The presumption of revocation of a Will does not arise in all circumstances and can be rebutted by evidence.

Judgement

PANIGRAHI, C. J. :- The appeal arises out of an application for Letters of Administration on a certified Copy of a Will. The late Raja Birabar Narayan Chandra Dhir Narendra Bahadur of Madhupur executed and registered the said will on 27-12-1945, in favour of the plaintiff-respondent, who is the second son of his daughter Sm. Brajeswari Devi, bequeathing to him his house at Cuttack, known as Madhupur Kothi.

He died on 2-7-1946 at Garh-Madhupur leaving him surviving his adopted son, viz., the defendant-appellant and the said Brajeswari Devi, his only daughter and the mother of the plaintiff. It is the common case of both parties that the late Rajas wife had pre-deceased him, and that his daughter Brajeswari Devi who was married to the Raja of Dharakote and became a widow in 1938 had been living with her father till his death.

On the day previous to her marriage the defendant. Shri Brundaban Chandra Dhir Narendra who is the brother of Brajeswaris husband, was adopted by the late Raja of Madhupur as his son. The plaintiffs case was that the Will was in the custody of his mother till the Rajas death, and in the confusion following the death of the Raja necessitating the removal of articles and furniture from the room where the Raja died, the suit-case containing the will was mislaid, and the Will had remained untraced till then.

The suit was filed on a certified copy of the Will, which has been marked Ex. 2. The case for the objector, namely the present Raja of Madhupur is that the execution of the Will was brought about by undue influence exercised by the plaintiffs mother Sm. Brajeswari Devi and that it was subsequently revoked by destruction animo revocandi.

The learned Additional District Judge has found that the Will was the free expression of the testators intention to benefit his second grandson and that it was not tainted by undue influence or coercion. He has also found that the alleged destruction of the Will by tearing it and consigning it to the fire was not made out by the defendant.

2. The valid execution of the Will is not seriously contested before us. The only point in controversy is whether it was revoked by the testator a few days prior to his death. Apart from the oral evidence of the two witnesses examined by the defendant who speak to the destruction of the Will, learned counsel for the appellant asks us to raise a presumption, in favour of his client, that the Will must have been destroyed, if it is traced to the custody of the testator at the time of his death and has not been found since then. It is, therefore, necessary to state a few facts before examining the merits of this contention.

3. The plaintiffs case is that the Will was made over to his mother in his presence sometime during the summer of 1945 when the plaintiff had returned from his studies at Dehra Dun and that his mother had kept it in a leather suit-case which was kept in the second floor of the Palace along with the other boxes and suitcases of his grandfather, on the death of his grandfather all his belongings were removed from the second floor to the first floor as the apartment where he was living had to be cleaned and sanctified.

After the completion of the ceremonies following the funeral the plaintiff had to leave Madhupur with his mother (P.W. 1) and his elder brother (P.W. 7) when it was discovered that the particular suit-case containing the Will was missing. The fact that the suit case contained some cash as well as the Will, and that it was missing, was brought to the notice of fee defendant by the plaintiffs elder brother (P.W. 7), and it is alleged that the defendant gave P.W. 7 a verbal assurance that he would look into the matter and send the Will as soon as it was traced.

The case for the defendant is that two days after his return from Puri, that is on 26-6-1946, the late Raja sent for his manager (D.W. 3) and another friend of his (D.W. 2) and told them that he had given enough cash to his grandson (the plaintiff) and tha