Allowing Secondary Evidence in Probate Case: Court Overturns Denial of Permission to Present Photocopy of Lost Will.
15 October 2024
Civil Suits >> Civil & Consumer Law | Probate of Wills >> Inheritance | Wills under Indian Succession Act >> Inheritance
The writ petition addresses the issue of whether the trial court was justified in denying the Petitioner permission to present secondary evidence in the form of a photocopy of a notarized will, after the original will was reportedly lost. The Petitioner, the brother of the deceased, sought to probate a will executed on 16.08.2017, which was notarized but unregistered. Upon the Respondents (the deceased's wife and daughter) filing objections, the Petitioner applied to submit a photocopy of the will as secondary evidence. The trial court rejected this application on 02.02.2023, stating that the Petitioner failed to provide a certified or true copy of the will and had not taken sufficient steps to produce secondary evidence.
The court observed that the original will was not available for comparison due to being lost, and the Respondents had raised issues regarding the authenticity of the will. The Petitioner explained this loss and supported his claim with an affidavit. Despite objections from the Respondents, the court found that the Petitioner had sufficiently demonstrated the need to present secondary evidence under Section 63(2) of the Indian Evidence Act.
The court ruled in favor of the Petitioner, allowing the submission of the photocopy of the will as secondary evidence, subject to proof, and set aside the trial court's order. The Respondents' objections regarding the authenticity and details of the will were kept open for later examination.