Case Note & Summary
The present appeal was filed under Section 96 read with Order 41 of the Code of Civil Procedure, 1908 by the original Opponents against the judgment dated 29th May 2014 passed by the Civil Judge (Senior Division), Sangli in Miscellaneous Application No.67 of 2009 granting Probate of a Will dated 30th July 1956. The Will was executed by one Ibrahim @ Kamal Babaso Shiledar, who expired on 21st February 1975. The Applicant, who is the grandson of the deceased, instituted the application under Sections 276 and 278 of the Indian Succession Act, 1925. The Applicant claimed that after the death of Ibrahim, his father and uncle suppressed the original Will and mutated their names in the property records. The Applicant learned about the Will only after his father's death in 2005 while going through his documents. Despite efforts, the original Will could not be found, and the Applicant obtained a certified copy from the Sub Registrar's office. The application was opposed by the Opponents on grounds of delay, laches, and suspicious circumstances, including the non-production of the original Will and the exclusion of other legal heirs. The Trial Court framed issues and, after trial, held that the Will was duly executed and attested, and that the testator was of sound mind. However, the Trial Court refused to grant Letters of Administration, holding that the properties had already been administered by the legal heirs. The Court instead granted Probate. The Appellants challenged this decision on three grounds: (1) the original Will was not produced and the conditions for secondary evidence under Section 65(c) of the Indian Evidence Act were not satisfied; (2) the Will was not proved as required under Section 68 of the Indian Evidence Act; and (3) the Will was executed in suspicious circumstances. The High Court, after hearing submissions, upheld the Trial Court's findings. The Court held that the Applicant had sufficiently accounted for the non-production of the original Will by deposing that it was not in his possession and he did not know its whereabouts. The attestation was proved by examining the daughter of one deceased attesting witness and the son of the scribe, and no steps were required to trace the other attesting witness as he could not be found despite search. The Court also held that mere delay and exclusion of other legal heirs did not constitute suspicious circumstances. The Court further held that since the Will appointed an executor, Probate was the appropriate remedy, not Letters of Administration. Accordingly, the appeal was dismissed and the judgment of the Trial Court granting Probate was confirmed.
Headnote
A) Succession Law - Probate - Secondary Evidence - Sections 65(c) and 68 of Indian Evidence Act, 1872 - Sections 276 and 278 of Indian Succession Act, 1925 - The Court held that where the original Will is not produced, secondary evidence in the form of a certified copy is admissible if the party accounts for the non-production. In this case, the applicant deposed that the original was not in his possession and he did not know its whereabouts, which satisfied Section 65(c). The attestation was proved by examining the daughter of one deceased attesting witness and the son of the scribe, and no steps were required to trace the other attesting witness as he could not be found despite search. (Paras 11-16) B) Succession Law - Suspicious Circumstances - Delay and Exclusion of Heirs - Indian Succession Act, 1925 - The Court held that mere delay in propounding the Will does not render it invalid if the Will is otherwise genuine. The exclusion of other legal heirs without more is not a suspicious circumstance, especially when the bequest is in favour of an offspring. The long-standing possession of other heirs does not override the right of the legatee under a valid Will. (Paras 17-20) C) Succession Law - Grant of Probate vs Letters of Administration - Indian Succession Act, 1925 - The Court held that where the Will appoints an executor, Probate should be granted, not Letters of Administration. The Trial Court's finding that the applicant was not entitled to Letters of Administration because the properties had been administered by legal heirs was erroneous; the appropriate remedy was to grant Probate. (Paras 21-22)
Issue of Consideration
Whether the Trial Court was justified in granting Probate of the Will dated 30th July 1956 despite non-production of the original Will, alleged suspicious circumstances, and delay in filing the application.
Final Decision
The appeal is dismissed. The judgment and order dated 29th May 2014 passed by the Civil Judge (Senior Division), Sangli in Miscellaneous Application No.67 of 2009 granting Probate of the Will dated 30th July 1956 is confirmed.
Law Points
- Secondary evidence of Will
- Proof of execution of Will
- Attestation under Section 68 of Indian Evidence Act
- Suspicious circumstances
- Delay and laches
- Exclusion of other legal heirs
- Grant of Probate vs Letters of Administration
