R.P. Mookerjee, J.
1. One Sasibala Dasi died in a hospital in Calcutta on 21-11-1943. It is admitted fact that she had executed a will on 22-1-1930, and had the same registered two days later. Sasibala at the time of her death left a brother Bonowarilal and the petitioners Satish Chandra and others who are her sisters' sons; the petitioner Santosh Bala was another sister of hers.
2. A little over three years after the death of Sasibala an application for the issue of letters of administration was filed by Satish Chandra and others before the court of the Munsif at Katwa. The proceedings were transferred to the court of the District Judge. The petitioners came to court with the story that the original will which was with Sasibala was not found after her death. A certified copy obtained from the registration office was filed along with the petition. Sasibala's brother Bonwari died in February-March, 1945, leaving five sons viz., Bhutnath, Ramanath, Dinonath, Saktipada and Muktipada.
3. The petition which had been filed originally was a defective one, as in the body of that petition, there was no averment that the will had been properly executed and attested. This was remedied by a subsequent petition for amendment filed on 5-7-1950, just before the decision, by the learned District Judge.
4. Two sets of objections were filed, -- one by the three sons of Bonwari and the other by the youngest minor son. The defence taken was that the will had not been properly executed and attested, and secondly, the will having been admittedly with Sasibala and not having been found at the time of her death, or after her death, it should be presumed that the alleged will had been revoked by Sasibala. It was further alleged in the petition of objection that the properties in question did not belong to Sasibala, but were owned by her brother Bonwari. We are not concerned, however, in the present proceedings with the question of title which had been raised. We are concerned only with the question whether Sasibala had left a will, and whether the certified copy of the will produced is the one which was the last will and testament left by her.
5. During the trial, however, both the parties shifted their grounds to a certain extent, and at least on one material point. The propounders attempted to adduce direct evidence for proving that the original will had been shown to other persons by Bonwari alter the death of Sasi. On the other hand, the objectors adduced evidence to prove that Sasibala had shortly before her death destroyed the original will by burning it.
6. The learned District Judge disbelieved the evidence adduced by both the parties on the two points above mentioned, either about the production of the will after the death of Sasi Bala, or of its destruction before her death. The learned Judge proceeded to consider whether under such circumstances, the inability of the propounders to produce the original will would raise a presumption that the will had been revoked by the testatrix or not. The learned Judge came to the conclusion that the will had not been revoked, and accordingly letters of administration were issued in favour of the petitioners.
7. The present appeal is on behalf of the objectors. It is contended that the learned Judge was wrong in disbelieving the evidence as adduced by the objectors about the actual destruction of the original will by Sasibala. Secondly, and in the alternative, it is contended that even if the evidence so adduced be disbelieved, the learned Judge was not correct in stating the legal principles or the circumstances under which a will not being proved to have been in existence after the death of the testatrix could be regarded as not having been revoked by her.
8. Sasibala came from a very poor family, and the entire property left by her consisted of about three bighas and five cottas of culturable land in her village. It is an admitted case that she used to serve as a maidservant in Calcutta. She had no issue of her own, and the only near relations were her brother, sister and sister's sons. As stated already, the will in question was executed and registered in January 1930. The learned Judge had found on the evidence that due execution and attestation had been proved. This has not been questioned before us and we shall proceed on the footing that there had been a valid will by Sasibala executed in January 1930. If that will had not been revoked by her, the order passed by the learned Judge granting letters of administration must stand.
9. For the purpose of proving that the will had been revoked by Sasibala, the objectors examined Jitendra Nath Bakshi, zemindar of Mouzah Bijnagra, a village about two miles away from the village of Khajurdihi, the village in which Sasibala used to live.
(His Lordship considered the evidence of the witness and proceeded :)
10-12. Once we accept Jitendra as an witness of truth, there is no escape from the conclusion that the will which had been executed by Sasibala was revoked by her by destroying the same. The petitioners, therefore, are not entitled to get letters of administration with a copy of the will annexed.
13. Under these circumstances, it is not necessary for us to discuss the question of law which had been raised before the lower court. or canvassed before us as to whether the non-production of the original will after the death of the testator should always raise the pre-sumption that the will had been revoked by the testator. We may state at once, however, that there is no inflexible presumption which arises on the mere non-production of the will, or of the disappearance of a will after the death of the testator. The question has now been settled so far as the Indian courts are concerned by the decision of the Judicial Committee in -- 'Padman v. Hanwanta', AIR 1915 PC 111 (A). Each case has to be considered on the merits and circumstances of the particular case. I have had occasion to consider this question in -- 'Guru Prosad v. Lakshmi Priya Devi', A. F. O. D. No. 269 of 1949, D/-21-1-1952 (Cal) (B), to which I was a party.
14. This appeal is accordingly allowed. The order passed by the learned District Judge is set aside and the application for letters of administration dismissed. In consideration of the smallness of the property, the parties will bear their respective costs personally both in this court as also in' the lower court.
Renstupada Mukheree, J.
15. I agree.