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Gauhati High Court · body

2001 DIGILAW 2 (GAU)

Dipty Chakraborty v. Santosh Kumar Chakraborty

2001-01-05

J.N.SARMA

body2001
This appeal has been filed against the judgment dated 15.9.97 passed by the learned Additional District Judge, Cachar, Silchar in Title Suit No.64 of 1992. 2. By the impugned judgment he allowed the prayer for grant of probate of a Will executed by one Surendra Kumar Chakraborty. It was found by the learned Judge that the Will was duly executed and attested and there was no suspicious circumstances with regard to that. The daughter has come up on appeal. 3.1 have heard Mr. KK Dey, learned Advocate for the appellant and Mr. GN Sahewalla, learned Advocate for the respondent. 4. The Will in this case was written by the testator himself and when a Will is written by the testator himself a presumption will arise, such a Will is known as holograph Will and better/strong presumption of the Will being executed arises and in such a situation propounder is only required to formally prove the Will for which very little evidence is required, for rebuttal of the presumption cogent evidence is required. If an authority is required for this proposition of law one may have a look at (1996) 9 SCC 324 ((Mrs) Joyceprimrose Prestor (Neevas) vs. (Ms) Vera Marie Vas & others. 5. The learned Advocate for the appellant submits that Will was revoked and with regard to that he makes two fold submissions : (i) That admittedly, subsequently there was disposal of the part of the property by gift which is the subject matter of the property by way of Will. (ii) That the signature in that Will of testator as executants has struck off. 6. Subsequent disposal of the part of the property of the Will will not invalidate the Will and Mr. Sahewalla, learned Advocate for the respondents in this connection relies on a Division Bench decision reported in AIR 1978 P&H 377(Sarjitinder Singh (dead) & others vs. Smti Jaswant Kaur) where the Division Bench pointed out inter alia as follows : "Mere alienation of part of property covered by Will does not revoke it nor does it cast doubt on its genuineness." 7. I respectfully agree with this judgment and hold that mere disposal of a part of the property will not amount to revocation. I respectfully agree with this judgment and hold that mere disposal of a part of the property will not amount to revocation. Section 70 of the Indian Succession Act, 1925 provides for revocation of a Will and that section provides for revocation of an unprivileged Will, it can only be by one or the other of the modes specified in section 70. There cannot be any revocation by necessary implication. The revocation of an unprivileged Will is an act only a little less solemn than the making of the Will itself and has to comply with statutory h requirements contained in section 70. If any authority is required for the proposition of law one may have a look at AIR 1977 SC 74 (Smti Jaswant Kaur vs. Smti Amrit Kaur & others). There must be an act of destruction and mere symbolical destruction is not sufficient. The destruction must be with an intention to revoke a and by some method ejusdem generis with those described in that provision in the section. Evidence as to revocation must satisfy the prerequisites intention to revoke followed by an act in pursuance of the intention of the testator. A defacement, obliteration or destruction without the animo revocandi is not sufficient. Neither is the animo revocandi sufficient unless some act of obliteration or destruction is done. It is in this background that we must decide the question of revocation as urged by the learned Advocate for the appellant. The learned Advocate for the appellant in this connection draws my attention to the evidence of PW 4 and PW 6. PW 4 deposed in the cross examination as follows : "PW 4 : After the word signature there is a cut mark over the name Surendra Kumar Chakraborty in Ext 1 (a)." PW 6 deposed as follows : "It is not a fact that there was quarrel among us for not giving land to Aravinda and my father it strike out his name from Ext 1." 8. To appreciate this contention, I looked to the original Will written by the testator himself. There were two signatures which reads, as written by me Surendra Kumar Chakraborty executed dated 30.7.66 i.e Ext 1 (2). There is no cut mark or any other suspicion regarding that. To appreciate this contention, I looked to the original Will written by the testator himself. There were two signatures which reads, as written by me Surendra Kumar Chakraborty executed dated 30.7.66 i.e Ext 1 (2). There is no cut mark or any other suspicion regarding that. In the other signature, the executant Surendra Kumar Chakraborty, there is straight line over the name whether it was with the intention to cut the signature or signature was made over the line cannot be said. Be that as it may, these evidence coupled with the Will are not sufficient to hold that there was revocation of the Will as required under section 70 of the Indian Succession Act. The learned Advocate for the appellant placed I reliance in AIR 1993 Kerala 9 (CG David Tharakan vs. Dr. Mrs Lily Jacob). This case instead of helping the appellant helps the respondents. A Single Judge of the Kerala High Court laid down as follows : "(A) An unprivileged Will or Codicil shall be revoked by 'burning', 'tearing', or 'otherwise destroying' the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. The words 'burning', 'tearing' or 'otherwise destroying' should be understood 'ejusdem generis'. For treating a Will as having 'otherwise destroyed' under the latter part of section 70 of the Act, the act of destruction must be similar to 'burning' or 'tearing'. A mere symbolical destruction is not sufficient. Further, the destruction must be with the requisite intention of revoking the same. An unprivileged Will is to be revoked. It is not to be cancelled. Cancellation is not the mode of revocation of the Will. (B) Thus, where the testatrix had scored of his signatures and wrote word 'cancelled' in the copies of Will, out without any intention to cancel the Will, the said destruction would not be sufficient as to constitute revocation of the Will as per the provisions of section 70 of the Act. Moreover, when the act of destruction was connected with the making of new Will and no one has contended that the testatrix had executed any other Will subsequent to the original Will, then by applying the principle of 'dependent relative revocation' the Will even if revoked, the revocation foiled and, therefore, the original Will must be created in force." 9. Moreover, when the act of destruction was connected with the making of new Will and no one has contended that the testatrix had executed any other Will subsequent to the original Will, then by applying the principle of 'dependent relative revocation' the Will even if revoked, the revocation foiled and, therefore, the original Will must be created in force." 9. I respectfully agree with this decision and applying that principle also the Will cannot be deemed to be revoked. That being the position of law, there is no merit in this appeal and the same shall stand dismissed. No costs.