Appeal and Revision-Issue of fact-Interference by Court of Appeal

Although the Court of Appeal is always unwilling to interfere with the
findings of the courts of first instance in matters, of fact, there are occa-
sions when interference is necessary, and first among them are those cases
where the claim and defence have not been examined with that meticulous
care which is demanded in inheritance disputes between the illiterate and
unbusinesslike natives of the country districts.

Appeal

November 8, 1931. . Owen C.J.: The Court of Appeal is always
unwilling to interfere with the findings of the courts of first instance 'in
matters of fact. But there are occasions when, interference is neces-
sary, and first among them are those cases where the claim and
defence have not been examined with that meticulous care which is
demanded in inheritance disputes between the illiterate and unbusiness-
like natives of the country districts.

Nine months b~fore his death EI Daw EI Tai drew from the
Government, whose servant he had been, a gratuity of £E.64. At that
time he was living in retirement in Kamlin, and was interested in a
small shop which he had opened in that town. His house was kept
by Amna bint Ismail, his youngest wife, the defendant and appellant.
In the nearby village of Karkoj lived another wife of his and their
children, of whom el Beshir EI Daw, the plaintiff and respondent,
was one. EI Beshir, now the representative of the estate of EI Da)V,
helped his father both in the cultivation of a plot of ground and aI'so
in the shop. The story is that when EI Daw drew this gratuity, be
took it to his house in Kamlin, \ and there in the presence of El
Beshir and two witnesses". handed ,the notes over to his wife Amna,
saying, so it. is said, "Keep them until the time of the pilgrimage."
From that moment t@ this there is no evidence, that those notes were
ever seen again by anybody, and EI Beshir has brought an action
against Amna forthe return of the money. Amna denies ever having
received it, but the learned Judge has held against her, and decreed
that she mast pay to the estate the sum of £E.64, and the costs of the

• Court: Owen C.l., Halford and Gorman 11.

action. :His finding is based upon the belief that this handing over
took place as described by the witnesses, and apparently upon the
belief that the same sum was intact, and in Amna's possession, at

        the time of her husband's death.                            .

The learned Judge describes the story as a singular one.: It is.

And that is a very good. reason not only for the most careful cross-
examination of the witnesses who testify to it, but for . the closest
examination of the whole circumstances surrounding it. But the plain-
tiff and his witnesses have scarcely been cross-examined at all. . The
plaintiff has not been asked to explain anything of importance. in
spite of the need for strict proof, not a single date appears in the record,
and no atter=pt appears to have been made to obtain a clear history
of the events from EI Daw's retirement to his death.' On October 26,
1930 the plaintiff submitted a petition to the District Commissioner,

r Kamlin. The story he tells in that petition differs materially from the
story he told the judge at the - trial. It is clearly implied in that
petition that he sum of £E.410.300 m/ms was handed over to Amna
at one time, after £E.32 had been deducted for the purchase of goods.

. No mention is made of the presence of witnesses-a most unusual
omission in such documents-and the claim is summed up at £E.376,
without any indication of how that figure is arrived at.

To me the story is singular to the point of extreme unlikelihood
and the necessity for full and proper discharge of the burden of
proof is paramount. A trust is alleged and -a trust still- remaining
at the time of el Daw's death should be proved and proved strictly.
It is impossible to say, as the case stands .in the: record, that -the
claim has been investigated properly.

Gorman J.: I concur.

Halford J.: I do not think this case has been investigated suffi-
ciently. "In the absence of documentary evidence, not only does the
testimony of the parties and their witnesses, but all the surrounding
circumstances require the most careful scrutiny. I do not agree that
the wife of the middle class native keeps the "family stocking," and,
even if this proposition be correct, why in the particular circumstances
of this case should one wife be its guardian in preference to another?
Nor do I see why, as is suggested in the judgement, the defendant
should have admitted receipt of the gratuity, and alleged that she
later 'returned it, when her case throughout was that the money was;
never entrusted to her keeping. On hearing the statement . of the