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AMIT BANSAL
Hitesh Bhardwaj – Appellant
Versus
Govt. Of NCT Of Delhi And Another – Respondent
JUDGMENT
Amit Bansal, J. (Oral). - IA. 5864/2022 (O-XIV R-2(2) of CPC)
1. The present application has been filed on behalf of the respondent no. 2 under Order XIV Rules 2(2) and (5) of the Code of Civil Procedure, 1908 (CPC), seeking the following prayers:
"a. frame the following additional issue:
Whether prayer 'a' of the Petition seeking Letters of Administration of the Will dated 22.02.2020 with alterations cannot be granted, being hit by Section 71 of the Succession Act?
b. consider and decide the said issue as preliminary issue;"
2. The present testamentary case has been filed by the petitioner under Section 278 of the Indian Succession Act, 1925 (the Act), seeking Letters of Administration in respect of the last and final Will dated 22nd February, 2022 of late Mrs. Ramesh Kumari Bhardwaj (Testatrix) who was the mother of the petitioner and the respondent no.2. The Testatrix passed away on 7th/8th March, 2020. The respondent no.2, in another testamentary case bearing Test Cas. No. 17/2020 titled as Nitesh Bhardwaj v. Govt of NCT and Anr. has propounded a different Will dated 14th July, 2014 of the Testatrix, which is pending adjudication before this Court.
3. In the present testame
The main legal point established in the judgment is that the applicability of the bar under Section 71 of the Indian Succession Act, 1925 cannot be decided as an issue of law only, and evidence would....
The Testamentary Court's jurisdiction is limited to determining the validity of the Will, including its execution, attestation, and the testator's state of mind.
A registered Will's validity under the Indian Succession Act requires compliance with statutory attestation requirements, and mixed questions of law and fact necessitate a full trial rather than dism....
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.
Alterations made to a Will after execution are invalid unless executed in accordance with legal requirements, highlighting the probate court's limited jurisdiction in granting probate.
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.
In non-contentious applications for Letters of Administration, strict proof under the Evidence Act is not required, and courts may rely on affidavits.
The propounder must prove the existence and loss of the original Will to obtain Letters of Administration; reliance on a photocopy alone is insufficient.
A proceeding for grant of Letters of Administration under Section 278 of the Indian Succession Act can continue despite the death of executors, as the provisions governing probate do not apply.
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