2011 (1) TMI 1576 - HC - Indian Laws

Summary

Issues Involved:
1. Admissibility of an unprobated Will in evidence.
2. Delay in filing documents.
3. Marking of documents in evidence.

Summary:

1. Admissibility of an unprobated Will in evidence:
The primary issue was whether an unprobated Will is admissible in evidence to prove the cancellation of an earlier Will upon which letters of administration are sought. The appellants sought letters of administration based on a registered Will dated 22.06.1990. The respondents contended that this Will was canceled by a subsequent registered Will dated 13.12.1993. The appellants opposed the marking of the unprobated Will dated 13.12.1993, citing Section 213 of the Indian Succession Act, 1925, which bars the establishment of any right as an executor or legatee unless the Will is probated. The court concluded that the unprobated Will is sought to be proved not for any collateral purpose but for the main purpose of proving that it is the last Will canceling the earlier registered Will. Therefore, unless the said Will is probated, it cannot be admitted in evidence.

2. Delay in filing documents:
The respondents filed I.A.No.4244 of 2009 seeking to condone 475 days of delay in filing certain documents. The appellants did not press their challenge against the order condoning the delay. The court found that the respondents had satisfactorily explained the delay, and thus, there was no reason to interfere with the order condoning the delay.

3. Marking of documents in evidence:
The respondents sought to mark five documents, including the unprobated Will dated 13.12.1993. The appellants did not press their challenge against the marking of the other four documents, subject to proof in the manner known to law. The court allowed the marking of these four documents. However, regarding the unprobated Will dated 13.12.1993, the court held that it could only be marked in evidence if it is probated in accordance with law. The court also directed that if the respondents file an application seeking probate of the Will dated 13.12.1993, the probate case should be tried along with T.O.S.No.38 of 2004.

Conclusion:
The court dismissed O.S.A.No.398 of 2010 and allowed O.S.A.No.397 of 2010 in part, setting aside the impugned order to the extent it allowed marking of the unregistered Will dated 13.12.1993, unless probated. The order allowing the marking of the other four documents was confirmed.