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1950 Supreme(P&H) 30
HIGH COURT OF PUNJAB & HARYANA
HARNAM SINGH, J.
Rura Ram Ganga Ram Aggarwal
Versus
L. Munshi Ram
F.A.F.O. No.77 of 1949
Decided On : 01-06-1950
Som Datt Bahri - for Appellant.
Mela Ram Aggarwal - for Respondents.
The presumption of revocation of a will due to its non-production does not apply when the circumstances show that the will was being withheld by a party.
Headnote:
SUCCESSION ACT, 1925 - SECTION 237, 63, 70 - WILL - REVOCATION - PRESUMPTION - COPY OF WILL - PROBATE - GRANT OF.
Fact of the Case:
Lala Narain Dass, a childless and wifeless Maheshari Banya, made a will on 4th October 1934, bequeathing half of his deposits to Sardar Sawan Singh and the other half to the Manager Hindu Yatim Khana. He died in 1940, and his executors applied for probate of the copy of the will, as the original was not found. Boora Ram, a respondent, opposed the grant of probate, claiming that the will was revoked by a subsequent will made on 23rd October 1940.
Finding of the Court:
The court found that the will dated 4th October 1934 was duly executed and valid, and that the circumstances showed that the original will was being withheld by the respondent. The court also found that the subsequent will dated 23rd October 1940 was not a valid will, as it was not executed in accordance with the requirements of Section 63 of the Succession Act.
Issues: 1. Whether the will dated 4th October 1934 was revoked by the testator? 2. Whether the will dated 23rd October 1940 was executed under undue influence? 3. Whether the will dated 4th October 1934 is the last valid will of the testator?
Ratio Decidendi: The court held that the presumption of revocation of a will due to its non-production does not apply when the circumstances show that the will was being withheld by a party. The court also held that the subsequent will was not valid as it was not executed in accordance with the requirements of Section 63 of the Succession Act.
Final Decision: The court affirmed the order of the trial court and dismissed the appeal, granting probate of the copy of the will dated 4th October 1934.
2. On 25th June 1949, Lala Munshi Ram, Kharaiti Ram and Lala Amar Nath made an application under S.276, Succession Act, 1926 (hereinafter referred to as the Act) for the grant of probate of the copy of the will, Ex. P.W.9/4. Late, Har Narain, the fourth executor under the will, it was stated in the application, had died before the application was made.
3. Now, the application under S.276 proceeds on the grounds mentioned hereunder: (1) that, inasmuch as Lala Narain Dass has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the presumption arose that Lala Narain Dass was dead; (2) that the registered will dated 4th October 1934, was the last will and testament of the said Narain Dass, but that the original has not been found in the papers and household effect of the deceased; and (3) that the deceased had left a fixed deposit of Rs.8,000 in the Punjab National Bank Ltd , Ludhiana, and a deposit of Rs.328-3-6 in the Post Office at Phillaur but that the documents with respect to these deposits have not also been recovered from the papers and the household effects of the said Narain Dass.
4. Boora Ram respondent appeared in the proceeding in the Court of the District Judge, Jullundur, and resisted the grant of the probate of the copy of the will, Ex. P.W.3/4, alleging that the registered will dated 4th October 1934, was not the last valid will of Lala Narain Dass deceased, and that he had revoked that will under another will, Ex.R-1, made on 23rd October 1940.
5. In replication the executors maintained that the will Ex. R-1 dated 23rd October 1940 was fictitious and forged document and was otherwise invalid.
6. On the pleadings of the parties the trial Court fixed the following issuee: 1. Whether the will dated 4th October 1931, made by Narain Dass (who has not been heard of since over seven years) was cancelled by him? If so, when? 2. Whether the will dated 23rd October 1940, set up by the respondent was executed under undue influence? 3. Whether the will dated 4th October 1934, set up by the petitioners is the last valid will of Narain Dass?
7. Considering that due execution of the will dated 4th October 1934, had not been challenged by Roora Ram respondent in his written statement or in his statement before the issues the trial Court found that the factum and validity of the will, Ex. P.W.3/4, was proved. The trial Court then found that it was obligatory on Roora Mal respondent to file a separate petition for the grant of the probate of the will R.1, and that being so, issues Nos.1 and 3 were struck off. In any case, the trial Court found that the will Ex. R-1 was not a valid will. On these findings the trial Court found that Ex. P.W.3/4 was a true copy of the last will and testament of Lala Narain Dass.
8. Then, it was said at the trial that since the original will made on 4th October 1934, was not forthcoming, it should be presumed that it has been revoked by the testator. The trial Court has, however, found that the circumstances of the case showed that the original will, dated 4th October 1934, was
