BABU LAL SINGH Vs. BAIJNATH SINGH

JUDGEMENT

(1.) This appeal is by the defendants from an order dated 2 June, 1943, of the District Judge of Shahabad. The respondents propounded the last will of one Manbodh Singh who died on 17 November 1935, at Benares. The will in question was said to have been executed and registered on 17 February 1934. A certified copy of the will obtained from the registration office was produced with the application for the grant of probate. The original will was said to have been destroyed along with the record of a criminal case in which it was said to have been filed. The appellants contended that Manbodh was physically and mentally incapable of executing the will; that he did not execute the alleged will and that a forged will that had been got up by the plaintiffs was revoked by Manbodh by destroying it. The lower Court found that the will was duly executed by Manbodh; that he was of sound disposing state of mind at the time and that the will was not revoked by Manbodh. Accordingly that Court granted letters of administration with a copy of the will annexed to the plaintiffs. The defendants have preferred this appeal. The relevant facts are: The testator and the parties to the proceedings giving rise to this appeal are descendants of one Sarbjit Singh who had four sons. Manbodh was descendant of Sarbjit Singh in the fourth degree by a son, Sita Ram Singh; the defendants are Sarbjit's descendants in the third degree by another son, Tirlok Singh, and the plaintiffs are descendants in the fifth degree by a third son, Naujadik Singh. The plaintiffs are related to Manbodh as nephews and the defendants as uncles, several degrees removed. Manbodh had no issue by his wife Mt. Talukraj Kuer. By the will (Ex. 7), the testator bequeathed his entire estate to his wife subject to the condition that she shall have no right to create any encumbrance on the properties or to transfer them. On the death of his wife the entire estate was to pass under the will to the plaintiffs Bhagwati Singh and Baijnath Sigh. Manbodh's widow, Mt. Talukraj Kuer, came into possession of her husband's estate and remained as such till her death which event took place on 17 December 1989. The application for the grant of probate was presented to the Court on 2 February, 1940.

(2.) The finding of the lower Court regarding due execution of the will by Manbodh has not been challenged in this Court. The only question that has been urged is that the testator revoked the will. Both parties case is that the will was destroyed. The parties are at variance as to the circumstance of its destruction. The plaintiffs case was that the will was produced in a criminal case in the year 1934 and it was destroyed there along with the record of the case in January 1936. The defendants case was that when Manbodh came to know that a forged will had been got up he called for it and destroyed the document by throwing it in a burning hearth. The question is whether the will was destroyed by the deceased himself animo revocandi or whether it was destroyed without his privity or approbation. In the former case the paper is revoked, in the latter case a copy may be established. Mr. P.R. Das argued for the appellants that the plaintiffs plea of production of the original will in a criminal case and its destruction by the Court for failure to take it back in time had not been established by satisfactory evidence. Therefore, the presumption of law is that it had been destroyed by the testator himself and the presumption should take effect unless it is repelled by the plaintiffs. In support of this submission reference is made to a decision of their Lordships of the Privy Council in Allan V/s. Morrison (1900) 1900 A.C. 604. In this case their Lordships quoted with approbation the principle of law laid down by Lord Wensleydale in Welch V/s. Phillips (1836) 1 Moo. P.C. 299 there is a presumption that if a will traced to the possession of the 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 rebut it. Whether this should be called a presumption of law or fact does not seem material. It may, of course, be rebutted, and the presumption will be more or less strong according to the character of the custody which the testator had over the will .

(3.) Mr. Das, referring to the provision of Sub-section (2) of Section 61 of the Registration Act, 1908, which provides that on completion of the registration the document shall be returned to the person who presented the same for registration or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in Section 52, submitted that there is no case that the will after registration was made over to a nominee of Manbodh. Therefore, the ordinary presumption is that the document must have been taken back from the registration office by Manbodh himself and was in his custody. It is urged that as the plaintiff had failed to account for the absence of the will to the satisfaction of the Court, the presumption of law quoted above should take effect. But it is neither party's case either in the pleadings or in evidence that the will was "last seen" in the possession of the testator. Jagarnath Singh (P.W. 4) stated "I filed the will in that case. Manbodh had given it to me rafter it was registered." Ram Nagina Lal (D.W. 2) stated. Jagarnath gave a document to Manbodh who gave it to me.... I read the document. Manbodh threw the document into the fire; the document was burnt.