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Gurdip Singh (Accountant)     22 July 2018

Taking objection to will not being original evidence stage

I purported my father's will in Delhi High Court ... defendant denied it but did not claim it was photcopy ...

marking of documents done four years ago in High Court ... then case was sent to lower court as part of 

reallocation of cases under 2 Crore. Now at evidence stage defendant's lawyer claims the will is not original but photocopy but no one can say that by looking at it ... 

Two issues :

1. Can defendant take this plea after not saying this in High Court?

2. If by mistake the original was not filed by my lawyer at that time and a copy was filed

and I have the original which looks exactly the same, can I substitute it? 

 



Learning

 6 Replies

Adv Deepak Joshi +917017821512 (Advocate)     22 July 2018

Statements which can be collaborated with other facts.

Gurdip Singh (Accountant)     24 July 2018

I'm sorry but I don't understand your response ... the will has been proved by the witnesses but I am worried the 

defendant might now demand to get forensic testing done ... is that possible ? 

Kumar Doab (FIN)     31 July 2018

Go thru;

THE INDIAN SUCCESSION ACT, 1925; 228, 237,238,239,

276. Petition for probate

carefully.

And ask your own counsel.

Kumar Doab (FIN)     31 July 2018

On plain reading you will find that Sec;276 exempts production of the original WILL under circumstances..therein as per provisions in the Act.

In other threads initiated by you, you have posted that you have annexed complete copy of the WILL.

GO thru the illustrated judgment of Delhi High Court.

Delhi High Court

H.P.S. Chawla vs The State on 17 February, 1986

Equivalent citations: ILR 1986 Delhi 169, 1986 RLR 213

Author: M Chawla

Bench: M Chawla

 

17…………… The present petition under these circumstances, must be held to have been filed without the original, authenticated or a complete copy of the will.

 

This should help you.

Kumar Doab (FIN)     31 July 2018

Also HC rules of jurisdictional HC e.g;

Karnataka HC

RULES GOVERNING PROBATE AND ADMINISTRATION MATTERS;5,7

 

The rules point to ; copy of WILL.

 

And many judgments pointing to copy of the WILL…

e.g;

Bombay High Court

Ramchandra Ganpatrao Hande Alias ... vs Vithalrao Hande & Ors on 29 March, 2011

Bench: Dr. D.Y. Chandrachud, Anoop V.Mohta

 

 

2. Before elucidating the rival submissions, it would, at the outset, be necessary to enunciate the position as formulated in the judgment of Mr.Justice D.K.Deshmukh in Rupali Mehta. In that case, a Testamentary Petition was filed for the grant of Letters of Administration with a copy of the will annexed.

In Ishwardeo Narain Singh vs. Kamta Devi,3 the Supreme Court formulated the principle of law in the following terms "The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a 3 AIR 1954 SC 280 VBC 11 app797.10 particular bequest is good or bad is not within the purview of the Probate Court."

 

Kumar Doab (FIN)     31 July 2018

 

Rest  discuss in person with a very able senior LOCAL CA/counsel of unshakable repute and integrity specializing in testamentary/civil matters   and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..and show the documents/evidence for a considered opinion..

At each location three are some counsels that specialize in such matters and they are well known.

Check for such counsels at LOCAL Civil courts, HC, SC……


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