NDLI: Durga Prasad Vs. Devi Charan

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	1925 Indian Succession Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Indian Succession Act, 1925 (39 of 1925)
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 and would remain so for all times to come. In 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 sound disposing mind at the time of the alleged execution of the will and that the 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 was 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 On appeal a single Judge of the High Court found that the will was genuine and had not been revoked.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 further 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 Court 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 the alternative even if the presumption was available to the respondent the same being a rebuttable One, was sufficiently rebutted by facts and circumstances proved in the case.
Judge	Hon'ble Mr. Justice S. Murtaza Fazal Ali
Neutral Citation	1978 INSC 182
Petitioner	Durga Prasad
Respondent	Devi Charan
SCR	[1979] 1 S.C.R. 873
Judgement Date	1978-09-19
Case Number	55

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