My mother inherited land from my grandfather who died six years ago. She has misplaced the original will. Now her brothers are trying to claim a right on the property. How can we nullify their claim? Will a photocopy of the document suffice?
While answering this query we are assuming that your mother has not obtained a probate of your grandfather’s will.
Section 237 of the Indian Succession Act, 1925, inter alia states that when a will has been lost or mislaid since the testator’s (person who made the will) death, or has been destroyed other than by any act of the testator, and a copy or draft of the will has been preserved, a probate may be granted which may be used until the original or a properly authenticated copy is produced. It must be noted that such a probate shall only be granted until the original or a properly authenticated copy is produced.
In Satya v. Ashutosh [AIR 1953 Cal 657], the Calcutta high court held that the petitioner for the grant of probate who seeks to come under section 237 of the Act must fulfil the limited conditions set forth which would entitle him to obtain a limited grant as stated in the section. It lies on the propounder to prove the existence of these facts, namely, that the will was lost or mislaid since the testator’s death or destroyed other than by the testator. Failure to satisfy the court of the existence of these facts disentitles the propounder to a grant of probate.
Grant of a probate establishes conclusively the legal character of the person to whom it was granted. It also conclusively decides that the will was genuine and validly executed and that the testator was of sound mind and was not forced to make the will. Therefore, obtaining a probate is the only way by which your mother would be able to establish her right under the will.
Section 213 (1) of the Act inter alia states that a legatee’s (a person who inherits) right to property bequeathed in a will cannot be established in a court unless a court of competent jurisdiction in India has granted a probate of the will under which the right is claimed, or letters of administration with the will annexed thereto have been obtained. Without at least one of them, a will cannot be used to prove a person’s inheritance. This view has been upheld by the Supreme Court of India.
It is to be noted that section 213 does not apply to wills made by Mohammadans. It is also to be noted that the section shall only apply to wills made by a Hindu, Buddhist, Sikh or Jaina wherein such wills are made in the provinces of Bengal, Bihar, Orissa and Assam and in the presidency towns of Chennai and Mumbai or those made outside these areas so far as they relate to immovable property situated within these areas.
So, your mother should file a probate petition to obtain a probate of your grandfather’s will.
Shabnum Kajiji is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries
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