EFARI DASYA Vs. PODEI DASYA

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the District Judge of Assam Valley Districts refusing to grant probate or letters of administration of the draft of a will alleged to have been executed by the testator, Jipati Thakuria, in January 1904. The applicant was the daughter of the testator. The testator died on 25 June 1910. At the time of his death, he had his daughter, the petitioner, his widow Podei, the objectrix, an infant son, Kali Charan, and another stepson named Nanmal. At the date of the will his son, Kali Charan, was not born. By the will, a 3 share each was given to Efari, the petitioner, Podei, the wife, and to Nanmal. It is alleged by the petitioner that after the death of the testator each of the three persons was in possession by taking pattas from the revenue authorities of the lands loft by the testator and they were in joint possession till the year 1923. In 1934, disputes commenced among those parties and the petitioner was sought to be deprived of her share of the properties and that is the reason why she has applied for probate of the draft of the will in May 1925. The will is alleged to have been lost. Efari, the petitioner, says that she gave the will to Osharam Gaonbura, a relation of the testator, for the purpose of mutation of names in the revenue register after the death of the testator. Osharam never returned the will to her and she never asked for it, but when the disputes arose, she sent a registered notice to him to make over the original will to her. The registered letter containing the notice was not accepted by Osharam and was returned to the petitioner. Osharam also did not give the original will to her and it is on that account that she has asked for probate of the draft from which the will was written out and executed by the testator. The objectrix, Podei, denied the execution of the will and she supported her allegation by her own evidence as well as the evidence of her witnesses. The learned Judge was of opinion that Jipati did execute a will in terms of the draft but he held that after the birth of his son, Kali Charan, he would probably have wished to revoke the will or to modify its terms and he could have revoked the will by simply tearing it up. He apparently came to the conclusion that that was whit the testator himself did.

(2.) The learned Judge then discussed the evidence as to the existence of the will after the death of Jipati, which fact he noticed is only supported by the evidence of Efari herself and by the evidence of a witness named Adhiram. The learned Judge holds that Adhiram is not a reliable witness and he does not believe the story that Efari made ever the will to Osharam as she alleges, the learned Judge being of opinion that it is unlikely that Efari would have left the will with Osharam for some 15 years. He also refers to the fact that there is no mention of the will in the patta and, in his view, the record of the three names is probably due merely to the fact that they were in joint possession of all the property of Jipati. He came to the conclusion that the evidence as regards the existence of the will at the time of the testator's death was unreliable and, therefore, refused to grant probate.

(3.) The first objection taken on behalf of the petitioner in her appeal is that the question of revocation of the will was-improperly decided by the District Judge, as that was not the issue raised by the objectrix nor was any evidence led in support of that story. The whole question on which the parties went to trial was: Was there a will executed or not? The learned Judge having found that the will was executed, he ought to have placed the burden of proof upon the objectrix to show that the will had been? revoked by the testator. The mere fact that a son had been born to the testator after the date of the execution of the will is not sufficient to raise the presumption that the will was revoked. The contention on behalf of the appellant is therefore that at any rate the case should be remanded to the lower Court for the purpose of a fuller enquiry as to the question of revocation. In answer to the contention of the appellant, the respondent submits that the question of revocation although not distinctly raised in the issues was sufficiently raised in the pleadings of the parties. It is pointed out to us that in the petition of then appellant herself it is stated that Kali Charan, the son of the testator, was born in 1316 B.S., in the month of Pous. The will was, however, not revoked. In answer to that, the objectrix states that according to the draft filed it is clear that the late Jipati had no son of his then, but on the birth of his son he would1 never keep any such will outstanding.