Case: Durga Prasad Vs. Devi Charan

2. Put briefly the appellants 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 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 July 1, 19473. The proceedings for probate were contested by Devi Charan who denied the execution of the will on the ground that Smt. Jog Maya 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 search4. The District Judge accepted the plea of the respondent and dismissed the application for probate by his order dated May 3, 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P. D. Sharma who reversed the decision of the District Judge and found that the will was a genuine document and had not been revoked.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 Prashad and issued letters of probate and 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 probate5. 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 the will was concerned it agreed with the finding 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 practiced 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 issues 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) Ex. P. 10, and that she was of sound and disposing mind at the time of the execution, as held by the learned District Judge. Both the Courts have thus given concurrent findings on issues 1 and 2, viz., on the questions as to whether Jog Maya executed the alleged will dated July 1, 1947, (certified copy of which has been put on the record and marked as Ex. P. 10) and whether Jog Maya was of sound and disposing state of mind when she executed the said will

Court's reasoning:
9. 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. Smt. 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 March 11, 1935. On May 7, 1935 she executed a will and got it registered on May 9, 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 etc11. The third will which is the will in question was executed on July 1, 1947 and registered on July 9, 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 while 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 though 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 centers round the ground portion of the house and other movable properties16. 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 (sic) 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 Ex. 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 otherwiseThis matter was clearly considered by the Privy Council in the case from India in Padman v. Hanwanta (AIR 1915 PC 111 : 17 Bom LR 609 : 13 ALJ 801) 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 v. Phillips (supra) 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 case19. There are 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 caution. Before however dealing with these authorities we would like to scan the English law on the pointIn 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 fact 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 lost of a will does not operate as a revocation. It has been established that the will was duly executed by Manbodh 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 Court31. 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(2) 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(3) 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 banks 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) 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 or that the act of revoking he will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn(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(6) 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 persons32. We shall now apply the aforesaid principles to the facts to 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 feature common to all the wills 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(2) 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 Ex. 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) 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 respondent without any conditions or restrictions, a conduct that would be against the temperament of the testatrix33. Apart from these features, there are other circumstances which go to show that the will was not revoked by the testatrix34. R.W. 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, R.W. 7, another witness for the respondent, admit 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 come to know about her illness on the previous evening. As I was not well, my wife went to see how Smt. Jog Maya wasFrom 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 benefit 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 January 27, 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 respondent35. 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 believe that she would leave the entire property to the respondent whom she hated so much36. Further, there is absolutely no evidence to show that Devi Charan succeeded in gaining the favour of 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 will37. 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 misplace by him or at his instance.