DURGA PRASAD versus DEVI CHARAN

Citation: [1979] 1 S.C.R. 873 · Decided: 19-09-1978 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

• 
I 
. .....__ 
, 
DURGA PRASAD 
v. 
DEVI CHARAN 
September 19, 1978 
[S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.] 
873 
Indian Succession Act, 1925 (39 of 1925)-Will not found on death of 
testator-If presumption as to revocation arises--Onus alleging revocation on 
whom lies. 
The respondent was the adopted son of the testatrix who made a will in 1935 
declaring that her properties were dedicated to a private temple of hers in her 
house 3.nd would remain so for all times to come. Jn 1938, however, she 
revoked the earlier will and dedicated a part of the house and certain other 
items for the benefit of the temple. But she expressly prohibited the respondent 
from performing her funeral rites and gave certain rights over the property to the 
appellant and his wife. In 1947 she again revoked the will made in 1938 and 
bequeathed her properties to the appellant without right of alienation and had 
also clearly stated that the respondent should have no concern with her estate 
and should not be allowed to touch her dead body. 
On .. her death, though the original will was not found, a draft will which was 
almost of the same time was discovered. The recitals in the draft were almost 
the same as in the will of 1947. 
In the appellant's petition before the District Judge for grant of letters of 
administration or probate the respondent contended that the testatrix was not of 
A 
B 
c 
D 
sound disposing mind at the time of the alleged execution of the will and that 
E 
ihe appellant had exercised undue influence over· her in the execution of the will. 
It was further alleged that the will was subsequently revoked and that \Vas the 
reason why it was not found in the house despite search. 
The District Judge accepted the respondent's version and rejected the petition 
for probate. On appeal a single Judge of the High Court found that the will 
· was genuine and_had not been revoked. On furthor appeal the Division Bench 
restored the order of the District Judge dismissing the appellant's application for 
probate by drawing a presumption that the testatrix had revoked the will by 
destroying it before her death . 
In appeal to this Court it was contended on behalf of the appellant that the 
High Co\lli was in error in drawing a presumption of revocation of the will in 
view of the express provisions of s. 70 of the Indian Succession Act, 1925 and in 
F 
the alternative even if the presumption was available to the respondent the.same 
G 
being a rebuttable One, was sufficiently rebutted by facts and 
circumstances 
proved iD. the case. 
Allowing the appeal, 
HELD : The presumption that the will was revoked by the testatrix had been 
sufficiently rebutted and the respondent had failed to discharge the onm which 
lay on him to prove that the.will was revoked. The will being a product of Cree 
will of the testatrix there must be strong and cogent reasons for holding that it 
was revoked. The fact that the will was not found, despite search, was 
not 
H 
874 
SUPREME COURT REPORTS 
[1979] 1 s.c.R. 
A 
sufficient to justify a presumption that the will was revoked. Having regard to 
the fact that the respondent was interested in destroying the ,vill and had access 
)41 
to the house, the presumption would be that the will was either stolen or mis-
placed by him or at his instance. 
[890C-E] 
The correct legal position may be stated thus : 
B 
(i) Where a will has been properly executed and registered by the le8tator 
but not found at the time of death the question whether the presumption that the 
testator had revoked the will can be drawn or not will depend on the facts and 
circumstances of each case. Even if such a presumption is drawn it is rather a 
weak one in view of the habits and conditions of our people. 
(ii) Such a presumption is a rebuttable one and can be rebutted by the 
C 
slightest possible evidence, direct or circumstantial. For instance, where it is 
proved that a will was a strong and clear disposition evincing the categorical 
intention o~ the testator and there was nothing to indicate the presence of any 
circumstance which is likely to bring about a change in the intention of the 
testator so as to revoke the will suddenly, the presumption is rebutted. 
D 
E 
F 
G 
H 
(iii) In view of the fact that in our country most of the people are not highly 
educated and do not in every case take the care of depositing the will in the bank 
or with the1 Solicitors or otherwise take very great care of the will as 

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