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Case Number

First Appeal from Order No. 77 of 1949

Advocates

Mela Ram Aggarwal

Judges

Harnam Singh, J.

Acts

section 276 of the Indian Succession Act, 1925 (hereinafter referred to as the Act)
section 237 of the Indian Succession Act. Section 237
section 299 of the Indian Succession Act, 1925.9.
section 63(c)

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Smart Summary

Judgment Summary — Harnam Singh, J.

Factual and Procedural Background

The opinion concerns probate proceedings over a will executed by Lala Narain Dass. The will (a certified copy referred to as Exhibit P.W 3/4) was made on 4th October (the opinion contains references to both 1931 and 1934 for the earlier events) and was registered on 19th October (date given as 1931 earlier). A copy of the will was sent to one beneficiary, Sardar Sawan Singh. Under the will, half of certain bank and post-office deposits were bequeathed to Sardar Sawan Singh (or his spiritual successors) and the other half and household effects to the Manager, Hindu Yatim Khana, Lahore. Four persons were named executors.

On 25th June, 1948 three executors applied under section 276 of the Indian Succession Act, 1925 for probate of the copy Exhibit P.W 3/4. The application alleged that the testator had not been heard of for seven years (giving rise to a presumption of death), that the original will could not be found among the deceased's papers and effects, and that documents for fixed deposits could not be recovered.

Roora Ram (respondent) opposed the grant and asserted that the registered will of 4th October (dated in the record as 1934) was not the last will because it had been revoked by a later document (Exhibit R.1) dated 23rd (or 22nd) October 1940. The executors replied that Exhibit R.1 was forged and invalid.

The trial court framed issues (set out below), found the copy Exhibit P.W 3/4 to be a true copy of the last will, concluded that the original was being withheld by the respondent rather than having been revoked, and granted probate of the copy. Roora Ram appealed under section 299 of the Indian Succession Act, 1925. The present opinion is the appellate judgment dismissing that appeal.

Legal Issues Presented

Whether the will dated 4th October, 1934 made by Narain Dass (who had not been heard of for over seven years) was cancelled by him, and if so when?
Whether the will dated 23rd October, 1940 set up by the respondent was executed under undue influence?
Whether the will dated 4th October, 1934 set up by the petitioners is the last valid will of Narain Dass?

Arguments of the Parties

Respondent (Roora Ram)

Contended that the earlier registered will dated 4th October (1934 in parts of the record) was not the last valid will because it had been revoked by a subsequent will/codicil (Exhibit R.1) dated in October 1940.
Impliedly relied on the contention that when a will is traced to the possession of the deceased and is not forthcoming at his death, a presumption arises that the testator destroyed it (revoked it).

Petitioners / Executors (Lala Munshi Ram, Lala Kharaiti Ram, Lala Amar Nath)

Maintained that Exhibit R.1 (the later document said to revoke the earlier will) was fictitious, forged, and otherwise invalid.
Argued (before the trial court) that the original will was being withheld by the respondent rather than revoked, and accordingly sought probate of the preserved copy under the statutory scheme.

Counsel for the Appellants on Appeal (Mr. S. D. Bahri / Mr. S.D. Babri — as referenced)

Contended that the trial court erred in granting probate of the copy and that, on the facts, a presumption of revocation arose because the original will was not found after the testator's death.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Padman v. Hanwanta, 93 P.R. 1915 P.C.	Supported the proposition that when a will is traced to the possession of the deceased and is not forthcoming at his death, the more reasonable presumption in some circumstances is that the will was mislaid or stolen rather than revoked; cautioned about applying a strict presumption of revocation in the Indian context.	The court applied the test from Padman and concluded that, on the facts (suspicious circumstances of death and other evidence), the earlier will was mislaid or stolen (withheld) by the respondent rather than having been revoked by the testator.
Wehh v. Philips, 1 Moone P.C. 299	Contains Baron Parke's view that when a will is traced to the possession of the deceased and is not forthcoming at his death the presumption is that he has destroyed it (i.e., revoked it).	The court noted this authority but explained that the rule must be applied with considerable caution in India (echoing the careful approach in Padman) and did not adopt an automatic presumption of destruction in the present case.

Court's Reasoning and Analysis

The court proceeded in a stepwise legal analysis rooted in the statutory provisions and the evidence adduced at trial:

Statutory starting point — section 237 (Indian Succession Act): the court explained that probate of a copy may be granted where the will has been lost or mislaid since the testator's death and a copy or draft has been preserved. Because Roora Ram had admitted the factum and validity of the will copy and did not dispute that the copy was true, the threshold issue was whether the case fell under section 237.
Factual findings relevant to section 237 — the court noted (as found by the trial court) that the will of 4th October existed in 1940 when the later document Exh. R.1 was alleged to have been made, but the original was not recovered after the testator's death. The circumstances of the testator's disappearance and death were suspicious: his body was recovered from a deserted well on 31st October 1940 and chemical analysis showed a considerable amount of opium in his intestines. Taking these facts together, the appellate court agreed with the trial court that the original will was being withheld by the respondent and that the case therefore fell within section 237.
On the presumption of revocation — the court considered the general rule that where a will previously in the testator's possession is not forthcoming after death, a presumption may arise that the testator destroyed it. The court emphasized statutory modes of revocation under section 70 (marriage, another will or codicil, a written declaration of intent to revoke duly executed, or destruction by the testator or by another in his presence and by his direction).
The court analyzed the respondent's reliance on revocation by a later will (Exhibit R.1). That contention requires proof that Exh. R.1 was a duly executed will or codicil — bringing into play section 63 (attestation requirements for an unprivileged will). The court examined the testimony of Lachhman Dass (an attesting witness alleged for Exh. R.1) in which he admitted that he did not see the testator sign or affix his mark, that the will was not read over, and that another attestor (Hira Lal) did not sign in his presence. On those facts Lachhman could not be treated as a valid attesting witness under section 63.
Concession and result — counsel for the respondent conceded that the requirements of section 63(c) were not satisfied for Exh. R.1. Therefore Exh. R.1 could not be treated as a valid execution of a revoking will. Because the respondent failed to prove a valid revocation in accordance with statutory modes, the court concluded that the copy Exhibit P.W 3/4 remained the true copy of the last will and testament.
Application of precedent — the court relied on Padman v. Hanwanta to support the conclusion that the more reasonable inference on the facts was that the original had been mislaid or stolen (withheld) rather than revoked by the testator; it noted the cautionary observation in Wehh v. Philips but did not apply a rigid presumption of destruction in the Indian context.

Holding and Implications

Holding: The appellate court dismissed the appeal and affirmed the trial court's order granting probate of the copy of the will (Exhibit P.W 3/4). The court also awarded costs against the appellant.

Implications:

Direct effect: The executors named in the will copy (Exh. P.W 3/4) were held entitled to probate of that copy; the respondent's claim that the earlier will had been revoked by Exh. R.1 failed because the alleged later document was not executed in compliance with section 63 and thus did not constitute a valid revocation under section 70.
The court applied existing authorities (Padman v. Hanwanta and Wehh v. Philips) to interpret the evidential consequences when a will previously known to be in a deceased's possession is not found after death; it followed the view that, on particular facts, mislaying or theft is a proper inference and that the presumption of destruction should be cautiously applied in India. The opinion affirmed the trial court rather than announcing any new legal principle or broader precedent beyond the application of established authorities to the facts of this case.

Note: This summary is based exclusively on the content of the provided opinion and does not add facts or inferences not present in that text.

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Rura Ram v. Munshi Ram And Others

Harnam Singh, J.:— Lala Narain Dass, a childless and wifeless Maheshari Banya, was retired Railway Ticket Collector of Amritsar. He made the will certified copy whereof is Exhibit P.W 3/4 on the 4th of October, 1931, at Phillaur and got it registered on the 19th of October, 1931. Lala Narain Dass then sent Exhibit P.W 3/1 which is another copy of that will to Sardar Sawan Singh of Dera Baba Jaimal Singh, one of the beneficiaries under the Will. Under that Will Lala Narain Dass bequeathed one-half of the deposits in the Punjab National Bank, Limited, Ludhiana and the Post Office at Phillaur, to Sardar Sawan Singh or his spiritual successors of Dera Baba Jaimal Singh and the other half of the deposits together with his entire household effects to the Manager Hindu Yatim Khana, Ravi Road, Lahore. Lala Munshi Ram, Lala Kharaiti Ram, Lala Amar Nath and Lala Har Narain were appointed executors under the will of Lala Narain Dass.

2. On the 25th of June, 1948, Lala Munshi Ram, Lala Kharaiti Ram and Lala Amar Nath made an application under section 276 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) for the grant of probate of the copy of the Will, Exhibit P.W 3/4. Lala Har Narain, the fourth executor under the Will it was stated in the application had died before the application was made. Now, the application under section 276 proceeds on the grounds mentioned hereunder:—

(1) that, in rs much as Lala Narain Dass has not been beard of for seven years by those who would naturally have heard of him if he had been alive, the presumption arose that Lala Narain Dass was dead;

(2) that, the registered Will dated the 4th of October, 1934, was the last Will and testament of the said Narain Dass, but that the original has not been found in the papers and household effects of the deceased; and

(3) that the deceased had left a fixed deposit of Rs. 8,000 in the Punjab National Bank Limited, Ludhiana and a deposit of Rs. 328/3/6 in the Post Office at Phillaur but that the documents with respect to these deposits have not also been recovered from the papers and the household effects of the said Narain Dass.

3. Roora Ram respondent appeared in the proceedings in the Court of the District Judge. Jullundur and resisted the grant of the probate of the copy of the will, Exh. P. W 3/4, alleging that the registered will dated the 4th October, 1934, was not the last valid will of Lala Narain Dass deceased and that he had revoked that will under another will, Exhibit R. 1 made on the 22rd of October, 1940.

4. In replication the executors maintained that the will Exhibit R. 1 dated the 23rd of October, 1940, was fictitious and forged document and was otherwise invalid.

5. On the pleadings of the parties the trial Court fixed the following issues:—

1. Whether the Will dated the 4th of October, 1934, made by Narain Dass (Who has not been heard of since over seven years) was cancelled by him? If so, when?

2. Whether the Will dated the 23rd of October, 1940, set up by the respondent was executed under undue influence?

3. Whether the Will dated the 4th of October, 1934, set up by the petitioners is the last valid Will of Narain Dass?

6. Considering that due execution of the Will dated the 4th October, 1934, had not been challenged by Roora Ram respondent in his written statement or in his statement before the issues, the trial Court found that the factum and validity of the Will, Exhibit P.W 3/4, was proved. The trial Court then found that it was obligatory on Roora Mal respondent to file a separate petition for the grant of the probate of the Will R. 1 and that being so, issues Nos. 1 and 3 were struck off. In any case, the trial Court found that the Will. Exhibit R. 1 was not a valid Will. On these findings the trial Court found that Exhibit P.W 3/4 was a true copy of the last Will and testament of Lala Narain Dass.

7. Then, it was said at the trial that since the original Will made on the 4th of October, 1934, was not forthcoming, it should be presumed that it has been revoked by the testator. The trial Court has, however, found that the circumstances of the case showed that the original Will, dated the 4th of October, 1934, was being withheld by the respondent. In the result the trial Court came to the conclusion that it was established that the petitioners were executors under the Will, copy whereof is Exhibit P.W 3/4 and that they were entitled to the probate of that copy.

8. From the order passed by the trial Court granting probate of the copy of the Will of Lala Narain Dass, Roora Ram, respondent has come up in appeal under section 299 of the Indian Succession Act, 1925.

9. In these proceedings Mr. S.D Babri contends that the Court was in error in granting probate of the copy of the Will of Narain Dass. He then contends that on the facts proved at the trial a presumption arises that Lala Narain Dass had revoked the Will, copy whereof is Exhibit P.W 3/4.

10. On the first point reliance is placed upon section 237 of the Indian Succession Act. Section 237 reads:—

“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 testator and a copy of the draft of 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.”

11. From a perusal of section 237 it appears that a person who asks for a probate of a copy of the Will must prove that the Will has been lost or mislaid since the testator's death. Now, in the present case the factum and validity of the Will made by Lala Narain Dass on the 4th of October 1934, was admitted by Roora Ram in his written statement and it was not disputed that the copy produced was a true copy of the Will of Lala Narain Dass. That being so, the only question that arises for determination is whether this case falls within section 237 of the Act.

12. Now, it is common ground that the Will of Lala Narain Dass which he made on the 4th of October, 1934, was in existence on the 23rd of October 1940, when the document, Exhibit R. 1 is stated to have been made by the said Lala Narain Dass. Then the original Will made on the 24th of October, 1934, has not been recovered from the goods of Lala Narain Dass after his death and the circumstances under which Lala Narain Dass was found missing show that he did rot the a natural death. The body of Lala Narain Dass was found from a deserted well in a neighbouring village on the 31st of October, 1940 and the Chemical Examiner found a considerable amount of opium in the intestines of the deceased. Taking all the circumstances into consideration 1 think that the trial Court has rightly found that the Will, dated the 4th of October, 1934, was being withheld by the respondent. On these facts the case falls within section 237 of the Act.

13. Then, it is sail that when a Will is traced to the possession of the deceased and is not forthcoming on his death the presumption is that the testator has revoked the Will by destroying the same. Under section 70 of the Act these are four modes under which a Will or a codicil may wholly or partially be revoked. They are:—

(1) by marriage:

(2) by another Will or codicil duly executed;

(3) by writing declaring an intention to revoke and duly executed in the manner in which an unprivileged will is required to be executed under the Act; and

(4) by the burning, tearing, or otherwise destroying the Will or codicil by the testator, or by some other person in his presence and by his direction, with the intention of revoking the same.

14. Now, the case of Roora Ram respondent is that the Will made by Lala Narain Dass on the 4th of October, 1934 was revoked by another Will or codicil duly executed in the manner in which an unprivileged Will is required to be executed. The other modes in which a Will or codicil may wholly or partially be revoked are not relied upon by Roora Ram respondent. That being so, it is not open to Roora Ram respondent to say that Lala Narain Dass revoked the Will by destroying that Will before he died. Be that as it may, in my opinion the circumstances proved at the trial do not bring the case within the fourth mode by which a Will or codicil may wholly or partially be revoked. Authority for this proposition is to be found in Padman v. Hanwanta . 93 P.R 1915 P.C.. In that case it was said:—

“As regards the question of revocation, the Chief Court, after reviewing all the circumstances said as follows:—

‘We think that the more reasonable presumption in this case is that the Will was mislaid and lost or else was stolen by one of the defendants after the death of Daula;’

and they held that in their opinion it was not revoked. Their Lordships think that it was perfectly within the competency of the learned Judges to come to that finding Much stress has been laid on the view expressed by Baron Parke, in Wehh v. Philips . 1 Moone P.C 299. that when a Will is traced to the possession of the deceased and is not forthcoming at his death the presumption is that he has destroyed it. In view of the habits and conditions of the people of India this rule of law, if it can be to called, must be applied with considerable caution”

15. Applying the test laid down in Padman v. Hanwanta to the facts of this case, I am clearly of the view that the Will made by Narain Dass on the 4th of October, 1934, was mislaid or stolen by Roora Ram respondent. For all these reasons I find that there is no force in the contention raised.

16. Indeed, the sole question that arises for determination in these proceedings is whether Lala Narain Dass has revoked the Will that he made on the 4th of October, 1954, by writing, declaring an intention to revoke that Will and duly executed in the manner in which an unprivileged Will is required to be executed under the Act.

17. Now, Buta Ram is the scribe or Exhibit R. 1 and Hira Lal and Lachhman purport to have attested that document. In his evidence given at the trail Lachhman Dass stated:—

“Narain Dass executed the Will Exh. R. 1, when I was passing by the shop of Hira Lal I was called in. The Will Exh. R. 1 was complete. I was asked to attest it. I affixed my signatures on it. The testator Narain Dass did not sign or thumb-mark the Will in my presence. Hira Lal, Roora, Rupa and Boot Ram scribe were present at that time. I did not enquire from the testator whether I should sign the Will or whether he had signed the Will. This Will was not read over at that time. Hira Lal did not sign this Will in my presence.”

18. Clearly Lachhman Dass P.W 3 cannot be regarded to be an attesting witness of the Will R. 1, within the meaning of section 63 of Act XXXIX of 1925. The relevant portion of section 63 reads:—

“The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of has signature or mark, or of the signature of such other person: and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.”

19. Mr. Bahri concedes that the requirements of section 63(c) have not been satisfied in this case and that being so, Exh. R. I cannot be regarded to be a writing declaring an intention to revoke the Will and executed in the manner in which an unprivileged Will is required to be executed under the Act. That being so, I have no hesitation in holding that Roora Ram respondent has failed to prove that the Will, copy whereof is Exh. P.W 3/4, was revoked by Narain Dass on the 23rd of October, 1940. Finding that Exh. P.W 3/4 is a true copy of the last Will and testament of Lala Narain Dass I affirm the order of the trial Court and dismiss the appeal with costs.

20. Appeal dismissed.

Rura Ram v. Munshi Ram And Others

Judgment Summary — Harnam Singh, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent (Roora Ram)

Petitioners / Executors (Lala Munshi Ram, Lala Kharaiti Ram, Lala Amar Nath)

Counsel for the Appellants on Appeal (Mr. S. D. Bahri / Mr. S.D. Babri — as referenced)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rura Ram v. Munshi Ram And Others

Comments