesses who signed it. Theonly thing which -impeached the credit of the will was, not a suspicion,but a charge, namely, a charge that it had been obtained by fraud,and he maintained that, in the absence of any suspicion attachingto the will, he must be considered as conclusively entitled to probate,unless the charge of fraud were affirmatively established. Hebased this contention upon two of the rules laid down by LordPenzance in the case of Guardhouse v. Blackburn,1 namely, (1) thatthe fact of the testator’s execution of a will is sufficient proof thathe knew and approved the contents; and (2) that the fact that thewill was duly read over to him is conclusive proof that he knew andapproved the contents. He," therefore, maintained what the Courtshould ask itself is, “ Has the charge of fraud been proved?” Thelearned Judge does not consider that the charge of fraud wasproved. Mr. Bawa, therefore, contends that on the authoritiescited he is entitled to. probate. In my opinion there is no substancewhatever in this argument. In the first place, it rests upon thesupposition that there are no suspicions attaching to this documentapart from those engendered by the charge of fraud. In my opinionthe document is loaded with the most substantial suspicions.Further, Guardhouse v. Blackburn1 has no application at all to thepresent case. The attempt of Lord Penzance in that case to codifythe principles of the law with which he was dealing has not had awholly fortunate history, and even the principles above cited arenow recognized as being subject to qualification. Guardhouse v.Blackburn 1 is not concerned with the present class of case at all.The class of cases Lord Penzance was considering was that of caseswhere a will had been admittedly executed and admittedly readover to the testator, and where the real question to be determined,was whether the testator knew and approved what he had signed,or, to speak more precisely, the whole of what he had signed. All
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C.J.
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1 (1866) L. B.1P.& D. 109.
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1019.
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O.J.
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that Lord Penzance really meant to lay down is expressed by himconcisely in the subsequent case of Atter v. Atkinson1: " Once getthe facts admitted or proved that a testator is capable, that thereis no fraud, that the will was read over to him, and that he put hishand to it, and the question whether he knew and approved of thecontents is answered.” It is, I think, clear that Guardhouse v.Blackburn 2 has no bearing on the present case.
With this introduction I proceed to consider what are the pointsof suspicion which attach to the document propounded as a will,and before I do so, I would say, in the first instance, to adapt aphrase of Lord Russell, that these suspicions must be real andreasonable suspicions. They must not be suspicions conjured up.I prefer, therefore, in considering whether on any point a suspicionhas been established, and if so, whether it has been removed—toput aside all points on which the considerations relied on asbeing suspicious seem to me equivocal—that is to say, equally cap-able of two explanations:one innocent, and the other the
reverse.
In the first place, it is suggested that there was an inherentimprobability in the Alim making a will by reason of the fact thathe was a pious Moslem. There is undoubtedly a passage inthe Koran which, though at first sight it seems to recommend and notto prohibit the making of wills, is authoritatively interpreted in thesecond sense. There is no question that this is the accepted, viewof all Arabic commentators, and it may be taken that this was alsoin theory the view of the Alim as an orthodox Moslem. On theother hand, we know that such considerations, when it comes to apractical question, often sit very lightly even on religious minds.We have the evidence of Mr. de Pry, the notary called by theopponents of the will, to .the effect that nowadays the making ofwills by Moslems is not uncommon. We have the fact that theAlim had in his own safe a will by his uncle (who may also beassumed to have been a pious Moslem), and that he referred to this
will in his last illnessI do not consider, therefore, that
the suspicion said to attach to the will by reason of the Alim'sreligious character is of a substantial nature
We now come, however, to the suspicions of a much moresubstantial- nature. It appears that Isd'een, who was the primarybeneficiary under the will, and whose interest in the will was out ofall proportion to his legal share, took a very prominent part in itspreparation. He sent for Mr. Ismail for the purpose of receivinginstructions. He was present when Mr. Ismail -came for theinstructions. He sent for Mr. Ismail again for the purpose of theexecution of the will. He assisted in the arrangements for theselection and the summoning of the witnesses. He was himselfpresent at the alleged execution. With regard to the extent of the1 (1809) L. R. I. P. db A 665.3 (1866) L. R. J. P. & D. 109.
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interest under the will, it appears from figures which are not con-tested, which have been submitted to us by Mr. Hayley, that outof an estate of the total nett value of Rs. 1,018,500, the propertybequeathed to Isdeen, including the amount necessary to pay off
certain mortgages, amounted to Rs. 475,000 in valueIf
we take the bequest to Isdeen in conjunction with those two brothers,Hassim and Haniffa, who are alleged to be his co-conspirators,it appears that the value of those bequests is, roughly, as follows:Isdeen, Rs. 475,000; Hassim, Rs. 199,500; Haniffa, Rs. 177,500;or a total of Rs. 852,000, as against a total of Rs. 158,500bequeathed to the whole of the remainder of the Alim’s numerous
childrenBut,, in the absence of that explanation, the
fact that Isdeen took so active a part in the preparation of the will,and that he so'largely benefited by it, is a circumstance of a characterwhich has always been held to excite suspicion as to genuinenessof wills, and to throw the onus of removing that suspicion on thepropounders. The most natural person to call for the purpose ofremoving that suspicion was Isdeen himself. It should be notedin this connection that he told us in his evidence before this Courtthat he was acquainted with his father’s general testamentaryintentions before the will was made.
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The next point of suspicion is also substantial, and is of a verysingular nature. It appears from the evidence of Mr. Ismail that,at the time when the Alim was giving instructions for this will, andat the very time of the execution of the will, and during the weeksimmediately succeeding that execution, he made a series of giftsinter vivos to three of the beneficiaries under the will, namely,Haniffa on October 18, Thassim on November 12, and Muhiseenon December 11. The explanation given by Mr. Ismail is a curiousone:“ He said that his life was uncertain, and that the will was to
be written in case of emergency. In the meantime he said he wouldconvey the properties by deeds of gift. ” This is a very peculiarstory, and is one that strikes me as inherently improbable. Whyshould a man, who had brought himself to the point of making awill, proceed on such a singular principle? The three gifts made tothe three beneficiaries correspond in fact to the gifts made to themunder the will. This is emphasized by the counsel for the petitionersas showing the honesty of the will. It is said, How could an inventor,before he forged the will, have anticipated the Alim’s intentions?
1 The answer to that by the opposing respondents is that the Alimt made no secret of his intentions, and that consequently persons[ preparing a will to be executed by or imputed to him wouldi naturally take note of those intentions. But there is one point inr which one of these gifts differs from the bequest in the will. The> deed of gift is subject to a fidei commissum. The bequest in the willi is not so subject. Why should the Alim give to Muhiseen by will a[ ' property free of any fidei commissum, and a few weeks after give
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The AlimWin date
him the same property by deed subject to a fidei commisaum fMr. Ismail gives an explanation, namely, that the Alim had wishedto insert the fidei commissum in the deed, but that Mr. Ismailbenevolently remonstrated with him; that he had first succumbed toMr. Ismail’s remonstrances, but that, when he came to execute thedeed oi gift, he resumed his original intention, and, bearing in mindMr. Ismail’s remonstrances, committed the execution of the deed toanother notary. That is the explanation. It may be true, but itcannot be said to be very plausible. But there is another point inthe working out of this arrangement which forcibly enhances thesuspicion that it excites. From Mr. Ismail’s evidence it wouldappear that the Alim executed a deed in favour of Haniffa on thevery day on which he finally approved the draft of the will. In thedrafti of the will as it originally stood the property given to Haniffaappears as part of the bequest to Haniffa. When Mr. Ismailexecuted the deed to Haniffa, he struck this property out of the will.He does not say that he had any instructions from the Alim to do so.He does not say that the Alim ever referred to the subject, or thathe spoke about it to the Alim. He was closely cross-examined withregard to these two concurrent transactions, and I have endeavouredfrom the evidence to prepare a time table showing the material
datesIt would appear that, if Mr. Ismail’s evidence on
this part of the case is true, he has no clear recollection of whatoccurred with reference to these two parallel documents. If hisevidence is false, it would appear that this is a part of the casewhich he has not thoroughly thought out. In any case, the incidentis a very obscure one, and, as I say, enhances the suspicion whichthis singular story excites.
There is another point in which this singular story of parallelliberalities excites suspicion. According to the original draft ofthe will, the Alim destined for Haniffa three properties: (1) 213, Seastreet; (2) 38, Keyzer street; (3) 148, St. Joseph’s street. When hecame to direct the preparation of a deed of gift, the Alim authorizeda deed only of the first of these properties. Why, if his intentionwas to execute deeds of gift side by side with the will, should henot include in the deed of gift to Haniffa all three of the propertieswhich he had bequeathed him by will? Isdeen in the box attemptedto- give an explanation af this. He said that the Alim said to him,“ Let us dispose of the properties which are not under mortgage. ”The point of this explanation was that 38, Keyzer street, was undermortgage, and it is suggested that the Alim intended to deal withthe mortgaged properties subsequently in some other way.But
this explanation does not account for 148, St. Joseph’s street, andthe fact that it is put forward by Isdeen redoubles the suspicionwhich the circumstance itself provokes.
The next point of suspicion is that the witnesses to the will- are not,as one would expect, witnesses of independent character
( 499 )
To continue the examination of the method in which the primtifacia suspicious elements of the story were met by the evidencetendered for the petitioners, we come to another point. There is amost singular gap in the case for the petitioners. No account atall is given of the finding of the will. The Civil Procedure Code, bysection 516, directs that the finder of the will should deposit it inCourt with an affidavit describing the circumstances under whichit was found. No attempt was made to comply with this provision.It is said that it is a provision which is not always complied with,and that it is only intended to apply to cases in' which a will isfound by a person other than an executor. But, even acceptingthis explanation, one would have expected that, in a case of thiskind, where the honesty of the will had been directly challenged,care would have been taken to give specific proof of every materialdetail in the story. No proof- is given on this point. It is pleadedin excuse that everybody knew that at some point or other the willwas put into the Alim’s safe, and that it was common ground thatwhen it was produced to be read it was produced from the safe.This does not make it any the less important that those whopropound the will should show the exact circumstances in whichit was first found in the safe.
I now come to a point, not derived from the case put forward bythe petitioners, but from the case of their opponents, and it is appoint of great importance. Evidence, which there is no reason todoubt, was called to show that a typed draft of the supposed willwas in existence some days before the date at which, according toMr. Ismail, instructions were given to him for the making of it.The evidence is that of Mr. and Mrs. Rodrigo, who run a typewritingbusiness not far from the Courts. According to their books, atypewritten draft of the will was prepared by them for Mr. Ismailby October 6. Mr. Ismail in his evidence refers to this typewrittendraft, and says that the instructions, which led to its preparationwere given some five or six days before this typewritten draft wasprepared. If this interval is accepted, and the time is reckonedback from October 6, this brings the instructions to a date so soonafter the accident that, as the learned- Judge very truly says, it•seems quite impossible to conceive the Alim being in a conditionto give them, or, at any rate, to give them in the manner relatedby Mr. Ismail. The evidence of Mr. and Mrs. Rodrigo on this,point casts the gravest doubts on the whole story of Mr. Ismail’sinstructions.
Finally, with reference to this stage in our analysis of the case,it must be pointed out that Mr. Ismail himself made the worstpossible impression upon the District Judge. We had not theadvantage of seeing Mr. Ismail in the box. It is impossible for usto judge whether the impression thus produced was due to the factithat Mr. Ismail was not an honest witness (which is what, the
1910.
Bbbxbak
C.J.
The AlimWiU Case
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1919.
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C.J.
The Alim7?ill Oaae
learned District Judge infers), or whether it was due to nervousnessunder a prolonged and very close cross-examination. We musttake the learned Judge's impression as he records it, and thatimpression must have its weight in the case. I should like to -say,however, with regard to certain matters outside this case, as to whichMr. Ismail was very fully cross-examined, that, in my opinion,undue importanpe has been given to these matters. I am referringto the cross-examination of Mr. Ismail with reference to his conductin certain litigation in which he was personally concerned. Theobject of this cross-examination was to show that Mr. Ismail wasunworthy of credit. It far too often happens in cases before ourCourts that a Judge is asked to form an impression against a witnessupon a detailed examination of the witness’s conduct, not in the casebefore the Judge, but in a case which was heard on some otheroccasion. Mr. Ismail is criticised, because in two actions in whichhe was personally sued in regard to transactions of no very greatimportance, he pleaded fully and explicitly in one of the actions,but formally and technically in the other. I cannot see why thefact that he chose to take this course, which was not withoutreasons to justify it, should be held to discredit him in this action.Nor do I think that he can seriously be criticised, because in thecourse of cross-examination on these matters he was careful enoughto reserve explicit answers until he had consulted the materialdocuments. As far as Mr. Ismail’s previous- record is concerned,it seems to me that he comes before the Court with nothingagainst his character.
If the evidence in the case stood there, and if no definite theoryas to the manner in which the document purporting to be a will wasexecuted was put forward by the opponents of the will, could itpossibly be said that the propounders of the will had removed thevery serious suspicion which attaches to their account of the matter?I do not think it could. When one takes into account the age of theAlim, the condition in which he was lying, the improbable natureof the whole story, the disproportionate share allotted to Isdeenand his two brothers, the important part which Isdeen is said tohave taken in the arrangements for the will, and the other circum-stances I have enumerated, it seems to me that any Court would havebeen justified in refusing to give credit to the attesting witnesses.
I do not say that there is any evidence that the Alim’s mind wasclouded, or that at the time when the will was signed he had not a.full testamentary capacity, but he was in a condition of whichadvantage could be taken, and the fact that he was at the timeexecuting a great number of legal documents put unscrupulouspersons in a position to take advantage of that condition.
But the case does not rest there. A. definite alternative theoryis put forward by the opponents of the will, and that is, that onOctober 18 two documents purporting to be a will were fraudulently
put before the Alim in substitution of two copies of deed of giftwhich he supposed himself to be executing in favour of his son
HassimNow, on this part of the story the Judge has
definitely accepted the evidence of the opponents of the will. Buthe has accepted their story without having heard any' evidenceon the other side, except a formal denial by Mr. Ismail in cross-examination. It is true that we have now heard witnesses on theother side on this part of the case. But I should be most reluctantto form any conclusion under these circumstances between twosets of interested witnesses, unless that conclusion were based onevidence of a circumstantial nature, particularly when a finding infavour of the charge made by one set of witnesses involves a findingof fraud against a professional man, and particularly when part ofthe case for that'charge rests upon alleged conversations with thedead man which no one can contradict.
I propose, therefore, to examine the documentary evidence andthe general circumstances of the case, in order to see, firstly, whetherthe facts which they disclose are consistent or inconsistent with therival stories, that is to say, the story of the instructions as told byMr. Ismail, and the story of the substitution as described by Muhiseen;and, secondly, as the whole theory of the substitution dependsupon the supposition that instructions were given for the preparationof a deed to Hassim, whether there is any, and what trace of sucha deed to be found, apart from the oral evidence of those who putforward the story.
I will proceed, therefore, in the first place, to examine the pencilledinstructions produced in re-examination; and, in the second place,the successive drafts of the will produced, partly in re-examinationin the Distriot Court, and partly in this Court.
These two last points, namely, (a) the double alteration in thewill, and (b) the fact that the will was hurriedly prepared for thevery morning on which the alleged substitution is said to have beenplace, give a force and cogency to the evidence of Muhiseen of whichotherwise it would have been entirely destitute. It is no longermerely oral evidence. It is oral evidence confirmed by circum-stances which cannot lie. It becomes evidence on which one canact even in a case of this sort, with some degree of confidence.Taken with this circumstantial corroboration, it carries convictionto the mind.
We have now completed our examination of the evidence of thecase. What is the effect .of that examination on the question of theright of this will to probate? Let us first of all ask another question,What is it that the Court has to determnie in order to ascertainwhether the will is entitled to probate?
The learned Judge has declared that he is unable to credit theevidence of execution tendered by the propounder, and he refused37
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probate on that ground. In coming to this conclusion, he put asidethe question erf the alleged fraudulent substitution, and accordinglyexcluded certain evidence bearing on the question of that allegedsubstitution. We have now taken the evidence that was excluded,and we have embraced the question of this alleged substitution inour general review of the case. Is it necessary for the Court to askitself whether the alleged fraudulent substitution has been proved IIn my opinion it is not. It is sufficient for the Court to ask itself,Has an opportunity for this supposed substitution been shown, andis there a reasonable and substantial suspicion that advantage wastaken of that opportunity? If the answer to these questions is inthe affirmative, then there is an additional suspicion of a very gravecharacter attaching to the will, reinforcing those suspicions whichwe have already enumerated. It is the business of those whopropound the will to remove these suspicions. If the evidencewhich they adduce for that purpose does not satisfactorily remove it,this fact emphasizes the necessity of scrutinizing with the greatestcare, and of weighing with the greatest deliberation, the evidencetendered to prove the execution of the will. Further, in testingthe credibility of the witnesses adduced to prove the execution, and,in particular, the evidence of Mr. Ismail, account must be taken ofthe evidence on the question of the substitution, and the evidenceof those witnesses who contradict him.
Mr. Bawa, however, in his extremely forcible argument, protestedagainst the idea that it was his business to remove a general atmos-phere of suspicion which was supposed to envelop the will. Hesaid that he was entitled to ask—suspicion of what?—to narrowdown the suspicion if he could, and to devote himself to dissipatingthe suspicion so concentrated. He cites the case of Low v. Guthrie-1There is no serious doubt in this case that the signature whichthe will bears is the Alim’s signature. From the place which theprotocol occupies in Mr. Ismail’s file of notarial documents, Mr. Bawavery justly argues that the latest date on which this documentcould have been executed was October 24. The document bearingthe next successive serial number to that of the will is dated as ofthat date. If we accept the evidence of Mr. and Mrs. Rodrigo, itcould not have been executed earlier than October 18. The onlyoccasion on which Mr. Ismail, according to the evidence adducedby the other side, is shown to have had access to the Alim withinthese limits is the occasion of the execution of the deed of gift toHaniffa on October 18 itself. The only possible explanation, soMr. Bawa says, for the will bearing the Alim's signature, if the theoryof forgery is excluded, is that the signature was obtained by fraud.The only form of fraud which can by any plausibility be suggested,so argues Mr. Bawa, is that of substitution; in other words, that theAlim was induced to execute the document under the belief that
1 (7909) A. C. 278.
( 503 )
it was a document of another character. The only date on whichthis substitution could have taken place is, therefore, October 18.Mr. Hayley, indeed, desires to guard himself by the suggestion thatIsdeen may by some device have obtained the Alim’s signature tothe will without Mr. Ismail being present there at all. I think thatthat possibility may be excluded. The Alim was far too accustomedto the execution of notarial documents to execute them otherwisethan in the presence of a notary. I think, therefore, that Mr. Bawais to this extent right, that all the suspicious circumstances whichattach to the will, if they are to have any significance, point to some-thing which must have happened between the morning of October18 and some time on October 24, and, if the evidence of those whooppose the will is to be accepted, to something which must havehappened on the morning of October 18 itself. He is further rightin saying that, accepting that evidence, this something could onlyhave been a substitution. Under these circumstances he asks, “ AmI not entitled to a clean answer, ‘ Aye ’ or No ’ ? Has thatsubstitution been proved, or has it not? ” It seemsto me that theauthorities which I have cited above are against this contention.The fact that the suspicions which attach to the will concentrateupon a particular point does not affect the legal position. It isnone the less the business of those who propound the will to dissipatethese suspicions. If there are already suspicions attaching to thestory, those suspicions are merely intensified, if it is shown that ona particular date there was an opportunity for a particular fraud.They are still further intensified if it is shown that there is verystrong reason to suppose that advantage was taken. of that oppor-tunity. The fact that the original suspicions are thus doublyintensified ought not to put the propounders of the will in a betterposition, or to cast upon those who oppose the will an onus whichwas not upon them before.
All that we need ask, therefore, with regard to the evidence of the-alleged sustitution, is this : Is there a reasonable suspicion thatthat substitution took place, and if so, have the propounders by theevidence which we took in the Supreme Court removed that sus-picion ? That there is such a reasonable suspicion no reasonablebeing can doubt. Has that suspicion, then, been removed by theevidence of Isdeen, Hassim, and Haniffa ? With regard to Haniffa,his evidence was certainly not of the character to remove anysuspicions attaching to anything. The manner in which he dealtwith two points in his evidence, namely, the question when he firsttook measures to secure that he should be separately represented,and the question of the date when he signed the paper authorizingthe payment of a small sum to Muhiseen from the shop, was soextremely perverse as to suggest at least abnormal obtuseness. Itdid not seem to me, however, that mere obtuseness would explainthe series of answers which he gave. Those answers pointed to the
1919.
Bwrtoam
G.J.
The AlimWiU Case
H—owey
1919.
Bhbtham
ex
The AlimWill Case
fact ot ins being a glib, unscrupulous, and unconscientious witness ;a man without any adequate sense of the solemn nature of evidencegiven in a court of law. With regard to Isdeen and Hassim, theirevidence was of. a negative character. They both representedthemselves as obedient, and unquestioning instruments in the handsof an imperious father. This was the. explanation which Isdeen,in particular, put forward to cover a transaction relating to theestate of the Alim's second wife, which is in its very nature primdfacie unjustifiable, and which, unless explained, must cast discreditupon the persons responsible for it. That responsibility Isdeencasts upon his late father, the Alim. I am not prepared to believethat the responsibility belongs to the Alim alone. At any rate,
I think it may be said with confidence that the evidence of these -three witnesses was not of a nature to remove from the mind of anyCourt any substantial suspicion which the other evidence had alreadygenerated. Incidentially, therefore, I may remark that if we hadto look at the case in the manner suggested by Mr. Hayley, that is .to say, if we were to say the District Judge has made certain findingsof fact, that there is adequate evidence to justify these findings,and if we were to ask ourselves whether those findings would havebeen affected by the additional evidence called in the Supreme Court,there coul.d be only one possible answer to that question.
I am, therefore, definitely of opinion that there are the gravestsuspicions attaching to the document propounded as a will, thatthose who propound it have not removed those suspicions, and thatthe evidence tendered in proof of the execution of the will is notentitled to credence.
In view of the nature of the imputation which this ruling castsupon a professional man, an officer of this Court, and in view of thenature of .the proceedings which may be subsequently instituted,I should have preferred to leave the question there. But in case itshould eventually be thought that the Court ought to have givenan opinion on the definite issue of fact, whether or not a fraudulentsubstitution was effected on October 18, as alleged in Majeed'saffidavit, I will give my own opinion on that issue. In my opinionthere is evidence in this case on which a Court would be amplyjustified in finding that such a substitution did in fact takeplace.
I have very carefully considered all these points, and I am satisfied,after balancing all these considerations and counter-considerations,that though it is not possible to fill in all the details of the picture,the true inference to be drawn from the facts is that the executionof those two counterparts of the supposed will was procured fromthe Alim in the belief that he was executing two counterparts ofa deed of gift to Hassim.
( 605 )
What convinces me is, firstly, the inherent improbability of thestory of the Alim executing a will, and following it up by a successionof parallel deeds of gift; and, secondly the unexpected and circum-stantial corroboration of Muhiseen’s story by the evidence of Mr.and Mrs. Bodrigo, and by the double correction made in the draftwill with regard to the Colombo street and Sea street properties.There is, further, the fact that the evidence of Mr. and Mrs. Bodrigonot only confirms the story of the alleged fraud of October 18, butstamps Mr. Ismail’s account of his instructions as being fictitious,by disclosing that the draft of the will was actually in type somedays before those instructions were said to have been received.
I would, therefore, dismiss the appeals, with costs.
De Sampayo J. delivered a separate judgement deeding withthe facts.
1919.
BmwmM
cjt.
The AlimWiU Case
Appeal dismissed.