Society, Law & Justice

Saturday, November 15, 2025

Secondary evidence: permissibility in law suits

The principles of evidence i.e primary evidence and secondary evidence is contained in sections 65 and 66 of Indian Evidence Act 1872. In the Bhartiya Sakshya Adhiniyam (BSA) 20234, the provisions correspond to sections 63 and 64. In the course of trial, it has often been observed that the issues with regard to filing of certified copy of the Will or such other documents often creeps in and myriads of objections are raised, thereby, stalling the proceedings for inordinately long periods for finding answers to the questions raised. The basic rule, however, is that process of trial should not be allowed to be stalled for mere technicalities and in case, the original documents are not available or in possession and power of the petitioner for justifiable reasons, any impediments caused in the way of producing secondary evidence is not the scheme of law. The principle, moreover, as regards admissibility of documents, and whether the same could be exhibited or not, shall have to be decided in the ultimate analysis when the lis is finally and fully adjudicated. Even otherwise, even if a document by way of a secondary evidence is exhibited, whether the same is as per the trap of law laid down or not, all such issues could only be adjudicated when the suit or a case is finally adjudicated and objection could be recorded without seeking to stall the proceeding.

In this context , it may be apt to have a reference to as Supreme Court judgment in a matter reported as JAGMAIL SINGH & ANR. v. KARAMJIT SINGH & ORS. [2020] 4 S.C.R. 1163. In fact, the matter reached supreme court , after the Punjab & Haryana High Court had confirmed the order passed by the civil Judge ( Junior division) in an application under Section 65 and Section 66 of Indian Evidence Act, thereby permission was sought for proving the copy of Will existing in their favour by way of secondary evidence, since, it was claimed that original Will was handed over to village patwari for the purpose of mutation and could not be retrieved. The High Court while dismissing the application, observed that as the pre-requisite, condition of existence of Will is not proved, and a Will cannot be permitted to be approved by allowing the secondary evidence.

To appraise of the facts, a suit for declaration was filed to the effect that the plaintiff were the owners to the extent of ½ share each of the land and the opposite parties had laid their claim on the strength of a forged Will. The consequential relief of permanent injunction to restrain the respondents from alienating, transferring or mortgaging the suit property was also prayed for. It was during the pendency of the suit, that, an application under Section 65/66 of the Evidence Act was moved by the defendant seeking permission to prove copy of Will dated 24.01.1989 by way of secondary evidence. The said application was allowed by the Trial Court.

A civil revision was preferred against the order of trial court, whereby, the application u/s 65/66 of Indian Evidence was allowed. The order of revisional court was challenged before the high court. It was held by the Punjab & Haryana High Court, as under:

“Once the appellants have alleged that the original Will is in possession of the revenue official, they should have served a notice upon him under Section 66 of the Act for its production and in case, it is alleged that the said Will has been lost, then the application could have been filed for leading secondary evidence but in the absence of the compliance of the aforesaid procedure, the application per se filed under Section 65 of the Act is not maintainable. In view of the aforesaid apparent error on the part of the Court below, the present revision petition is hereby allowed and the impugned order is set aside. However, the respondents are still at liberty to move an application under Section 66 of the Act to the revenue official to whom the alleged Will was given for the purpose of sanctioning of mutation and in case of denial on his part that the Will has been lost, they can maintain the application for secondary evidence”.

Accordingly, another application under Section 65/66 of the Act was preferred before the Trial Court for issuance of notice under Section 66 of the Act to the revenue officials for production of original Will in question. The application was preferred on the ground that the said original Will was handed over to the revenue officials for sanctioning the mutation in their favour. Both the revenue officials were issued notice for production of the original Will in question, but they failed to produce the said Will. It was only, thereafter, that the application was dismissed.

The aforesaid order was impugned before the High Court, by way of a Revision Petition under Article 227 of the Constitution of India. While contending that the impugned order is not sustainable in the eyes of law, as it suffered from patent errors of law and is against the letter & spirit of Sections 65 & 66 of the Evidence Act. Another plea was raised that Section 65(a) of the Evidence Act permits the production of secondary evidence, when the original is shown and appears to be in possession or power of one against whom the document is sought to be proved, or any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. In such contingency, it was further contended that a party to the lis is entitled to prove the same by way of secondary evidence. Moreover, notice Section 66 of the Evidence Act had already been served, to the revenue officials, through the Court but, the Will which was sought to be produced by way of secondary evidence, was not produced by the revenue officials. In this backdrop, it was pleaded that existence of the original Will can only be proved, during the course of arguments and it is not the requirement of law that it should be proved at the first instance and only thereafter, secondary evidence can be allowed.

The high court in the order observed that –

“As per facts & circumstances of the instant case, original Will dated 24.01.1989 was given to the revenue official(s) for incorporating and sanctioning of mutation on the basis thereof, but to the utter surprise, though, both the revenue officials, were served under Section 66 of the Act to produce original Will, but, they failed to produce it. Moreover, they had nowhere stated about the existence of the original Will. So, the pre-requisite condition i.e. existence of the Will, remained un-established on record. Thus, while observing that the learned Trial Court had declined the permission to prove Will dated 24.01.1989 by way of secondary evidence, the order dated 30.09.2015 suffers from no infirmity or illegality, rather the same is absolutely in accordance with the evidence available on file as well as settled proposition of law.”

The petition was thus dismissed, while upholding the decision of the lower Court on the ground that the pre-requisite condition for admission of secondary evidence, i.e. existence of Will remained unestablished.

SECTION 65 & 66 OF IINDIAN EVIDENCE ACT (IEA)

Sections 65 and 66 of the Act may be reproduced for ready reference:

“ 65. Cases in which secondary evidence relating to documents may be given—

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:

(a) When the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.-

In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible.- In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.- In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

66. Rules as to notice to produce –

Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.”

A bare perusal of Section 65 of Indian Evidence Act, makes it clear, that secondary evidence may be given with regard to existence, condition or the contents of a document, when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it. Moreover, even when notice mentioned in Section 66 is duly sent to such person and the document is still not produced. The law is settled so far as secondary evidence is concerned and in order to permit that, admitted foundational evidence has to be given, being the reasons as to why the original Evidence has not been furnished.

LAW

(1) The Supreme Court in Ashok Dulichand Vs. Madahavlal Dube and Anr. [1976] 1 SCR 246 and it was held as under :

“According to Clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given.”

(2) In yet another judgment of Supreme Court, reported as Rakesh Mohindra vs. Anita Beri and Ors (2016) 16 SCC 483 it is observed as under:

“15. The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.”

(3) In JAGMAIL SINGH(Supra) it is held as under:

“14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H. Siddiqui (dead) by LRs Vs. A. Ramalingam [2011 (4) SCC 240] 1171, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence”.

“15. In the case at hand, it is imperative to appreciate the evidence of the witnesses as it is only after scrutinizing the same opinion can be found as to the existence, loss or destruction of the original Will. While both the revenue officials failed to produces the original Will, upon perusal of the cross-examination it is clear that neither of the officials has unequivocally denied the existence of the Will. PW- 3 Rakesh Kumar stated during his cross-examination that there was another patwari in that area and he was unaware if such Will was presented before the other patwari. He went on to state that this matter was 25 years old and he was no longer posted in that area and, therefore, could not trace the Will. Moreover, PW- 4 went on to admit that, “there was registered Will which was entered. There was a Katchi (unregistered) Will of Babu Singh was handed over to Rakesh Kumar Patwari for entering the mutation...”. Furthermore, the prima facie evidence of existence of the Will is established from the examination of PW-1, Darshan Singh, who is the scribe of the Will in question and deposed as under :

“I have seen the Will dated 24.01.1989 which bears my signature as scribe and as well as witness.”

Therefore, in JAGMAIL SINGH(Supra) the Supreme Court has held that on the facts of the case it is clear that the factual foundation to establish the right to give secondary evidence was laid down by the appellants and therefore, the High Court, ought to have given the appellant an opportunity to lead secondary evidence. It was further held that the High Court committed grave error of law in as much as without properly evaluating the evidence it was held that the pre-requisite condition i.e., existence of Will remained unestablished on record. In effect that amounted to denial of an opportunity to the appellant to produce secondary evidence. No doubt, merely the admission in evidence and making exhibit of a document does not prove it automatically, unless, the same has been proved in accordance with the law.

It was therefore held that impugned judgment of the High Court cannot be sustained as it suffered from material irregularity and patent errors of law. The appellant was permitted to lead secondary evidence in respect of the Will in question. However, it was clarified that such admission of secondary evidence, automatically, does not attest to its authenticity, truthfulness or genuineness and that will have to be established during the course of trial in accordance with law.

(4) In a case before the M.P High Court reported as Rambha Bai & Ors. Vs. Nanibai & Ors. M.P. No.5511/2019, the petitioners had filed a Civil Suit for declaration as well as permanent injunction. The respondents have filed their written statements. That, as the suit was based on a “Will” and there was some overwriting in the said “Will”, therefore, the petitioners have filed an application for calling of the record from the Registrar Office for verifying the same. However, the Court below after hearing both the parties has rejected the said application. Being aggrieved by that order, the petitioner has filed the present petition.

(5) The Division Bench of M.P High Court in Smt. Rekha Rana & Ors. Vs. Smt. Ratnashree Jain AIR 2006 M.P. 107 in the context of application under Order 13 Rule 10 of CPC has held as under :-

“A sale deed (or any other deed of conveyance) when presented for registration under the Registration Act, is not retained or kept in any public office of a State after registration, but is returned to the person who presented such document for registration, on completion of the process of registration, An original registered document Is not therefore a public record kept in a state of a private document, Consequently, a deed of sale or other registered document will not fall under either of the two classes of documents described in Section 74, as 'public documents'. Any document which is not a public document is a private document. We therefore have no hesitation in holding that a registered sale deed (or any other registered document) is not a public document but a private document.

(i) Production and Marking of a certified copy as secondary evidence of a public document under Section 65(e) need not be preceded by laying of any foundation for acceptance of secondary evidence. This is the position even in regard to certified copies of entries in Book I under Registration Act relation to a private document copied therein.

(ii) Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65.

(iii) Production and marking of an original or certified copy of a document does not dispense with the need for proof of execution of the document. Execution has to be proved in a manner known to law (Section 67 and 68 and ensuing sections in chapter V of Evidence Act).

Thus, the “Will” being not a public document and is private document, the record of the same could not be produced before the Court below, therefore, application filed by the petitioners under Order 13 Rule 10 of C.P.C. in Rambha Bai (Supra) was allowed.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com

Wednesday, November 5, 2025

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.

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.

Monday, November 3, 2025

filing OF original will in a probate petition mandatory?

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 14^th 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 2^nd 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.

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