The probate of a Will executed in 1956, the Bombay High Court granted Letters of Administration with the Will annexed, modifying the previous order which granted probate. The Will in question was executed by Ibrahim @ Kamal Babaso Shiledar, and the dispute revolved around the long delay in its discovery and the exclusion of certain heirs. The court upheld the validity of the Will based on secondary evidence and rejected the argument that the exclusion of other legal heirs raised suspicions. However, probate was denied because the deceased had not appointed an executor.

Factual Matrix

• Will Details: The Will was executed by Ibrahim on July 30, 1956, and the probate dispute arose after its discovery in 2005. The Will bequeathed specific properties to his grandson.
• Delay in Action: The appellant discovered the Will only after the death of his father in 2005, which led to the application for probate in 2009.

Appellant's Claims and Arguments

• Reliance on Section 96 and Order 41 CPC: The appellant challenged the probate judgment, claiming that the Will was not produced in its original form and questioned the authenticity of the Will due to the exclusion of other heirs.
• Secondary Evidence: The appellant argued that the conditions for admitting secondary evidence under Section 65(c) of the Indian Evidence Act were not met, as the original Will had not been produced.

Respondents’ Arguments

• Defense of the Will's Validity: The respondents argued that the Will was duly executed and attested, and the exclusion of certain heirs was not suspicious. They pointed out that the certified copy of the Will was registered, supporting its validity under Section 69 of the Indian Evidence Act.

Trial Court’s Findings

• Proof of Execution: The Trial Court found the Will to be valid, having been executed by Ibrahim when he was in sound mental condition.
• Issue of Probate: Although the court admitted the validity of the Will, it granted probate instead of Letters of Administration, overlooking the fact that no executor was appointed.

High Court's Ruling

• Admissibility of Secondary Evidence: The High Court upheld the admission of secondary evidence (certified copy of the Will), accepting the delay and the circumstances of its discovery.
• Suspicious Circumstances Rejected: The court dismissed claims of undue suspicion regarding the exclusion of certain legal heirs, noting that other properties existed for their benefit.
• Grant of Letters of Administration with Will Annexed: The court modified the trial court's decision, granting Letters of Administration as no executor was appointed in the Will.

Acts and Sections Discussed

• Section 96, Order 41 of Code of Civil Procedure (CPC), 1908: Appeal mechanism.
• Sections 65(c) & 69 of the Indian Evidence Act, 1872: Admissibility of secondary evidence and proof of attestation of a Will.
• Sections 276, 278, 222 & 232 of Indian Succession Act, 1925: Procedures related to probate, Letters of Administration, and appointment of executors.

Ratio Decidendi

The High Court emphasized that the non-production of the original Will, due to its loss, and the admissibility of a certified copy, constituted valid secondary evidence. The court further held that exclusion of other heirs does not automatically cast suspicion on the Will, especially when other properties were available for their benefit. Importantly, probate was not granted as no executor was appointed in the Will, hence the applicant was entitled only to Letters of Administration with the Will annexed.

Subjects

Civil Procedure, Probate, Succession

Probate Appeal, Indian Succession Act, Secondary Evidence, Letters of Administration, Will Dispute, Indian Evidence Act