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PETITIONER: DURGA PRASAD

       Vs.

RESPONDENT: DEVI CHARAN

DATE OF JUDGMENT19/09/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N.

CITATION:  1979 AIR  145            1979 SCR  (1) 873  1979 SCC  (1)  61

ACT:      Indian Succession Act, 1925 (39 of 1925)-Will not found on death of testator-If presumption as to revocation arises- Onus alleging revocation on whom lies.

HEADNOTE:      The respondent was the adopted son of the testatrix who made a  will in  1935 declaring  that  her  properties  were dedicated to a private temple of hers in her house and would remain so  for all  times to  come. In  1938,  however,  she revoked the  earlier will  and dedicated a part of the house and certain  other items  for the benefit of the temple. But she expressly  prohibited the respondent from performing her funeral rites  and gave  certain rights over the property to the appellant  and his  wife. In  1947 she again revoked the will made  in 1938  and bequeathed  her  properties  to  the appellant without  right of  alienation and had also clearly stated that  the respondent  should have no concern with her estate and should not be allowed to touch her dead body.      On her death, though the original will was not found, a draft will which was almost of the same time was discovered. The recitals  in the  draft were  almost the  same as in the will of 1947.      In the  appellant’s petition  before the District Judge for grant  of  letters  of  administration  or  probate  the respondent contended  that the  testatrix was  not of  sound disposing mind  at the  time of the alleged execution of the will and  that the  appellant had  exercised undue influence over her  in the  execution of  the  will.  It  was  further alleged that  the will was subsequently revoked and that was the reason why it was not found in the house despite search.      The District  Judge accepted  the respondent’s  version and rejected  the petition  for probate.  On appeal a single Judge of  the High Court found that the will was genuine and had not  been revoked.  On further appeal the Division Bench restored the  order of  the District  Judge  dismissing  the appellant’s application for probate by drawing a presumption that the  testatrix had  revoked the  will by  destroying it before her death.      In appeal  to this  Court it was contended on behalf of the appellant  that the High Court was in error in drawing a presumption of revocation of the will in view of the express

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provisions of  s. 70  of the Indian Succession Act, 1925 and in the  alternative even if the presumption was available to the  respondent   the  same  being  a  rebuttable  one.  was sufficiently rebutted  by facts  and circumstances proved in the case.      Allowing the appeal, ^      HELD: The  presumption that the will was revoked by the testatrix had  been sufficiently rebutted and the respondent had failed  to discharge  the onus which lay on him to prove that the  will was revoked. The will being a product of free will of  the testatrix  there  must  be  strong  and  cogent reasons for  holding that  it was revoked. The fact that the will was not found, despite search, was not 874 sufficient to  justify  a  presumption  that  the  will  was revoked. Having  regard to  the fact that the respondent was interested in  destroying the  will and  had access  to  the house, the  presumption would  be that  the will  was either stolen or misplaced by him or at his instance. [890C-E]      The correct legal position may be stated thus:      (i)  Where  a  will  has  been  properly  executed  and registered by  the testator  but not  found at  the time  of death the question whether the presumption that the testator had revoked  the will can be drawn or not will depend on the facts and  circumstances  of  each  case.  Even  if  such  a presumption is  drawn it is rather a weak one in view of the habits and conditions of our people.      (ii) Such  a presumption is a rebuttable one and can be rebutted by  the  slightest  possible  evidence,  direct  or circumstantial. For instance, where it is proved that a will was a  strong and clear disposition evincing the categorical intention of  the testator and there was nothing to indicate the presence  of any  circumstance which  is likely to bring about a  change in  the intention  of the  testator so as to revoke the will suddenly, the presumption is rebutted.      (iii) In  view of  the fact that in our country most of the people  are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or  otherwise take very great care of the will as a result  of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully.      (iv)  Where   the  legatee   is  able   to  prove   the circumstances from which it can be inferred that there could be absolutely  no reason whatsoever for revoking the will or that  the   Act  of   revoking  the  will  was  against  the temperament and  inclination of the testator, no presumption of revocation of the will can be drawn.      (v) In  view of  the express provision of section 70 of the Indian  Succession Act  the onus lies on the objector to prove the  various circumstances,  viz., marriage,  burning, tearing or destruction of the will.      (vi) When  there is  no obvious  reason or clear motive for the  testator to revoke the will and yet the will is not found on  the death  of the testator it may well be that the will was  misplaced or  lost or was stolen by the interested persons. [887B-888A]      Anna Maria  Welch  &  Lucy  Allen  Welch  v.  Nathaniel Phillips, [1836]  1  Moore,  P.C.  299,  Padman  &  Ors.  v. Hanwanta &  Ors., AIR 1915 P.C. 111; Finch v. Finch, 1 P & D 371; Anil Behari Ghosh v. Smt. Latika Bala Dassi & Ors., AIR 1955 S.C.  566; Kaikhushru Jehangir v. Bai Bachubai Jehangir JUDGMENT: Jullundur v.  Dev Raj  Vir Bhan  & Anr.,  AIR 1963 Pun. 208;

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Halsbury’s Laws  of England,  Third Edition, Vol. 39 at 896; Jarman on Wills; Corpus Juris Secundum Vol. 95; referred to.      Babu Lal  Singh &  Anr. v.  Baijnath Singh  & Anr., AIR 1946 Pat. 24; Brundaban Chandra v. Ananta Narayan Singh Deo, AIR 1956 Orissa 151; Satya Charan Pal v. Asutosh Pal & Ors., AIR 1953  Cal. 657  at 659-660;  Efari Dasya v. Podei Dasya, ILR 1928  Cal. 482 at 486; Shib Sabitri Prasad & Ors. v. The Collector of Meerut, ILR 1907 All 82 at 87; Anwar Hossein v. Secretary of 875 State for  India, 31  Cal. 885  at 892,  Chouthmal  Jivarjee Poddar v. Ramachandra Jivarjjee Poddar, AIR 1955 Nag. 126 at 136 and  Pt. Devi  Charan v. Durga Porshad Chanu Lal & Ors., AIR 1967 Delhi 128 at 132; approved.      In  the   instant  case  while  relations  between  the testatrix and  the appellant were very cordial those between her and  the respondent  were far  from being cordial. There could be  no occasion for her to suddenly change her mind to revoke the  will so  as to  benefit the  respondent whom she despised.  Secondly,   being  an   extremely  religious  and charitable lady,  it is  difficult to believe that she would shed her  inclinations by  revoking the  will  deleting  the religious purposes  and giving  benefit to the respondent to make him  the absolute  owner of  the properties. Thirdly in all  the   earlier  dispositions   a  clause   was  inserted prohibiting the trustees from alienating the properties. Had she revoked  the will  the result  would have  been that the property would  go to the respondent without any conditions, a conduct  that would  be against  her temperament. Fourthly the respondent  and his  wife had access to the house of the testatrix and  therefore the possibility that he or his wife might have  pilfered the  will could not be excluded. Lastly there was  no evidence  that the  testatrix had  at any time expressed a desire to revoke the will nor was there evidence to show  that the  respondent was  gaining her favour at any time before her death. [888D-H, 889D, G, H]

&      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.  55 of 1969.      From the  Judgment and Order dated 15-2-67 of the Delhi High Court in L.A.P. No. 146-D of 1963.      K. T.  Hrindra Nath, Gautam Goswami and B. B. Sinha for the Appellant.      Sardar Bahadur  Saharya and  Vishnu Bahadur Saharya for Respondent No. 1.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal  by certificate  is directed against the judgment of the Delhi High Court dated 15-2-1967 reversing the  decision of  the single  Judge and dismissing the application  filed for grant of probate by the appellant of a will said to have been executed by Smt. Jog Maya on the 1st July,  1947 and  registered on  9th July, 1947. Smt. Jog Maya died  on 22-10-1955.  Soon thereafter the appellant who was the  sole legatee  and executor  under the  will filed a petition before  the District  Judge,  Delhi  for  grant  of letters of administration or probate.      Put briefly the appellant’s case was that Smt. Jog Maya was a  resident of  Mohalla Rang  Mahal, Nahar  Sadat  Khan, Delhi and  although she  had an  adopted  son,  namely,  the respondent Pt.  Devi Charan  there was  no love lost between Smt. Jog  Maya and  Devi Charan  so much so that in her will the testatrix  expressly  mentioned  that  the  adopted  son

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should not be permitted to perform her 876 funeral rites on her death nor should he be allowed to touch her body.  The appellant  Durga Prasad on the other hand was looking after  the affairs  of the  lady and  doing her work from time  to time.  It was  perhaps in lieu of the services rendered by the appellant that Smt. Jog Maya executed a will in his favour on 1st July, 1947.      The proceedings  for probate  were  contested  by  Devi Charan who  denied the  execution of  the will on the ground that Smt.  Jogmaya was  not of sound disposing mind when she is said  to have executed the will but had been persuaded to do so  by undue  influence exercised  by  the  appellant  in executing the  will. It  was also  alleged by the respondent Devi Charan  that the will was subsequently revoked and that is why  it was not found in the house despite every possible search.      The District  Judge accepted the plea of the respondent and dismissed the application for probate by his order dated 3-5-1957. The  appellant, therefore,  filed an appeal to the High Court  which was  heard by Mr. Justice P. D. Sharma who reversed the  decision of  the District Judge and found that the will was a genuine document and had not been revoked. He accordingly allowed  the petition of Durga Prasad and issued letters of probate or administration. The respondent went up in appeal  to the  Division Bench which reversed the finding of the  Single Judge  and restored the order of the District Judge dismissing the application for probate.      It would  appear from  a perusal of the Judgment of the Division Bench  of the High Court that so far as the factual aspect regarding  the execution  of he will was concerned it agreed with  the findings  of fact given by the Single Judge that the  will was  a genuine document and was duly executed by the testatrix who had a sound disposing mind and no fraud or  undue  influence  at  all  had  been  practised  in  the execution of  the will  which was  witnessed by as many as 7 attesting witnesses  some of  whom had  been examined before the District  Judge to  prove the  execution of the will. In this connection, the High Court observed as follows:-           "As regards  the issue  Nos. 1  and 2,  as already      stated above,  the learned  Single Judge  held that the      evidence on  record was  sufficient to  prove that Smt.      Jog Maya  executed the  will (copy)  Ex.P. 10, and that      she was  of sound and disposing mind at the time of the      execution, as  held by  the learned District Judge. But      the Courts  have  thus  given  concurrent  findings  on      issues Nos.  1 and  2, viz.,  on the  questions  as  to      whether Jog  Maya executed  the alleged  will dated 1st      July, 1947, (certified copy of which has been put on 877      the record and marked as Ex. P.10) and whether Jog Maya      was of  sound and  disposing state  of  mind  when  she      executed the said will".      In view  of this  categorical finding of the High Court it is  manifest that the point in dispute lies within a very narrow  compass.   The  High   Court  while   accepting  the genuineness of the will has non-suited the appellant only on the ground  that as  the will  was not found on the death of the testatrix  despite every  attempt to  search for  it,  a presumption would  have to  be drawn  that the testatrix had revoked the  will by destroying it before her death. In view of this  presumption the  High  Court  held  that  the  will appears to  have been  revoked and  consequently refused  to grant probate to the appellant.      Mr. Hrindranath, counsel for the appellant submitted in

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the first place that the High Court was in error in applying the presumption of the revocation of the will in view of the express provisions  of section  70 of  the Indian Succession Act, 1925  hereinafter called  the Act.  It was contended in the alternative  that even  if the presumption was available to the  respondent, the  same being  a  rebuttable  one  was sufficiently rebutted  by facts  and circumstances proved in the case. The High Court has relied on a number of decisions in support  of its view that from the fact that the will was not found  on the  death of  the deceased  Smt. Jog  Maya, a presumption would have to be drawn that the will was revoked by her before her death.      Mr. Saharya,  counsel for  the respondent  on the other hand supported  the reasons  given by  the  High  Court  and submitted that in the circumstances there was no alternative but to draw the presumption that the will was revoked.      Before however  deciding the question of law arising in the present  appeal, it  may be  necessary to  set out a few facts against the background of which the point of law could be easily  decided. It appears that Smt. Jog Maya was a very clever woman  and personally looked after her own affairs as found by the High Court. The High Court also found that Smt. Jog Maya was a woman of a very religious and charitable bent of mind  and had  executed as  many as three wills including the will  in question  and in  all  of  them  she  had  made adequate  provision   for  Puja   in  the  house  and  other charitable purposes.  Smt. Jog  Maya had purchased the house situated in  Rang Mahal,  Nahar Sadat  Khan, No.  667, in or about 1933.  She resided  in the front portion of the ground floor and leased out the back portion of the ground floor to tenants. She  got a  temple constructed  in the upper storey and installed  the idols  of Lakshmi  Narain and Hanuman, on 11-3-1935. On  7th May,  1935 she  executed a  will and  got regis- 878 tered on 9th May, 1935. In this will she clearly stated that she was  performing Puja  and service of the temple from out of the  income of  the rents  of the  building. She  further declared in  the will  that the  house  was  made  Wakf  and dedicated to the temple and would remain so for all times to come. Under  the will five respectable persons were made the trustees, but  Smt. Jog  Maya reserved the right of managing the property to herself and it was only after her death that the trustees  were to  manage the  property and perform Puja etc.      Three years  later on  12th July,  1938 Smt.  Jog  Maya executed another  will and  got it  registered on 18th July, 1938. By this will she revoked the previous will of 1935 and dedicated a  part of the house, some deposits in some banks, ornaments and  other household  goods for the benefit of the temple. She retained the provision that she would manage the property and  realise the  rents till  her life  time  after which the  property was  to  be  managed  by  seven  persons nominated by  her under the will. In this will Smt. Jog Maya expressly prohibited  the respondent Devi Charan who was her adopted son  from performing her funeral rites, but she gave Devi Charan  and his  wife the right to appropriate the rent of the two houses after the payment of taxes and repairs and after the  death of  the trustees.  There was  also a clause which prohibited  the trustees  from alienating  the endowed properties.  This   will  also   shows  the   religious  and charitable disposition of Smt. Jog Maya.      The third  will which  is  the  will  in  question  was executed on 1st July, 1947 and registered on 9th July, 1947. By this  will Smt.  Jog Maya  cancelled the will of 1938 and

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declared the same as void and bequeathed all her properties, movable and  immovable, to  the appellant  Pt. Durga Prashad who was  also appointed  the executor  of the will. The will however contains  a clear  clause that Durga Prashad will be the owner  of all  the properties  he would have no right of alienating the  house but  would only be entitled to realise the rent  and income  from the  properties which  he  should spend  in   the  performance  of  Puja  in  the  temple  and appropriate the balance himself. In this will also there was a prohibition  clause under  which it  was  said  that  Devi Charan would  have no  concern with  her estate, movable and immovable, and  he should  not even  touch her dead body. So far as  the upper  portion of  the house is concerned, which was converted  into a  private  temple  where  a  deity  was installed that  is not  the subject  matter of  the will and there is  no dispute about the same. The dispute between the parties centres  round the  ground portion  of the house and other movable properties.      After the  death of  Smt. Jog Maya the house was locked up by  the neighbours  and later a search was conducted as a result of which though 879 the original  will was  not found a draft will almost of the same time as the will in question was found which is Ext. C- 1. No date is given in this draft but Jog Maya has described herself as  being 63 years of age which would show that this draft was  written almost  at the  same time  as  the  will. According to this draft, apart from Durga Prashad one Pandit Ram Nath  was also  appointed as executor and trustee of the properties of Jog Maya. The usual directions for carrying on the Puja  and other  charitable purposes  was also  found in this draft.  In the  draft also  it was  clarified that Devi Charan  had  no  connection  with  the  house  or  with  the properties which were the subject matter of the will and had executed a  release deed  in favour  of Jog Maya. As regards Devi Charan the following recitals appear in the draft:           "I and  Devi Charan  have not been given rights of      alienation and  it is  also mentioned in the will about      Devi Charan  that if he remains of good conduct he will      be entitled  to receive  Rs. 10/- p.m. As his character      became bad  on  attaining  majority,  my  father-in-law      secured a release deed from him registered at No. 2200,      Book I  Volume 558  dated 26-8-1929  in my favour. From      that time  my son  Devi has  no connection  with  those      houses   and    with   my    movable   and    immovable      property......... Eightly. I specially direct that Devi      Charan should not perform my funeral ceremonies and the      trustees should get them performed by another".      It would  thus appear  that the  relations between  the respondent and  the testatrix were extremely strained at the time when  the will  in question was executed and it appears that the  testatrix did  not wish that the respondent should have anything  to do  with her properties and any concession she had made in his favour in her two previous wills appears to have been completely withdrawn by the impugned will.      Even Prem  Shankar one of the witnesses examined by the respondent clearly  admitted that Devi Charan was not made a trustee by  that  trust  deed  because  Smt.  Jog  Maya  was offended with  him. The  appellant has  also stated  in  his evidence that  relations  between  the  respondent  and  the testatrix were not good.      A careful  analysis therefore  of the previous wills or draft  executed  by  Jog  Maya  show  the  presence  of  the following important features in all these documents:-      1.   That relations between the respondent and Smt. Jog

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         Maya were  extremely strained  so much  so that he           was not  permitted to perform her funeral rites or           touch her body. 880      2.   Substantial provision  was made  for religious and           charitable purposes in all the wills.      3.   Express prohibition  was made  in  all  the  wills           regarding  alienating   the  properties   by   the           legatees or the trustees.      4.   That in  the draft  will as also the impugned will           Durga Prashad  was constituted  as the executor of           the will. We  will   develop  these  features  a  little  later  after discussing the points of law involved in the case.      The High  Court appears  to have  drawn the presumption regarding the  revocation of the will from two facts. In the first place,  it  was  found  that  there  was  no  positive evidence to  show that the will was in existence at the time of the death of the testatrix. In this connection, it relied on the  evidence of  Durga Prashad  that a few days prior to her death  Jog Maya  had told him that the original will was in safe  custody in the bank, but this fact was falsified by the circumstance  that when  the sealed box kept in the bank was opened no will was found. In our opinion, in the initial application which  the appellant  gave for grant of probate, he did  not mention  at all  that Jog Maya told him that the original will  was kept  in safe  custody in  the bank. This averment was  made in an amended application which was given by him  before the  District Judge.  In  the  circumstances, therefore, we  feel that  no such statement was ever made by Jog Maya  to the  appellant who  tried to overstate his case which was  clearly an  after-thought otherwise  there was no reason why  he should  not have  mentioned this  fact in the initial petition  for the  grant of  probate which  he filed before the  District Judge. In these circumstances, not much turns upon  what Durga  Prashad says about the will being in the box. The High Court then relied on the circumstance that in spite  of every  possible search  while the draft Ex. C-1 was in  fact found  the will  was not found at all. The High Court, therefore,  drew presumption  that the testatrix must have revoked the will by destruction or otherwise.      The question  as to whether or not a presumption should be drawn  in such  cases as  a  rule  of  law  is  extremely doubtful. Moreover,  even if  any such  presumption is drawn the said  presumption is  rebuttable  and  may  be  rebutted either by  direct or  circumstantial evidence.  In the first place, the High Court relied on the case of Anna Maria Welch and Lucy  Allen Welch  v. Nathaniel Phillips where the Privy Council observed as follows:-           "Now the  rule of  the law  of  evidence  on  this      subject, as established by a course of decisions in the      Ecclesiastical Court,  is this: "that if a will, traced      to the possession of the 881      deceased, and  last seen  there, is  not forthcoming on      his death,  it is  presumed to  have been  destroyed by      himself; and  that presumption must have effect, unless      there is  sufficient evidence  to repel  it.  It  is  a      presumption founded on good sense".      The serious question for us to determine is whether the ratio of  this case can be applied to Indian conditions with full force.  This matter was clearly considered by the Privy Council in  the case from India in Padman & Ors. v. Hanwanta & Ors.  where the Privy Council sounded a note of caution in applying the  aforesaid presumption  to this  country having

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regarding to  the nature  and habits  of the  people of  our country. While approving the observations of the Chief Court their Lordships in the aforesaid case observed as follows:-           "We think  that the more reasonable presumption in      this case  is that  the will  was mislaid  and lost, or      else was  stolen by  one of  the defendants  after  the      death of  Daula.... Their  Lordships think  that it was      perfectly within  the competency  of the learned Judges      to come  to that  finding. Much stress has been laid on      the view expressed by Baron Parke, in Welch v. Phillips      (1836) 1  Moore, P.C. 299 that when a will is traced to      the possession  of the  deceased and is not forthcoming      at his  death, the presumption is that he has destroyed      it. In  view of the habits and conditions of the people      of India this rule of law, if it can be so called, must      be applied  with considerable  caution. In  the present      case the  deceased was  a very old man and, towards the      end of  his life,  almost imbecile.  There  is  nothing      definite to  show that he had any motive to destroy the      will or  was mentally  competent to do so. On the other      hand, the circumstances favour the view the Chief Court      has taken that the will was either mislaid or stolen". The  Privy   Council  made  it  very  clear  that  the  more reasonable presumption  in a  case like  this should be that the will was mislaid, lost or stolen rather than that it was revoked. The  Privy Council  further endorsed  the fact that the presumption  of English  law should be applied to Indian conditions with  considerable caution. The High Court in the instant case  does not  appear to have kept in view the note of warning  sounded by  the Privy  Council in  the aforesaid case. 882      There are  a large  number of authorities of the Indian High Courts which take the view that even if the presumption is applied  it should  be applied  with very great cautions. Before however  dealing with these authorities we would like to san the English law on the point.      Jarman on  Wills while  dwelling on  this aspect of the matter observed as follows:           "If  a   will  is   traced  into   the  testator’s      possession,  and   is  not  found  at  his  death,  the      presumption is  that he destroyed it for the purpose of      revoking   it;    but   the    presumption    may    be      rebutted........ Where  the will  makes a  careful  and      detailed disposition  of the  testator’s property,  and      nothing happens  to make  it probable that he wishes to      revoke it,  the presumption raised by the disappearance      of  the  will  may  be  rebutted  by  slight  evidence,      especially if  it is  shown that  access to the box, or      other place  of deposit  where the will was kept, could      be obtained  by persons  whose interest it is to defeat      the will". It is,  therefore, clear  that even  if a presumption of the revocation of  the will  is drawn  from the fact that it was not found  on the  death of  the testatrix it cannot be laid down as  a general  rule and  can be rebutted even by slight evidence particularly  where it is shown that some party had access to  the place  of  deposit.  The  Privy  Council  has doubted whether this presumption is a rule of law at all.      In Halsbury’s  Laws of  England, Third Edition, Vol. 39 at p. 896 it was thus observed:           "Where a  will is found destroyed or mutilated, in      a place in which the testator would naturally put it if      he thought he had destroyed it, the presumption is that      testator destroyed  it, and  that the  destruction  was

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    done animo  revocandi................. Similarly,  if a      will was  last traced to the possession of the testator      and is not forthcoming at his decease, there is a prima      facie presumption,  in  the  absence  of  circumstances      tending to  a contrary  conclusion  that  the  testator      destroyed it  animo revocandi.  The presumption  may be      rebutted by evidence, which, however, must be clear and      satisfactory. Recent  declarations  by  a  testator  of      satisfaction at  having  settled  his  affairs,  or  of      goodwill towards  the persons benefited by the will, or      of adherence  to the  will and  to the  contents of the      will itself  may  be  used  for  this  purpose......The      presumption may,  it  seems,  also  be  rebutted  by  a      consideration of the contents of the will itself". 883 It appears  that so far as the United States is concerned no presumption as  a rule of law can be drawn where the will is lost but  the matter  depends on the statute of a particular State. In Corpus Juris Secundum Vol. 95 it has been observed as follows:-           "Since, in accordance with the general rule that a      will  speaks   from  the  death  of  the  testator,  an      instrument which  has been duly executed as a will, and      never been  revoked, becomes  effective on the death of      the testator  although it  cannot be found or is not in      existence, it  is a well settled general rule, which in      some jurisdictions  is in effect prescribed by statute,      that a  will which  has been  lost or destroyed, either      after  the   testator’s  death   or   accidentally   or      fraudulently during his lifetime, may be established or      admitted the probate, as by admitting a properly proved      copy or  duplicate of  the will  to  probate  or  by  a      proceeding in accordance with the statute, in the court      having  jurisdiction  thereof,  and  on  competent  and      sufficient   proof   of   its   execution,   loss,   or      destruction, and contents".      Thus, it  is manifest  that in the first place when the will is  traced to  the possession  of the  testator but not found at the time of death, no presumption can be drawn as a rule of  law  but  in  the  facts  and  circumstances  of  a particular case  such a  presumption may be drawn and can be rebutted even by slight evidence. In the  case of  Finch v.  Finch(1) the  Court  observed  as follows:-           "There is  no doubt that if a man dies, after duly      executing a  will, and  at the  time of  his death  his      will,  having  remained  in  his  custody,  is  not  in      existence, the law presumes that it was revoked. But in      all such  cases  the  question  to  be  determined  is,      whether the  will was  or was  not in  existence at the      time of the death"      "The  evidence   certainly  points   strongly  in  that      direction, and  there is  nothing to shew any change of      intention which was likely to lead to the revocation of      the will. He had evidently not changed his mind when he      last spoke  to his  daughter on the subject, and, as to      the three  weeks that elapsed between that conversation      and his  death, the  evidence is a perfect blank. There      is nothing  to shew  any change of intention, but there      is evidence  that, during  that interval, he was not on      good terms  with his  son, and that, although they were      living in  the same  house, they  did not speak to each      other". 884 Although the Court stated the law clearly that a presumption

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in such  circumstances could  be  drawn  it  held  that  the presumption was  rebutted by  the important  fact that there was nothing  to  show  that  there  was  any  other  in  the intention of  the testator  to revoke the will. On the other hand, strained  relations between  the father  who  was  the testator and  the son  continued. In these circumstances, it was held that the presumption was rebutted.      Against this  background we  shall now  deal  with  the authorities of the Indian High Courts. But before we do that it may be necessary to extract section 70 of the Act:           "No unprivileged  will or  codicil, nor  any  part      thereof shall be revoked otherwise than by marriage, or      by  another   will  or  codicil,  or  by  some  writing      declaring an  intention to revoke the same and executed      in  the   manner  in  which  an  unprivileged  will  is      hereinbefore  required   to  be  executed,  or  by  the      burning, tearing  or otherwise  destroying the  same by      the testator  or by  some person in his presence and by      his direction with the intention of revoking the same". A perusal of this section would clearly reveal two important features. In  the first  place, the section has been couched in negative  terms having a mandatory content. Secondly, the section provides  the mode and the circumstances under which an  intention   to  revoke  can  be  established.  In  these circumstances, therefore,  the onus  is on  the objector who relies on  the revocation  to prove  that the  will had been revoked after it has been proved to have been duly executed. Under section  70 of  the Act  the will can be revoked inter alia, by burning, tearing or otherwise destroying and unless any of  the circumstances has been proved by the objector by cogent evidence,  the question of the revocation of the will naturally not  arise. While  construing this  section,  this Court in  the case  of Anil Behari Ghosh v. Smt. Latika Bala Dassi & Ors. observed as follows:-           "For proving  that the  will had  been revoked, it      had to be shown that the testator had made another will      or codicil or by some writing declared his intention to      revoke the will.           Such a document is required by s. 70 of the Act to      be executed  in the  same manner  as  a  will.  Such  a      revocation could  also have been proved, as the section      lays down,  by turning, tearing or otherwise destroying      the will  by the  testator himself  or  by  some  other      person in  his presence  and  by  his  direction,  thus      clearly indicating his intention of revoking the will". 885 Applying these observations to the facts of the present case there is  absolutely no  evidence to  show that  even though Smt. Jog  Maya had  made a  registered will in favour of the appellant she  revoked it at any time in the manner enjoined by section 70 of the Act.      In the  case of  Kaikhushru Jehangir  v.  Bai  Bachubai Jehangir &  Ors. while  construing section  70 of the Act it was  pointed   out  that   a  will   cannot  be  revoked  by implication.  In   this  connection,   the  Court  made  the following observations:-      "Under the  statute it  is necessary  to  establish  an      intention to destroy. There cannot be any revocation by      necessary implication.  The revocation  can only  be by      one or  the other  of the  modes which are specified in      the statute, and so far as we are here concerned, these      modes are specified in section 70, Succession Act".      In the  case of Babu Lal Singh & Anr. v. Baijnath Singh & Anr.  a Division  Bench of  the  Patna  High  Court  while referring to  the Privy  Council case  of Welch  v. Phillips

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(supra) observed as follows:-      "In my  opinion the  essential condition of the rule of      English law  ’if a will traced to the possession of the      deceased and  last seen there is not forthcoming on his      death’  has   not  been   established.  Therefore   the      presumption of  law on  which Mr.  Das laid much stress      has no  application to  the facts  of the  present case      .....The onus  primarily lies  on the party propounding      the copy  to account  for the  absence of  the original      ............ Thus  there is  nothing to show any change      of  intention,   which  was   likely  to  lead  to  the      revocation of  the will.  In the circumstances the only      reasonable inference  is that  the document  is  either      mislaid or lost. The loss of a will does not operate as      a revocation. It has been established that the will was      duly executed  by Man  body and there is no uncertainty      about the  contents of it as a certified copy of it has      been produced". We are  inclined to  agree with  the view taken by the Patna High Court.      In the case of Arya Printinidhi Sabha, Punjab Jullundur v. Dev Raj Vir Bhan and Anr. it was clearly pointed out that the presump- 886 tion of English law has to be applied with great caution and the Court observed as follows:           "The  rule   is  now   firmly  settled   that  the      presumption of  English law  that when a will is traced      to  the   possession  of   the  deceased   and  is  not      forthcoming at  his death, is that he has destroyed it,      must be applied in India with considerable caution".      In the  case of  Brundaban Chandra  v.  Ananta  Narayan Singh Deo  a Division  Bench of  the Orissa  High Court  has rightly observed as follows:-           But there  is formidable English authority for the      proposition that  if a  testament was in the custody of      the testator  at the  time of  his  death  and  is  not      forthcoming on  his death  it is  presumed to have been      destroyed by himself...... This presumption can however      be rebutted;  and the  weight to  be attached  to  such      presumption will  depend  upon  the  character  of  the      custody which  the  testator  had  over  the  will.  In      England wills are usually deposited either in a Bank or      with a  Solicitor. But  the same  presumption is hardly      applicable in  all circumstances  in  India  where  the      habits and  conditions of  the  people  vary.  Here  in      India, deeds are not preserved with that amount of care      as is  done in England...... On the other hand, where a      document is  registered no  care is taken at all of its      custody as  a certified  copy is  easily available, and      the law allows its production in proof of the original.      Consequently,  having   regard  to   the   habits   and      conditions of  the people  here, when a document like a      registered will is not forthcoming after the testator’s      death, presumption  may well  arise that  it  has  been      mislaid as  seems  to  have  happened  here  ......  It      follows  that   in  this   country  a   presumption  of      revocation of  a will  cannot be  drawn merely from the      fact of  its disappearance.  .................. Where a      will makes  a careful  and detailed  disposition of the      testator’s properties  and nothing  happens to  make it      probable that  he wishes  to revoke it, the presumption      raised by the disappearance of the will may be rebutted      by slight  evidence, especially  if it  is  shown  that      access to  the box  or other place of deposit where the

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    will was kept can be obtained by persons whose interest      it is to defeat the will". We find  ourselves in  agreement with  the view taken by the High Court. 887      To the  same effect  are the  decisions in Satya Charan Pal v. Ashutosh Pal & Ors., Efari Dasya v. Podei Dasya, Shib Sabitri Prasad  & Ors.  v. The  Collector of  Meerut,  Anwar Hossein v.  Secretary of State for India, Chouthmal Jivarjee Poddar v. Ramachandra Jivarjee Poddar and Pt. Devi Charan v. Durga Porshad Chhanu Lal & Ors..      The correct  legal position  may therefore be stated as follows:      1.   That where  a will  has been properly executed and           registered by  the testator  but not  found at the           time of death the question whether the presumption           that the  testator had  revoked the  will  can  be           drawn  or   not  will  depend  on  the  facts  and           circumstances  of   each  case.  Even  if  such  a           presumption is  drawn it  is rather  a weak one in           view of the habits and conditions of our people.      2.   That the  presumption is  a rebuttable one and can           be rebutted  by the  slightest possible  evidence,           direct or  circumstantial. For  instance, where it           is proved  that a  will was  a  strong  and  clear           disposition evincing  the categorical intention of           the testator and there was nothing to indicate the           presence of  any circumstance  which is  likely to           bring about  a change  in  the  intention  of  the           testator so  as to  revoke the  will suddenly, the           presumption is rebutted.      3.   That in  view of the fact that in our country most           of the  people are  not highly educated and do not           in every case take the care of depositing the will           in the  bank or  with the  Solicitors or otherwise           take very  great care  of the  will as a result of           which the  possibility of  the will  being stolen,           lost  or  surreptitiously  removed  by  interested           persons cannot be excluded, the presumption should           be applied carefully.      4.   That where  the  legatee  is  able  to  prove  the           circumstances from  which it  can be inferred that           there could be absolutely no reason whatsoever for           revoking the  will or that the act of revoking the           will was  against the  temperament and inclination           of the  testator, no  presumption of revocation of           the will can be drawn. 888      5.   That in  view of  the express provision of section           70 of  the Act  the onus  lies on  the objector to           prove the  various circumstances,  viz., marriage,           burning, tearing or destruction of the will.      6.   When there  is no  obvious reason  or clear motive           for the  testator to  revoke the  will and yet the           will is  not found on the death of the testator it           may well be that the will was misplaced or lost or           was stolen by interested persons.      We shall  now apply  the aforesaid  principles  to  the facts of the present case. It is true that the impugned will despite search  was not  found at  the time  of death of the testatrix. At  the same time it cannot be gain-said that the clear finding  of the  courts below  is that  the  will  was definitely executed  by the testatrix with a sound disposing mind and had been attested by as many as 7 witnesses and had been  proved.   We  have  already  indicated  the  essential

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features common to all the will executed by the testatrix in the past and three things appear to be very conspicuous:      1.   That relations  between the  testatrix  and  Durga           Prashad were  very cordial,  and therefore,  there           could be no occasion for the testatrix to suddenly           change her  mind to  revoke  the  will  so  as  to           benefit  the  respondent  a  person  whom  she  so           detested that  she made a provision in the will to           the effect  that he  should not  be  permitted  to           touch her dead body or perform her funeral rites.      2.   The  lady  was  of  an  extremely  charitable  and           religious bent  of mind  and she  made substantial           provision for religious and charitable purposes in           all the  wills including  the draft  will Ex. C-1.           She would  not without  any reason revoke the will           which  contained   clear  and   strong   provision           regarding religious and charitable purposes. It is           difficult to  believe  that  she  would  shed  her           religious and  charitable inclination  by revoking           the will and deleting the religious and charitable           purpose contained in the will so as to benefit the           respondent and  make him the absolute owner of the           properties without  any restriction. This seems to           be wholly improbable.      3.   That in  all the  dispositions Smt.  Jog Maya  had           seen to  it that a clause was inserted in the will           under which  the legatee or trustee was prohibited           from alienating  the properties.  Indeed,  if  she           revoked the  impugned will the result will be that           the property would go to the respon- 889           dent without  any conditions  or  restrictions,  a           conduct that  would be  against the temperament of           the testatrix.      Apart   from    these   features,   there   are   other circumstances which go to show that the will was not revoked by the testatrix.      R.W. 3 admitted that Devi Charan respondent never lived in the  house (house  of Jog  Maya) but  he used to visit it once or  twice a  month. Similarly,  R.W. 7, another witness for the  respondent, admits  that Devi  Charan used to visit Smt. Jog  Maya previous  to her  death. Even  the respondent Devi Charan  admits clearly  in his  evidence that as he was not well,  his wife  had gone  to see  Smt. Jog  Maya on the previous evening  of her  illness. In  this connection,  the statement of Devi Charan runs thus:-           "I came  to know about her illness on the previous      evening. As  I was  not well,  my wife  went to see how      Smt. Jog Maya was."      From the  evidence adduced  by the  respondent himself, therefore, it  appears that  Devi Charan had clear access to the house  of Jog  Maya which  he visited off and on and his wife visited  the house  even during the illness of Jog Maya which resulted  in her  death. Devi  Charan was  fully aware that the  will executed  by Jog Maya completely deprived him of any  interest in  the properties. In these circumstances, the possibility that either Devi Charan or his wife may have pilfered  or  stolen  the  will  in  order  to  deprive  the appellant of  its  benefits  cannot  be  excluded.  In  this connection, it  may be  noted that the respondent has stated in his  evidence that  he complained to Jog Maya that he had been deprived  of his right by making a trust in the name of Durga Prashad  and Ram  Nath and  she assured  him that  she would destroy the trust deed and would make him the owner of the property.  This statement is undoubtedly false and would

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not have been made by a woman of the nature and character of Jog Maya.  Indeed, if  the statement  was  made  to  him  in August, 1955  as mentioned  by the  witness in his evidence, then there  was no reason why, when the respondent filed his first objection  on 27-1-1956 before the Sub-Judge Delhi, he did not  mention it  there nor  even in the second objection and the  additional pleas  filed by  him before the District Judge, Delhi.  This shows  that his  statement in  court  is absolutely false  and is  made merely  for  the  purpose  of defeating the claim of respondent.      Again it appears that although the will was executed in 1947, about  8 years  before her  death, Smt. Jog Maya never expressed her  intention to  revoke the  will  at  any  time during this  period to any of the attesting witnesses of the will or  to Pt.  Ram Nath  who was a trustee under the draft will of her intention to revoke the will. It is difficult to 890 believe that  she would  leave the  entire property  to  the respondent whom she hated so much.      Further, there  is absolutely  no evidence to show that Devi Charan  succeeded in  gaining the  favour of or winning the confidence of Smt. Jog Maya at any time before her death so as  to put  her in  a mood  to leave  the entire property absolutely to  him after  her death by revoking the impugned will. Nor  is there  anything to  show that  the  respondent estranged the testatrix from the appellant to such an extent that the  appellant fell  in  her  estimation.  It  is  also neither pleaded  nor proved  that since the execution of the impugned will  any circumstance existed or incident happened which brought  about  a  serious  estrangement  between  the appellant and  the testatrix  so as  to induce her to revoke the will.      Having regard  to these  circumstances mentioned  above which do  not appear  to have  been considered  by the  High Court at  all  we  are  clearly  of  the  opinion  that  the presumption if  any, that  the will  was revoked by Smt. Jog Maya has  been sufficiently  rebutted and  the objector  has miserably failed  to discharge  the onus which lay on him to prove that  the will was revoked. Moreover, the will being a registered one and being the product of the free will of the testatrix there  must  be  strong  and  cogent  reasons  for holding that  it was revoked. The fact that the will was not found despite  search at  the time of death of Smt. Jog Maya in  the   circumstances  is  not  sufficient  to  justify  a presumption that  the will was revoked. In the circumstances of this case particularly having regard to the fact that the respondent who  would be  interested in  destroying the will had an access to the house of the testatrix, the presumption would be that the will was either stolen or misplaced by him or at his instance.      For these reasons, we allow this appeal with costs, set aside the  judgment of  the Division Bench of the High Court and restore  the judgment  of the  Single Judge  of the High Court  and  allow  the  application  of  the  appellant  for probate. N.V.K.                                       Appeal allowed. 891