The absence of an original Will does not invalidate its probate if secondary evidence sufficiently proves its execution and the delay in application is justified.

JUDGMENT :

Sharmila U. Deshmukh, J.

1. The present appeal is filed under Section 96 read with Order 41 of the Code of Civil Procedure 1908 by the original Opponents against the judgment dated 29th May 2014 passed by the Civil Judge (Senior Division) Sangli, District Sangli in Miscellaneous Application No. 67 of 2009 granting Probate of Will dated 30th July, 1956. For sake of convenience parties are referred to by their status before the Trial Court.

FACTUAL MATRIX:

2. M.A. No. 67 of 2009 was instituted under Sections 276 and 278 of the Indian Succession Act, 1925 by the Applicant in respect of Will dated 30th July 1956 of one Ibrahim @ Kamal Babaso Shiledar who expired on 21st February 1975. The Applicant is the grandson of deceased Ibrahim and Opponent Nos. 5 10 are the family members being brothers, sisters and mother of the Applicant. The Opponent Nos. 1 and 2 are children of the Applicant's deceased paternal aunt, Opponent No. 3 and 4 are the paternal aunt and paternal uncle of the Applicant respectively.

3. The case in the Application was that the deceased Ibrahim during his lifetime had executed Will dated 30th July 1956 in respect of Annexure-A properties, which was registered at Serial No. 1249 with the Joint Sub Registrar, Miraj-1 District Sangli and noted in Index-III. At the time of death of said Ibrahim, Applicant was aged 4 years and was not aware of the execution of Will. After the death of Ibrahim, the Applicant's father and Opponent No. 4 suppressed the original Will and mutated their names in the property cards. On 29th July 2005, the Applicant's father expired and while going through his documents, Applicant learnt about the registered Will dated 30th July 1956. Despite all efforts the original Will could not be found and on 15th September 2005 the Applicant obtained certified copy of the registered Will from the office of Sub Registrar, Miraj-1, District Sangli.

4. Subsequently, the Applicant applied to the circle officer for mutating his name in the records in respect of properties mentioned in the Annexure-A to the Will in which notices were issued to the Opponents. The application came to be dismissed by the Circle Officer and then the SDO holding that the Applicant has to seek his remedies in the appropriate Court of law. As against this, Second Appeal No. 89 of 2008 was filed before the Collector which is pending.

5. The deceased Ibrahim while executing the last Will dated 30th July 1956 was of sound and disposing mind. The attesting witnesses are Bapu Bala Jagtap and Sakha Hari Kulkarni who have signed in modi script. On 17th March 1989 Bapu Bala Jagtap expired and the other attesting witness Sakha Hari Kulkarni could not be found despite search. In Annexure A, the property was described as land Survey No. 56/2, 56/1 which is now consolidated in Gat No. 233, Survey No. 80/7 consolidated in Gat No. 438 and Survey No. 341/5 consolidated in Gat No. 77.

6. The suit came to be resisted by the Opponent Nos. 6 to 10 contending that the Applicant was residing with his father till 29th July, 2005 and if the Will was in the custody of his father, in the year 1975 itself the Applicant's father would have propounded the Will and mutated the name of Applicant in the revenue records. The Applicant's father had filed an application for legal heirship certificate which was granted on 31st March 1979 without production of Will. Subsequent to the death of Ibrahim in the year 1975, Mutation Entry No. 5059 was certified on 2nd November, 1988 mutating the names of legal heirs in revenue records without any objection from the Applicant's father and the Applicant had challenged the Mutation Entry before the Revenue Authorities after considerable delay about which the Deputy Collector has expressed suspicion and appeal filed before the Additional Collector has been dismissed. Since last 20 years the legal heirs of deceased Ibrahim are in occupation and cultivation of the properties to the knowledge of Applicant's father and without a