1. Court’s decision
The Delhi High Court has dismissed an appeal filed by the son (objector) challenging a probate ruling that upheld the genuineness of a Will executed by his late mother. Although the trial court had found the Will genuine, it dismissed the probate petition because the original petitioner sold the property during the pendency of proceedings without disclosure. The High Court held that the Will stood duly proved through secondary evidence under Section 65(c) of the Evidence Act and Section 237 of the Indian Succession Act. It affirmed that the objector’s conduct, including attesting a later Will executed by his father, corroborated acknowledgment of the mother’s Will. There was no basis for interference, and the appeal was dismissed.
2. Facts
The dispute concerns the property of Sujan Kaur, who died leaving behind her husband and two sons. The husband (original petitioner) sought probate of a Will dated 22.01.1996, bequeathing the entire property to him. Only a photocopy of the Will was filed; the petitioner alleged the original had been stolen by his son, the objector. Most legal heirs raised no objections except the objector, who alleged fabrication and insisted his mother died intestate. While the probate case was pending, the petitioner executed a Will in 2004 bequeathing the property to his grandsons, with the objector and his wife as attesting witnesses. He later revoked this 2004 Will and sold the property in 2005. The trial court found the Will genuine but dismissed the probate petition for suppression of material facts. The objector appealed.
3. Issues
The Court examined:
- Whether the Will of 1996 could be legally proved through a photocopy.
- Whether the case satisfied the conditions of Section 65(c) of the Evidence Act and Section 237 of the Indian Succession Act.
- Whether the attesting witness’s testimony was credible.
- Whether inconsistencies existed between the trial court’s findings and its dismissal of the probate.
- Whether the appeal raised any grounds to disturb the finding that the Will was genuine.
- Whether the objector’s conduct, including attestation of the 2004 Will, supported or undermined his objections.
4. Petitioner’s (Appellant/Objector’s) arguments
The objector argued that the trial court erred by simultaneously declaring the Will proven and dismissing the probate petition. He submitted that probate is a judgment in rem and therefore cannot be denied if the Will is held genuine. He contended that reliance on a photocopy violated the strict requirements of Section 65 of the Evidence Act. There was no explanation for non-production of the original Will, nor proof of its loss or destruction. He claimed he never attested the Will and that his father fabricated it to deprive him of his rightful share. He also argued that the petitioner’s act of selling the property during pendency proved mala fides and rendered the probate proceeding inherently defective.
5. Respondent’s arguments
Counsel for the substituted petitioner argued that the objector himself had implicitly admitted the existence of the mother’s Will. His attestation of the father’s 2004 Will, which was premised on the father’s ownership derived through the disputed 1996 Will, demonstrated recognition of the earlier Will. It was submitted that Section 65(c) allowed secondary evidence when a document was lost through no fault of the propounder. The father had filed a police complaint regarding the theft, which corroborated the allegation that the objector had taken the original. The attesting witness PW-1 unequivocally proved execution of the Will, and his testimony remained unshaken. Thus, the Will had been validly proved, and the appeal lacked merit.
6. Analysis of the law
The Court examined Section 237 of the Succession Act, which permits probate of a copy when the original is lost or destroyed without the testator’s intent. It held that the petitioner’s consistent case—that the original was stolen—brought the situation within Section 65(c) of the Evidence Act, which allows secondary evidence when the original is lost without the party’s fault. The Court noted that the objector had not denied attestation of the father’s 2004 Will and had acknowledged seeing its draft. This fact significantly weakened his plea that the mother left no Will. The Court reiterated that once attestation is proved through credible testimony, and no suspicious circumstances exist, the Will stands validly proved.
7. Precedent analysis
The objector relied on Ashwini Kumar Agarwal v. B.K. Mittal, where the Delhi High Court held that probate of a copy cannot be granted unless conditions of Section 237 are satisfied and courts are cautious where originals are missing. The Court distinguished the present case: the propounder alleged theft, not destruction; secondary evidence fell under Section 65(c); and a consistent chain of circumstances, including the objector’s attestation of a later Will premised on the disputed Will, corroborated genuineness. The Court applied established jurisprudence that credibility of attesting witnesses and absence of suspicious circumstances are central to probate proceedings. The testimony of PW-1 was found trustworthy, and no motive for fabrication was proved.
8. Court’s reasoning
The Court found the attesting witness credible and unshaken on cross-examination. The objector presented no contrary evidence except bald denials. His own testimony revealed contradictions: he admitted relying on his father’s assertion that he became owner through a Will, admitted attesting the 2004 Will, and admitted not filing any complaint alleging fraud. His later claim of fabrication arose only when his father revoked the 2004 Will. This shift in position created suspicion regarding the objector’s motives, not the authenticity of the Will. The Court held that the trial court rightly found the Will validly executed. As to the dismissal of the probate petition, the Court held that this was due to suppression of the sale of the property — a finding not challenged by the substituted petitioner. The High Court saw no reason to disturb it.
9. Conclusion
The High Court concluded that the Will dated 22.01.1996 had been duly proved through proper secondary evidence, that the attesting witness was reliable, and that the objector failed to produce any substantive challenge. The appeal was devoid of merit. The Court upheld the trial court’s declaration that the Will was genuine and endorsed dismissal of the probate petition for suppression of material facts. All pending applications were closed.
10. Implications
This judgment reinforces crucial principles in probate law:
• Missing originals do not bar probate if statutory requirements for secondary evidence are satisfied.
• Attestation testimony, if credible, is decisive.
• Conduct of parties—especially admissions implicit in later transactions—can strongly support or undermine objections to a Will.
• Courts will not reward litigants who shift their stands opportunistically.
The decision strengthens confidence in probate processes involving lost or stolen documents and clarifies that objections based on mere suspicion cannot defeat a Will duly proved.
CASE LAW REFERENCES
1. Ashwini Kumar Agarwal v. B.K. Mittal, 211 (2014) DLT 524
Holding: Probate of a copy requires compliance with Section 237 ISA; courts exercise caution when originals are missing.
Applied: Distinguishable; here Section 65(c) applied and circumstances corroborated genuineness.
2. Principles under Section 65(c) Evidence Act
Holding: Secondary evidence permitted when original is lost without fault of propounder.
Applied: Theft allegation supported by police complaint and circumstances.
3. Testamentary jurisprudence on attestation
Holding: Credible attesting witness sufficient; absence of suspicious circumstances validates Will.
Applied: PW-1’s testimony unshaken and decisive.
FAQs
1. Can probate be granted when the original Will is missing?
Yes. The Court held that probate of a copy is permissible if conditions under Section 65(c) Evidence Act and Section 237 ISA are satisfied, including proof of loss and reliable attestation.
2. Why was the objector’s appeal dismissed?
Because the Will was duly proved through a trustworthy attesting witness, the objector’s shifting stand undermined his credibility, and no evidence of fabrication was produced.
3. Why did the trial court dismiss the probate petition despite finding the Will genuine?
Because the original petitioner concealed the fact that he had sold the property during the proceedings—a material suppression warranting dismissal.