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1952 Supreme(Cal) 164
HIGH COURT OF CALCUTTA
R. P. MOOKERJEE, RENUPADA MUKHERJEE
BHUTNATH DAS - Appellant
Versus
SATISH CHANDRA GUIN - Respondent
A. F. O. D. 179 Of 1950
Decided On : AUGUST 4, 1952
BENOYENDRA DEB RAI MAHASAI, NIRMAL CHANDRA CHOUDHURI, PANCHANAN CHAUDHARY, RABINDRA NATH BHATTACHARJI
The non-production of the original will after the death of the testator does not always raise a presumption that the will has been revoked.
Headnote:
WILL - REVOCATION - PRESUMPTION - NON-PRODUCTION OF ORIGINAL WILL - CIRCUMSTANCES TO BE CONSIDERED - INDIAN SUCCESSION ACT, 1925, SECTION 70.
Fact of the Case:
Sasibala Dasi died in 1943, leaving a will executed in 1930. After her death, her brother Bonwari died, leaving five sons. Satish Chandra and others, Sasibala's sisters' sons, filed a petition for letters of administration with a certified copy of the will. Bonwari's sons objected, claiming the will was not properly executed and attested and had been revoked by Sasibala.
Finding of the Court:
The District Judge disbelieved the evidence of both parties regarding the production of the will after Sasibala's death or its destruction before her death. He concluded that the will had not been revoked and granted letters of administration to the petitioners.
Issues: 1. Whether the evidence adduced by the objectors about the actual destruction of the original will by Sasibala was credible. 2. Whether the non-production of the original will after the death of the testatrix raised a presumption that the will had been revoked by her.
Ratio Decidendi: 1. The court found the evidence of Jitendra Nath Bakshi, a witness who testified about Sasibala destroying the will, to be credible. 2. The court held that there is no inflexible presumption that a will has been revoked merely because the original will is not produced or has disappeared after the testator's death. Each case must be considered on its own merits and circumstances.
Final Decision: The appeal was allowed, the order granting letters of administration was set aside, and the application for letters of administration was dismissed.
( 1 ) ONE Sasibala Dasi died in a hospital in Calcutta on 21-11-1943. It is admitted fact that she had executed a will on 22-1-1930, and had the same registered two days later. Sasibala at the time of her death left a brother Bonowarilal and the petitioners Satish Chandra and others who are her sisters' sons; the petitioner Santosh Bala was another sister of hers.
( 2 ) A little over three years after the death of Sasibala an application for the issue of letters of administration was filed by Satish Chandra and others before the court of the Munsif at Katwa. The proceedings were transferred to the court of the District Judge. The petitioners came to court with the story that the original will which was with Sasibala was not found after her death. A certified copy obtained from the registration office was filed along with the petition. Sasibala's brother Bonwari died in February-March, 1945, leaving five sons viz. , Bhutnath, Ramanath, Dinonath, Saktipada and Muktipada.
( 3 ) THE petition which had been filed originally was a defective one, as in the body of that petition, there was no averment that the will had been properly executed and attested. This was remedied by a subsequent petition for amendment filed on 5-7-1950, just before the decision, by the learned District Judge.
( 4 ) TWO sets of objections were filed, -- one by the three sons of Bonwari and the other by the youngest minor son. The defence taken was that the will had not been properly executed and attested, and secondly, the will having been admittedly with Sasibala and not having been found at the time of her death, or after her death, it should be presumed that the alleged will had been revoked by Sasibala. It was further alleged in the petition of objection that the properties in question did not belong to Sasibala, but were owned by her brother Bonwari. We are not concerned, however, in the present proceedings with the question of title which had been raised. We are concerned only with the question whether Sasibala had left a will, and whether the certified copy of the will produced is the one which was the last will and testament left by her.
( 5 ) DURING the trial, however, both the parties shifted their grounds to a certain extent, and at least on one material point. The propounders attempted to adduce direct evidence for proving that the original will had been shown to other persons by Bonwari alter the death of Sasi. On the other hand, the objectors adduced evidence to prove that Sasibala had shortly before her death destroyed the original will by burning it.
( 6 ) THE learned District Judge disbelieved the evidence adduced by both the parties on the two points above mentioned, either about the production of the will after the death of Sasi Bala, or of its destruction before her death. The learned Judge proceeded to consider whether under such circumstances, the inability of the propounders to produce the original will would raise a presumption that the will had been revoked by the testatrix or not. The learned Judge came to the conclusion that the will had not been revoked, and accordingly letters of administration were issued in favour of the petitioners.
( 7 ) THE present appeal is on behalf of the objectors. It is contended that the learned Judge was wrong in disbelieving the evidence as adduced by the objectors about the actual destruction of the original will by Sasibala. Secondly, and in the alternative, it is contended that even if the evidence so adduced be disbelieved, the learned Judge was not correct in stating the legal principles or the circumstances under which a will not being proved to have been in existence after the death of the testatrix could be regarded as not having been revoked by her.
( 8 ) SASIBALA came from a very poor family, and the entire property left by her consisted of about three bighas and five cottas of culturable land in her village. It is an admitted case that she used to serve as a maid
