1. This appeal is directed against an order of dismissal made on an application for Probate of a Will and codicil alleged to have been executed on the 24th June 1916, by Rai Bahadur Krishnamohan Mookerjee, formerly a member of the Provincil Judicial Service. Mookerjee executed a Will on the 24th November 1914. On the 24th June 1916 he executed a second Will which stated explicitly that all previous Wills, if any, were thereby cancelled. On the same date he executed another document described as a codicil. On the 14th April 1918 he executed two deeds of gift, one in favour of his five daughters Saraswati, Lilabati, Satyabati, Kamala and Dargamani, the other in favour of Probodh Chandra Chatterjee, the only son of his daughter Kamala. The former of these two deeds of gift refers to the Will End codicil executed on the' 24th June 1916 and cancels ' the said Will-' On the date of execution of the deeds of gift, the second Will is alleged to have been partially torn and thrown away, Mookerjee died on the 1st June 1918, On the 31st May 1919, Surendra Nath Chatterjee, his grandson by his daughter Saraswati, instituted the present proceedings for Probat of the Will and codicil executed on the 24th June 1916, which, he alleged, were in the custody of the sons of the testator, Sivadas Mookerjee and Kedarnath Mookerjee. The application was opposed by the sons who denied that the alleged Will and codicil had been duly executed or were in existence at the time of the death of the testator, The contents of the Will and codicil have, however, been satisfactorily proved by means of secondary evidence, namely, by copies which are undoubtedly genuine, But the Court below has refused Probate on the ground that the Will and codicil were revoked by the deed of gift in favour of the daughters and also by reason of what the testator did with the documents after ho had executed the deed of gift.
2. We are not concerned with the contents of the first Will executed on the 24th November 1914, which was unquestionably revoked by the second Will executed on the 24th June 1916 and could not be revived by the revocation of the revoking Will. Reference may in this connection be made to Section 60 of the Indian Succession Act which provides that no unprivileged Will or codicil nor any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof or by a codicil executed in the required manner and showing an intention to revive the same. This accords with the opinion expressed by the Judicial Committee in Quito v. Gilbert (1854) 9 Moo. P.C. 131 at p. 143 : 14 E.R. 247 : 105 R.R. 31 see also Brown, In the goods of (1858) 1 Sw. & Tr. 32 : 27 L.J.P. 20 : 4 Jur. (N.S.) 244 : 164 E.R. 615; Brown v. Brown (1858) 8 El. & Bl 876 : 27 L.J.Q.B. 173 : 4 Jur. (N.S.) 163 : 120 E.R. 327 : 112 E.R. 813; Dickinson v. Swatman (1860) 4 Sw. & Tr. 205 : 30 L.J.P. 84 : 6 Jur. (N.S.) 831 : 164 E.R. 1495; Hodgkinson, In the goods of (1893) P. 339 : 62 L. J.P. 116 : 69 L.T. 540. We need consequently examine the provisions only of the second Will and the codicil.
3. It is plain from the dispositions made by the testator in his second Will that the chief objects he had in view fell into three categories, namely, first, provision for his daughters, Borne of whom had became widows; secondly, arrangement for the preservation and continuance of the worship of the family deities; and, thirdly, peaceful enjoyment of the family estate by his two sons. As regards the song, his hope as expressed in the Will was that they should live jointly in amity and commensality. But, he was evidently not satisfied with the direction given in this behalf in the Will and proceeded in the codicil to make alternative provisions. The provisions so made were four-fold; first, that the ancestral house and lands shall be deemed dedicated for the worship of the family deities; secondly, that two of his houses and some lands in the suburbs of Calcutta should be taken by his two sons according to the distribution directed; thirdly, that his other landed properties should be taken by the two song in the manner specified and, fourthly, that another house should be taken jointly and three plots of land in his native village should be partitioned. It is thus obvious that the provisions in the Will were, as explicitly stated, alternatives to the provisions in the Will, except as regards the disposition in favour of the daughters which remained unaffected. The dead of gift executed in favour of the daughters on the 14th April 1918 was plainly intended to supersede at least those provisions of the Will which contained dispositions in their favour; but it was clearly designed to go much further. The deed contains the following; statement: 'Prior to this, I executed a Will and codicil on the 24th June 1916, and made a different provisions for you. But in apprehension that disputes may arise therefrom, I cancel the said Will and execute and sign the present deed of gift and deliver to you the possession of the said property.' There has been much discussion at the Bar as to the true construction of this clause. The appellant has contended that the testator intended to cancel the Will alone, leaving the codicil untouched; the respondents have argued that not the Will alone bat the codicil also was therewith intended to be revoked. We are of opinion that there is no roam for doubt as to the true interpretation of the clause. The intention of the executant of the deed mast be judged from the plain language used. Ha was himself a lawyer and fully appreciated the distinction between a Will and a codicil, indeed, he expressly refers to both the Will and the codicil in the earlier part of the passage, yet in the subsequent portion he cancels only 'the said Will' and not 'the Will and the codicil.' It would be contrary to established principles of construction if we ware to bold that the term Will,' when used for the second time, signifies what is described immediately before by the phrase ' Will and codicil.' We hold accordingly that this clause in the deed of gift operated to revoke the Will but not the codicil.
4. The respondents have, however, contended that the codicil must be deemed as integral component of the Will and that the mere fact of the revocation of the Will operated to revoke the codicil. We are of opinion that this contention cannot be supported in view of the provisions of Section 57 of the Indian Succession Act which lays down as follows:
No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same.
5. This provision, it has been held, is exhaustive : Subba Reddi v. Doraisami 30 M. 369 : 17 M.L.J. 269 : 2 M.L.T. 242; consequently, read with Section 3 of the Hindu Wills Act, the Statute must be understood to mean that a Hindu Will cannot be revoked except in the manner mentioned in Section 57 subject to the proviso contained in Section 3 of the Hindu Wills Act. Section 57, it may be observed, is based on Section 20 of the English Wills Act, 1837. Under that Statute, it is now settled that a codicil will not be impliedly revoked merely by the destruction or mutilation of the Will, and that the codicil notwithstanding remains effectual, unless it appears that in revoking the Will the testator thereby intended to revoke the codicil as wall. No doubt, codicil is prima facie dependent on the Will, and before the passing of the Wills Act the principle had been generally recognised that a codicil fell to the ground with the Will when the Will was revoked, but thai if it could be established that the testator intended the codicil to stand by itself, notwithstanding the revocation of the Will, the Court would give effect to the codicil; Coppin v. Dillon (1831) 4 Hagg. 331 : 162 E.R. 1478, Greig, In, the goods of (1866) 1 P. 72 35 L.J.P. 113 : 13 L.T. 631 : 14 W.R. 319. There was a divergence of opinion, by no means easy to reconcile, in the cases on the point decided since the Wills Act and governed thereby. Lord Penzance held, in the cases of Black v. Jobling (1869) 1 P. 685 : 38 L.J.P. 71 : 21 L.T. 293 : 17 W.R. 1108, Savage, In the goods of (1870) 2 P. 78 : 39 L.J.P. 25 : 22 L.T. 375 : 18 W.R. 766 and Turner, In the goods of (1872) 2 P. 403 : 27 L.T. 322 : 21 W.R. 38, that the Court could not, in the teeth of the plain language of the Statute, sustain the proposition that a codicil is revoked by the mere fact of the revocation of the Will. The earlier decisions in Clogstoun v. Walcott (1843) 5 N.C. 623 : 13 Sim. 523 : 7 Jur. 6:(sic)6 : 6 E.R. 203 and Grimwood v. Cozens (1860) 2 Sw. & Tr. 361 : 5 Jur. (N.S.) 497 : 164 E.R. 1037, which might support the contrary view, were taken to have been not properly decided. The earlier view found favour with Sir James Hannen in the case of Bleckley, In the goods of (1883) 8 P.D. 169 : 52 L.J.P. 102 : 31 W.R. 171 : 47 J.P. 663, where, however, the codicil and the Will were in the same sheet of paper; and to the same effect is the observation in Sugden v. St. Leonards (Lord) (1876) 1 P.D. 154 : 45 L.J.P. 49 : 31 L.T. 372 : 24 W.R. 860. But the decision in Black v. Jobling (1869) 1 P. 685 : 38 L.J.P. 71 : 21 L.T. 293 : 17 W.R. 1108 was followed in a later case Gardiner v. Courthope (1887) 12 P.D. 14 : 56 L.J.P. 55 : 57 L.T. 280 : 35 W.R 352 : 50 J.P. 791, by Mr. Justice Butt, and this last decision was ' treated as the binding authority on the subject ' by Sir Francis Jeune in Beardsley v. Lacey (1898) 78 L.T. 25 : 67 L.J.P. 35 : 14 T.L.R. 140, see also Olements, In the goods of (1892) P. 254 : 61 L.J.P. 130 : 67 L.T. 356. It is consequently impossible for us to accept the contention that the revocation of the Will by virtue of the clause in the deed of gift operated in law as a revocation also of the codicil, We are fortified, in our opinion, by the circumstances that the Will and thetearing; but that the codicil was not revoked either in law or in fast. The result is that this appeal is allowed andthe dearer of the Distrait Judge set aside. We direst that Probate be issued to the appellant in respect of the codicildated the 24th Jane 1916. The appellant will be paid out of the estate his costs both in this Court and in the Court below. We assess the hearing fee in this Court at five gold mohurs.codicil were so independent of each other that either could stand alone. The testator, as already staled, had provided for his daughters by the dead of gift. He could consequently very well intend to revoke the Will which also contained provision for his daughters, but there was nothing in the deed of gift, on the subject of the family worship or the distribution of his property amongst his sons, such as were set out in the codicil. We feel no doubt that if the Court were to hold that the legal effect of the revocation of the Will was a concurrent revocation of the codicil--assuming that such a position could be seriously maintained in the face of Section 57 of the Indian Succession Act--the Court would really defeat the intention of the testator.
6. As a last resort we have bean pressed with the contention that after the deed of gift in favour of the daughters had been executed, the testator did in fact revoke the codicil by mutilating, if not destroying it. But the evidence is wholly insufficient to justify such a conclusion. The Will was no doubt mutilated, bat the codicil was a separate document, and it is vary doubtful whether the codicil was ever brought to the testator on that date. At the request of both the parties, we examined Babu Nilmani Mitter, a Pleader, who was an intimate friend of the testator and was present when the deed of gift was executed. His testimony leaves co room for doubt that the codicil was not mutilated on that date by the testator with intention to revoke the same.
7. We note that before the District Judge reliance was placed on behalf of the objectors upon their own conduct after the death of their father. They had applied for arrears of pension and for a succession certificates on the assumption that there was no Will. A notice in connection with a suit for partition was also issued on a similar supposition, It is plain that the conduct of the sons Could not be accepted as evidence of the intention of the testator in the matter of revocation of the Will, though no doubt his own declaration might under certain circumstances be admissible; Bleckley, In the goods of (14).
8. Our conclusion is that the second Will executed on the 24th June 1916 was revoked by the testator on the 14th April 1918 by the execution of the deed of gift and also by.