Durga Prasad v. Debi Charan & Ors.

Jog Maya made 3 Wills. The first one in 1935 stated that she was performing Puja and service of a temple out of the income of rents from her building, and the house would be dedicated to the temple for all times to come. Through another Will, dated 12 July 1938, she executed a new Will and revoked the previous one. Here, she dedicated a part of the house, some ornaments, and household items for the temple, and also explicitly prohibited the respondent (her adopted son) from performing her funeral rites, but gave him the right to appropriate the rent of the 2 houses after payment of taxes and death of trustees.

The 3rd Will, which is in question, was executed in 1947 and declared that the old Will was void and bequeathed (transfer of assets through Will) all her properties to the appellant. After her death, the house was locked up but the original Will was not found, except a draft Will almost of the same time. The District Court dismissed the petition for grant of letters of administration or probate (legal validation of a Will provided by competent court) filed by the appellant who was the sole legatee or executor (the person who was named in the Will to execute the terms in it). This judgment was reversed by a Single Judge Bench of the High Court. On further appeal, the Division Bench restored the order of the District Court, i.e., refused to grant letters of administration or probate, hence the appellant has preferred this appeal.

The Supreme Court held that when the Will which has been executed and registered by the testator is not found at the time of death, the presumption of revocation of  Will depends upon the facts and circumstances of the case. Even if such a presumption is drawn, it is a weaker one and can be rebutted by the slightest possible evidence, whether direct or circumstantial.

The Court stated that, in view of Section 70 of the Indian Succession Act, 1925, the burden lies on the objector to prove various circumstances such as marriage, burning, tearing, or destruction of the Will.

It also held that when there is no obvious or clear motive for the testator to revoke the Will and the Will is not found at the time of the testator's death, it may well be that the Will was misplaced, lost, or stolen by interested persons.

The Supreme Court restored the decision of the Single Judge Bench of the High Court and held that the relations between the testatrix (a person who made the Will) and Durga Prasad were very affectionate, and there was no reason for her to suddenly change her mind and revoke the Will to benefit the respondent, a person whom she hated. Furthermore, it is difficult to believe that she would shed her religious and charitable inclination by revoking the Will and deleting the religious and charitable purposes contained in the Will to benefit the respondent. Additionally, the fact that the Will was not found despite a search at the time of the testatrix's death is not sufficient to justify a presumption that the Will was revoked.