BENCH OF SUPREME COURT CONSISTING OF JUSTICE FAZAL ALI, SYED MURTAZA SHINGAL, P.N. IN A CASE OF DURGA PRASAD VS DEVI CHARAN REPORTED IN AIR 1979 SC 145, The correct legal position may be stated thus:
(i) Where a will has been properly executed and registered by the testator 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 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 of 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.
(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 the Solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully.
(iv) Where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the Act of revoking the will was against the temperament and inclination of the testator, no presumption of revocation of the will can be drawn.
(v) In view of the express provision of section 70 of the Indian Succession Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will.
(vi) When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by the interested persons.