Court’s decision
The Delhi High Court dismissed an appeal under Section 299 of the Indian Succession Act, affirming the trial court’s finding that a Will executed by the deceased mother was validly proved, even though the probate petition itself had been dismissed due to suppression of material facts by the original propounder. The Court held that proof of a Will and grant of probate are distinct issues, and a finding on due execution does not automatically fail merely because probate is denied on equitable grounds. It further ruled that secondary evidence of a Will is admissible where loss is established, and the statutory requirements under the Evidence Act and the Succession Act were satisfied on facts .
Court’s decision
The appeal was filed by the son of the testatrix challenging the judgment of the Additional District Judge which had held the Will dated 22 January 1996 to be genuine, though probate was refused. The High Court found no inconsistency in such a conclusion. It clarified that a probate court may legitimately record a finding that a Will has been duly executed and attested, yet decline to grant probate if the conduct of the propounder disentitles him to that discretionary relief. The appeal was dismissed as lacking merit.
Facts
The dispute concerned a residential property in West Delhi owned absolutely by a woman who died intestate according to her younger son, but testate according to her husband. The husband filed a probate petition in 2005 claiming that his wife had executed a Will in 1996 bequeathing the entire property exclusively to him. The Will was allegedly attested by four persons, including both sons.
Only a photocopy of the Will was produced, the husband asserting that the original had been stolen by the younger son. Other legal heirs raised no objection except the younger son, who denied execution of the Will, alleged fabrication, and claimed a one-third share in the property. He also relied on a pending partition suit to question the maintainability of probate proceedings.
During the pendency of the probate case, the husband sold the property to a third party without informing the court. After his death, the purchaser sought substitution and was eventually impleaded. The trial court, after recording evidence, held that the Will was proved, but dismissed the probate petition on the ground that the original propounder had concealed the sale of the property while the matter was sub judice.
Issues
The principal issues before the High Court were whether a Will can be held proved when only a photocopy is produced, whether the conditions for leading secondary evidence were satisfied, whether the requirements of Section 237 of the Indian Succession Act were met, and whether the trial court’s judgment was legally inconsistent in proving the Will while refusing probate.
Petitioner’s arguments
The appellant-son argued that probate of a photocopy of a Will is impermissible unless strict conditions under Section 237 of the Succession Act are satisfied. He contended that the propounder failed to prove loss or destruction of the original Will, failed to comply with Section 65 of the Evidence Act, and that mere allegations of theft could not justify reliance on secondary evidence. It was also argued that a probate judgment operates in rem, and therefore once probate was refused, the finding on genuineness of the Will could not survive.
Respondent’s arguments
The respondents submitted that the Will stood duly proved through an independent attesting witness and surrounding circumstances. It was argued that the appellant himself had acted on the basis of the Will by attesting a subsequent Will executed by his father in 2004, wherein the father claimed ownership on the strength of the mother’s Will. This conduct, according to the respondents, amounted to an implied admission of the earlier Will. It was further submitted that this was a case of loss of the original Will, attracting Section 65(c) of the Evidence Act, making secondary evidence admissible.
Analysis of the law
The Court analysed Section 65(c) of the Evidence Act and Section 237 of the Indian Succession Act. It held that where the original Will is alleged to be lost or mislaid, and the propounder is not at fault, secondary evidence can be received, provided execution and attestation are otherwise proved in accordance with law. The Court clarified that Section 237 permits probate of a copy where loss is shown, but the present appeal was not concerned with grant of probate, which had already been refused on independent grounds.
The Court rejected the argument that the case fell under Section 65(a) of the Evidence Act and held that it squarely fell under Section 65(c), dealing with loss of the original document.
Precedent analysis
The Court distinguished earlier Delhi High Court authority which cautions against grant of probate on the basis of copies, observing that such precedents do not prohibit a court from recording a finding on due execution when evidence otherwise proves the Will. The judgment reinforces that probate jurisdiction, though special in nature, does not bar courts from appreciating secondary evidence when statutory conditions are met.
Court’s reasoning
The High Court placed significant reliance on the testimony of an independent attesting witness, whose evidence remained unshaken. It also drew adverse inference against the appellant based on his conduct of attesting a later Will executed by his father, which expressly proceeded on the footing that the mother’s Will existed and had vested ownership in the father.
The Court found that the appellant raised objections only after the father cancelled the later Will, indicating that the challenge was motivated by subsequent events rather than genuine doubt about execution. Importantly, the appellant did not dispute his mother’s mental capacity or voluntariness at the time of execution.
On the issue of probate, the Court agreed with the trial court that suppression of the sale of property during pendency of proceedings justified refusal of probate, and since that finding was unchallenged by the purchaser, it attained finality.
Conclusion
The Delhi High Court dismissed the appeal, holding that the Will dated 22 January 1996 stood duly proved, notwithstanding the refusal of probate. It affirmed that secondary evidence was rightly relied upon, and that the trial court committed no error in its appreciation of evidence or application of law.
Implications
This judgment clarifies an important distinction in succession law: proof of a Will and grant of probate are not inseparable. While probate may be denied on grounds of conduct, suppression, or equity, a finding on the genuineness of a Will can still stand. The ruling also provides guidance on admissibility of secondary evidence of Wills and underscores the relevance of parties’ conduct in assessing credibility.
Case law references
- Section 65, Evidence Act, 1872 – Governs admissibility of secondary evidence where originals are lost.
- Section 237, Indian Succession Act, 1925 – Permits probate of copy or draft of a lost Will subject to conditions.
- Ashwini Kumar Agarwal v. B.K. Mittal – Cited on caution in granting probate of copies; distinguished on facts.
FAQs
1. Can a Will be proved if only a photocopy is available?
Yes, if loss of the original is shown and execution and attestation are otherwise proved, secondary evidence is admissible.
2. Is it contradictory to prove a Will but deny probate?
No. Probate may be refused due to conduct or suppression, even if the Will itself is proved.
3. Does attesting a later Will amount to admission of an earlier Will?
It can be a strong corroborative circumstance indicating acceptance of the earlier Will’s existence.