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asked 2018-12-08 05:24:22 -0500

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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 On appeal a single Judge of the High Court found that the will was genuine and had not been revoked.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 s. 70 of the Indian Succession Act, 1925 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HELD: The presumption that the will was revoked by the testatrix had been sufficiently rebutted and the respondent had failed to discharge the onus which lay on him to prove that the will was revoked.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 SLA Family Lawyers in Chandigarh 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 Indian Succession Act 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 v. Nathaniel Phillips, [1836] EngR 1157

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