Certified Copies of a Registered Will Have Been Deemed Valid Secondary Evidence in Probate Proceedings: The Delhi High Court Dismissed the Appeal of the Appellant and Allowed the Probate Proceedings
Case Title – Sahil Marwah & Anr. Vs. Vikas Malhotra & Ors.
Case Number – FAO (OS) 81/2023 & CM APPLs. 35932/2023, 35933/2023, CM APPL. 38987/2023
Dated on – 7th of May, 2024
Quorum – Hon’ble Acting Chief Justice and Justice Manmeet Pritam Singh Arora
FACTS OF THE CASE
In the case of Sahil Marwah & Anr. Vs. Vikas Malhotra & Ors., an appeal has been filed under the Section 10 of the Delhi High Court Act, 1966, read with Order XLIII Rule 1 of the Code of Civil Procedure, 1908, against orders dated 14th of March, 2023, and 6th of July, 2023 (referred to as “impugned orders”) passed in TEST. CAS. 17/2023 (referred to as “probate petition”). The Appellants in this present case are aggrieved as the Learned Single Judge entertained the probate petition instituted along with a certified copy of the registered will dated 2nd of August,2019, on the plea of the Petitioner that the original will was not available. The Appellants objected to the same, asserting that the institution of the original will is mandatory along with the probate petition. The Learned Single Judge, through an order dated 14th of March, 2023, rejected the objection of the maintainability at the threshold. The court granted the leave to the Petitioner (Respondent No. 1) to place on record the verification or the affidavit of one of the attesting witnesses to the will. Subsequently, on the 6th of July, 2023, the Learned Single Judge issued notice in the probate petition and directed the issuance of the citation without waiting for the amended probate petition, in proper form, to come on record. The Appellants asserted that the institution of the original will is mandatory along with the probate petition, whereas the Respondent No. 1 asserted that the probate petition is maintainable even with the certified copy of the registered will, as per Sections 237 and 276 of the Indian Succession Act, 1925.
ISSUES
The main issue of the case whirled around whether the institution of the original will is mandatory along with the probate petition, or if a certified copy of the registered will is sufficient when the original is not available?
Whether the interpretation of the Section 237 and 276 of the Indian Succession Act, 1925, governs the requirements for obtaining the probate when the original will is untraceable?
Whether the Learned Single Judge possessed the jurisdiction to entertain the probate petition instituted with a certified copy of the registered will when the original was not available?
Whether the objection raised by the Appellants concerning the non-filing of the original will can be considered at the threshold stage or should only be addressed after the completion of pleadings and evidence?
Whether the probate petition raised questions regarding the validity and execution of the registered will, which would be needed to be established during the proceedings?
LEGAL PROVISIONS
Section 10 of the Delhi High Court Act, 1966 prescribes the Power of Judge of the Delhi High Court
Order XLIII Rule I of Code of Civil Procedure, 1908 prescribes the Provision of Appeals from Orders
Section 59 of the Indian Succession Act, 1925 prescribes the Provision of Person Capable of Making Wills
Section 63 of the Indian Succession Act, 1925 prescribes the Provision of Execution of Unprivileged Wills
Section 69 of the Indian Succession Act, 1925 prescribes the Provision of Revocation of Will by testator’s marriage
Section 70 of the Indian Succession Act, 1925 prescribes the Provision of Revocation of Unprivileged Will or Codicil
Section 236 of the Indian Succession Act, 1925 prescribes the Provision of To Whom the Administration may not be granted
Section 237 of the Indian Succession Act, 1925 prescribes the Provision of probate of contents or lost of destroyed Will
Section 276 of the Indian Succession Act, 1925 prescribes the Provision of Petition for probate
Section 281 of the Indian Succession Act, 1925 prescribes the Provision of Verification of petition for probate by one witness to Will
Section 65 of the Indian Evidence Act, 1872 prescribes the Cases in which secondary evidence relating to documents may be given
Section 68 of the Indian Evidence Act, 1872 prescribes the Provision of Proof of execution of document required by law to be attested
Section 74(2) of the Indian Evidence Act, 1872 prescribes the Provision of Public records kept of private documents
Section 24 of the Probate and Administration Act, 1881 prescribes the Probate of copy or draft of lost will
Section 52 of the Registration Act, 1908 prescribes the Duties of registering officers when document presented
Section 57(2) of the Registration Act, 1908 prescribes that The copies of entries in Book No. 3 and in the index relating thereto shall be given to the persons executing the documents to which such entries relate, or to their agents, and after the death of the executants to any persons applying for such copies
Section 57(5) of the Registration Act, 1908 prescribes that All copies given under this section shall be signed and scaled by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents
CONTENTIONS OF THE APPELLANTS
The Appellants, through their counsel, in the said case contented that the presumption of law is that if the original will is not instituted with the probate petition, it may have been destroyed by the Testatrix.
The Appellants, through their counsel, in the said case contented that without the original will, the attesting witness cannot verify the probate petition as required by Section 281 of the Indian Succession Act,1925 and that the verification by the attesting witness is deemed necessary for the original will and a certified copy of the registered will cannot be sufficient for this purpose.
The Appellants, through their counsel, in the said case contented with reference to the Section 68 of the Indian Evidence Act,1872, that a registered will does not carry any presumption under the law and therefore, cannot be served as the basis for maintaining the application of the probate and that a certified copy of the will acquired from the office of the Sub-Registrar is not a substitute for the original will.
The Appellants, through their counsel, in the said case contented that a court commissioner appointed in a separate suit proceeding between the parties reported that no will was discovered at the Testatrix place of residence and that the affidavits from the legatees (Respondent No. 3 and 4) states that they did not have the original will and that these factors indicate that the claim by the Respondent No. 1 of the original will being unavailable is inaccurate.
CONTENTIONS OF THE RESPONDENTS
The Respondents, through their counsel, in the said case contented that the presumption of the revocation due to unavailability of the original will is weak and rebuttable with the slightest evidence and that since the original will is untraceable, it is presumed to be lost and this issue of proof will be decided conclusively in the proceedings.
The Respondents, through their counsel, in the said case contented that the present appeal is an attempt to obstruct the probate proceedings and that the Appellants have delayed in instituting their replies to the probate petition merely because of the pendency of this appeal.
The Respondents, through their counsel, in the said case contented that the legal precedents relied upon by the Appellants are inapplicable to the present case and that those cases did not dismiss the probate petition at the admission stage on the ground of non-filing of the original will.
COURT ANALYSIS AND JUDGMENT
The court in the case of Sahil Marwah & Anr. Vs. Vikas Malhotra & Ors., analysed the legal provisions and the precedent cases cited by both the parties. The court referred to the Supreme Court judgment in Durga Prashad Vs. Debi Charan, which clarified that the absence of the original will does not ipso facto attract the presumption of revocation. The court stressed on the fact that the plea of revocation must be specifically pleaded and proved by the objector. The court referred to the Section 237 of the Indian Succession Act, 1925 concerning the permissibility of relying on a certified copy of a registered will, which allows the propounder to furnish the secondary evidence of the contents of the will if the original is lost. The court also cited the judgment of the Supreme Court in the Dhanpat Vs. Sheo Ram, which upheld the admissibility of a certified copy of a registered document. The court in this case, concluded that the objections raised by the Appellants lacked merit and that they had not specifically pleaded the revocation of the will as required by the Section 70 of the Indian Succession Act, 1925. Moreover, the unavailability of the original will did not disentitle the Respondent No. 1 from maintaining the probate petition based on the certified copy. The court in this case, dismissed the appeal and allowed the probate proceedings to continue and also allowed the condonation of delay in filing the appeal.
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Judgement Reviewed by – Sruti Sikha Maharana