Probate of a photocopy of a Will can only be granted under Section 237 of the Indian Succession Act if credible evidence is presented to show that the original Will was not intentionally destroyed or misplaced.

Valmiki J. Mehta, J. (Oral)

1. This first appeal is 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 below has granted probate with respect to the Will dated 3.2.1991 of late Sh. Brij Kumar.

2. 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 below in the absence of the original Will in the facts of this case have granted probate only of a photocopy of the Will.

3. 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. This section reads as under:-

“Section 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.”

(i) The aforesaid section is extremely relevant. This Section 237 of the Act is part of Chapter 2 of Part IX of the Act. Part IX contains four sections from Sections 237 to 240.

(ii) 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.

4(i) I put it to the counsel for the respondent herein Sh. B.K.Mittal, as also the other contesting respondents, if any evidence has been led in the probate court below that though the original of the Will is not brought on record, it was not as if that the original Will was destroyed by a deliberate act of the testator.

(ii) After going through the record counsels for the respondents state that there are no depositions of any of the witnesses on behalf of the petitioner in the probate court whereby it is 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.

5. The above resume of the facts of this case show that Section 237 of the Act squarely applies in this case and the ingredients thereof are not proved for granting probate of a copy of the Will. I may note that Courts are deliberately hesitant to grant probate of a photocopy of the Will inasmuch as Will as a document can be revoked by destroying the same in any manner and absence of the original can strongly mean that the Will was revoked. Therefore, 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 deliberate