Filing of original Will in A probate petition mandatory ?

 

Filing of original Will in A probate petition  mandatory ?

                        PART -II

It has already been deliberated at length before, as to, if without filing original Will in a petition for probate or that of in a petition for seeking letter of administration, if the original Will is not available with the legatee, whether as an interim measure, exemption from the requirement of filing original Will could be accorded or not? Further, if the exemption could be accorded, whether, the original Will or authenticated copy of the same, in case of its availability later could be filed and in that perspective a set out in such a situation, whether the probate petition shall be maintainable in case, copy of the Will/original will or certified copy of the Will as the case may be, could be produced subsequently. No doubt, whether the Will for this purpose is registered or not registered shall not be of much relevance. What is of utmost significance is that original will is required to be produced along with the probate petition, and in case the same is not available, with the legatee or legatees as the case may be, exemption could be accorded to the petitioner for filing it subsequently, if the conditions enumerated for this purpose stands satisfied. As the aforesaid aspect has already been discussed at length, in the earlier chapter, therefore, without detaining any further, in the present discussion, what is being delved in is the mandatory requirement of producing original Will along with a petition for a probate or letter of administration as the case may be, and in case, the same is not produced, the petition is liable to be rejected at the very threshold.

As the gravamen of the discussion herein, is the mandatory requirement of filing original Will along with a petition form probate or petition for seeking a letter of administration, failing which the petition  for probate /letter of administration shall not be maintainable, hence, the relevant provisions of Indian Succession Act 1925 as well as judicial precedents shall have to be analysed threadbare.

The substantive authority in this regard is reported as Mr H.P.S Chawla Vs The State Pr Case No. 35(LA) 1985. In this case a petition for seeking letter of administration was filed for the Will left by the sister of the petitioner, being one of the legatee of the Will, since, no executor was named. A photocopy of the Will was filed by the petitioner, who, though have failed to annex the original Will along with the petition.

In order to analyse the issue deeper, it is imperative to ascertain the contents of the relevant provisions of Indian Succession Act 1925. For instance, Section 276 of the Indian Succession Act (In short “ISA”) lays down the contents of the probate petition or that of petition for letter of administration. As a ready reckoner, the provisions of section 276 are reproduced as under:

276. Petition for probate:

1. Application for Probate or for Letter of Administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in the ordinary use in proceedings, before the Court in which the application is made with the Will or in the case mentioned in Section 237,238 and 239, a copy, draft, or statement of the contents thereof, annexed and stating-

(a) the time of testator’s death;

(b)that the writing annexed is his last Will and testament;

(c) that it was duly executed;

(d) the amount of assets which are likely to come to the petitioner’s hands, and

(e) when the application is for probate, that the petitioner is the executor named in the Will.

2.

3.

The words “with the will annexed” appearing in this provision assume importance in case of non- filing of the original Will. The mandatory requirement of this section is that the petitioner shall along with the petition for probate or letters of administration fie the original Will, if he is in actual possession of the same. The only exception carved out to this rule are Sections 237, 238 and 239 of Indian Succession Act 1925.

What emerges therefore from the above is that it is mandatory to annex original Will along with the petition for probate or letter of administration, if the petitioner is in actual possession of the same. It may be worthwhile to discuss in nutshell as to what are the exceptions carved out in this regard i.e the provisions of sections 237, 238 and 239 of ISA. At the very anvil, it is necessary to point out that the provisions contained in sections 237,238 and 239 deals with grant of probate limited in duration. To elucidate it further, section 237 relates to A Will lost or misplaced since the testator’s death or has been destroyed by no act of the testator in which case probate may be granted of a copy or draft of the Will, limited until the original or properly authenticated copy of it is produced. As regards section 238, that relates to the fact when no such draft or copy is available , but there is evidence establishing the contents of the Will, which has been lost or destroyed. So far as section 239 is concerned, the same shall have applicability in a case, where possession of the Will is in the hands of a person residing out of the State and he has refused or neglected to deliver it. In such a situation,  in case a copy of the Will is transmitted to the executors and it is necessary in the interest of the estate of deceased that probate should be granted, without actually waiting for the arrival of original Will, then , probate may be granted of the copy so transmitted , but the probate so granted, in such a situation shall be limited until the original Will or its authenticated copy of it is produced.  

What follows from the aforesaid that sections 237-239 of ISA shall have applicability only in case, the original Will was not available with the propounder of the Will. However, in case, admittedly, original Will is available with the petitioner who has preferred the petition for probate or letter of administration the requirement of filing original Will along with the petition is mandatory.

 Section 240 of the ISA comes into play when neither the original Will nor the copy of the Will existed, but the Court on the basis of some reliable evidence comes to the conclusion that such a Will is in existence. The intention of legislature could be gathered upon perusal of several sections of ISA, such as sections 228, 237, 238, 239, 240 and 241 as well as section 276 to the effect that in case application for probate or letter of administration is filed, it must be accompanied with original Will.

Para no. 8 and para no.9 in Mr H.P.S Chawla (Supra) may be noted for clarity. The contents of para no. 8 and 9 are as under:

“8. In para no. 8 of the petition it is specifically mentioned that the petitioner is entitled to bring the present petition for the grant of Letter of Administration with the Will annexed. However, for reasons best known to the petitioner, only a copy of the Will has been annexed.”

9.In order to overcome this objection, learned counsel for the petitioner placed reliance on the provisions of section 240 of the Indian Succession Act, which provides for a case where no Will of deceased is forthcoming, but there is reason to believe that there is a Will in existence. According to learned counsel in such cases Letter of Administration may be granted, limited until the Will or authenticated copy of it is produced. The submission of the learned counsel is that he is in possession of the original Will and would like to produce/prove it during the course of the recording of evidence and petition on this account cannot be rejected. I am afraid, this provision is of no help to the petitioner. This section will come into play only when neither the original nor the copy of the Will of deceased is being filed with the application on one ground or other, but the Court on the basis of some reliable evidence comes to the conclusion that such a Will is in existence. In such a case also letter of administration may be granted limited until the Will or authenticated copy of it is produced. The present is the petition under section 232 of the Indian Succession Act. It is not the case of the petitioner that the original Will or a copy of the same is not available. The wording of section 240 is quite different from section 232 and is meant to cover different circumstances. At the most this section can also be considered as another exception to section 276 of the Indian Succession Act”.

In the above backdrop, the para no. 11 shall be also of pertinence. The same is as under:

        11.The authoritative pronouncement referred to above which fairly and squarely applies to the facts of the present case , makes it clear that it was mandatory on the part of the petitioner to have annexed the original Will along with the present application”.

          12.This question can also be looked into from another angle. It may be that in Section 276, it is not mentioned as to whether, the petitioner is required to file the original Will, an authenticated copy of the Will or a photocopy of the same along with the petition, but the comparison of Sections 228,237,238,239,240 and 241 with Section 276 it can safely be concluded that intention of the legislature was that when an application under Section 276 is filed, it must be accompanied with the original Will. The inference otherwise appears to be justified. There is no reason or cause for the applicant to keep the original Will, if it is available and is in his possession. This Will not only avoid the unnecessary accusation of the other party of its being tampered with, interpolated or used for other purposes with mala fide intentions, but will also avoid unnecessary adjournments on the ground that without examining the original Will , the respondent will not be able to file the reply. The filing of the original Will in fact is to the advantage of all concerned. In view of these circumstances, as a present advised, I hold that the filing of the original Will, along with the petition under Section 276 is a must, and its non- filing is fatal to the maintainability of the petition”.     

As per the aforesaid dicta there is no element of doubt to the effect that in case the original Will is in possession of the petitioner seeking probate or letter of administration, as the case may be, the same shall have to be filed mandatorily along with the said petition and the object of that is not difficult to understand, as with a view to obviate any doubt with regard to execution of Will, the production of the Will at the every onset shall be necessary so as to enable the opposite party to inspect the document and raise all such objection that may be available to him in respect of execution of the Will. Moreover, the original Will shall have to be in custody of the Court for deciding the petition for grant of probate or letter of administration as the case may be. The exceptions carved out in sections 237, 238, 239 and 240 does not come in the way of filing the original Will along with the petition. The exception only relates to non- availability of the Will at the time of filing of the petition and even subsequently thereafter, but, once, the petitioner claims to have been in possession of the original Will, the same cannot be withheld by the petitioner. If it is withheld the needle of suspicion shall rather be accentuated and that may not augur well for the purpose of adjudication.

 In other words, in Mr H.P.S Chawla (Supra) it is observed that in case the original Will is not filed along with the petition and even subsequently thereafter, despite filing of the objection, the court shall be justified in recording the inference that the petitioner for the reasons best known to him, deliberately did not file the original Will. It is also significant in the context that Will so field in original, must be filed along with annexures and details if the same are part of the Will and piecemeal filing of original Will along with petition, but leaving behind annexure integral to the Will shall also be akin to non- filing of the Will.

In order to consolidate the discussion for the purpose of further deliberations and further inference in the broad conspectus as depicted above, another judgment rendered by the Delhi High Court reported as Ashish Dhiman & Anr Vs The State & Ors bearing CM(M) No. 1100/2008. The brief facts, shorn of unnecessary details of the case shall be necessary to be put down in the following table:

Dates	Particulars
10.12.2003	A probate petition was filed with only photocopy of the Will and without original.
	Written statement was filed by the defendant and objection was taken to the effect that original Will was not filed. Still, original Will was not filed and proceedings continued.
	The defendant had filed application seeking dismissal of the petition in view of non- filing of the original Will.
	Original documents were filed along with affidavit evidence and the original Will was exhibited, though, it was objected to by the defendant/respondent. The application was filed by the petitioner for placing the originals on record by way of an application under section 151 of Code of Civil Procedure.

 

The Court however had observed that filing of application u/s 151 of Code of Civil Procedure itself was misconceived, since, the same could be invoked only in case there are no corresponding provisions existing specifically for that purpose and not otherwise. It is no panacea for every lapse procedural or otherwise. When there is express provision existing, recourse cannot be had to section 151 of Code of Civil Procedure. Pertinently Order VII Rule 14 of Code of Civil Procedure contains specific provision for seeking to file additional documents, in case, such original documents were not in power and possession of the petitioner and copy whereof has to be delivered on the other side and leave of the court for that purpose shall have to be obtained as per the prescription.

That said, the court proceeded to examine the issue further.

The para no. 5 in Ashish Dhiman (Supra) may be perused for clarity.

“5.The petitioner had filed a petition for probate. Section 276 of the Indian Succession Act provides that every probate petition is to be accompanied by “Will” in original. The petitioner despite this specific provision of Indian Succession Act, did not file the original Will. He did not file the original Will and other documents, despite, repeated reminders given by the opposite party. I consider that the petitioner cannot be allowed to file the Will or other original documents at the time of petitioner’s evidence in the Court, when he failed to file those documents, despite repeated opportunities. Mere filing of photocopies along with the petition is of no consequence. The purpose of filing original documents is to allow the defendant and inspection of the original documents and to see whether the original documents are genuine or not. This is more so in case of a Will. A Will, on which a petitioner relies and for which petitioner seeks probate, must be produced in the Court in original and has to be available for inspection for defendant, so as to see if the Will was genuine or not and accordingly take objections. Where original Will is not produced by the petitioner and no opportunity is given to see its genuineness, the Will cannot be produced later on at the time of evidence of the petitioner. I find that there is no force in the petition. The petition is hereby dismissed.”      

Significantly Special leave Petition (Civil_ 26252/2008 was preferred by the aggrieved party before the hon’ble Supreme Court, but the hon’ble Supreme Court has upheld the decision of the Delhi high court in Ashish Dhiman (Supra) and as such what has been held by the High Court has passed muster and there is no ambiguity so far as necessity of filing original Will along with the petition for probate or that of Letter of Administration, in case, the same remained in possession and power of the petitioner.