filing OF original will in a probate petition
mandatory?
In
the present write up, an interesting situation is sought to be deliberated i.e
whether a probate petition filed by the petitioner can be entertained without annexing
original will, along with the said petition? If so, what are the situation?
Whether exceptions are carved out in this regard, and if so, 2what are such
situations? The ld Single judge of Delhi
High Court, was pleased to have entertained probate petition filed along-with a
certified copy of the registered Will on the petitioner's plea in the probate
petition, that, the original Will was presently not available.
It
is necessary, thus, to cull out the law, in detail, in this regard. In fact,
the issue is settled by the hon’ble Division bench of Delhi High Court in a
matter captioned as Sahil Marwah & Anr. vs Vikas Malhotra & ors
bearing no. FAO(OS) 81/2023 in an appeal preferred by the
aggrieved party. It was contended that filing of the original Will is mandatory
along with the probate petition. According to the ld single judge that the said
objection could be considered after the completion of the pleadings and
evidence. The leave was thus granted to the petitioner to place on record
verification or the affidavit of one of the attesting witnesses to the Will in
accordance with Section 281 of the Indian Succession Act, 1925 ('Act of
1925').
BRIEF
FACTS
As
per the named executor (Respondent No. 1 in appeal), late 'Testatrix' had
executed a Will in 2019 and that was duly registered with the Sub-Registrar.
The original Will was not available with the petitioner (Respondent No. 1 in
appeal) and therefore, the probate petition was filed along-with a certified
copy of the registered Will. The petitioner had prayed for exemption from
filing original Will, on the premise that the same was not presently not
available and it was stated that, probably, that was lying at the last place of
abode of the Testatrix. Reliance was placed on Section 237 and 276 of the Indian
Succession Act 1925, to the effect, that a probate petition on the strength of the
certified copy of a registered Will is maintainable, in case, the original Will
is not traceable, and a probate could be granted, subject to the proof of the
validity and the execution of the registered Will.
Per contra according to the
respondent in the said petition filing of the original Will was
mandatory along-with the probate petition and non-filing of the original Will, shall
disentitle the petitioner to maintain the probate petition on the basis of the
certified copy of the registered Will.
The Findings of the Court
The
ld Single judge has held that probate petition cannot be dismissed in limine
on the ground of the non-filing of the original Will and the said objection
may only be considered, after the parties have filed their responses to the
probate petition and led evidence. The relevant para of the impugned order
dated 14th March, 2023 passed by the single judge reads as under: -
'19. In the
present case, having considered the objections raised by the learned senior
counsel for the respondent nos.4 and 5, in my opinion, the present petition
would be maintainable and the objection raised by the learned senior counsel
for the respondent nos.4 and 5 would necessarily have to be considered
only once the parties have filed their response to the present petition, and if
the Court so warrants and directs, led their respective evidence on the same.
For the reasons stated in paragraph 5 of the present petition, it cannot be
said that the petition is liable to be dismissed in limine on the ground of
non-filing of the original Will.' (Emphasis Supplied).
The
aforesaid order was impugned by the appellant in the appeal. The gravamen in
the appeal is as to whether it could be construed that if the original Will is
not filed with the probate petition, the 'presumption in law' is that it may
have been destroyed by the Testatrix as contended by the respondent no.1 in
appeal, and while referring to Section 70 of the Indian Succession Act of
1925, to support his plea. Moreover, another dimension raised by the respondent
no.1, that, in the absence of the original Will, the attesting witness cannot
verify the probate petition as per the requirement of Section 281 of
the Act of 1925. The verification by the attesting witness, being
quintessential requirement shall have to be, necessarily of the original Will
and the certified copy of the registered Will cannot be relied upon by the
attesting witness for the purpose of verification.
PROVISIONS & ITS
INTERPLAY
As
per Section 68 of the Indian Evidence Act, 1872 ('Act of 1872') a registered
Will has no presumption attached to it and, therefore, it cannot be the
basis of maintaining the application for probate and a certified copy of the
Will obtained from the office of Sub- Registrar is not a substitute for the
original Will.
In
Durga Prashad Vs Debi Charan & Ors 1979 SCC(1)61 what
emerges in the discussion is that whether a presumption could be raised that no
original will was available, or that the Will was revoked by testatrix by
destroying it before the death by the testatrix, if a probate petition was
preferred without original will. Whether a certified copy of the registered
Will shall be of no consequence and it cannot be a substitute for the filing of
the original Will.
In
Durga Prashad (Supra), the Supreme Court was pleased to uphold
the probate and the order of the high court was se3t aside. The high court, while
accepting the genuineness of the registered Will, non-suited the propounder
only on the ground that the original Will was not found on the death of the
testatrix despite every attempt to search for; and therefore, drew a
presumption that the testatrix therein had revoked the Will by destroying it
before her death and hence, the High Court had refused to grant probate.
Though,
the broad consensus from the several judgments of various high court seems to
suggest that even if the presumption is applied, it should be applied with very
great caution. Jarman on Wills, while dwelling on this aspect of
the matter observed as follows:
"If a will is
traced into the testator's possession, and is not found at his death, the
presumption is that he destroyed it for the purpose of revoking it; but the
presumption may be rebutted.... Where the will makes a careful and detailed
disposition of the testator's property, and nothing happens to make it probable
that he wishes to revoke it, the presumption raised by the disappearance of the
will may be rebutted by slight evidence, especially if it is shown that access
to the box, or other place of deposit where the will was kept, could be
obtained by persons whose interest it is to defeat the will."
Therefore,
even if a presumption of the revocation of the will is drawn from the fact that
it was not found on the death of the testatrix, it cannot be laid down as a
general rule and can be rebutted even by slight evidence, particularly, where
it is shown that some party had access to the place of deposit. The Privy
Council has doubted whether this presumption is a rule of law at all.
It
is manifest that in the first place, when the will is traced to the possession
of the testator, but not found at the time of death, no presumption can be
drawn as a rule of law, but in the facts and circumstances of a particular case
such a presumption may be drawn and can be rebutted even by slight evidence.
The
Delhi High Court in Sahil Marwah (Supra) has held as under:
17.3. In view of
the aforesaid exposition of law by the Supreme Court, the loss/unavailability
of the original registered Will, thus, does not ipso facto attract the
presumption of revocation by destruction. The act of revocation of the Will by
the Testator/Testatrix is strictly governed by Section 70 of the Act
of 1925. The operation of the said provision is attracted to a factual matrix
where the execution of the Will by the Testator/Testatrix is established and
the objector raises a plea that the Will after its execution was revoked by the
Testator/Testatrix by one of the modes set out in the said provision. However,
to raise the plea of revocation, the objector will have to plead this defence
specifically by setting out the particulars of the mode of revocation and then
prove the same in accordance with the law”.
17.4. In this
regard, the Supreme Court also examined the strict scope of Section 70 of
the Act of 1925 and categorically held that the 'onus to prove' that the Will
has been revoked lies on the objector who relies on the revocation. The
relevant para of Durga Prashad (Supra) (supra) reads as under: -
"25.
Against this background we shall now deal with the authorities of the Indian
High Courts. But before we do that it may be necessary to extract Section of
the Act:
"No
unprivileged will or codicil, nor any part thereof shall be revoked otherwise
than by marriage, or by another will or codicil, or by some writing declaring
an intention to revoke the same and executed in the manner in which an
unprivileged will is hereinbefore required to be executed, or by the 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."
According
to the Delhi High Court in Sahil Marwah (Supra) a bare perusal of the above section would
clearly reveal two important features:
(i)
The section has been couched in negative terms having a mandatory content.
(ii)
The section provides the mode and the very circumstances under which an
intention to revoke can be established.
Therefore,
the onus is on the objector who relies on the revocation to prove that the will
had been revoked after it has been proved to have been duly executed.
Under Sectio0n 70 of the Act, the will can be revoked inter-alia,
by burning, tearing or otherwise destroying and unless any of the circumstances
has been proved by the objector by cogent evidence, the question of the
revocation of the will, naturally will not arise.
It
was thus held in Sahil Marwah (Supra) as under:
17.5.
Thus, if the Appellants herein are desirous of raising the plea of revocation
of the registered Will dated 2nd August, 2019, the onus of proving
revocation will have to be discharged by the Appellants. Section 70 of
the Act of 1925 provides the mode and circumstances under which an intention to
revoke can be established. The Appellants herein will have to thus, plead and
thereafter, lead cogent evidence to prove the mode and the circumstances to
establish revocation of the Will in question by the Testatrix, in accordance
with the said provision. In the absence of a plea and particulars of the
revocation in the objections, the question/issue of revocation will not
otherwise arise for adjudication in these proceedings.
17.6.
The Supreme Court in Durga Prashad (Supra) summarised the
legal position on the consequence of unavailability of the original Will
vis-à-vis grant of probate, at para 31 of the said judgment, which reads
as under: -
"31.
The correct legal position may therefore be stated as follows:
1) That 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.
2) That the
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.
3) That 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 banks 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.
4) That 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.
5) That in view of
the express provision of Section 70 of the Act the onus lies on the
objector to prove the various circumstances viz. marriage, burning, tearing or
destruction of the will.
6) 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 interested persons."
Therefore,
if the aforesaid legal principle is applied to the Sahil Marwah
(Supra) as per the division bench of Delhi High Court, what is imperative is
that facts are to be pleaded essential for alleging revocation of the Will in
question, in terms of Section 70 of the Act of 1925 in the objections
and the onus to prove the said facts will lie on the objectors/Appellants.
Section
237 of the Indian Succession Act may be reproduced for ready reference:
237.
Probate
of copy or draft of lost will.--When a will has been
lost or mislaid since the testator's death, or has been destroyed by wrong or
accident and not by any act of the testator, and a copy or the draft of the
will has been preserved, probate may be granted of such copy or draft, limited
until the original or a properly authenticated copy of it is produced.
The
high court has noted that the words 'since the testator's death' qualify
only the verb 'mislaid'. There has not been reference to the word 'lost,'
otherwise, what would happen if the Will has been lost before the testator's
death? The loss of the Will would not operate as revocation. To establish
revocation, one may have to show destruction by the testator. Loss is no
destruction. Then the words 'since the testator's death' have no reference to
the succeeding clause of the sentence. The Will could not have been destroyed
by any act of the testator since his death. Thus, the second clause is
independent by itself. Then the words in this clause "and not by any act
of the testator" have no special meaning. For, if the Will has been
destroyed by any act of the testator, it has been revoked and it is a dead
thing. In the succeeding section the words used are "when the Will has
been lost or destroyed, etc., etc". The former section refers to cases
when a copy of the Will is available and the latter when no copy is available.
This is the only difference. In neither of these sections any rule of law has
been laid down and none tending to defeat the applicant's suit. Revocation must
be proved by the party who sets it up. The facts proved and admitted preclude a
presumption in favour of the objector and there is no evidence that the Will
has been actually destroyed.
In
the context as set out above, Section 237 of the Indian Succession Act of
1925 what is of significance is that where the original of the Will is
untraceable, in addition to proving the due execution of the Will and validity
of the Will to the satisfaction of the Court, the propounder will have to prove
the circumstances set out in Section 237 of the Act of 1925 for relying
upon the copy of the Will. The circumstances to be proved by propounder for
permitting reliance on a copy of the Will are set out in Section 237 of
the Act of 1925 and the same have to be proved to the satisfaction of the
Probate Court.
Specific Plea Necessary
In
the absence of the specific plea of revocation, with particulars thereto, by
the objector, the unavailability of the original Will entitles the
propounder/executor to plead in the probate petition loss of the original Will
as contemplated under Section 237 of the Act of 1925 and satisfy the
conscience of the Court that the instrument so propounded is the last Will of a
free and capable testator. Moreover, the permissibility of proving and relying
upon the certified copy of the registered Will, when the original Will is lost
was considered and upheld by the Supreme Court in Dhanpat Vs Sheo
Ram Civil Appeal No. 1960 of 2020 =(2020) 16 SCC 209. In the facts of
that case, the execution of the registered Will was not disputed by the
plaintiff therein; the defendants pleaded that the original Will was lost and,
therefore, produced the certified copy of the registered Will and proved its
validity in accordance with law. The relevant paras of the aforesaid judgment
read as under:
14. In support of
the findings recorded by the High Court, Mr Manoj Swarup, learned Senior
Counsel for the respondent-plaintiff argued that in terms of Section 69 of
the Succession Act, 1925, a will is required to be attested by two witnesses
who have seen the testator and in which the testator and two of the attesting
witnesses sign in presence of each other. It is argued that Maha Singh, DW 3
had not deposed that all three were present at the same time, therefore, the
finding of the High Court has to be read in that context, when the will was
found to be surrounded by suspicious circumstances, as the second attesting
witness was not examined. It is also argued that the original will has not been
produced and no application for leading secondary evidence was filed.
Therefore, the secondary evidence could not be led by the defendant to prove
the execution of the will”.
In
Sahil Marwah (Supra) thus, it is observed that:
17.11. In our
considered opinion the plea of non-execution of Will and revocation of Will
cannot stand together; as the act of revocation by a Testator/Testatrix
pre-supposes execution of the Will by the said Testator/Testatrix. In the facts
of the present case the Appellants are raising the specific plea of
non-execution of the Will by Testatrix and, therefore, it is precluded from
raising the plea of revocation. The Appellants are at liberty to challenge the
validity of the Will on the grounds of non-fulfilment of the essential
conditions mentioned in Section 59 and 63 of the Act of 1925, but they are
precluded from raising the ground of revocation under Section 70 of
the Act of 1925, due to their principal stand of non-execution of the Will in
the first instance. The objector cannot be permitted to take such inconsistent
stands, which are mutually destructive as they lack bona fide and interfere in
the adjudicatory process”.
It is further recorded in
Sahil Marwah (Supra) that:
“22. There is no
requirement that an application is required to be filed in terms
of Section 65 (c) of the Evidence Act before the secondary evidence
is led. A party to the lis may choose to file an application which is required
to be considered by the trial court but if any party to the suit has laid
foundation of leading of secondary evidence, either in the plaint or in
evidence, the secondary evidence cannot be ousted for consideration, only
because an application for permission to lead secondary evidence was not filed”.
PRE-REQUISITES OF REGISTRATION
In
case of registration of a document including a Will, once, the document is
admitted to registration, duplicate copy whereof is pasted in the books
maintained by the Sub-Registrar and the said duplicate copy mandatorily bears
the signatures in original of the executant, the witnesses, the Registering
Officer and presentor as per Section 52 of the Registration Act of
1908 and Rule 39 of The Delhi Registration Rules, 1976. The said
rules may be perused as under:
39.
Pasting of documents into Book.- When a document has been
admitted to registration and the necessary endorsements have been recorded, it
shall be handed over to the duplicating clerk to copy out the endorsements on
the duplicates and the Registering Officer shall see that no unnecessary delays
occur, and that the documents are pasted in the books in the order of their
admission. Thereafter, the several endorsements made in the office (including
the certificate of registration prescribed by Section 60 of the Act),
the several signatures of the Registering Officer, presentor, executants and
witnesses examined shall all be copied on the duplicate at proper places.
It
is held that the duplicate copy so pasted in the books before the Sub-Registrar
is, therefore, executed like a mirror copy of the original Will presented for
registration. The duplicate copy registered with the Sub-Registrar is in effect
a mirror copy of the original document and has the same effect in law as the
original document in its operation unless its revocation is proved by the
objector. Further, as per Section 57 (2) of the Act of 1908 and Rule
18 of the 1976 Registration Rules copies of the registered Will are provided to
any person after the death of its executant and the said copy is statutorily
admissible for proving the contents under Section 57 (5) of the Act
of 1908. The admissibility of certified copy of the registered Will is, thus,
statutorily recognised and, therefore, the contention of the Appellants that a
certified copy of the registered Will cannot be relied upon for seeking probate
is incorrect. As noted above, the executor/applicant's obligation to prove the
circumstances of loss of the original Will under Section 237 of the Act of
1925 remains, however, the loss of the original Will does not disentitle
him/her from applying for probate. The high- probative value of a certified
copy of the registered Will in proving the initial existence of the original
Will is inarguable and, therefore the underlying probate petition is
maintainable.
However,
in case, the proceedings were at the initial stage, and when the Court directed
the propounder to file the original Will as it was admittedly readily available
and in the custody of the propounder; and the Court found no just grounds
for exempting the filing of the original Will as held in the following
judgments:
(i)
1979
SCC OnLine P&H 503,
(ii)
Delhi Sikh Gurudwara Committee Vs Manmeet Singh & Anr 2017 SCC OnLine Del
9049;
(iii)
Ramesh Dutt Salwan Vs State & Ors 1988 RLR 387;
(iv)
Ashwani Kumar Aggarwal Vs B.K Mittal; (2014) 211 DLT 524;
(v)
Ashok Kothari Vs Dipti Bavishi AIR 2007 Cal 21.
It
may be noted that so far as the aforesaid judgments in the preceding paragraph
is concerned, those judgments do not substantiate the plea raised by the
Appellants in Sahil Marwah (Supra) that, if the original Will is
not filed with the probate petition, the same cannot be entertained at the
threshold or that no probate can be granted on the certified copy of Will.
---------
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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