Case Note & Summary
The case involves a testamentary suit for probate of a Will allegedly dated 17th June 2009 of Snehalata Nevatia, the mother of the defendant, Dileep Balkrishna Nevatia. The plaintiffs, Harish Brijmohan Loyalka and another, filed a petition for probate on 23rd September 2011, initially stating that the original Will had been handed in separately for safe custody. However, the original Will was not traceable, and by an amendment allowed on 5th May 2012, the petition was amended to seek probate of a certified copy of the Will, with an undertaking to deposit the original if found. The defendant, who appeared in person, filed a caveat and an affidavit in support, and later filed a Notice of Motion seeking dismissal of the suit. The defendant argued that the amendment was procedurally irregular as it should have been by Chamber Summons, not by affidavit or praecipe, and that the petition lacked sufficient averments to comply with Section 237 of the Indian Succession Act, 1925. The court rejected these arguments, holding that the amendment order had attained finality and could not be challenged at this stage. The court further held that Section 237 of the Indian Succession Act, 1925, specifically allows for probate of a copy of a Will when the original is lost or not traceable, and that the petition contained the necessary averments. The court also noted that the defendant's affidavit in support did not specifically deny the execution of the Will or the truth of the statements in the petition, and thus the suit could not be dismissed summarily. The court dismissed the Notice of Motion, directing the suit to proceed to trial.
Headnote
A) Succession Law - Probate of Copy of Will - Section 237 Indian Succession Act, 1925 - The court held that probate of a copy of a Will is permissible under Section 237 if the original is not traceable and the petitioner undertakes to produce it when found. The court rejected the defendant's argument that the petition must fail for want of the original Will, noting that the section specifically allows for proof of contents of a Will when the original is lost or destroyed. (Paras 5-7) B) Civil Procedure - Amendment of Petition - Procedural Irregularity - The court held that an amendment to a probate petition made by affidavit or praecipe before service of citations is within the court's discretion and cannot be challenged after it has attained finality. The defendant's failure to appeal or seek recall of the amendment order precludes him from raising this objection. (Paras 4-5) C) Succession Law - Caveat and Affidavit in Support - Section 237 Indian Succession Act, 1925 - The court noted that the defendant's caveat and affidavit in support did not specifically deny the execution of the Will or the truth of the statements in the petition, and thus the suit could not be dismissed under Order XII Rule 6 CPC. The court emphasized that the matter requires a trial. (Paras 8-9)
Issue of Consideration
Whether a suit for probate of a copy of a Will can be dismissed at the threshold on the ground that the original Will is not traceable and that the amendment to the petition was procedurally irregular.
Final Decision
The Notice of Motion is dismissed. The suit is to proceed to trial.
Law Points
- Probate of copy of Will permissible under Section 237 Indian Succession Act
- 1925
- Amendment of petition before service of citations is within court's discretion
- Procedural rules are meant to aid justice
- not to enslave it
