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1915 Supreme(SC) 24
Privy Council
Ameer Ali, Sir John Edge , Sir George Farwell, Justice Lord Atkinson, JJ.
Padman and others -Appellant
Versus
Hanwanta and others -Resopndent
19-5-1915
.
Decided On : 19-05-1915
T.L. Wilson and Co., Edward Dalgado, Arthur Grey, J.M. Parikh, DeGruyther
The presumption that a missing will was destroyed by the testator must be applied with caution, considering local conditions and the testator's mental state. Furthermore, withdrawing a revision application in void arbitration proceedings does not estop a party from asserting their original rights.
Headnote:(A) Hindu Law - Disposition of Property - Wills - A testator possesses the right of disposition over self-acquired properties, allowing such property to be bequeathed by will regardless of the ordinary laws of inheritance governing ancestral property.
(B) Law of Evidence - Presumption of Revocation of Will - The presumption that a will is revoked if it was last known to be in the possession of the deceased but is not forthcoming at the time of death must be applied with considerable caution in the context of local habits and conditions. Where the deceased was of advanced age and lacked the mental competence or motive to destroy the document, circumstances may instead support a finding that the will was mislaid or stolen.
(C) Civil Procedure - Estoppel - The withdrawal of an application for revision in arbitration matters does not estop a party from questioning the rights of others or asserting their own original rights, particularly when the reference to arbitration and subsequent proceedings are set aside as altogether bad, thereby relegating the parties to their original rights.
Facts of the case:
A dispute arose regarding the landed property of a deceased person who had executed two registered wills. The first will distributed property among surviving sons and a grandson. The second will, executed later, excluded two sons and redistributed the property in six equal shares. Following the death of the testator, a suit was filed to establish the claim under the second will. The lower courts provided conflicting findings on whether the property was self-acquired or ancestral, and whether the second will had been revoked. The matter was appealed to the highest court to determine the validity of the second will and the correct distribution of shares among the heirs.
Findings of Court:
The court affirmed that the properties were self-acquired and the second will was executed by a competent testator. It held that there was no sufficient evidence of revocation, rejecting the rigid application of the presumption that a missing will is destroyed. It further found that the withdrawal of a revision petition did not create an estoppel. However, it noted that since some beneficiaries disclaimed benefits under the second will, the plaintiffs were not entitled to the excess shares of those who disclaimed.
Issues: The main issues were whether the property was self-acquired or ancestral; whether the second will was revoked by the testator; and whether the withdrawal of a revision application operated as an estoppel against a claimant's share.
Ratio Decidendi: The court ruled that the presumption of revocation of a missing will is not an absolute rule of law and must be weighed against the testator's mental state and local conditions. Additionally, when arbitration proceedings are declared void, the parties are restored to their original legal positions.
Result: Decree modified.
This is an appeal from a judgment and decree of the Chief Court of the Punjab, dated the 17th of July 1909, and the dispute relates to the property of one Daula, a Jat by origin who migrated from Bikanir many years ago and settled in the Ferozepore District. He died in April 1902, leaving a large family of sons and grandsons and considerable landed property.
The following pedigree will explain the relative position of the contesting parties in the present litigation :-
In 1884 Daula had executed a will, which was duly registered at the time, under which his surviving sons and a grandson, Ram Sukh, whose father Pura had died, were to take his properties substantially in equal shares.
In January 1898 he revoked his former will and made another, which also was registered, by which, excluding Chetan and Tulsa, he left his property in six equal shares to his four other surviving sons and to Ram Sukh, the son of Pura, and to Bhinja and Lekh Ram, the two sons of Asa, who had died in the meantime.
On Daula's death there were the, usual mutation proceedings for the registration of the names of his successors in the Collector's Register, in the course of which the devisees under the second will claimed to have their names recorded to the exclusion of Chetan's and Tulsa's representatives. In view, however, of the provisions of the will of 1884, the Collector ordered the names to be entered in eight shares and referred the contending parties to settle their respective claims in the Civil Court. This happened in September 1902, and in December following, the present suit was brought by the persons taking under the second will against the representatives of Chetan and Tulsa, defendants 1 to 7, to establish the plaintiffs' claim, under the will of 1898 and to recover possession of the one-fourth share of Daulat's lands in respect of which Chetan and Tulsa had been recorded as owners. This one-fourth includes the shares of Ram Sukh and Bhinja, who, on their refusal to join in the action, had been made defendants (8 and 9).
The defendants 1 to 7 raised various objections to the plaintiffs' suit, the nature of which is indicated by the issues framed by the Court of first instance. They are as follows :-
(1) Whether the property in dispute was acquired by Daula alone or jointly by him and his sons.
(2) Whether the will of 1898 was executed by Daula voluntarily and whether he was competent to make such a will.
(3) If so, whether the will has been cancelled by any subsequent act on his or on the part of the plaintiffs.
Before trial, however, the parties agreed to refer the dispute to arbitration. The arbitrators made an award, and on the 25th November 1903 the District Judge, in accordance therewith, dismissed the plaintiffs' claim. On revision under S. 622 of the Civil Procedure Code of 1882, the Chief Court reversed the order of dismissal and remanded the case to be disposed of according to law. On remand the first Court went into evidence and in the result dismissed the plaintiffs' claim, principally on the ground that the lands in dispute were not the self-acquired properties of Daula over which he had a right of disposition dehors the ordinary law under which ancestral property is inheritable by sons and grandsons per stirpes in equal shares. The District Judge does not say this in so many words, but this is clearly the effect of his judgment. On the other issues he does not appear to have come to definite findings.
On appeal by the plaintiffs the Divisional Judge was of opinion that the properties to which the suit related were the self-acquired properties of Daula within the Hindu Law, and that the will of 1898 was not open to the objection of having been executed under undue influence or without due comprehension; but he considered that the subsequent acts of Daula showed that he had revoked or cancelled it. He was further of opinion that no sufficient foundation was laid for the admission in the first Court of secondary evidence of
