R.S.Narula, C.J. - (1.) One Bhagwan Singh (hereinafter called the testator) is alleged to have executed a will in favour of his two sons Harbans Singh (hereinafter called the plaintiff, and Harchand Singh (hereinafter called the defendant) bequeathing his property in two equal shares to his sons and excluding from his inheritance all the seven daughters of his. Bhagwan Singh died in or about 1973 leaving behind all the above-named heirs. On or about Feb. 2, 1974. Harbans Singh and his seven sisters filed a suit for possession of 8/9th share of the estate of the deceased testator on the ground that they were eight out of the nine heirs of the deceased. The defendant resisted the suit on inter alia the ground that the deceased had executed a will which had been duly registered whereby the property in dispute had been bequeathed to the plaintiff and the defendant alone. One of the issues framed in the main suit was regarding the valid execution of the will, but the defendant claims that the will was in the possession of the plaintiff and, therefore, applied to the Court to direct the plaintiff to produced it. The plaintiff's reply was that the will was never executed and it was not in his possession. Thereupon the defendant made an application for leave to produce secondary evidence on the issue relating to the execution of the will. That application was contested by the plaintiff. As a result of the contest, the trial Court framed the issue "where the applicant is entitled to lead secondary evidence" on the application to lead secondary evidence. By the order under revision the application was dismissed on two grounds, namely, (1) that since it had not been proved that the will in question was in the possession of the plaintiff, the defendant was not entitled to lead secondary evidence, and (2) that since the will was not forth coming after the death of the testator, it raised a presumption of the will having been revoked according to the law laid down by a Division Bench of the Delhi High Court in Devi Charan Vs. Durga Prashad, A.I.R. 1967 Delhi 128.
(2.) Mr. K.L. Sachdeva, learned counsel for defendant-petitioner, has firstly argued that the trial Court has exercised its jurisdiction in disallowing the application for leading secondary evidence with material irregularity and illegality inasmuch as the Court had no jurisdiction to base its decision on a plea which had not even been raised by the plaintiff but was also contrary to the defendant's express plea in paragraph 2 of the written statement wherein he had replied to the plaintiff's allegation regarding the execution of the will in question. The plaintiff filed a rejoinder in reply to the written statement. In the corresponding paragraph of that rejoinder he expressly denied the execution of the will or its possession, implying that the will had never come into existence. The question of revocation was, therefore, wholly irrelevant and could not have been brought into this case at that stage. Mr. H. L. Sarin, learned counsel for plaintiff - respondent, has pointed out that in his client's reply to the defendant's application for leading secondary evidence, he had suggested that,the testator had finished the will during his lifetime (Khatam ker gava tha). But no such plea having been taken in the pleadings in the main suit, no serious notice could be taken in the ancillary proceedings, particularly when the same went contrary to the pleadings in the main suit and were beautifully vague on the point in question. Even otherwise on the basis of the illegations made by the parties in the application of the defendant and the reply of the plaintiff thereto, and on the evidence led by them on the issue framed in connection with the leading of secondary evidence, no presumption could , in my opinion, be raised about the revocation of the will for more than one reason. The presumption of revocation of a will by destruction raised from mere non-availability of the will after the death of the testator is based on English law and it has been repeatedly held that the said presumption should be raised with great caution in India as the way of life and handling of things of this country is very different from that in England. Special emphasis has been laid in some reported judgments on the reluctance with which that presumption should be applied to the case of a registered will as there is lesser effort in such a case to preserve the original document with the same care and caution as is usually observed in the case of an unregistered document. A Division Bench of the Orissa High Court in Brundaban Vs. Ananta, AIR 1936 Orissa 151, has gone to the length of holding that in India presumption of revocation of a will cannot be drawn merely from the fact of its disappearance. That may indeed be too sweeping an observation to make regarding the presumption of revocation raised in certain cases, but it appears to me to be plain that no such inference can be drawn from mare non-production of the will-unless the party who wants the Court to believe that the will has been revoked satisfies the Court that a thorough search had been made among the papers of the deceased by an independent person and no such document could be found among such papers. No such evidence has so far been produced in the present case A Division Bench of our own Court consisting of Mahajan and Pandit, JJ. (As they then were) has held in Arya Pratinidhi Sabha Vs. Dev Raj, AIR 1963 Pun. 208, that the mere fact that the will was not set up soon after the death of the tesator would not justify the raising of such a presumption. The learned Judges of the Division Bench also emphasised that the rule is now firmly settled that the presumption of English law that when a will is traced to the possession of the deceased and i, not forthcoming at his death, is that he has destroyed it must be applied in India with considerable caution. In fact in the present case there was no evidence at all before the trial Court that the will could not be traced to the possession of the deceased. The only evidence led was that it was not in possession of either the plaintiff or the defendant. The onus to prove that the will was in fact executed and subsequently revoked by the testator, in any one of the manners specified in section 70 of the Succession Act, lies on the person who wants the Court to believe such a fact. The presumption of revocation of a will by its destruction by the testator should not be lightly raised in ancillary proceedings of a case, where the fate of the main case depends n the valid execution and existence of the will.
(3.) For the foregoing reasons I hold that the finding of the lower Court about the presumption regarding the will having been revoked by the testator is neither legal nor justified.;