PRAKASH KAPOOR Vs. STATE

JUDGEMENT

(1.) THIS petition under Section 276 of the Indian Succession Act, 1925 has been preferred by the petitioner for grant of probate in respect of a Will dated 01. 05. 1980 of deceased Smt. Malan Devi who died on 21. 12. 1991. It is stated in the petition that Smt. Malan Devi executed this Will as last Will and by virtue of this Will bequeathed the property bearing No. L-1/2, Hauz Khas Enclave, New delhi in favour of the petitioner, who was one of the sons of Smt. Malan Devi. All other legal heirs namely sons and daughters of Smt. Malan Devi were made party to the probate petition apart from the State and notice was served on the other legal heirs and publication of notice was also done in two national dailies. The respondent put appearance and time was sought for compromise. Ultimately, 'no objection' was filed by the respondent No. 2 in the Court. During pendency of the petition, petitioner died and his LRs were brought on record. The petitioner, in order to prove the Will, examined one Neeraj Kumar and Mr. D. N. Vohra as the witness and closed its evidence. After hearing arguments, the matter was reserved for judgment on 1st February 2008. However, when this Court considered the matter for judgment, it found that the original Will was not there. The matter was renotified and the counsel for the petitioner and respondent were sent notices. Counsel for the petitioner informed the Court on 23rd April 2008 that the original will was not traceable.

(2.) A perusal of affidavit of PW-1 would show that PW-1 testified that Smt. Malan Devi executed and got registered a Will dated 1st May 1980 as her last will. She expired on 21st December 1991. The death certificate of Smt. Malan devi is Ex. PW1/a. PW-1 stated that the true copy of the Will was annexed with the petition. The other witness is Mr. D. N. Vohra, an advocate. He testified that he was one of the attesting witnesses of the Will dated 1st May 1980 and the Will was signed by Smt. Malan Devi in his presence and in presence of Mr. Ram Gopal, Advocate Tis Hazari Court. Both of them had signed the Will in presence of Smt. Malan Devi and Smt. Malan Devi put her signatures on the Will of her own free will. She was in sound state of mind and free from extraneous interference. The copy of the Will was a genuine and true copy.

(3.) THE petitioner did not examine any witness from Sub Registrar's office where the Will was registered and did not place on record any authenticated copy of the Will. The copy which has been placed on record is a photocopy of the will. A probate court can grant letter of administration or probate if the petition is accompanied by the original Will or with an authenticated copy of the Will. Where the original Will is lost, the petitioner, had the option to lead secondary evidence with the permission of the Court that the original Will was lost. Normally, a person executing a Will has a liberty to tear off the will executed by her as and when she wants that the Will be not acted upon. Where the original Will is not produced, the presumption is that the Testator might have torn it or destroyed it as Testator did not want the Will to be acted upon and had not handed over the Will to the petitioner or any other person. If the Will is lost or misplaced, the petitioner has to plead the fact of loss of will and has to lead secondary evidence to prove that the copy produced by him was a copy of the Will actually executed by the Testator. It is present case, it is alleged that the Will was got duly registered by the deceased. Even if the will was lost, the petitioner was at liberty to produce the witness from the Sub registrar's office who would have produced the second copy of the Will lying with the Sub Registrar's office. The petitioner has not even placed on record a certified copy of the Will obtained from Sub Registrar's Office. A photocopy of the Will is not an authenticated copy of the Will on the basis of which the court can act and grant probate or letter of administration in favour of any party.