No Presumption of Revocation by Destruction Due to Unavailability of Original Will – Delhi High Court Upholds Maintainability of Probate Petition Based on Certified Copy of Registered Will

The Delhi High Court dismissed an appeal challenging the maintainability of a probate petition filed with a certified copy of a registered will, rejecting the presumption of will revocation due to the absence of the original document. The Court outlined the principles under which a certified copy can suffice in initiating probate proceedings.

The appellants contested the orders of a single judge permitting probate proceedings based on a certified copy of a registered will dated August 2, 2019, filed by respondent no. 1, the executor, citing the original will’s unavailability. The appellants argued that the original will’s absence mandates a presumption of revocation and disqualifies the petition’s maintainability.

The court referenced Supreme Court precedents emphasizing that the absence of an original will does not automatically lead to a presumption of its revocation. The presumption that a will was destroyed to revoke it is considered weak and easily rebuttable.

The certified copy of the will was deemed a preliminary piece of evidence sufficient to commence probate proceedings, awaiting further comprehensive evidence at trial.

Citing the case Durga Prashad vs. Debi Charan, the court noted that Indian courts must apply the presumption of will revocation with caution, often favoring the presumption that a will might have been misplaced, lost, or stolen rather than revoked.

The court clarified that Section 237 allows proceedings to commence with a copy if the original is untraceable, subject to proving its due execution and validity. Section 70, which outlines the modes of revocation, places the onus on the appellants to prove revocation, which they failed to do adequately.

The appellate court found the objections concerning the petition’s maintainability to be without merit and dismissed the appeal, directing that the original probate petition should proceed without re-raising these resolved issues.

Decision: The appeal was dismissed, affirming the lower court’s decision to allow the probate proceedings to continue based on the certified copy of the registered will, pending further verification and evidential proceedings during the trial phase.

Date of Decision: May 07, 2024

Sahil Marwah & Anr. Vs. Vikas Malhotra & Ors.