Delhi High Court
Ashwani Kumar Aggarwal vs B K Mittal on 3 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No. 214/2012
% 3rd July, 2014
ASHWANI KUMAR AGGARWAL ......Appellant
Through: Mr. Jai Bansal, Advocate.
VERSUS
B K MITTAL ...... Respondent
Through: Ms. Kamlakshi Singh, Advocate.
Mr. Harish Malik, Advocate for
impleaders.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Section 299 of the Indian
Succession Act, 1925 (hereinafter referred to as 'the Act') impugning the
judgment dated 7.1.2012 by which the probate court below has granted
probate with respect to the Will dated 3.2.1991 of late Sh. Brij Kumar.
2. A reading of the impugned judgment shows that admittedly the
original Will has not been filed on record by the petitioner in the court below
namely Sh. B.K. Mittal, and who is the respondent herein. The question is
that could the probate court below in the absence of the original Will in the
FAO No.214/2012 Page 1 of 5
facts of this case have granted probate only of a photocopy of the Will.
3. On the aspect of grant of probate of not the original but only a
copy of the Will, it will be necessary to refer to Section 237 of the Act. This
section reads as under:-
"Section 237. Probate of copy or draft of lost Will.-When a Will has
been lost or mislaid since the testator's death, or has been destroyed
by wrong or accident and not by any act of the testator, and a copy or
the draft of the Will has been preserved, probate may be granted of
such copy or draft, limited until the original or a properly
authenticated copy of it is produced."
(i) The aforesaid section is extremely relevant. This Section 237 of
the Act is part of Chapter 2 of Part IX of the Act. Part IX contains four
sections from Sections 237 to 240.
(ii) A reading of Section 237 makes it clear that a Will is revoked
by destroying the same. An original Will can be destroyed in various ways
including by tearing up of the same or burning of the same or throwing the
same theoretically to say in the ocean. It is only if the original of the Will is
not available because it has been destroyed by a wrong or an accident i.e not
an intentional destruction by the testator, then, probate can be granted of the
copy of the Will. When a probate is sought of only a copy of the Will,
evidence is required to be led on record that the original Will was not
destroyed by the intentional act of the testator, or if the same is destroyed, it
FAO No.214/2012 Page 2 of 5
has been destroyed wrongly or erroneously.
4(i) I put it to the counsel for the respondent herein Sh. B.K.Mittal,
as also the other contesting respondents, if any evidence has been led in the
probate court below that though the original of the Will is not brought on
record, it was not as if that the original Will was destroyed by a deliberate
act of the testator.
(ii) After going through the record counsels for the respondents
state that there are no depositions of any of the witnesses on behalf of the
petitioner in the probate court whereby it is deposed that the original Will
still exists and does not stand destroyed by an intentional act of the testator.
Also, there is no evidence that if the original Will is destroyed, the same has
been destroyed erroneously only on account of a wrong or an accident and
not due to an intentional act either of the testator or of somebody else. Also,
there is no evidence in the form of admission of the appellant before this
Court that the original Will exists and it has been lost or misplaced and that
the original Will has not been destroyed by an intentional act of the testator.
5. The above resume of the facts of this case show that Section
237 of the Act squarely applies in this case and the ingredients thereof are
not proved for granting probate of a copy of the Will. I may note that Courts
are deliberately hesitant to grant probate of a photocopy of the Will
FAO No.214/2012 Page 3 of 5
inasmuch as Will as a document can be revoked by destroying the same in
any manner and absence of the original can strongly mean that the Will was
revoked. Therefore, once the original Will is not on record, there has to
exist on record such amount of credible evidence to show that the original of
the Will was never destroyed by an intentional act of the testator or if the
original Will is still available the same is lost or misplaced or the original is
with a person who is deliberately not producing the same. In the absence of
evidence in this regard, and that too credible evidence which the Court can
believe, Courts do not grant probate of copies of the Will except in the
circumstances which are specified in Sections 238 to 240. In my opinion,
this limited aspect of original Will not being on record and no evidence led
for granting copy of the Will as per Section 237, is enough to allow the
appeal and set aside the impugned judgment of the probate court dated
7.1.2012.
6. It may be noted that in the impugned judgment it has been
noted that the petitioner in the probate court namely Sh. B.K. Mittal
(respondent herein) made an averment that the original of the Will was with
him, but subsequently he admitted that the original was not with him and
consequently had been allowed permission to lead secondary evidence.
However, permission to lead secondary evidence cannot take away the effect
FAO No.214/2012 Page 4 of 5
of substantive provision of Section 237 of the Act and unless the
requirements of Section 237 of the Act are satisfied. Since requirement of
Section 237 are not satisfied, probate of a copy of the Will, including the
photocopy of the Will, cannot be granted.
7. Accordingly, appeal is allowed. Impugned judgment dated
7.1.2012 is set aside and the probate petition filed by Sh. B.K.
Mittal/respondent shall stand dismissed. Parties are left to bear their own
costs.
JULY 03, 2014 VALMIKI J. MEHTA, J.
Ne
