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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHARMILA U. DESHMUKH, J.
Jamila Gulfam Desai – Appellant
Versus
Jamir Abdulmujir Shiledar & Anr. – Respondents
First Appeal No. 1354 Of 2016
Decided On : 01-10-2024
Probate - Will Execution - Indian Succession Act, 1925 - Sections 222, 232, 276, 278 - The court examined the validity of a will executed in 1956, addressing issues of attestation, secondary evidence, and the absence of an executor, ultimately granting Letters of Administration with the Will annexed.
Fact of the Case: The Applicant sought probate for a will executed by the deceased in 1956, which was discovered posthumously in 2005. The original will was missing, leading to disputes among family members regarding its validity and execution.
Finding of the Court: The court found that the will was executed by a sound-minded testator and that secondary evidence was admissible due to the original will's absence. The court concluded that the will was valid despite the absence of one attesting witness.
Issues: Whether the will was duly executed and attested, and if the Applicant was entitled to Letters of Administration given the absence of the original will and the presence of suspicious circumstances.
Ratio Decidendi: The court held that the will was validly executed and that secondary evidence could be admitted under the Indian Evidence Act. The absence of an executor allowed for Letters of Administration with the Will annexed.
Final Decision: The appeal was dismissed, and Letters of Administration with Will annexed were granted to the Applicant.
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 dec
Important Point : A will can be proved through secondary evidence if the original is lost, and Letters of Administration can be granted when no executor is appointed.
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.
The propounder must prove the existence and loss of the original Will to obtain Letters of Administration; reliance on a photocopy alone is insufficient.
The execution and integrity of a Will can be upheld despite minor discrepancies or the presence of the beneficiary at signing, provided proper attesting witnesses confirm its authenticity.
A holographic Will is presumed valid unless strong evidence is presented to the contrary. Delays in seeking letters of administration do not invalidate the Will if the right to apply arises from lega....
The propounder of a Will must prove its valid execution and genuine nature, failing which, the Will cannot be upheld.
Registered Will's genuineness presumed; proof under Evidence Act Sections 68/69 via signature identification by witnesses suffices when attesting witnesses unavailable; disputing party must prove sus....
(1) When a Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between plaintiff and defendant.(2) Genuineness of Will must be proved by proving intention of testator to make....
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