Certified Copy Of Registered Will Is Sufficient To Prove Initial Existence: Delhi High Court
The Delhi High Court has observed that the certified copy of a registered Will is sufficient and is of high-probative value to prove the initial existence of the original Will.
The Court also held that the onus of proving the due execution of Will in probate petition is on the Executor and he must satisfy the conscience of the Court that it was the last Will of the free and capable Testator.
The Division Bench of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora observed, “The admissibility of certified copy of the registered Will is, thus, statutorily recognised and, therefore, the contention of the Appellants that a certified copy of the registered Will cannot be relied upon for seeking probate is incorrect. As noted above, the executor/applicant’s obligation to prove the circumstances of loss of the original Will under Section 237 of the Act of 1925 remains, however, the loss of the original Will does not disentitle him/her from applying for probate. The high- probative value of a certified copy of the registered Will in proving the initial existence of the original Will is inarguable and, therefore the underlying probate petition is maintainable. ”
Senior Advocate Y.P. Narula appeared for the Appellants whereas Advocate Sanjeev Mahajan appeared for the Respondents.
Relying on the judgment of the Supreme Court in Beni Chand vs. Kamla Kunwar(1976), the Court said, “It is needless to state that the onus of proving the due execution of the Will dated 2nd August, 2019 in the underlying probate petition rests on Respondent No. 1 i.e., the party propounding the Will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator by leading evidence in accordance with law”.
The Appellants were aggrieved by the Orders passed by a Single Judge in the probate petition as the same was filed along with a certified copy of the registered Will in issue on the plea that the original Will was not available.
The brief facts of the case are that the first Respondent, a Sole Executor, executed a Will of the Testatrix duly registered with the Sub-registrar. Since the original Will was unavailable with the Executor, he filed the probate petition along with a certified copy of the registered Will. In the probate petition, it was duly stated that the original Will is presently not available and is presumed to be lying at the last place of abode of the Testatrix.
The Single Judge held that the probate petition is not liable to be dismissed in limine on the ground of non-filing the original Will. The Single Judge had also granted leave to the Executor to place on record verification or the affidavit of one of the attesting witnesses to the Will in accordance with Section 281 of the Indian Succession Act, 1925 (“Act, 1925”).
The Court said, “The probative value and admissibility of certified copy of a registered document has been explained by the Supreme Court in its recent pronouncement in Appaiya vs. Andimuthu11, wherein after considering Section 74 (2) of the Act of 1872 and Section 57 (5) of the Act of 1908, the Court held that certified copy of the sale deed is admissible in evidence for proving the contents of the original sale deed. The Supreme Court has held that documents registered before the Sub-Registrar are public documents within the meaning of Section 74 (2) of the Act of 1872.”
The Court, thoroughly, discussed Section 70 of the Act, 1925 and opined that the loss or unavailability of the original Will does not ipso facto attract the presumption of revocation by destruction and, thus, the act of revocation of Will shall be strictly governed by Section 70. In this regard, the Supreme Court has already examined the strict scope of Section 70 of the Act of 1925 and categorically held that the ‘onus to prove’ that the Will has been revoked lies on the objector who relies on the revocation, the Court further said.
As regards Section 237 of the Act of 1925, the Court also said the Executor had duly pleaded the unavailability of the original Will and those pleadings were sufficient at the initial stage to entertain the probate petition.
Moreover, the Court observed that the duplicate copy was pasted in the books maintained by the Sub-Registrar and bore the signatures in the original of the executant, the witnesses, the Registering Officer and the presenter as per Section 52 of the Registration Act of 1908 and Rule 3910 of The Delhi Registration Rules, 1976. The duplicate copy registered with the Sub-Registrar is in effect a mirror copy of the original document and has the same effect in law as the original document in its operation unless its revocation is proved by the objector, it held.
Accordingly, the appeal was dismissed by the Division Bench being sans merits.
Cause Title: Sahil Marwah and Anr. v. Vikas Malhotra and Ors. (Neutral Citation:2024:DHC:3678-DB)
Appearances:
Appellants: Senior Advocate Y.P. Narula and Advocate Abhey Narula
Respondents: Advocates Sanjeev Mahajan, Pranjal Tandon, Varun Sarin, Kanak Bose, Parul, Babita Rawat and Damini Chawla
