G.N. Das, J.
1. This is an appeal by the propounder and is directed against a judgment and decree made by Mr. B.M. Roy Choudhury, learned District Judge, Berhampore, dated 27-4-1951, refusing an application for the grant of probate under Section 237, Succession Act, 1925.
2. The testator Nandalal Pal executed a Will on 30-9-1913. It was registered by him at Domjur Registration Office. At the time the testator used to live ordinarily at Dhulian in the district of Murshidabad where he practised as a Medical Practitioner and also carried on business. The Will was executed at Dakhinpara Jhapardaha in the district of Howrah which was the ancestral residence of the plaintiff. At the date of the Will the testator had his wife Sreemati Lakshmimoni Dasi living who ordinarily resided at Dabhinpara Jhapardaha. He had five sons, Ashutosh, the objector, Abinash, Surendra, Debendra and Satyacharan, the propounded of the five sons of the testator, Debendra predeceased him. Abinash and Surendra survived the testator but died before the present application for probate. It may be pointed out that at the date of the Will the testator Nandalal had two businesses in medicine, one of which was located in Dhulian and was looked after by himself and Debendra. Another shop dealing in medicines was located at Raghunathgunge which was looked after by Abinash and the propounder Satyacharan. The testator's properties in the district of Howrah were looked after by his son Surendra. While this was the state of the family, the testator executed the Will to which I have referred and registered it on the same date. The testator died on 17-6-1920, at Dhulian. No steps were taken to obtain probate of the Will till 17-8-1949, when the present application for probate was made. The application for probate was accompanied by a certified copy of the Will. The allegation in the application was that the original Will was in the custody of the objector and the propounder was not in a position to file the same. In the application it was stated that the propounder came to know about the Will some years ago. On the application being filed, an objection was raised by Ashutosh, the only surviving son of the testator. His objection was that the Will was not duly executed and attested, that the application for the grant of probate was barred by estoppel, waiver and acquiescence and that the Will, if any, was revoked by the testator. On these allegations certain issues were raised, namely, an issue as to the genuineness of the Will, and to itsdue execution and attestation. This issue was found in favour of the propounder. The finding of the learned Judge on this point has not been challenged in this appeal. There was also an issue as to estoppel, waiver and acquiescence. The learned District Judge found in favour of the propounder on this issue. This finding has also not been challenged in this appeal. The only other issue which arose in the case was whether the Will was revoked. The learned District Judge found in favour of the objector and was of the opinion that the Will was revoked. This finding has been seriously contested in this appeal, on behalf of the propounder.
3. Before I deal with this contention, it is necessary to set out the terms of the Will. The Will opens with a recital that the testator's eldest son Ashutosh (the objector) was well-off and that he had started a rival business in medicine and was practising as a Medical Practitioner at Dhulian where the testator himself practised and had his medicine shop. The Will then proceeds to state that Ashutosh will have no interest in any of his properties on his death. The testator bequeathes his entire properties to his four sons. Abinash, Surendra, Debendra and Satyacharan. The Will also contains a provision that the shop at Dhulian will be looked after by himself and his son Debendra, the shop at Raghunathgunge by his sons, Abinash and Satyacharan and the properties in the district of Howrah by Surendra. The Will then makes provision for the wife Lakshmimoni. The Will makes provision for her maintenance and states that she will be entitled to receive monies for the performance of religious ceremonies and in case of difficulty, the Will goes on to add, she will be entitled to the income of the properties in the district of Howrah. The Will makes provision for payment of Rs. 100/- on the occasion of the marriage of his grand-daughter. It also contains a provision that his daughter Sushila and Sushila's daughter will be brought to the family residence and such expenses will be borne by the estate. The Will concludes by appointing the four sons, Abinash, Debendra, Surendra and Satyacharan as executors.
4. The Will therefore really excludes the eldest son Ashutosh. This fact will have to be borne in mind in connection with our discussion on the question of revocation of the will.
5. Mr. Roy who has appeared in support of the appeal has first contended that the learned District Judge was not right in going into the question of revocation at the time of trial. He has submitted that the question of revocation is a question of fact and the burden of proving this fact rests on the objector. As no issue was framed, the propounder has suffered a good deal of prejudice. Ordinarily, this would be so. In this case however, in the petition of objection filed by the objector the objector stated in para. 14 that the Will had been revoked. No express issue was however raised on this point. It appears, however, that the objector Ashutosh, when examined on commission, was subjected to cross-examination on the point of revocation of the Will by the propounder. It also appears that when the case came to trial, both the propounder Satyacharan and his witness P. W. 5 Deb Nath Bhattacharjee deposed to certain facts which have a bearing on the question of revocation. In fact, Deb Nath's evidence is entirely concerned with this question. He deposed to the fact that the Win was found in the custody of the objector a few years before the date of trial. It cannot, therefore, be suggested that the parties were not conscious of the fact that one of the points which arose for decision in the case was the question of revocation of the Will. An issue was framed during the trial andat that time the learned Pleader appearing onbehalf of the propounder raised no objection. This is specifically stated in the Order Sheet. It cannot therefore be suggested that the failure to raise an issue at an earlier stage of the litigation has caused a failure of justice. In my opinion, the contention raised cannot be accepted.
6. The next question relates to a question of fact, namely, whether the Will was in fact revoked. Before I deal with the authorities to which our attention was drawn by the learned Advocates on both sides and which have a bearing on the present question, it is necessary to discuss a preliminary question. That question is whether in the facts of this case the propounder has complied with the provisions of Section 237, Succession Act. Section 237 of the Indian Succession Act reads as follows:
'When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator and a copy of the draft or the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced.'
This is an exception to the general rule contained in Section 276, Succession Act, that a copy of the Will must be annexed to a petition for probate. The petitioner for the grant of probate who seeks to come within Section 237 must fulfil the conditions set forth in the section which would entitle him to obtain a limited grant as stated in the section itself. The conditions are that the Will must be lost or mislaid since the testator's death. It must be proved that the Will was destroyed by wrong or accident and not by any act of the testator. As I read the section, it lies on the propounder to prove the existence of these facts, namely, that the Will was lost or mislaid since the testator's death. The only evidence which the propounder has sought to produce is that the Will was in the possession of the testator before his death. It was suggested that it must have been secreted by the objector whose interest it was to secrete the Will or to destroy it. We have therefore to consider how far the objector has succeeded in proving this fact. The evidence of the propounder is that the testator went alone to Dhulian from Raghunathgunge. His evidence further is that at the time of his death Ashutosh, the objector, was at Dhulian. His evidence also is that no information was sent to the propounder or to his brother at any time before the testator's death. The objector Ashutosh has denied the allegation that he had extracted the Will from the testator's box. The first question, therefore, is whether the Will was in the testator's box and was taken by him to Dhulian, when he went there. It is the evidence of Satyacharan, the propounder, that before his death the testator used to look after the shop at Raghunathgunge. It therefore follows that ordinarily the testator used to live at Raghunathgunge. If he was a resident of Raghunathgunge and had gone to Dhulian for an occasional purpose as is suggested on behalf of the objector, it is extremely unlikely that the testator would take along with him the Will whereby Asutosh the eldest son had been entirely cut off. In this connection it must be remembered that the Will itself was not executed at Dhulian where the testator then ordinarily used to reside. It was executed and registered at the Registration Office at Domjur in the district of Howrah. It is obvious that this step was taken by the testator in order to keep it concealed from the objector Ashutosh that a Will was being executed. If that was the object with which the Will was executed, it is not likely that the testator, unless he had changed his mind towards the objector, would take theWill along with him to Dhulian. It is also unlikely that the visit being an occasional one the testator would take his valuable things with him. At that time he was looking after the business at Raghunathgunge and must have been residing at Raghunathgunge. It is also significant to remember that at the time Debendra who was looking after the Dhulian business was dead and it was quite probable that the testator had wound up his business at Dhulian and was living at Raghunathgunge. At this distance of time, it is difficult to hold from the materials on the record that the testator took the Will along with him to Dhulian. As such there was no opportunity for the objector to secrete the Will. In my opinion, the propounder has failed to prove that the Will was extracted from the testator's box by the objector Ashutosh during his last illness or after his death, and that it was being kept back by him. The propounder has therefore failed to satisfy the Court that the preliminary conditions which would entitle him to a grant under Section 237, Succession Act have been complied with. This ground, in my opinion, is sufficient to disentitle the propounder to a grant of probate. A similar view was taken by this Court in the case of -- 'Efari Dasya v. Podei Dasya', : AIR1928Cal307 .
7. Conceding the position that the Court is required to go into the question of revocation, the question whether a Will has been revoked or not has to be answered in relation to the facts of each particular case. The burden of proving that a Will has been revoked no doubt rests on the objector. The burden may be discharged either by direct evidence or by an inference to be drawn from certain facts which the objector may succeed in establishing. In dealing with the question of revocation the Court may also resort to a presumption which has been raised in similar cases by the Courts in England and applied with caution by the Courts in this country.
8. I shall first deal with the effect of the presumption which has been drawn by the Courts in England in cases where the Will is traced to the possession of the testator and is not found to be in existence after his death. The question as to how far this presumption can assist the Court in dealing with the question of revocation has to be determined, as I have said, in relation to the facts of each case. Section 237, Succession Act, is on similar terms as Section 24, Probate and Administration Act (Act 5 of 1881) and Section 208, Succession Act (Act 10 of 1865). In order therefore to appreciate the true meaning of Section 237 which has replaced Section 208 of Act 10 of 1865 it is permissible to refer to the practice that prevailed in England at the time when the Succession Act (Act 10 of 1865) was enacted. In fact, Section 208 of the Act (Act 10 of 1865) merely quotes a passage from--Tristram and Coote's Probate Practice, pp. 117 and 118. The law, so far as the raising of a presumption goes, was thus laid down in the case of -- 'Welch v. Phillips', (1836) 1 Moore P. C. 299 (B)
'If a Will is traced to the possession of the deceased and last seen there and not forthcoming on his death it must be presumed to have been destroyed by himself.'
It was also laid down that such presumption must have effect unless there is sufficient evidence to the contrary. The view taken in the above case was reaffirmed in the case of -- 'Sugden v. Lord St. Leonards', (1876) 1 P. D. 154 (C). Cockburn C. J. observed as follows:
'Now, where a Will is shown to have been in the custody of a testator and is not found at his death, the well-known presumption arises that the Will has been destroyed by the testator for the purpose of revoking it but of coursethat presumption may be rebutted by the facts. Although presumptio juris, it is not presumption de jure and of course that presumption will be more or less strong according to the character of the custody which the testator had over the Will.'
Mr. Roy referred us to the case of -- 'Pinch v. (SIC) (1864) 1 P. & D. 371 (D) where it was pointed out that a Will which was in the testator possession and was not forthcoming after (SIC) death may be presumed to have been revoked (SIC) such presumption does not arise unless there in evidence to satisfy the Court that it was not in existence at the time of his death. This objectors seems to indicate that it lies on the objector to prove, in the first instance, that the was not in existence at the time of the death. The case in -- '(1864) 1 P. & D. (SIC) and the other two cases to which I have (SIC) were referred to by the Court of Appeal (SIC) the ease of -- 'Allan v. Morrison', (1900) A. C, (SIC) (E). The Judicial Committee distinguished the case of -- 'Finch v. Finch', (D) on the ground that in that case the Court merely inferred the fact of revocation from the circumstances and other rates which were established in that case, and that it did not lay down any general proposition. The Court of Appeal approved of the view taken in the case of -- 'Welch v. Phillips', (B) and in the case of -- 'Sugden v. Lord St. Leonards', (C) to which I have already referred. So far as the English Courts are concerned, the law is summarised in a passage in Jarman on Wills, 8th Edition, Vol. 1. page 170 to which Mr. Boy drew our (SIC). The passage runs as follows:
'If a Will is traced into the testator's possession, and is not found at his death, the presumption is that he destroyed it for the purpose of revoking it; but the presumption may be rebutted, and it will be more or less strong according to the character of the custody which the testator had over the Will.'
9. This passage merely summarises the lawwhich was laid down in the two cases to which I (SIC) referred. The question, however, remains whether the above presumption has been applied by the Courts in this country. Mr. Roy drew our attention to the case of -- 'Syed Anwar Hossain v. Secy. of State of India in Council', 31 Cal 885 (F). In that case the facts were that a wanderingFakir who had his residence at Bhagalpore had migrated from that place taking along with him certain papers. At the time of his death the Will which he had executed while at Bhagalpore bequeathing his properties to the Queen Empress of India was not discovered. An application for the grant of probate was made. The question then(SIC) whether it could be presumed that as the (SIC) was not found after the testator's death it was revoked by the testator. A Bench of this Court refused to draw the presumption & in that con- (SIC) observed that the presumption which wasraised in England should be applied with caution in this country having regard to the habits of people in India. As I read the judgment of the Bench in that case, the decision turned on the facts of the particular case. The only evidence in that case was that the Pakir had taken along with him the important papers. There was noevidence that the Will itself which he had executed at Bhagalpur was taken by him from Bhagalpore. The presumption, therefore, could not arise in the facts which were proved in that case. The next case to which Mr. Roy drew our attentionis the case of -- 'Sarat Chandra v. Golap Sundari', AIR 1914 Cal 365 (2) (G). The Judgment in thatcase was pronounced by Coxe & Ray JJ. Coxe J. rejected the plea of revocation on the ground thatthe onus lay on the objectrix to prove the plea of revocation but no such plea having been raised in that case the objectrix necessarily failed. Ray J. in the course of his judgment observed that the rules of English law are founded on reasons and good sense. His Lordship added that revocation must be proved by the party who set it up and then observes that the presumption may be rebutted by the fact that the objector had access to the Will and must have destroyed it or removed it with an ulterior purpose. The discussion in the judgment clearly reveals that the Court was fully alive to the fact that the presumption which was applied by the English Courts would also apply in this country but that the Courts must proceed with caution. A similar view was taken by the Judicial Committee of the Privy Council in the case of -- 'Padman v. Hanwanta', AIR 1915 PC 111 (H) and it was observed that the rule laid down in -- '(1836) 1 Moore P. C. 299 (B)' should be applied with considerable caution in this country. In a later case, namely, in the case of -- 'Brajabala Dhar v. Nityamayee Biswas', : AIR1934Cal17 D.N. Mitter J. applied the principle which was affirmed by the Court of Appeal in the case of -- 'Allan v. Morrison (E)'. So also in the case of -- Harilal v. Sarat Chandra', 43 Cal. W. N. 824 (J) R.C. Mitter J. observed that the presumption did arise and cited in support of his observations a passage from Jarman on Wills to which I have made reference.
10. In my opinion, the true rule to be applied in cases of this description is laid down by a Bench of this Court in -- : AIR1928Cal307 . B.B. Ghose J. after referring to -- '31 Cal 885 (F)' and to -- 'AIR 1914 Cal 365 (2) (G) observed as follows:
'It seems to me that the question as to the presumption of the Will being revoked by the testator with reference to the fact to its being in his possession till the time of his death is to be decided more or less upon the circumstances of each case.'
No hard and fast rule can be laid down as or whether or not the presumption should, as a matter of law, conclude the matter. The question has to be determined in the light of the facts which arise for decision in each case. In this case, as I have already observed, there is no proof that the Will was taken by the testator to Dhulian. There is no evidence that the objector had any hand in secreting or destroying the Will. It is the propounder's case that the testator was in possession of the Will because his whole case was that the testator had the Will with him at Raghunathganj and that he took that Will to Dhulian where he met with his death shortly thereafter. The Will was, therefore, traced to the possession of the testator. It is the propounder's case that after the testator's death he made enquiries about the Will and could not discover it. The Will is not forthcoming. The question therefore is whether the facts lead to an inference that the Will was destroyed before the testator's death or is missing since his death. The last supposition is not a correct inference which could be drawn from the facts of this case. Although in the petition for probate the propounder suggested that he came to know of the Will some years before the application, in his evidence the propounder specifically stated that the testator told him about the Will though he was not informed of the contents thereof. If the testator told the propounder that he had made a Will, it is natural that he would also tell him what the terms were. The propounder was the youngest child and was then not provided for. As the testator made a Will benefiting him, the testator would naturally tell him what the terms were.
In any event when the testator died and the Will was not discovered the propounder who wasa beneficiary under the Will would make frantic efforts to search for the Will. The testator's widow Lakshmimani was alive. So also the testator's two other sons, Surendra and Abinash. Surendra was living at his native place. The testator was also living there. The propounder admits that he went to his native place two or three times after the testator's death. There is no reason why the propounder would not make enquiries from his mother or from his brother Surendra or from other person about the existence of a Will. In my opinion such an enquiry must have been made. If such an enquiry had been made it is likely that the real fact would have been ascertained. In fact three of the attesting witnesses are still alive and they have deposed in support of the execution and attestation of the Will. One of the witnesses, Matilal Banerjee, was, on his evidence, well acquainted with Surendra and had met him on several occasions. It is the evidence of P. W. 4 Hrishikesh that the Will was read over by Matilal and Matilal must have knowledge of the contents of the Will. As I read the evidence of these witnesses on behalf of the propounder, the impression that is left on my mind is that the propounder, if he had made an enquiry, would have found the real facts concerning the Will. I do not believe the propounder when he says that he waited till the year 1947 when he instituted a partition suit before he made an enquiry at his native place. It is not suggested that he had not met Matilal in the meantime because his own evidence is that he had been to the native place. It is significant to note the circumstances under which the present discovery has been made. The propounder had started a partition suit in the year 1947 against his brother Ashutosh, the objector, claiming certain properties as joint. It is suggested that after the filing of the partition suit he made the enquiries which led to the discovery about the existence of the Will and its possible secretion or destruction by the objector. In my opinion, the present attempt to propound the Will is motived by the partition suit. The fact that a will had been executed has been availed of as a second string to support his claim to the properties left by the testator. It has also to be borne in mind that the propounder stated that he made enquiries and was satisfied that the will was not in existence and that this fact accounted for the subsequent dealings in regard to the testator's properties on the footing that there was an intestacy. In my opinion, these dealings are consistent with the view that the enquiry which the propounder must have made led to a discovery that the Will was destroyed by the testator and that probate was therefore not taken after the testator's death. In my opinion, the facts as they are on record support the presumption which has been raised in cases of similar description, namely, that where a Will is traced to the possession of the testator and is not forthcoming after his death, the Will must be taken to have been destroyed by the testator with the intention of revoking the same. The conclusion, therefore, follows that the Will was revoked by the testator. The view taken by the learned District Judge must therefore be affirmed.
11. The result, therefore, is that the appeal fails and is dismissed. Having regard to the facts of this case, although the appeal fails, we are of the opinion that the parties must bear their own costs in this appeal.
12. Debabrata Mookerjee, J.