Francis W. Maclean, K.C.I.E., C.J.
1. There cannot be any reasonable doubt that the testatrix, Thakomoni Dasi, did execute a will some time in the year 1894, nor any reasonable doubt that the sheet now produced, and of which probate is sought, formed a portion of that will. It appears from the evidence that the will was written upon two sheets of paper, and only one sheet, apparently the first sheet, was to be found, and was found after the testatrix's death amongst her depositories. The sheet we have practically disposes, by means of legacies, of the bulk, though not the whole, of her property. Application is now made for probate of that portion of the will and the application is resisted by the testatrix's heir. We have to consider whether probate of this portion of the will can be properly granted.
2. The heir contends that, inasmuch as the will remained in the custody of the testatrix, which is not disputed, and only a portion of it--the first sheet--has been found amongst her papers at her death, she must be presumed to have destroyed the second sheet, and that she did do so animo revocandi. But this presumption may be rebutted, and has, I think, been rebutted in the present case. Looking at the sheet we have, it would appear from the two small holes at the top left hand corner that it had been tied to the other sheet--it is proved that the will was written on two sheets of paper--by a piece of string. It may be that the testatrix did tear off the second sheet, but the inference I am inclined to draw from the extrinsic evidence afforded by the appearance of the extant sheet is that, either from the string having become rotten--a not unlikely result in this climate--or from some other accidental cause, the second sheet became detached and lost, and that it was not either mutilated or destroyed by the testatrix herself. This view gains a little support from a passage in the evidence of the witness Atul Krishna Dutt, who says that the testatrix never told him before her death that the will had been damaged or destroyed, and the testatrix lived some four or five years after the execution of the will. No evidence is adduced by the heir to show that the testatrix ever spoke of having destroyed the will. It is a fair inference from the circumstances of the case that the sheet in question was lost and not destroyed. This disposes of the first point.
3. It is next contended for the appellant that under the law prevailing in this country probate cannot be granted of a portion only of a will, where the other portion is lost. It must, I consider, be taken as settled law in England--see Sugden v. Lord St. Leonards (1876) L.R., 1 P.D., 154, that probate can be granted of a portion of a will, though, if the extant portion be only the residuary clause, some question may arise, as was pointed out by Lord Herschell in the case of Woodward v. Goulstone (1886) L.R., 11 App. Cas., 469. We are not, however, dealing with any such clause in the present case. It must be taken to be established by the English decisions that, where the contents of a lost will are not completely proved, probate can be granted to the extent to which they are proved. The present will is proved to the extent of the first sheet; but the appellant says that the law in England on this point does not apply to India; that the present case is governed by Section 25 of the Probate and Administration Act (V of 1881); and that section only enables the Court to grant probate, when the contents, not of a part of the will, but of the whole will, are established by evidence. In my opinion that contention is not well founded. There is no prohibitory, no negative, word in the section: it is an enabling section, and to place the narrow construction upon it for which the appellant contends, would lead to manifest absurdities. For instance, we might find a will written on half a dozen consecutive sheets of paper tied together by a piece of string; the first five sheets might dispose in a clear and specific manner of property valued at lakhs of rupees among named legatees, and all that was left to be disposed of by the remaining sixth sheet, might be a sum of perhaps Rs. 10 or 20. The sixth sheet becomes detached from the other and is lost. If the argument of the appellant is to prevail, probate cannot be granted of the first five sheets which dispose of the bulk of the property, and the testator's disposition's, though perfectly well known and proved, are thus rendered inoperative. I am not disposed to accept this view. There is to my mind nothing in the section in question to prevent us from following the rulings on this point of the Courts in England. The learned Judge in the Court below has not gone very fully into the matter, but I think that, save upon the question of costs, his conclusion is right.
4. With respect to the costs, there is force in the argument of the appellant that the costs in the Court below should have come out of the estate, and under the circumstances this would be right. It is not opposed by the respondents. Subject to this modification, the appeal must be dismissed with costs.
5. I am of the same opinion. I only wish to add a few words with reference to two points raised in the case, namely, first, that the fact; of a part of the will being lost raises a presumption that the will had been destroyed or mutilated by the testatrix with intent to revoke it; and second, that no probate can be granted of a part of a will.
6. As to the first point, judging from the nature of the document, as it stood when complete, as deposed to by the witnesses examined in the case, and judging from the appearance of the part that has been preserved, I am of opinion that the fact of a part being wanting raises no presumption of the destruction or mutilation of the will with intent to revoke it. All that we can say about the condition of the document is, that a part of it has been lost. The appearance and nature of the portion of the document that has been preserved constitute material evidence upon the question as to whether the loss of the remainder should raise any presumption of revocation or not. This stands to reason and common sense, and if authority were needed in support of the view I take, I may refer to the case of In the goods of Woodward (1871) L.E., 2 P. & D., 206 (208), in which Lord Penzance, after quoting certain observations of Sir J. Dodson in the case of Clarke v. Scripps (1852) 2 Rob. Ecc, 563, observes: 'I think that is a very good way of regarding the question, for it is obvious that the mutilation must be of such a part and in such a manner as to afford evidence that the deceased did not intend the document any longer to operate as his will. If, for instance, he should tear off the will or his own signature? Applying the reasoning to the present case, I have come to the conclusion that, in the absence of any evidence to the contrary, the mere cutting off of eight lines at the beginning of the document does not show any intention to revoke the whole will.'
7. As to the second point, it is quite true that the Probate and Administration Act (V of 1881) does not contain any express provision for the granting of probate of a part of a will. Section 25 of the Act, which relates to the granting of probate of a lost or destroyed will, in terms relates to the grant of probate in respect of a will if its contents can be established by evidence. But then that is only an enabling section, and there is no prohibition in the Probate and Administration Act to the grant of probate of a part of a will, provided such grant is not in any way opposed to reason and justice, and therefore I see no objection to our following the rule laid down in Sugden v. Lord St. Leonards (1876) L.E., 1 P.D., 154, subject of course to certain qualifications which have been indicated in the case of Woodward v. Goulstone (1886) L.R., 11 App. Cas., 469. In the present case the grant of probate of the portion of the will that has been preserved does not in any way infringe any of the qualifying rules subject to which such grants ought to be made. The bequest to the petitioner for probate, Sarojini, stands quite independently of the other provisions of the will whatever they might have been. There is nothing to show that those provisions would interfere with the bequest contained in the will in favour of Sarojini in the portion of the will which has been preserved. On the contrary, the evidence would indicate that the bequest to Sarojini was the primary object of the will and that it was intended to be an unqualified one.