ORDER S.N. Katju, J. - This is a Defendant's appeal arising out of a suit for a declaration that the sale deed dated 18-6-1955 executed by the second Defendant Smt, Kishan Dei in favour of the first Defendant Banwari Lal is ineffective and null and void as against the Plaintiff-Respondent Ganga Prasad. 2. It was alleged by the Plaintiff that one Mool Chand owned the property in dispute. He had executed a registered will in favour of his wife Smt. Kishan Dei and Ganga Prasad in which Kishan Dei was given a life estate and Ganga Prasad was to get the property after the death of Kishan Dei. Mool Chand died in March, 1952. It was alleged that Banwari Lal obtained the aforesaid deed of sale by fraud and misrepresentation of facts from Smt. Kishan Dei. The Plaintiff, therefore, instituted the suit in appeal. 3. The second Defendant Smt. Kishan Dei, who was alive at the time of the institution of the suit, did not contest it and the suit proceeded exparte as against her. The first Defendant Banwari Lal alleged that the aforesaid will executed by Mool Chand had been revoked in his life time by him and consequently Smt. Kishan Dei being his widow inherited the property of her husband. She had absolute right to transfer it in his favour and the said transfer was valid and operative and had not been brought about by any fraud or misrepresentation of facts. 4. The trial court dismissed the suit, but its decision was set aside in appeal by the lower appellate court. The Defendant has come in appeal to this Court. 5. Admittedly the original will executed by Mool Chand which had been registered was not produced but a certified copy of the same was produced in court. The Plaintiff alleged that the said will had been stolen after the death of Mool Ghand. The Defendant contended that it had been torn by Mool Chand himself. The court below disbelieved both the aforesaid versions as put forward by the Plaintiff and the first Defendant. The first Defendant relied on two notices dated 10/14-3-49 and 16-7-51 which had been admittedly sent by Mool Chand to Ganga Prasad. The Court below referring to the first notice (Ex. A 4) observed as follows: The first notice is Ex. The court below disbelieved both the aforesaid versions as put forward by the Plaintiff and the first Defendant. The first Defendant relied on two notices dated 10/14-3-49 and 16-7-51 which had been admittedly sent by Mool Chand to Ganga Prasad. The Court below referring to the first notice (Ex. A 4) observed as follows: The first notice is Ex. A 4 without date on behalf of Mool Chand complaining to Ganga Prasad that the latter had run away with Rs. 2100/- belonging to Mool Chand and that Mool Chand did not want to keep him any more. The notice further informed Ganga Prasad that Mool Chand had notified in the newspapers that Ganga Prasad had nothing to do with him. The second notice dated 16-7-1951 (Ex. A 5) "recalled Moolchand earlier notice dated 14-3-1949 i.e. Ex. A 4 and complained that Ganga Prasad had not even replied to that notice. It repeated that Ganga Prasad had gone away without his permission, did not render him any service and had taken away Rs. 2100/-." It further said: I do not hold you bound by the will. I have a right to execute a second will in favour of any one whom I like. Now there is nothing between you and me through the will. I, therefore, through this notice again inform you that you have nothing to do with my property etc. Send a reply to my notice quickly otherwise I will take other steps through another will. You have no right and you are informed. 6. It was contended on behalf of the first Defendant that the contents of the aforesaid two notices amounted to a revocation of the will executed by Mool Chand. Learned Counsel further contended that it must be presumed from the fact that the original will executed by Mool Chand had not been produced, that it did not exist in the life time of Mool Chand and he had revoked it by destroying it. Learned Counsel further argued that the revocation of the will executed by Mool Chand must be presumed from the non production of the will itself. He further argued that the Plaintiff should prove that the will did exist at the time of the death of the testator. Learned Counsel further argued that the revocation of the will executed by Mool Chand must be presumed from the non production of the will itself. He further argued that the Plaintiff should prove that the will did exist at the time of the death of the testator. He further contended that since the will was not produced it was hot necessary for the Defendant objector to prove that it had been destroyed by the testator. The burden to show that it existed at the time of the death of the testator lay on the propounder of the will. 7. The questions for consideration by me, are firstly, whether the aforesaid two notices which had been sent by Mool Chand to Ganga Prasad amounted to a revocation of the will in dispute and secondly whether is should be presumed from the circumstances of the case that the will had been revoked by Mool Chand during his life time. 8. Learned Counsel for the Defendant Appellant relied on a decision of the judicial Committee in Allan v. Moorison 1900 AC 604. In the aforesaid case the judicial committee approved the following dictum of Lord Parke in Welch v. Phillips (1836) 1 Moo. PC 229: If a will is traced to the possession of the deceased and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself and that presumption must have effect unless there is sufficient evidence to rebut it. It was further observed: Whether it should be called a presumption of law and fact does not seem to be material. It may of course be rebutted and the presumption will be more or less strong according to the character of the custody which the testator had over the will. 9. The question was again considered by the Judicial committee in a case from India--Padman v. Hanwanta AIR 1915 PC 111 . In this case reference was made to the case of Welch v. Phillips (supra). Their Lordships proceeded to observe: In view of the habits and conditions of the people of India this rule of law, if it can be so called, must be applied with considerable caution. In the present case the deceased was a very old man and towards the end of his life, almost imbecile. Their Lordships proceeded to observe: In view of the habits and conditions of the people of India this rule of law, if it can be so called, must be applied with considerable caution. In the present case the deceased was a very old man and towards the end of his life, almost imbecile. There is nothing definite to show that he had any motive to destroy the will or was mentally competent to do so. On the other band, the circumstance favour the view the Chief Court has taken that the will was either mislaid or stolen. In Aditram Girdhar Vs. Bapulal Becharlal, AIR 1921 Bom 143 their Lordships observed: ...In this case, the only facts that have been proved are that the testatrix at some time during the six week before she died, got back the will and other papers from the Applicants and when she died the will was not found amongst her papers. There was nothing therefore in the evidence from which it could be inferred that the will was in existence at the date of the testator's death. There was evidence that she had disputes with the Applicants and the fact that she called back the will from their possession lends considerable amount of support to the view that she did so with the intention either of revoking it or of making a new will.... Their Lordships in these circumstances affirmed the view of the lower appellate court that the will "must have been revoked and it could not be found." In Jotindra Nath Roy Chowdhury Vs. Raj Lakshmi Debi, AIR 1933 Cal 449 a Division Bench of the Calcutta High Court observed: ...The next question for consideration is whether at the time of the death of the testator the will was in existence; and if it was not, then the ordinary primary presumption is that it was destroyed with intention to revoke. This presumption is one which is always rebuttable by the production of further and other evidence. In Guru Prasad Misra v. Lakshimi Priya Debi ILR 1954 1 Cal. 126 a Division Bench of the Calcutta High Court considered the applicability of the principle laid down in Welch v. Phillips (supra) in India and followed the rule of law laid down by the Judicial Committee in Padman v. Hanwanta (Supra). In Guru Prasad Misra v. Lakshimi Priya Debi ILR 1954 1 Cal. 126 a Division Bench of the Calcutta High Court considered the applicability of the principle laid down in Welch v. Phillips (supra) in India and followed the rule of law laid down by the Judicial Committee in Padman v. Hanwanta (Supra). Learned counsel for the Plaintiff Respondent also referred to Padman v. Hanwanta (supra) and contended that the circumstances of the present case do not warrant the application of the rule laid down in Welch v. Phillips (supra). He relied on Babu Lal Singh and Another Vs. Baijnath Singh and Another, AIR 1946 Patna 24 , Brundaban Chandra Vs. Ananta Narayan Singh Deo, AIR 1956 Ori 151 , Rangarao and Another Vs. Gopal and Others, AIR 1959 Bom 287 and Shib Sabitri Prasad v. The Collector of Meerut ILR 29 All. 82. In Brundaban v. Ananta (supra) it was observed: It follows that in this country a psesumption of revocation of a will cannot be drawn merely from the fact of its disappearnce.... It has also been held that the onus of proving destruction of the will lies upon the party alleging it. Before the presumption can be raised in favour of the Appellant, the courts must be satisfied that the will was not in existence at the time of the testator's death.... In the case of Shib Sabitri Prasad (Supra) it was observed: We are disposed to think that in India the presumption from a will not being forthcoming would at least not be so strong as in other countries where wills are taken greater care of. On the facts appearing in the evidence, however, we doubt whether, if this were an english case, the presumption referred to would arise.... There is no evidence whatsoever to prove that a search for the will was made by any responsible person when Nanak died and that it was not forthcoming at his death. This being so, does the presumption as of the revocation to the will arise? We think that on the facts it does not. 10. From the consideration of the authorities referred to above it is evident that the principle laid down by the Judicial committee in Padman v. Hanwanta (supra) still holds the field. This being so, does the presumption as of the revocation to the will arise? We think that on the facts it does not. 10. From the consideration of the authorities referred to above it is evident that the principle laid down by the Judicial committee in Padman v. Hanwanta (supra) still holds the field. It cannot be denied that the broad rule laid down in Welch v. Phillips (supra) has to be applied with considerable caution by the courts in India. Where the circumstances of the case justify the application of the rule to a particular case the presumption as indicated in the case of Welch (supra), could be applied. 11. The court below did not record any finding on the question whether the will existed during the life time of Mool Chand. Kishan Dei who appeared as a witness on behalf of the Plaintiff stated that it was stolen about five years after the death of Mool Chand. Ganga Prasad controverting the version of Kishan Dei stated that it had disappeared either six months before or six months after the death of Mool Chand. Admittedly, the will was not produced by the Plaintiff and his allegation that it was stolen was not believed by lower appellate court. Under these circumstances it must be held that it did not exist during the life time of Mool Chand. There is no difficulty in holding that the relations between Mool Chand and Ganga Prasad were, to say the least, most unhappy. Ganga Prasad was remote relation of Mool Chand. He was the grandson of Mool Chand's cousin. As indicated by the aforesaid two notices Mool Chand had a bitter grouse against Ganga Prasad for running away with his money. He had told him in clear terms that he did not want to do any thing with him and that he did not want to keep him any more. Mool Chand had been even notified in the news papers that he had nothing to do with Ganga Prasad. Admittedly, Ganga Prasad was not staying with Mool Chand and it would appear that for several years past Ganga Prasad was living away from Mool Chand. The question whether the notice (Ex. Mool Chand had been even notified in the news papers that he had nothing to do with Ganga Prasad. Admittedly, Ganga Prasad was not staying with Mool Chand and it would appear that for several years past Ganga Prasad was living away from Mool Chand. The question whether the notice (Ex. A 5) amounts to the revocation of the will or not need not be gone into, but the aforesaid two notices pointedly show that Mool Chand had decided to break all connections with Ganga Prasad and had told him that he had nothing to do with his property. 12. Had Ganga Prasad been a son or a grandson of Mool Chand, it could have been said that the testator might have pardoned the lapses of the wayward relation. Ganga Prasad was admittedly remotedly related to Mool Chand and it could not be said no matter what happened Mool Chand would continue to have a soft corner for Ganga Prasad. Furthermore, there is nothing to indicate that Ganga Prasad was very close to Mool Chand or had served in his old age and it was likely under these circumstances that Mool Chand's feelings for Ganga Prasad would soften. Mool Chand had asked Ganga Prasad to give him a reply of the notice (Ex. A 5) which had been sent to the latter. Admittedly, no reply was sent by Ganga Prasad to Mool Chand and there is nothing to indicate that the strained relations between Mool Chand and Ganga Prasad had been at all softened. 13. Taking all the circumstances of the case (into consideration lit must be held that the rule of law laid down in the case of Welch v. Phillips (supra) must be applied in the present case and since the will executed by Mool Chand had not been produced, it must be presumed that it had been destroyed by the testator himself and had thus been revoked. 14. The appeal is allowed with costs, the decree of the court below is set aside and the suit is dismissed.