The main legal point established in the judgment is the importance of evidence in proving the validity of a Will, the doctrine that the falsity of one part of a witness's testimony does not discredit their entire testimony, and the shift of onus of proof in a civil case.

VALMIKI J. MEHTA, J (ORAL)

1. This Probate Petition seeks probate of the Will dated 21.8.1973 of late Sh. Narinjan Dass Rikhy. The beneficiary under this Will is Jagdeep Singh Rikhy son of Sh.Jasjit Singh Rikhy. Sh.Jasjit Singh Rikhy is the son of late Sh. Narinjan Dass Rikhy, i.e. the beneficiary under the Will was the grandson of late Sh.Narinjan Dass Rikhy. The petition was originally filed by Sh.Jasjit Singh Rikhy as Sh. Jagdeep Singh Rikhy – the beneficiary, was a minor at the time when the petition was filed. Sh.Jagdeep Singh Rikhy thereafter became major during the pendency of the case and he therefore was substituted in place of his father Sh. Jasjit Singh Rikhy.

2. The disputes between the parties as regards the Will have arisen because the Will bequeaths the immovable property namely Plot No.15, Street No.5, Shanti Niketan, Tula Rao Marg, New Delhi, admeasuring about 1000 sq.yds. to the petitioner only. As per the Will one son and one daughter namely Sh. Manjit Singh Rikhy and Smt. Harjit Kaur (the two objectors) have been disinherited totally and one widowed daughter-Mrs. Kuljit Raghbir Singh was given a limited right to reside in her lifetime in the rear portion of the property which was to be built upon. Besides, the aforesaid one son and two daughters being disinherited, there is a third pre-deceased daughter, and whose legal heirs gave no objection with respect to the present probate petition, and which legal heirs also did not receive anything under the Will.

3. Sh.Narinjan Dass Rikhy died at New Delhi on 5.3.1974. The Will executed by him is dated 21.8.1973. The petitioner having set up this Will must prove this Will in order to succeed in this probate petition.

4. Before I proceed ahead, I must turn to an extremely important aspect in the present case and which is that there is no original Will which has been filed in the present case. As per the petitioner, the original Will dated 21.8.1973 was given by his father Sh. Jasjit Singh Rikhy to the brother of late Sh.Narinjan Dass Rikhy, one Dr. H.S.Rikhy. During the proceedings in the present case on notices being issued to Dr. H.S. Rikhy to produce the Will, he wrote a letter to this Court that he does not have the original Will dated 21.8.1973. Details in this regard, I would deal with a bit later, but for the present, it is necessary to refer to Sections 70 and 237 of the Indian Succession Act, 1925 inasmuch as those Sections provide as to the manner of revocation of a Will and also as to how probate can be granted when the original Will is not found. Sections 70 and 237 read as under:-

“70. Revocation of unprivileged Will of codicil. – No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person on his presence and by his direction with the intention of revoking the same. 237. Probate of copy or draft of lost Will. – When a Will has been lost or mislaid since 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.”

5. A reading of Section 70 shows that a Will can be revoked in different methods. One method is to declare by writing an intention to revoke the Will. The second is by destroying the same such as by burning or tearing.

Section 237 provides that if a Will is lost or mislaid since the testator’s death or the destruction is by a wrong or an accident which is not an act of the testator, and a copy of the Will has been preserved, then in such circumstances probate can be granted of the properly authentic