1. T.O.S. No. 16 of 1936 is an application to revoke the letters of administration granted as in an intestacy in O. P. No. 129 of 1914 (now T. O.S. No. 11 of 1936) and to grant probate to the petitioner Alamelu Animal of a will a copy of which is tendered in evidence. The alleged testator is one Krishnamoorthi, husband of the petitioner Alamelu Ammal. He died on 26th April, 1914, leaving, by the petitioner, three sons and a daughter, the eldest son being the present respondent, Parthasarathi. There was another family by one Ethiraja Ammal, who was either a wife or a concubine. The will which Alamelu Ammal propounds divides the estate between the petitioner, her daughter and the children of the alleged concubine.
2. Shortly after the death of Krishnamoorthi, his son, the present respondent Parthasarathi, applied for letters of administration as in an intestacy. Notices were served on his mother, and his brothers and sister and in due course letters of administration were issued without any objection in September, 1915. In 1923 there was a partition of the properties, as a result of which Parthasaratht got the house which under the will now propounded would go to his mother, the present petitioner. In 1935 there was a further partition of properties subsequently acquired as a result of litigation.
3. The will now propounded, which is dated 25th November, 1912, was first asserted in a lawyer's notice sent by the present petitioner on the 25th August, 1936. Her allegation is that she had only recently found that copy on which her petition is based. This copy is admittedly in the handwriting of the respondent Parthasarathi. It begins with the phrase:
Know all concerned that this is my will signed by me in the presence of the two gentlemen who have attested it.
4. It purports to contain a copy of the signature of the.testator, and at the foot of it there are the words, " signed before us" but no names of attesting witnesses are found I beneath that phrase. The copy therefore contains an indication that the original was signed and that there was an intention that it should be attested by two witnesses, but no indication that these two attesting witnesses ever did attest it, nor is there any indication as to their identity. The petitioner has no other evidence of the due execution of the will except any inference which might be drawn from the various statements of the respondent. In the first place we have the fact that in the original application for letters of administration he asserted that there was no will, and the persons to whom notices were sent did not contradict this assertion. In the reply to the notice of August, 1936, the respondent again asserted:
My father left no will nor have I ever come into possession of any will of my father or suppressed the same.
5. It must be remarked that at this time the petitioner had not revealed the fact that she had in her possession a copy of it in the handwriting of the respondent. Then we have a statement in an affidavit sworn by the respondent on 19th October, 1936, in which he says:
I further deny that to the best of my knowledge my father ever left any will on or about 25th November, 1912. I am not aware till now of the existence of any such will. I deny that I ever took possession of any such will or suppressed the same.
6. In his reply to the affidavit in support of the present petition, the respondent admits that the copy of the will is in his handwriting but denies that the will was attested by any witnesses or that he was ever in possession of the original will. He says that he came across the original during his father's illness in 1913, questioned his father about it and was told that it had been written to satisfy the importunities of the mother of the concubine. He adds that on the intervention of a relative his father was satisfied that there was no necessity for this will and destroyed the original in the presence of this relative, the respondent himself, the petitioner and the mother of the concubine. Except for the petitioner and the respondent these alleged witnesses of the destruction of the will are dead.
7. Now it is quite clear that the burden of proving valid execution of the will rests on the petitioner. When this burden has been discharged, it will be incumbent upon the respondent to prove that the will was revoked. The petitioner has no positive evidence at all, except the circumstances summarised above, that any such will, as is asserted, was ever actually executed in such a manner as would make it a good will in law. It is suggested that since the will was apparently executed outside Madras City it would be a good will so far as it relates to properties outside this city even in the absence of attestors, the argument being based on the decision in Namberumal Chetti v. Veeraperumal Pillai (1903) 59 M.L.J. 596. With reference to this argument I must remark that there is really no evidence as to the place of execution at all. The copy filed in Court contains no indication, and no evidence has been put before me, as to the place of residence of the testator on the date of the alleged execution of the will. It is pointed out that there is an assertion in the petition that the alleged testator was a resident at Guntur and it is admitted by the respondent that when the copy was taken by him the document which he copied was actually at Guntur. This however does not seem to me to be sufficient proof that the will was actually executed at Guntur. So far as it relates to the house in Madras it is certainly not a valid will without attestation. Moreover, I doubt whether when the will itself clearly contemplates the signature of two attesting witnesses to makeit a complete transaction, it could be held that it had been properly executed in the absence of proof that the contemplated formalities were completed.
8. It is urged on behalf of the petitioner that the Court can presume1 on the materials before it that there was a valid execution of the will. Mr. Radhakrishnayya has quoted three English cases in which the Court relying on the maxim "omnia praesumuntur rite esse acta" has filled up the gap in the evidence of the completion of all the formalities by inferring that those things had been done which in the ordinary course of events having regard to the known circumstances are likely to have been done; One of these cases is Harris v. Knight (1890) 15 P.D. 170. It was a case in which the will was lost; there was a copy; the names of: the attestators were known and both were dead; there was no proof of any proper attestation clause; but there was good evidence as to the execution and contents of the will and the fact; that, it was signed by one of the known attestors and that it was in existence at the time of the testator's death. On these facts it was presumed to have been validly executed. It will be noticed that in the present case we do not know the names of the attestors, or if there were any attestors at all, nor do we know positively that any such will was in existence at the date of the testator's death, so that the inference to be drawn from the circumstances in the present case must go a great deal further than in the case just cited. The case of Woodhouse v. Balfour (1888) 13 P.D. 2 is not of much assistance to the petitioner. That was a case in which there was no room for the signatures of the attesting witnesses at the foot of the will and they were found at the top of the next page. They admitted their signatures but had no recollection of actually attesting this particular document. Here again the Court inferred that the document was validly executed. The case of In the Estate of Phibbs [1917] P. 93 was a case of a lost will in which there was clear and good evidence that the will was validly executed and attested, but the witnesses could not remember the names of the attestors. It was held that the evidence was sufficient to establish that the will was duly executed. This was a case in which there was no contest; but clearly the evidence went a great deal further than that placed before me.
9. For the respondents two English cases have been cited in which evidence somewhat similar to that now before me was held to be insufficient. One is In re Ripley (1858) 164 E.R. 632 where the testator residing in India sent to his solicitor in England a copy of his will without any copy of his own signature or the signatures of the attesting witnesses, and asked to be informed if the will needed revision in any respect. No revision was suggested and subsequently the testator sent what purported to be a copy of a codicil referring to the previous will, the codicil copy containing the names of the signatory and the witnesses. Shortly afterwards the testator was killed in the mutiny and no other evidence was forthcoming as to the valid execution of the will and codicil and it was held that the statements of the testator contained in his letters were not sufficient to prove due execution. A somewhat similar decision is found in the case of In re Gray (1870) 22 L.T. 489. These cases seem to go on the point that at common law a statement of a deceased person regarding facts within his knowledge would not be evidence unless it relates to one of the circumstances which can be proved by the secondary evidence of extra judicial statements by the deceased person, similar to those embodied in Section 32 of the Indian Evidence Act.
10. Looking into the facts of the present case from a practical point of view, what is it that we have established? We know that there was in existence at some time what purported to be a will dated 25th November, 1912. We have the statement of the respondent that he saw this will in the possession of the testator in 1913 and that it was unattested. The copy of that will contains an indication that attestations were contemplated. There is no evidence whatever that any attestations were made. There is no evidence that the original will was in existence at the time of the testator's death. We might infer from the fact that he signed this will with an intention to complete it. But can we infer its actual completion? I do not think we can. Nor do I think we can infer from the somewhat disingenuous statements of the respondent when taxed with the existence of such a will, a knowledge that there was ever in existence a duly completed and validly attested will such as is now asserted. All that we might infer is that he probably knew of the existence of this copy and was not sure whether the petitioner had seen the copy or not. Taking all the materials together I am of the opinion that the valid execution of this will has not been proved. It is therefore unnecessary to call upon the respondent to prove its revocation. T.O.S. No. 16 of 1936 is dismissed with the costs of the contesting respondent. The letters of administration granted in T.O.S. No. 11 of 1936 will be re-granted.