Decided on July 03,2014)

If a Will is lost, what is the remedy available to the Heirs?

“Section 237. Probate of copy or draft of lost Will-When a Will has been lost or mislaid post 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.”.

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 has been destroyed wrongly or erroneously.

The first appeal was 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 has granted probate with respect to the Will dated 3.2.1991 of late Sh. Brij Kumar. 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 in the absence of the original Will in the facts of this case have granted probate only of a photocopy of the Will. 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.

After going through the record Counsels for the respondents stated that there were no depositions of any of the witnesses on behalf of the petitioner in the probate court whereby it was 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.

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. 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.

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 of substantive provision of Section 237 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. 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.