Case Note & Summary
The petitioner, Sadanand Ramchandra Newase, brother of the deceased Suresh, filed a probate application under Section 218 of the Indian Succession Act, 1925, based on an unregistered will dated 16.08.2017. The respondents, wife and daughter of the deceased, appeared and were impleaded as opponents. During the trial, the petitioner filed an application seeking permission to produce a photocopy of the notarized will as secondary evidence, claiming the original was lost. The trial court rejected the application by order dated 02.02.2023, citing that the petitioner had not filed a certified/true copy and had not taken steps for adducing secondary evidence. The petitioner challenged this order by way of a writ petition before the Bombay High Court. The High Court observed that the only issue was whether the trial court was justified in refusing permission. The court noted that the petitioner had explained the loss of the original will in an affidavit. The respondents raised objections regarding the authenticity and contents of the will, but the court held that those objections related to the merits and did not address the issue of secondary evidence. The court held that a photocopy is secondary evidence under Section 63(2) of the Indian Evidence Act, 1872, and that the petitioner's averments of loss supported by affidavit were sufficient to make out a case for permission. The court set aside the trial court's order and permitted the petitioner to adduce secondary evidence by producing the photocopy, subject to proof. All contentions of the respondents were kept open.
Headnote
A) Evidence Law - Secondary Evidence - Lost Original Will - Section 63(2) Indian Evidence Act, 1872 - The petitioner sought permission to produce a photocopy of a notarized will as secondary evidence after losing the original. The trial court rejected the application on grounds that no certified/true copy was filed and no steps were taken. The High Court held that averments of loss supported by affidavit are sufficient to make out a case for grant of permission to adduce secondary evidence. The court clarified that a photocopy is secondary evidence under Section 63(2) and that appreciation of evidence will come at a later stage. The trial court was wrong in rejecting the application. (Paras 1-11) B) Succession Law - Probate - Lost Will - Section 218 Indian Succession Act, 1925 - The petitioner filed a probate application under Section 218 of the Indian Succession Act based on an unregistered will dated 16.08.2017. The respondents (wife and daughter of the deceased) opposed the application. The High Court allowed the petitioner to adduce secondary evidence of the lost will, keeping all contentions of the respondents open. (Paras 2, 12)
Issue of Consideration
Whether the trial court was justified in refusing permission to adduce secondary evidence of a lost original will in a probate proceeding.
Final Decision
Writ petition allowed. Order dated 02.02.2023 passed by the 4th Joint Civil Judge Senior Division, Satara in Probate Application No. 21 of 2020 is set aside. Petitioner is permitted to adduce secondary evidence by producing photocopy of the will dated 16.08.2017. Trial court to consider that photocopy as evidence subject to its proof. All contentions of respondents are kept open.
Law Points
- Secondary evidence
- photocopy as secondary evidence
- Section 63(2) Indian Evidence Act
- 1872
- probate proceeding
- lost original will
- permission to adduce secondary evidence
- appreciation of evidence at later stage
