BRUNDABAN CHANDRA Vs. ANANTA NARAYAN SINGH DEO

JUDGEMENT

(1.) THE appeal arises out of an application for Letters of Administration on a certified Copy of a Will. The late Raja Birabar Narayan Chandra Dhir Narendra Bahadur of Madhupur executed and registered the said will on 27 -12 -1945, in favour of the plaintiff -respondent, who is the second son of his daughter Sm. Brajeswari Devi, bequeathing to him his house at Cuttack, known as Madhupur Kothi. He died on 2 -7 -1946 at Garh -Madhupur leaving him surviving his adopted son, viz., the defendant -appellant and the said Brajeswari Devi, his only daughter and the mother of the plaintiff. It is the common case of both parties that the late Raja's wife had pre -deceased him, and that his daughter Brajeswari Devi who was married to the Raja of Dharakote and became a widow in 1938 had been living with her father till his death. On the day previous to her marriage the defendant. Shri Brundaban Chandra Dhir Narendra who is the brother of Brajeswari's husband, was adopted by the late Raja of Madhupur as his son. The plaintiff's case was that the Will was in the custody of his mother till the Raja's death, and in the confusion following the death of the Raja necessitating the removal of articles and furniture from the room where the Raja died, the suit -case containing the will was mislaid, and the Will had remained untraced till then. The suit was filed on a certified copy of the Will, which has been marked Ex. 2. The case for the objector, namely the present Raja of Madhupur is that the execution of the Will was brought about by undue influence exercised by the plaintiff's mother Sm. Brajeswari Devi and that it was subsequently revoked by destruction 'animo revocandi'. The learned Additional District Judge has found that the Will was the free expression of the testator's intention to benefit his second grandson and that it was not tainted by undue influence or coercion. He has also found that the alleged destruction of the Will by tearing it and consigning it to the fire was not made out by the defendant.

(2.) THE valid execution of the Will is not seriously contested before us. The only point in controversy is whether it was revoked by the testator a few days prior to his death. Apart from the oral evidence of the two witnesses examined by the defendant who speak to the destruction of the Will, learned counsel for the appellant asks us to raise a presumption, in favour of his client, that the Will must have been destroyed, if it is traced to the custody of the testator at the time of his death and has not beenfound since then. It is, therefore, necessary tostate a few facts before examining the merits of this contention.

(3.) THE learned Additional District Judgeaccepted the plaintiff's case that the Will hadbeen kept in a leather suit -case in the secondfloor and was lost, but he was reluctant to believethat the Will was in the custody of theplaintiff's mother (P. W. 1) at the time of its loss. The learned Judge while holding that it was not unlikely that the testator would have made over the Will in question to Brajeswari Devi, to keep it on behalf of the plaintiff who was then a minor was not prepared to accept her further statement as to how the loss had occurred as, in his opinion, the conduct of her elder son (P. W. 7) was not consistent with her story. We are not impressed by the reasoning adopted by the learned Judge on this part of the plaintiff's case. Having regard to the fact that P. W. 1 had lost her only source of consolation and help in the death of her father, with whom she had been living ever since her widowhood and that the plaintiff (P. W. 2) was a minor, there was nothing unnatural in her having entrusted the matter to her elder son P. W. 7 and leaving it there P. W. 7 also had just then come of age and the defendant was no other than his paternal uncle Furthermore, the Will in question had been registered and a certified copy could easily be obtained. There was no reason to doubt the bona fides of the defendant at that time and the mere fact that no steps were taken on behalf of the plaintiff to recover the will is not enough to discredit the evidence given by the plaintiff and his mother.