Guruprosad Misra vs Lakshmi Priya Debi

Mookerjee, J.—This is an appeal on behalf of the propounder of a will alleged to have been left by one Baikuntha Nath Hota The learned Subordinate Judge has refused to grant letters of administration with a copy of the will annexed, as according to him, although due execution and attestation had been proved, the will had subsequently been revoked by the testator.

In the present appeal, the Respondents have not questioned the findings so far as due execution and attestation of the will are concerned. The only point for decision in this appeal is whether the will had been revoked by the testator before his death. To appreciate the point in issue, it is necessary to refer to some of the circumstances attending the execution of the will and also other steps taken by the testator after such execution.

On December 1, 1939, Baikuntha Nath executed a deed of gift in favour of his grandsons Hemanta and Ram Chandra who are Defendants Nos. 4 and 5 in the present proceedings and are the sons of Baikuntha''s daughter Lakshmi Priya. Seven days later Baikuntha executed a will. Five schedules were attached to the will and he bequeathed particular properties to certain relations including the grandsons, Defendants Nos. 4 and 5 above mentioned, and to Hemangini, the daughter of his predeceased and only son Ashutosh. Ashutosh''s widow Sailabala was also given a life interest in certain properties. Two other persons, Sasanka and Kalimohan who are Defendants; Nos. 8 and 9, and are distant agnatic relations of the testator, were given certain properties. The will was registered by Baikuntha on January 3, 1940. The deed of gift in favour of Defendants Nos. 4 and 5 although executed before the will was registered on January 4, 1940. On September 24, 1940, Baikuntha filed a suit for setting aside the deed of gift in favour of Defendants Nos. 4 and 5. This suit was ultimately compromised. The deed of gift was set aside, but it was followed by another deed of gift which included the properties which had been bequeathed either to Defendants Nos. 4 and 5 themselves or to some other persons.

Hemangini, the daughter of the predeceased son Ashutosh, was given in marriage about July, 1942. Shortly thereafter, Baikuntha executed another deed of gift in favour of Guruprosad, the propounder of the present will and husband of Hemangini. That deed of gift has not been produced, and we do not know the properties which were the subject-matter of that deed. Shortly thereafter, Baikuntha died in October, 1942. The will which had been executed in December, 1939, was not probated. In January, 1949, about eighteen months after the death of Hemangini, Guruprosad applied for the issue of letters of administration with a copy of that will annexed.

Various issues had been raised questioning due execution and attestation of the will and the testamentary capacity of the testator as also other points. It is not necessary in the present appeal to go into those questions, as the only point discussed in the present appeal is whether the will after being executed was revoked or not. The learned Subordinate Judge had found in favour of the propounder on all the points except on the question of revocation.

So far as the question of revocation is concerned, it is contended on behalf of the objectors Respondents that from the fact that the original will had not been produced, a presumption would arise that the testator had revoked the will before his death. On behalf of the propounder it is urged that the will was in existence even after the death of the testator, and, therefore, there cannot be any such presumption in the present case even if such a presumption arises.

The English courts have consistently laid down that when a will is shown to have been in the custody of the testator, but is not found after his death, a presumption arises that the will had been destroyed by the testator. Welch v. Phillips (1836) 1 Moo. 299, 302 ; 12 E.R. 828, 829, Sugden v. Lord St. Leonards (1876) 1 P.D. 154. It has also been held that on proof of facts that the will had not been found after the death of the testator, it is not necessary for those who allege that there has been a revocation to prove, as a matter of fact, that there was a revocation or that the will had been either lost or destroyed. Patten v. Poulton (1858) 1 Sw. and Tr. 55 164 E. R. 626. Such a presumption may be rebutted by the propounder of the will if he can show that the will was in existence after the death of the testator, or even from surrounding circumstances, such as, on proof of declaration of the testator after the will and before his death of unchanged affection in favour of the devisees, or of an intention to stick to the devices originally made. In the Estate of Mackenzie L. R. [1909] P. 305; Drake v. Sykes (1906) 22 T.L.R. 741 upheld on appeal in (1907) 23 T.L.R. 747.

The principles above mentioned have been referred to with approval to a certain extent by Indian courts as well. Anwar Hossein v. Secretary of State for India (1904) ILR 31 Cal. 885. It was observed that having regard to the habits of the people of this country and on the facts of that particular case, another presumption might very well be raised that when a document, such as a will, was not forthcoming after the testator''s death, it had been mislaid. The same view was expressed in Shib Sabitri Prasad v. The Collector of Meerut (1906) I.L.K. 29 All. 82. It was observed in this latter decision that the presumption of the English law that if a will, traced to the testator''s possession before his death, but not forthcoming after his death, had been destroyed by him amino revocandi would at least be not so strong in India as in England, inasmuch as in the latter country the wills were taken greater care of than in India. This question came up for consideration before the Judicial Committee in Padman v. Hanwanta (1915) 19 C.W.N. 929. After referring to Welch v. Phillips (supra), the Judicial Committee proceeded to observe that in view of the habits and conditions of the people of India, this rule of law, if it could be so called, must be applied with considerable caution in this country. In a later case, Harilal Chatterjee v. Sarat Chandra Chatterjee (1939) 43 C.W.N. 824, reference was made to the principle of the English law mentioned above without adverting to the limited application of that principle to Indian conditions. This decision could not be taken to be an authority for laying down the general proposition that the principle always applied under all circumstances.

The correct proposition appears to be as laid down by the Judicial Committee in the case just referred to.

In the present case three of the witnesses examined on behalf of the propounder (viz., witnesses Nos. 1, 3 and 5) support the case that the will was in existence even after the death of the testator. Even if that rule in English Law were attracted, the circumstances of the present case are such that the court has to seriously consider whether the will was, as a matter of fact, revoked by the testator subsequent to its execution. The test in a case of this description will be of the same nature as was applied by this Court in Efari Dasya v. Podei Dasya (1927) ILR 55 CW. 482.

We have next to consider as to how far the objectors have been able to prove that the will had, as a matter of fact, been revoked. In view of the directions which we are going to give in this case, we would not deal in greater detail with the evidence on this point. We need only refer to such part of the evidence as is necessary for supporting the conclusion reached by us.

According to the objectors, the testator had actually torn a part of the will to indicate and give expression to his intention that he wanted to revoke the will in its entirety. The only person examined in whose presence the actual act of revocation is alleged to have taken place is Defendants'' witness No. 6, Murari Mohan Hota. He is the father of Defendants Nos. 8 and 9, in whose favour a portion of the property had been devised by the testator under the will in question. He has referred to the actual tearing of the will at Midnapore. He further stated in course of cross-examination that one Mahendra Mohanti was also present at the time when the will was torn by the testator.

Defendants'' witness No. 1, Umesh Chandra Das Mahapatra, is a pleader practising at Midnapore. He states that he was the pleader who had filed the suit for the revocation of the deed of gift executed by Baikuntha. Baikuntha had asked him as to how to revoke or set aside the will. The pleader had given him the necessary instructions. As to what the instructions actually were he does not state. Mahendra Mohanti accompanied Baikuntha to the pleader. The actual act of revocation as alleged by the Defendants could not be testified by the pleader as even according to the Defendants'' case that had not taken place in his presence.

Defendants'' witness No. 4, Parmeswar Kamila, stated that in connection with certain transactions with Baikuntha he had been shown the original will which was torn at the top. He did not, however, read the document which was torn at the top, and he did not know what that document was about. The learned Subordinate Judge has rightly not considered his evidence as being quite relevant for the decision on the question of revocation. To a similar effect was the deposition of Nani Gopal Ray, Defendants'' witness No. 5.

On behalf of the propounder, on the other hand, the definite case was that the original will was still in existence and was in the custody of Defendant No. 2, Sailabala Debi, daughter-in-law of Baikuntha. Some attempts had been made by the propounder to cite Sailabala for producing the original will. Sailabala did not, however, produce the same. A point has been raised before us on behalf of the Respondents that the service of notices on Sailabala was not a proper one. We shall consider this aspect of the case later on, but that also is not of much importance in view of the directions which we intend to give in the present case.

Reference, however, has to be made to the deposition of Ganesh Chandra Misra, Plaintiff''s witness No. 3. He was the head master of an M. E. school and the president of the Serampore Union Board. He was one of the attesting witnesses of the will. He had seen the original will twice after the death of Baikuntha. He alleged that on one of these occasions Sripati Charan Tripathi, father of Sailabala, had taken the will to his house for consulting him. Ramesh Chandra, Plaintiff''s witness No. 5, who was the president of the Potashpur Union Board for some time, also saw the original will after the death of Baikuntha when it was taken to him by Sailabala''s father Sripati. Reference need not be made at this stage to the statement of the propounder Guruprosad that he had seen the original will after the death of his wife Hemangini from his mother-in-law Sailabala.

Without discussing the question as to how far the witnesses referred to above should or should not be believed, there is an important lacuna in the case which could have been filled in only if the parties had examined the necessary witnesses from amongst those referred to above. When it is alleged by one of the parties that the will is still in existence and is in the custody of one of the parties to the suit, a more serious attempt ought to have been made to get that will produced before the court. An attempt had been made by the propounder to cite Sailabala. From the records, it appears that the peon who was deputed by the court to serve the summons on Sailabala, requiring her to produce the original will in court either herself or through an agent, went to serve the same. Sailabala was living in her father''s house and there was no other male member in the house. To the lady was sent information; she came near the door; the copy of the notice was read out to her; and ultimately the notice was hung on the outer door. Under the provisions of Rule 8 of Order XVI read with those of Rule 17 of Order XV of the CPC a discretion is given to the court to determine as to what extent the procedure laid down in the Code had been fulfilled when the question is about the proper service of summons on a witness. An exception has also to be made particularly where the person to be served is a pardanashin lady. In Kshirode Sundari Dasi v. Nabin Chandra Saha (1915) 19 C.W.N. 1231, the circumstances under which the copy of the notice was hung up on the outer door were justified. The learned Subordinate Judge was not, therefore, justified in proceeding on the footing that as the original will had not been produced on attempts made by the propounder, presumption would arise against the propounder, and the court would presume that if the original will had been produced, it would have supported the case of the objectors. On the conclusion reached by us about the nature of the service of summons such a presumption should not have been drawn by the learned Subordinate Judge.

An attempt should be made even now to get the original will, alleged to be in the custody of Sailabala. She had been cited by the propounder, and the latter should be given another opportunity of serving the summons on her for production of that original will which is stated to be in her custody.

Another very important witness who ought to have been called was the father of Sailabala. According to the evidence of witnesses Nos. 3 and 5 examined on behalf of the propounder, it was Sripati Charan Tripathi, father-in-law of Ashutosh the predeceased and only son of the testator, who had taken the will to two of the witnesses examined on behalf of the propounder. In the circumstances of this case, we think that he is a person who should be called as a court-witness by the court,-it being open to both the parties to cross-examine him if they so desire. Unfortunately the evidence which was led by the propounder about the existence of the will after the death of the testator did not refer to the condition in which the original will was found by them when they saw it at that stage. Neither" the propounder put this relevant question to the witnesses, nor did the objectors clear up this point, nor was this elicited during the cross-examination.

As regards the question of revocation, the oral evidence of expression of opinion about the revocation or the intention to revoke is not admissible on the face of it. The evidence as to revocation must satisfy the pre-requisites of intention to revoke, followed by an act in pursuance of the intention of the testator. It is now well-settled that mere expression of intention to revoke, or even an act to revoke, if not completed, would not be sufficient, to prove revocation of the will. In the absence of formal revocation as by a deed, the mere proof of the intention of the testator to revoke is not sufficient unless it is accompanied by an act. As for instance, a will destroyed by a person of unsound mind has not the effect of revoking a will. In the Estate of Mary Taylor (1919) 64 S.J. 148; Brunt v. Brunt L.R. (1873) 3 P&D. 37.

The evidence as led on behalf of the objectors in the present case and to the extent as stated above, even if it had been believed, is to the effect that the will was torn. There is no doubt the evidence also of Murari Mohan, Defendants'' witness No. 6, of an expression of intention proceeding the actual act of destroying the will. Whether the will was actually torn or not may be proved by producing the original will which is stated to be in existence, and this makes it all the more important that the original will should still be attempted to be produced in court. It is not necessary that the entire will should be torn. The manner in which and the circumstances under which the testator tears a will, will have to be carefully considered by the court of facts on such materials as may be available to the court when the matter goes back, as we are going to direct, viz., the evidence which is already on the record, taken along with the additional evidence which we have directed to be taken, and such further evidence as the parties may adduce, after the witnesses have been examined. The court will have to come to a decision on the question of fact whether there was revocation in the eye of law or not so far as the will left by Baikuntha is concerned.

The findings reached by the learned Subordinate Judge about the due execution and attestation et cetra are affirmed. The only point on which the matter shall be reviewed by the lower court will be whether after such proper execution and attestation, the testator had revoked the will in fact and in law.

The decree passed by the learned Subordinate Judge is accordingly set aside and the matter will go back for decision in accordance with the directions given above.

There will be no order as to costs in this Court. Further costs will be in the discretion of the court below.

Lahiri J.

I agree.