Pande, J.:— This appeal is by the defendants from an order, dated the 2nd June, 1943, of the District Judge of Shahabad.

The respondents propounded the last will of one Manbodh Singh who died on the 17th November, 1935, at, Benares. The will in question was said to have been executed and registered on the 17th February, 1943. A certified copy of the will obtained from the Registration Office was produced with the application for the grant of probate. The original will was said to have been destroyed along with the record of a criminal case in which it was said to have been filed. The appellants contended that Manbodh was physically and mentally incapable of executing the will; that he did not execute the alleged will and that a forged will that had been got up by the plaintiffs was revoked by Manbodh by destroying it. The lower court found that the will was duly executed by Manbodh; that he was of sound disposing state of mind at the time and that the will was not revoked by Manbodh, Accordingly that Court granted Letters of Administration with a copy of the will annexed to the plaintiffs. The defendants have preferred this appeal.

The relevant facts are: The testator and the parties to the proceedings giving rise to this appeal are descendants of one Sarbjit Singh who had four sons. Manbodh was descendant of Sarbjit Singh in the fourth degree by a son, Sita Ram Singh; the defendants are Sarbjit's descendants in the third degree by another son, Tirlok Singh, and the plaintiffs are descendants in the fifth degree by a third son, Naujadik Singh. The plaintiffs are related to Manbodh as uncles and the defendants as nephews, several degrees removed. Manbodh had no issue by his wife Mosammat Talukraj Kuer. By the will (Ex. 7) the testator bequeathed his entire estate to his wife subject to the condition that she shall have no right to create any encumbrance on the properties or to transfer them. On the death of his wife the entire estate was to pass under the will to the plaintiffs Bhagwati Singh and Baijnath Singh. Manbodh's widow Mosammat Talukraj Kuer, came into possession of her husband's estate and remained as such till her death which event took place on the 17th December, 1939. The application for the grant of probate was presented to the Court on 2nd February, 1940.

The finding of the lower court regarding due execution of the will by Manbodh has not been challenged in this Court. The only question that has been urged is that the testator revoked the will.

Both parties case is that the will was destroyed. The parties are at variance as to the circumstance of its destruction. The plaintiffs' case was that the will was produced in a criminal case in the year 1934 and it was destroyed there along with the record of the case in January 1936. The defendants' case was that when Manbodh came to know that a forged will had been got up, he called for it and destroyed the document by throwing it in a burning hearth.

The question is whether the will was destroyed by the deceased himself animo revocandi or whether it was destroyed without his privity or approbation. In the former case the paper is revoked; in the latter case a copy may be established.

Mr. P.R Das argued for the appellants that the plaintiffs' plea of production of the original will in a criminal case and its destruction by the court for failure to take it back in time had not been established by satisfactory evidence. Therefore, the presumption of law is that it had been destroyed by the testator himself and the presumption should take effect unless it is repelled by the plaintiffs. In support of this submission reference is made to a decision of their Lordships of the Privy Council in Allan v. Morrison. In this case their Lordships quoted with approbation the principle of law laid down by Lord Wensleydale in Welch v. Phillips(2) “there is a presumption that if a will traced to the possession of the deceased and last seen there is not forthcoming on his death, it is presumed to have been destroyed by himself: and that presumption must have effect unless there is sufficient evidence to rebut it. Whether this should be called a presumption of law or fact does not seem material. It may, of course, be rebutted, and the presumption will be more or less strong according to the character of the custody which the testator had over the will”.

Mr. Das referring to the provision of sub-section (2) of section 61 of the Registration Act, 1908, which provides that on completion of the registration the document shall be returned to the person who presented the same for registration or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52, submitted that there is no case that the will after registration was made over to a nominee of Manbodh. Therefore the ordinary presumption is that the document must have been taken back from the Registration Office by Manbodh himself and was in his custody. It is urged that as the plaintiff had failed to account for the absence of the will to the satisfaction of the Court, the presumption of law quoted above should take effect. But it is neither party's case either in the pleadings or in evidence that the will was “last seen” in the possession of the testator. Jagarnath Singh (P.W 4) stated

“I filed the will in that case. Manbodh had given it to me after it was registered”.

Ram Nagina Lal (D.W 2) stated

“Jagaraath gave a document to Manbodh who gave it to me…………… I read the document. Manbodh threw the document into the fire, the document was burnt”.

On reading the certified copy of the will (Ex. 7) he stated that the document which was burnt was the original copy of that will. Two other witnesses for the defendants (D.Ws 3 and 4) deposed to a similar effect.

Mr. Das suggested that the testimonies of the witnesses of both the parties should be discarded as unsatisfactory and the case be decided on the basis of the presumption of law urged by him. But it is a well established proposition of law that the decision of a case must rest on the pleadings and evidence. Therefore the suggestion of Mr. Das cannot be accepted. In my opinion, the essential condition of the rule of English law “if a will traced to the possession of the deceased and last seen there is not forthcoming on his death” has not been established. Therefore the presumption of law on which Mr. Das laid much stress has no application to the facts of the present case.

The onus primarily lies on the party propounding the copy to account for the absence of the original. The evidence on the point is meagre. There is the oral testimony of a single witness, Jagarnath Singh who deposed in support of the plaintiffs' plea of the circumstance in which the will is said to have been destroyed. He is obviously an interested, witness. It seems improbable that the will, if produced in the criminal case, should have been left lying there for about eighteen months when the record of the case was destroyed. I, therefore, agree with the lower court that there is no satisfactory evidence to prove the alleged destruction of the document.

The onus of proving destruction of the will by the testator himself lay upon the defendants. Three witnesses were examined on behalf of the defendants in support of the plea of revocation of the will by the testator himself (D.Ws 2, 3 and 4). The lower court commented on the evidence of each of these witnesses and considered their testimony to be unreliable. I have carefully scanned the depositions of these witnesses and see no reason to differ from the learned District Judge's opinion before whom the witnesses were examined.

Reference is made to the rehan deed (Ex. C) executed by Mosammat Talukraj Kuer on the 17th. November, 1935. By this deed the Mosammat contracted loan by giving in mortgage certain properties. The deed recited that the loan was incurred for performing the funeral ceremony of Manbodh Singh. The will (Ex. 7) directed that the widow would have no right to encumber or to alienate the property and that Bhagwati Singh or Baijnath Singh should perform the funeral ceremonies and both contribute the expenses in equal shares. The document shows that the widow alienated the properties against the direction contained in the deed of will and incurred expenses for performing sradh. This document was attested by Jagarnath Singh, brother of Bhagwati Singh. It was argued that alienation of the property by the widow against the direction in the will and apparently to the knowledge of the legatees indicated that the will had been revoked by Manbodh. In my opinion these circumstances do not positively indicate that Manbodh Singh had revoked the will. It is not unoften the case that directions in the will are not strictly followed by the legatees. Mr. Das referred to another circumstance as an indication of the revocation of the will, and that is the delay in presentation of the application for grant of probate of the will. The application was presented within two months of the death of Mosammat Talukraj Kuer who under the will had acquired absolute estate on the death of her husband and remained in possession till her death. Bhagwati and Baijnath did not derive any interest in the estate under the will till the death of the widow. This circumstance clearly explains the delay in the application for probate. No inference of revocation can be drawn from this circumstance.

It follows from the above discussions that it has not been proved that the will was destroyed by the testator himself.

Now the position is that both parties have failed to prove their respective story regarding destruction of the will. It seems unlikely that the document so favourable to the plaintiffs should be suppressed by them. Therefore the document is either lost or mislaid unless revoked. In such circumstance the relevant question that arises is, whether the evidence leaves on the mind of the Court the conclusion that the testator continued in the same mind from the date of his will down to the time of his death. In other words whether the evidence gives any reasonable indication of any change of testamentary intentions of the testator. In the present case there is ample evidence to show that the testator continued on good terms with the plaintiffs, while his relations with the defendants were rather strained.

The will recites

“Since long my near agnates Babu Bhagwati Singh and Baijnath Singh who are my nephews in relation have been living with me, the executant, in one and be same house and they always render service and remain obedient to me, the executant and my wife.”

Manbodh along with the plaintiffs had instituted a suit against defendants and others for the partition of a small piece of land held by them jointly and on which stood their dalan. That plaint was filed on the 2nd November, 1933 (Ex. 16). Manbodh and Jagarnath, brother of one of the plaintiffs, had jointly granted a patta to one Loki Ahir regarding settlement of a certain land on the 26th July, 1933 (Ex. 5). On the 8th May, 1935, Manbodh stated in his deposition in the criminal case that the accused persons had requested him to cancel the will and to execute another will including them as legatees and on his refusal to do so they had assaulted him. On 18th September, 1934, Manbodh with the plaintiffs and their brother Jagarnath Singh filed a petition in that partition suit for amendment of the plaint. This was after the disposal of the criminal case (Ex. A) and the alleged time of destruction of the will by Manbodh. On the 20th September, 1934, Manbodh wrote a postcard to Baijnath Singh, one of the plaintiffs who was then at Dibrugarh in Assam. The contents of the postcard show that Manbodh asked Baijnath to send him Rs. 100 and also informed him about the progress of the partition suit. On 9th February, 1935, Manbodh Singh had written a postcard to Bhagwati Singh in which he informed him about certain monetary transactions and other family matters. The above facts clearly indicate that Manbodh and the plaintiffs continued to be on good terms at least till the 9th February, 1935. There is nothing to suggest that the cordial relation that existed between Manbodh and the plaintiffs was in any way disturbed during the period that intervened between 9th February and 11th November, 1935, when Manbodh died. The natural inference is that good relations between the testator and legatees continued till death. Mr. Das was not able to point out any circumstance indicating any change in the testamentary intentions of Manbodh after he had given his deposition in the criminal case in the month of May, 1934. The learned Counsel submitted that it was not unlikely that Manbodh sometime before his death might have realised his mistake of depriving his next of kin who were the legal heirs of their just claim to his estate and so destroyed the will. It is true that testamentary sintentions are ambulatory. But there is nothing to show any change in Manbodh's testamentary intentions. Rather the evidence detailed above definitely rules out the possibility of such change. Thus there is nothing to show any change of intention, which was likely to lead to the revocation of the will. In the circumstance the only reasonable inference is that the document is either mislaid or lost. The loss, of a will does not operate as a revocation.

It has been established that the will was duly executed by Manbodh and there is no uncertainty about the contents of it as a certified copy of it has been produced. Therefore, in my opinion, the lower court was right in granting Letters of Administration with copy of the will annexed. The appeal, therefore, must fail.

Accordingly I would dismiss the appeal with cost.

Chatterji, J.:— I agree.

Appeal dismissed.

K.D