relations between the testatrix and the appellant were very cordial those between her and the respondent were far from being cordial
There could be no occasion for her to suddenly change her mind to revoke the will so as to benefit the respondent whom she despised
Secondly being an extremely religious and charitable lady it is difficult to believe that she would shed her inclinations by revoking the will deleting the religious purposes and giving benefit to the respondent to make him the absolute owner of the properties
Thirdly in all the earlier dispositions a clause was inserted prohibiting the trustees from alienating the properties
Had she revoked the will the result would have been that the property would go to the respondent without any conditions a conduct that would be against her temperament
Fourthly the respondent and his wife had access to the house of the testatrix and therefore the possibility that he or his wife might have pilfered the will could not be excluded
Lastly there was no evidence that the testatrix had at any time expressed a desire to revoke the will nor was there evidence to show that the respondent was gaining her favour at any time before her death
888D H 889D G H  CIVIL APPELLATE JURISDICTION Civil Appeal No 55 of 1969
From the Judgment and Order dated 15 2 67 of the Delhi High Court in LAP No 146 D of 1963
K T Hrindra Nath Gautam Goswami and B B Sinha for the Appellant
Sardar Bahadur Saharya and Vishnu Bahadur Saharya for Respondent No 1
The Judgment of the Court was delivered by FAZAL ALI J
This appeal by certificate is directed against the judgment of the Delhi High Court dated 15 2 1967 reversing the decision of the single Judge and dismissing the application filed for grant of probate by the appellant of a will said to have been executed by Smt
Jog Maya on the 1st July 1947 and registered on 9th July 1947
Jog Maya died on 22 10 1955
Soon thereafter the appellant who was the sole legatee and executor under the will filed a petition before the District Judge Delhi for grant of letters of administration or probate
Put briefly the appellant s case was that Smt
Jog Maya was a resident of Mohalla Rang Mahal Nahar Sadat Khan Delhi and although she had an adopted son namely the respondent Pt
Devi Charan there was no love lost between Smt
Jog Maya and Devi Charan so much so that in her will the testatrix expressly mentioned that the adopted son should not be permitted to perform her 876 funeral rites on her death nor should he be allowed to touch her body
The appellant Durga Prasad on the other hand was looking after the affairs of the lady and doing her work from time to time
It was perhaps in lieu of the services rendered by the appellant that Smt
Jog Maya executed a will in his favour on 1st July 1947
The proceedings for probate were contested by Devi Charan who denied the execution of the will on the ground that Smt
Jogmaya was not of sound disposing mind when she is said to have executed the will but had been persuaded to do so by undue influence exercised by the appellant in executing the will
It was also alleged by the respondent Devi Charan that the will was subsequently revoked and that is why it was not found in the house despite every possible search
The District Judge accepted the plea of the respondent and dismissed the application for probate by his order dated 3 5 1957
The appellant therefore filed an appeal to the High Court which was heard by Mr Justice P D Sharma who reversed the decision of the District Judge and found that the will was a genuine document and had not been revoked
He accordingly allowed the petition of Durga Prasad and issued letters of probate or administration
The respondent went up in appeal to the Division Bench which reversed the finding of the Single Judge and restored the order of the District Judge dismissing the application for probate
It would appear from a perusal of the Judgment of the Division Bench of the High Court that so far as the factual aspect regarding the execution of he will was concerned it agreed with the findings of fact given by the Single Judge that the will was a genuine document and was duly executed by the testatrix who had a sound disposing mind and no fraud or undue influence at all had been practised in the execution of the will which was witnessed by as many as 7 attesting witnesses some of whom had been examined before the District Judge to prove the execution of the will
In this connection the High Court observed as follows As regards the issue Nos 1 and 2 as already stated above the learned Single Judge held that the evidence on record was sufficient to prove that Smt
Jog Maya executed the will copy exhibit
P 10 and that she was of sound and disposing mind at the time of the execution as held by the learned District Judge
But the Courts have thus given concurrent findings on issues Nos 1 and 2 viz on the questions as to whether Jog Maya executed the alleged will dated 1st July 1947 certified copy of which has been put on 877 the record and marked as exhibit P10 and whether Jog Maya was of sound and disposing state of mind when she executed the said will
In view of this categorical finding of the High Court it is manifest that the point in dispute lies within a very narrow compass
The High Court while accepting the genuineness of the will has non suited the appellant only on the ground that as the will was not found on the death of the testatrix despite every attempt to search for it a presumption would have to be drawn that the testatrix had revoked the will by destroying it before her death
In view of this presumption the High Court held that the will appears to have been revoked and consequently refused to grant probate to the appellant
Mr Hrindranath counsel for the appellant submitted in the first place that the High Court was in error in applying the presumption of the revocation of the will in view of the express provisions of section 70 of the hereinafter called the Act
It was contended in the alternative that even if the presumption was available to the respondent the same being a rebuttable one was sufficiently rebutted by facts and circumstances proved in the case
The High Court has relied on a number of decisions in support of its view that from the fact that the will was not found on the death of the deceased Smt
Jog Maya a presumption would have to be drawn that the will was revoked by her before her death
Mr Saharya counsel for the respondent on the other hand supported the reasons given by the High Court and submitted that in the circumstances there was no alternative but to draw the presumption that the will was revoked
Before however deciding the question of law arising in the present appeal it may be necessary to set out a few facts against the background of which the point of law could be easily decided
It appears that Smt
Jog Maya was a very clever woman and personally looked after her own affairs as found by the High Court
The High Court also found that Smt
Jog Maya was a woman of a very religious and charitable bent of mind and had executed as many as three wills including the will in question and in all of them she had made adequate provision for Puja in the house and other charitable purposes
Jog Maya had purchased the house situated in Rang Mahal Nahar Sadat Khan No 667 in or about 1933
She resided in the front portion of the ground floor and leased out the back portion of the ground floor to tenants
She got a temple constructed in the upper storey and installed the idols of Lakshmi Narain and Hanuman on 11 3 1935
On 7th May 1935 she executed a will and got regis 878 tered on 9th May 1935
In this will she clearly stated that she was performing Puja and service of the temple from out of the income of the rents of the building
She further declared in the will that the house was made Wakf and dedicated to the temple and would remain so for all times to come
Under the will five respectable persons were made the trustees but Smt
Jog Maya reserved the right of managing the property to herself and it was only after her death that the trustees were to manage the property and perform Puja etc
Three years later on 12th July 1938 Smt
Jog Maya executed another will and got it registered on 18th July 1938
By this will she revoked the previous will of 1935 and dedicated a part of the house some deposits in some banks ornaments and other household goods for the benefit of the temple
She retained the provision that she would manage the property and realise the rents till her life time after which the property was to be managed by seven persons nominated by her under the will
In this will Smt
Jog Maya expressly prohibited the respondent Devi Charan who was her adopted son from performing her funeral rites but she gave Devi Charan and his wife the right to appropriate the rent of the two houses after the payment of taxes and repairs and after the death of the trustees
There was also a clause which prohibited the trustees from alienating the endowed properties
This will also shows the religious and charitable disposition of Smt
Jog Maya
The third will which is the will in question was executed on 1st July 1947 and registered on 9th July 1947
By this will Smt
Jog Maya cancelled the will of 1938 and declared the same as void and bequeathed all her properties movable and immovable to the appellant Pt
Durga Prashad who was also appointed the executor of the will
The will however contains a clear clause that Durga Prashad will be the owner of all the properties he would have no right of alienating the house but would only be entitled to realise the rent and income from the properties which he should spend in the performance of Puja in the temple and appropriate the balance himself
In this will also there was a prohibition clause under which it was said that Devi Charan would have no concern with her estate movable and immovable and he should not even touch her dead body
So far as the upper portion of the house is concerned which was converted into a private temple where a deity was installed that is not the subject matter of the will and there is no dispute about the same
The dispute between the parties centres round the ground portion of the house and other movable properties
After the death of Smt
Jog Maya the house was locked up by the neighbours and later a search was conducted as a result of which though 879 the original will was not found a draft will almost of the same time as the will in question was found which is Ext
No date is given in this draft but Jog Maya has described herself as being 63 years of age which would show that this draft was written almost at the same time as the will
According to this draft apart from Durga Prashad one Pandit Ram Nath was also appointed as executor and trustee of the properties of Jog Maya
The usual directions for carrying on the Puja and other charitable purposes was also found in this draft
In the draft also it was clarified that Devi Charan had no connection with the house or with the properties which were the subject matter of the will and had executed a release deed in favour of Jog Maya
As regards Devi Charan the following recitals appear in the draft I and Devi Charan have not been given rights of alienation and it is also mentioned in the will about Devi Charan that if he remains of good conduct he will be entitled to receive Rs 10 pm
As his character became bad on attaining majority my father in law secured a release deed from him registered at No 2200 Book I Volume 558 dated 26 8 1929 in my favour
From that time my son Devi has no connection with those houses and with my movable and immovable property  Eightly
I specially direct that Devi Charan should not perform my funeral ceremonies and the trustees should get them performed by another
It would thus appear that the relations between the respondent and the testatrix were extremely strained at the time when the will in question was executed and it appears that the testatrix did not wish that the respondent should have anything to do with her properties and any concession she had made in his favour in her two previous wills appears to have been completely withdrawn by the impugned will
Even Prem Shankar one of the witnesses examined by the respondent clearly admitted that Devi Charan was not made a trustee by that trust deed because Smt
Jog Maya was offended with him
The appellant has also stated in his evidence that relations between the respondent and the testatrix were not good
A careful analysis therefore of the previous wills or draft executed by Jog Maya show the presence of the following important features in all these documents 1
That relations between the respondent and Smt
Jog Maya were extremely strained so much so that he was not permitted to perform her funeral rites or touch her body
880 2
Substantial provision was made for religious and charitable purposes in all the wills
Express prohibition was made in all the wills regarding alienating the properties by the legatees or the trustees
That in the draft will as also the impugned will Durga Prashad was constituted as the executor of the will
We will develop these features a little later after discussing the points of law involved in the case
The High Court appears to have drawn the presumption regarding the revocation of the will from two facts
In the first place it was found that there was no positive evidence to show that the will was in existence at the time of the death of the testatrix
In this connection it relied on the evidence of Durga Prashad that a few days prior to her death Jog Maya had told him that the original will was in safe custody in the bank but this fact was falsified by the circumstance that when the sealed box kept in the bank was opened no will was found
In our opinion in the initial application which the appellant gave for grant of probate he did not mention at all that Jog Maya told him that the original will was kept in safe custody in the bank
This averment was made in an amended application which was given by him before the District Judge
In the circumstances therefore we feel that no such statement was ever made by Jog Maya to the appellant who tried to overstate his case which was clearly an after thought otherwise there was no reason why he should not have mentioned this fact in the initial petition for the grant of probate which he filed before the District Judge
In these circumstances not much turns upon what Durga Prashad says about the will being in the box
The High Court then relied on the circumstance that in spite of every possible search while the draft exhibit C 1 was in fact found the will was not found at all
The High Court therefore drew presumption that the testatrix must have revoked the will by destruction or otherwise
The question as to whether or not a presumption should be drawn in such cases as a rule of law is extremely doubtful
Moreover even if any such presumption is drawn the said presumption is rebuttable and may be rebutted either by direct or circumstantial evidence
In the first place the High Court relied on the case of Anna Maria Welch and Lucy Allen Welch vs Nathaniel Phillips where the Privy Council observed as follows Now the rule of the law of evidence on this subject as established by a course of decisions in the Ecclesiastical Court is this that if a will traced to the possession of the 881 deceased and last seen there is not forthcoming on his death it is presumed to have been destroyed by himself and that presumption must have effect unless there is sufficient evidence to repel it
It is a presumption founded on good sense
The serious question for us to determine is whether the ratio of this case can be applied to Indian conditions with full force
This matter was clearly considered by the Privy Council in the case from India in Padman  Ors
vs Hanwanta  Ors
where the Privy Council sounded a note of caution in applying the aforesaid presumption to this country having regarding to the nature and habits of the people of our country
While approving the observations of the Chief Court their Lordships in the aforesaid case observed as follows We think that the more reasonable presumption in this case is that the will was mislaid and lost or else was stolen by one of the defendants after the death of Daula
Their Lordships think that it was perfectly within the competency of the learned Judges to come to that finding
Much stress has been laid on the view expressed by Baron Parke in Welch vs Phillips  that when a will is traced to the possession of the deceased and is not forthcoming at his death the presumption is that he has destroyed it
In view of the habits and conditions of the people of India this rule of law if it can be so called must be applied with considerable caution
In the present case the deceased was a very old man and towards the end of his life almost imbecile
There is nothing definite to show that he had any motive to destroy the will or was mentally competent to do so
On the other hand the circumstances favour the view the Chief Court has taken that the will was either mislaid or stolen
The Privy Council made it very clear that the more reasonable presumption in a case like this should be that the will was mislaid lost or stolen rather than that it was revoked
The Privy Council further endorsed the fact that the presumption of English law should be applied to Indian conditions with considerable caution
The High Court in the instant case does not appear to have kept in view the note of warning sounded by the Privy Council in the aforesaid case
882 There are a large number of authorities of the Indian High Courts which take the view that even if the presumption is applied it should be applied with very great cautions
Before however dealing with these authorities we would like to san the English law on the point
Jarman on Wills while dwelling on this aspect of the matter observed as follows If a will is traced into the testator s possession and is not found at his death the presumption is that he destroyed it for the purpose of revoking it but the presumption may be rebutted 
Where the will makes a careful and detailed disposition of the testator s property and nothing happens to make it probable that he wishes to revoke it the presumption raised by the disappearance of the will may be rebutted by slight evidence especially if it is shown that access to the box or other place of deposit where the will was kept could be obtained by persons whose interest it is to defeat the will
It is therefore clear that even if a presumption of the revocation of the will is drawn from the fact that it was not found on the death of the testatrix it cannot be laid down as a general rule and can be rebutted even by slight evidence particularly where it is shown that some party had access to the place of deposit
The Privy Council has doubted whether this presumption is a rule of law at all
In Halsbury s Laws of England Third Edition Vol 39 at p 896 it was thus observed Where a will is found destroyed or mutilated in a place in which the testator would naturally put it if he thought he had destroyed it the presumption is that testator destroyed it and that the destruction was done animo revocandi   
Similarly if a will was last traced to the possession of the testator and is not forthcoming at his decease there is a prima facie presumption in the absence of circumstances tending to a contrary conclusion that the testator destroyed it animo revocandi
The presumption may be rebutted by evidence which however must be clear and satisfactory
Recent declarations by a testator of satisfaction at having settled his affairs or of goodwill towards the persons benefited by the will or of adherence to the will and to the contents of the will itself may be used for this purpose
The presumption may it seems also be rebutted by a consideration of the contents of the will itself
883 It appears that so far as the United States is concerned no presumption as a rule of law can be drawn where the will is lost but the matter depends on the statute of a particular State
In Corpus Juris Secundum Vol
95 it has been observed as follows Since in accordance with the general rule that a will speaks from the death of the testator an instrument which has been duly executed as a will and never been revoked becomes effective on the death of the testator although it cannot be found or is not in existence it is a well settled general rule which in some jurisdictions is in effect prescribed by statute that a will which has been lost or destroyed either after the testator s death or accidentally or fraudulently during his lifetime may be established or admitted the probate as by admitting a properly proved copy or duplicate of the will to probate or by a proceeding in accordance with the statute in the court having jurisdiction thereof and on competent and sufficient proof of its execution loss or destruction and contents
Thus it is manifest that in the first place when the will is traced to the possession of the testator but not found at the time of death no presumption can be drawn as a rule of law but in the facts and circumstances of a particular case such a presumption may be drawn and can be rebutted even by slight evidence
In the case of Finch vs Finch1 the Court observed as follows There is no doubt that if a man dies after duly executing a will and at the time of his death his will having remained in his custody is not in existence the law presumes that it was revoked
But in all such cases the question to be determined is whether the will was or was not in existence at the time of the death The evidence certainly points strongly in that direction and there is nothing to shew any change of intention which was likely to lead to the revocation of the will
He had evidently not changed his mind when he last spoke to his daughter on the subject and as to the three weeks that elapsed between that conversation and his death the evidence is a perfect blank
There is nothing to shew any change of intention but there is evidence that during that interval he was not on good terms with his son and that although they were living in the same house they did not speak to each other
884 Although the Court stated the law clearly that a presumption in such circumstances could be drawn it held that the presumption was rebutted by the important fact that there was nothing to show that there was any other in the intention of the testator to revoke the will
On the other hand strained relations between the father who was the testator and the son continued
In these circumstances it was held that the presumption was rebutted
Against this background we shall now deal with the authorities of the Indian High Courts
But before we do that it may be necessary to extract section 70 of the Act No unprivileged will or codicil nor any part thereof shall be revoked otherwise than by marriage or by another will or codicil or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed or by the burning tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same
A perusal of this section would clearly reveal two important features
In the first place the section has been couched in negative terms having a mandatory content
Secondly the section provides the mode and the circumstances under which an intention to revoke can be established
In these circumstances therefore the onus is on the objector who relies on the revocation to prove that the will had been revoked after it has been proved to have been duly executed
Under section 70 of the Act the will can be revoked inter alia by burning tearing or otherwise destroying and unless any of the circumstances has been proved by the objector by cogent evidence the question of the revocation of the will naturally not arise
While construing this section this Court in the case of Anil Behari Ghosh vs Smt
Latika Bala Dassi  Ors
observed as follows For proving that the will had been revoked it had to be shown that the testator had made another will or codicil or by some writing declared his intention to revoke the will
Such a document is required by section 70 of the Act to be executed in the same manner as a will
Such a revocation could also have been proved as the section lays down by turning tearing or otherwise destroying the will by the testator himself or by some other person in his presence and by his direction thus clearly indicating his intention of revoking the will
885 Applying these observations to the facts of the present case there is absolutely no evidence to show that even though Smt
Jog Maya had made a registered will in favour of the appellant she revoked it at any time in the manner enjoined by section 70 of the Act
In the case of Kaikhushru Jehangir vs Bai Bachubai Jehangir  Ors
while construing section 70 of the Act it was pointed out that a will cannot be revoked by implication
In this connection the Court made the following observations Under the statute it is necessary to establish an intention to destroy
There cannot be any revocation by necessary implication
The revocation can only be by one or the other of the modes which are specified in the statute and so far as we are here concerned these modes are specified in section 70 Succession Act
In the case of Babu Lal Singh  Anr
vs Baijnath Singh  Anr
a Division Bench of the Patna High Court while referring to the Privy Council case of Welch vs Phillips supra observed as follows In my opinion the essential condition of the rule of English law if a will traced to the possession of the deceased and last seen there is not forthcoming on his death  has not been established
Therefore the presumption of law on which Mr Das laid much stress has no application to the facts of the present case  The onus primarily lies on the party propounding the copy to account for the absence of the original  
Thus there is nothing to show any change of intention which was likely to lead to the revocation of the will
In the circumstances the only reasonable inference is that the document is either mislaid or lost
The loss of a will does not operate as a revocation
It has been established that the will was duly executed by Man body and there is no uncertainty about the contents of it as a certified copy of it has been produced
We are inclined to agree with the view taken by the Patna High Court
In the case of Arya Printinidhi Sabha Punjab Jullundur vs Dev Raj Vir Bhan and Anr
it was clearly pointed out that the presump 886 tion of English law has to be applied with great caution and the Court observed as follows The rule is now firmly settled that the presumption of English law that when a will is traced to the possession of the deceased and is not forthcoming at his death is that he has destroyed it must be applied in India with considerable caution
In the case of Brundaban Chandra vs Ananta Narayan Singh Deo a Division Bench of the Orissa High Court has rightly observed as follows But there is formidable English authority for the proposition that if a testament was in the custody of the testator at the time of his death and is not forthcoming on his death it is presumed to have been destroyed by himself
This presumption can however be rebutted and the weight to be attached to such presumption will depend upon the character of the custody which the testator had over the will
In England wills are usually deposited either in a Bank or with a Solicitor
But the same presumption is hardly applicable in all circumstances in India where the habits and conditions of the people vary
Here in India deeds are not preserved with that amount of care as is done in England
On the other hand where a document is registered no care is taken at all of its custody as a certified copy is easily available and the law allows its production in proof of the original
Consequently having regard to the habits and conditions of the people here when a document like a registered will is not forthcoming after the testator s death presumption may well arise that it has been mislaid as seems to have happened here 
It follows that in this country a presumption of revocation of a will cannot be drawn merely from the fact of its disappearance
   Where a will makes a careful and detailed disposition of the testator s properties and nothing happens to make it probable that he wishes to revoke it the presumption raised by the disappearance of the will may be rebutted by slight evidence especially if it is shown that access to the box or other place of deposit where the will was kept can be obtained by persons whose interest it is to defeat the will
We find ourselves in agreement with the view taken by the High Court
887 To the same effect are the decisions in Satya Charan Pal vs Ashutosh Pal  Ors Efari Dasya vs Podei Dasya Shib Sabitri Prasad  Ors
vs The Collector of Meerut Anwar Hossein vs Secretary of State for India Chouthmal Jivarjee Poddar vs Ramachandra Jivarjee Poddar and Pt
Devi Charan vs Durga Porshad Chhanu Lal  Ors
The correct legal position may therefore be stated as follows 1
That where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case
Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people
That the presumption is a rebuttable one and can be rebutted by the slightest possible evidence direct or circumstantial
For instance where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly the presumption is rebutted
That in view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen lost or surreptitiously removed by interested persons cannot be excluded the presumption should be applied carefully
That where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the act of revoking the will was against the temperament and inclination of the testator no presumption of revocation of the will can be drawn
888 5
That in view of the express provision of section 70 of the Act the onus lies on the objector to prove the various circumstances viz marriage burning tearing or destruction of the will
When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by interested persons
We shall now apply the aforesaid principles to the facts of the present case
It is true that the impugned will despite search was not found at the time of death of the testatrix
At the same time it cannot be gain said that the clear finding of the courts below is that the will was definitely executed by the testatrix with a sound disposing mind and had been attested by as many as 7 witnesses and had been proved
We have already indicated the essential features common to all the will executed by the testatrix in the past and three things appear to be very conspicuous 1
That relations between the testatrix and Durga Prashad were very cordial and therefore there could be no occasion for the testatrix to suddenly change her mind to revoke the will so as to benefit the respondent a person whom she so detested that she made a provision in the will to the effect that he should not be permitted to touch her dead body or perform her funeral rites
The lady was of an extremely charitable and religious bent of mind and she made substantial provision for religious and charitable purposes in all the wills including the draft will exhibit C 1
She would not without any reason revoke the will which contained clear and strong provision regarding religious and charitable purposes
It is difficult to believe that she would shed her religious and charitable inclination by revoking the will and deleting the religious and charitable purpose contained in the will so as to benefit the respondent and make him the absolute owner of the properties without any restriction
This seems to be wholly improbable
That in all the dispositions Smt
Jog Maya had seen to it that a clause was inserted in the will under which the legatee or trustee was prohibited from alienating the properties
Indeed if she revoked the impugned will the result will be that the property would go to the respon 889 dent without any conditions or restrictions a conduct that would be against the temperament of the testatrix
Apart from these features there are other circumstances which go to show that the will was not revoked by the testatrix
RW 3 admitted that Devi Charan respondent never lived in the house house of Jog Maya but he used to visit it once or twice a month
Similarly RW 7 another witness for the respondent admits that Devi Charan used to visit Smt
Jog Maya previous to her death
Even the respondent Devi Charan admits clearly in his evidence that as he was not well his wife had gone to see Smt
Jog Maya on the previous evening of her illness
In this connection the statement of Devi Charan runs thus I came to know about her illness on the previous evening
As I was not well my wife went to see how Smt
Jog Maya was
 From the evidence adduced by the respondent himself therefore it appears that Devi Charan had clear access to the house of Jog Maya which he visited off and on and his wife visited the house even during the illness of Jog Maya which resulted in her death
Devi Charan was fully aware that the will executed by Jog Maya completely deprived him of any interest in the properties
In these circumstances the possibility that either Devi Charan or his wife may have pilfered or stolen the will in order to deprive the appellant of its benefits cannot be excluded
In this connection it may be noted that the respondent has stated in his evidence that he complained to Jog Maya that he had been deprived of his right by making a trust in the name of Durga Prashad and Ram Nath and she assured him that she would destroy the trust deed and would make him the owner of the property
This statement is undoubtedly false and would not have been made by a woman of the nature and character of Jog Maya
Indeed if the statement was made to him in August 1955 as mentioned by the witness in his evidence then there was no reason why when the respondent filed his first objection on 27 1 1956 before the Sub Judge Delhi he did not mention it there nor even in the second objection and the additional pleas filed by him before the District Judge Delhi
This shows that his statement in court is absolutely false and is made merely for the purpose of defeating the claim of respondent
Again it appears that although the will was executed in 1947 about 8 years before her death Smt
Jog Maya never expressed her intention to revoke the will at any time during this period to any of the attesting witnesses of the will or to Pt
Ram Nath who was a trustee under the draft will of her intention to revoke the will
It is difficult to 890 believe that she would leave the entire property to the respondent whom she hated so much
Further there is absolutely no evidence to show that Devi Charan succeeded in gaining the favour of or winning the confidence of Smt
Jog Maya at any time before her death so as to put her in a mood to leave the entire property absolutely to him after her death by revoking the impugned will
Nor is there anything to show that the respondent estranged the testatrix from the appellant to such an extent that the appellant fell in her estimation
It is also neither pleaded nor proved that since the execution of the impugned will any circumstance existed or incident happened which brought about a serious estrangement between the appellant and the testatrix so as to induce her to revoke the will
Having regard to these circumstances mentioned above which do not appear to have been considered by the High Court at all we are clearly of the opinion that the presumption if any that the will was revoked by Smt
Jog Maya has been sufficiently rebutted and the objector has miserably failed to discharge the onus which lay on him to prove that the will was revoked
Moreover the will being a registered one and being the product of the free will of the testatrix there must be strong and cogent reasons for holding that it was revoked
The fact that the will was not found despite search at the time of death of Smt
Jog Maya in the circumstances is not sufficient to justify a presumption that the will was revoked
In the circumstances of this case particularly having regard to the fact that the respondent who would be interested in destroying the will had an access to the house of the testatrix the presumption would be that the will was either stolen or misplaced by him or at his instance
For these reasons we allow this appeal with costs set aside the judgment of the Division Bench of the High Court and restore the judgment of the Single Judge of the High Court and allow the application of the appellant for probate
NVK Appeal allowed


Summary:
The respondent was the adopted son of the testatrix who made a will in 1935 declaring that her properties were dedicated to a private temple of hers in her house and would remain so for all times to come
In 1938 however she revoked the earlier will and dedicated a part of the house and certain other items for the benefit of the temple
But she expressly prohibited the respondent from performing her funeral rites and gave certain rights over the property to the appellant and his wife
In 1947 she again revoked the will made in 1938 and bequeathed her properties to the appellant without right of alienation and had also clearly stated that the respondent should have no concern with her estate and should not be allowed to touch her dead body
On her death though the original will was not found a draft will which was almost of the same time was discovered
The recitals in the draft were almost the same as in the will of 1947
In the appellant s petition before the District Judge for grant of letters of administration or probate the respondent contended that the testatrix was not of sound disposing mind at the time of the alleged execution of the will and that the appellant had exercised undue influence over her in the execution of the will
It was further alleged that the will was subsequently revoked and that was the reason why it was not found in the house despite search
The District Judge accepted the respondent s version and rejected the petition for probate
On appeal a single Judge of the High Court found that the will was genuine and had not been revoked
On further appeal the Division Bench restored the order of the District Judge dismissing the appellant s application for probate by drawing a presumption that the testatrix had revoked the will by destroying it before her death
In appeal to this Court it was contended on behalf of the appellant that the High Court was in error in drawing a presumption of revocation of the will in view of the express provisions of section 70 of the and in the alternative even if the presumption was available to the respondent the same being a rebuttable one
was sufficiently rebutted by facts and circumstances proved in the case
Allowing the appeal  HELD The presumption that the will was revoked by the testatrix had been sufficiently rebutted and the respondent had failed to discharge the onus which lay on him to prove that the will was revoked
The will being a product of free will of the testatrix there must be strong and cogent reasons for holding that it was revoked
The fact that the will was not found despite search was not 874 sufficient to justify a presumption that the will was revoked
Having regard to the fact that the respondent was interested in destroying the will and had access to the house the presumption would be that the will was either stolen or misplaced by him or at his instance
890C E The correct legal position may be stated thus i Where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case
Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people
ii Such a presumption is a rebuttable one and can be rebutted by the slightest possible evidence direct or circumstantial
For instance where it is proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstance which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly the presumption is rebutted
iii In view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the bank or with the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen lost or surreptitiously removed by interested persons cannot be excluded the presumption should be applied carefully
iv Where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the Act of revoking the will was against the temperament and inclination of the testator no presumption of revocation of the will can be drawn
v In view of the express provision of section 70 of the the onus lies on the objector to prove the various circumstances viz marriage burning tearing or destruction of the will
vi When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by the interested persons
887B 888A Anna Maria Welch  Lucy Allen Welch vs Nathaniel Phillips   Padman  Ors
vs Hanwanta  Ors AIR 1915 PC 111 Finch vs Finch 1 P  D 371 Anil Behari Ghosh vs Smt
Latika Bala Dassi  Ors   Kaikhushru Jehangir vs Bai Bachubai Jehangir Jullundur vs Dev Raj Vir Bhan  Anr AIR 1963 Pun 208 Halsbury s Laws of England Third Edition Vol 39 at 896 Jarman on Wills Corpus Juris Secundum Vol 95 referred to
Babu Lal Singh  Anr
vs Baijnath Singh  Anr  Brundaban Chandra vs Ananta Narayan Singh Deo AIR 1956 Orissa 151 Satya Charan Pal vs Asutosh Pal  Ors AIR 1953 Cal
657 at 659 660 Efari Dasya vs Podei Dasya ILR at 486 Shib Sabitri Prasad  Ors
vs The Collector of Meerut ILR 1907 All 82 at 87 Anwar Hossein vs Secretary of 875 State for India at 892 Chouthmal Jivarjee Poddar vs Ramachandra Jivarjjee Poddar AIR 1955 Nag
126 at 136 and Pt
Devi Charan vs Durga Porshad Chanu Lal  Ors AIR 1967 Delhi 128 at 132 approved