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1967 Supreme(Del) 30
High Court Of Delhi
DEVI CHARAN - Appellant
Versus
DURGA PERSHAD - Respondent
L.P.A. 146 of 1963
Decided On : 02/15/1967
B.DAYAL, Keshav Dayal, S.N.SHANKAR, S.S.Chadha
The presumption of revocation of a will arises where the original will is not found and there is no evidence to show that it was mislaid or taken away by someone else, and the circumstances support the inference that the testator destroyed the will with the intention of revoking it.
Headnote:
INDIAN SUCCESSION ACT, 1925 - SECTION 70 - REVOCATION OF WILL - PRESUMPTION OF DESTRUCTION - CIRCUMSTANCES SUPPORTING PRESUMPTION - BURDEN OF PROOF.
Fact of the Case:
The deceased, Jog Maya, executed three wills during her lifetime. The first two wills were executed in 1935 and 1938, respectively, and dedicated her properties for the purpose of Puja and service in a temple built by her. In 1947, she executed a third will, which bequeathed almost all her properties to Durga Pershad, an unrelated individual. Jog Maya died in 1955, and the original of the third will was not found either in her house or in a sealed box kept by her in a bank. Durga Pershad applied for probate of the third will, claiming that it was the last will and testament of Jog Maya. Devi Charan, the adopted son of Jog Maya's husband, contested the application, alleging that Jog Maya had revoked the third will by destroying it.
Finding of the Court:
The District Judge dismissed Durga Pershad's application for probate, holding that there was no positive evidence to show that the third will was in existence at the time of Jog Maya's death or that it had been destroyed by her. On appeal, the High Court reversed the District Judge's decision and granted probate to Durga Pershad, finding that the third will was not destroyed or revoked by Jog Maya but had been misplaced.
Issues: 1. Whether the third will was revoked by Jog Maya by destroying it. 2. Whether the presumption of revocation arises in the circumstances of the case.
Ratio Decidendi: 1. The Court held that the presumption of revocation arises in the circumstances of the case. The original of the third will was not found either in Jog Maya's house or in the sealed box kept by her in the bank, and there was no evidence to show that it had been mislaid or taken away by someone else. 2. The Court further held that the circumstances support the presumption of revocation. Jog Maya was a pious lady with a religious and charitable bent of mind, and she had previously executed two wills dedicating her properties to the temple built by her. The third will, which bequeathed almost all her properties to Durga Pershad, was executed in 1947, and Jog Maya lived for about eight years thereafter. During that time, she managed her properties and performed the Puja and service in the temple herself. The Court found it plausible that towards the end of her life, Jog Maya reverted to her original religious and charitable intentions and revoked the third will.
Final Decision: The Court allowed the appeal, set aside the judgment and order of the High Court, and restored the judgment and order of the District Judge dismissing Durga Pershad's application for probate.
( 1 ) THIS Letters Patent Appeal under clause 10 of the Letters Patent (Punjab) is against the Judgment of P. D. Sharma, J. dated 30th August, 1963, in Appeal F. A. O. Case No. 87-D of 1957, which reversed the Judgment and order of Shri S. B. Capoor, District Judge at Delhi, dated 3rd May, 1957, in Probate Case No. 5 of 1956.
( 2 ) THE application for probate of the will of one Shrimati Jog Maya, out of which this appeal has arisen, was filed on 27th November, 1955, by one Durga Pershad, in the following circumstances :-
( 3 ) IT was alleged in the application that Smt. Jog Maya was a resident of Mohalla Rangmahal, Nahar Sadat Khan, Delhi, that she executed her last will and testament on the lst- of July, 1947, that the applicant was the legatee and executor named in the said will, and that she died at Delhi on the 22nd of October, 1955, leaving at the time of her death the properties described in the schedule to the application, which consisted of a number of fixed deposits in the National Bank of India Ltd. , Chandani Chowk, Dalhi, and a house of the testatrix, as well as a small sealed metal box containing unknown contents kept in the National Bank of India Ltd. , Delhi. The applicant, Shri Durga Pershad, in his application that the original will of the testatrix was in the aforesaid sealed metal box kept in the safe custody of tha National Bank of India Ltd. , Chandni Chowk, Delhi.
( 4 ) AMONG the respondents cited in the application was one Shri Devi Charan, who was described as the adopted son of Shri Sham Lal, husband of Smt. Jog Maya. He contested the application and filed his objections.
( 5 ) THE applicant Durga Pershad prayed that a Local Commissioner should be appointed to open the sealed metal box and secure the will in the presence of the parties. Accordingly, the learned District Judge appointed Shri Amar Raj Lal, Pleader, as Local Commissioner for the said purpose. The Local Commissioner filed his report, dated 10th Appril, 1956, stating that he opened the sealed metal box in the presence of the parties, that the box did not contain any will of Smt. Jog Maya nor any other document, and that the box contained only a number of ornaments, a list of which was appended to the report.
( 6 ) THE applicant, Durga Pershad, thereupon filed in an application on 16th April, 1956, in which he stated that he had locked a portion of the house owned by the deceased Jog Maya on the date of her death, that he placed the key of the said lock with some residents of the Mohalla to avoid trouble between the parties, and that the Commissioner should be directed to visit the said house, open the said lock, and search for the original will amongst the various articles left by the deceased and locked in the said house. Accordingly, the District Court appointed on the same date, Shri Amar Raj Lal as Commissioner to open the locked portion of the house, to search for the will and, if available, to produce it in Court, and to lock the premises again.
( 7 ) THE Local Commissioner filed his report, according to which, no will was found in the premises in the locked portion of the house, but a document which purports to be a draft of a will, was found by him.
( 8 ) AS the original will has not found, the applicant had to amend his application for probate. He, therefore, filed his amended petition for probate on 7th of May, 1956. In this amended petition, it was stated by him that the deceased Jog Maya, two days before her death, told the applicant that the will was in the safe custody with the Bank, and that she also delivered original cash-deposit receipts and articles- deposit receipt and other documents to the applicant two days before her death. It was also stated that he tried to have the will produced in the Court from the National Bank of India Ltd. , Delhi, but it was not found there, that the original will had been lost or mislaid and was not, therefore, forthcoming, that the will was a registered
