Regarding probate of Will in Delhi
ss
(Querist) 12 December 2009
This query is : Resolved
In a partition suit case filed in Delhi the defendant submitted a photocopy of Will made 20 years back. The Will has been prepared with the forged signature of testator. The Will produce in the Court is unprobated/unregistered. The property belongs to three legal heirs and one legal heir filed partition suit. Pl. advise me on the following points:-
1. What is the legal procedure to probate a Will in Delhi and whether it is mandatory or not ?
2. Latest order of the High Court of Delhi or Delhi govt. on the above said issue.
3. What are the demerit required to be pointed out before court particularly in above said case?
Devajyoti Barman
(Expert) 13 December 2009
1. To act on the basis of a will or to enforce it the Will is required to be probated for which an application under Act 39 before the court of District Delegate is required to be filed where the names of all the legal persons of the deceased is to be stated.
2.If the Will is not probated in the meantime then it has no application in the partition suit. One should better file the application for probate during the pendency of the partition suit.However it is worthwhile to state that the Probate of the Will merely proves the genuineness of the Will.It has no bearing in the right, title and interest of the property . If it is found that the testator of the Will had no right to devise the property by Will then the Will whether probated or not shall have no bearing.
Kiran Kumar
(Expert) 13 December 2009
in Delhi i think the will has to be probated by filing the petition before the Hon'ble High Court.
now if the will itself if under challenge then i dont think it will be probated, because the same question of its genuineness will arise again before the court.
adv. rajeev ( rajoo )
(Expert) 13 December 2009
It is not necessary to probate the will because will is produced before the court so challenge it in the same suit. Burden lies on the defendant to prove the will.
niranjan
(Expert) 13 December 2009
Re. demerits of the will-first of all you say that it is photo copy so it cannot go into evidence without original. secondly if you know the conditionof the testator at the time of making will,you can say that it was done unduer undue influence,under not mental sound condition,not done in healthy condition,not supported by any medical evidence of his soundness of mind,free will etc.and not properly attested by two witnesses. Both the witnesses should come forward to prove the will having seen testator signature inpresence of each other.,and that it is not genuine.
Raj Kumar Makkad
(Expert) 13 December 2009
In Delhi also will is to be got probated in the court of senior division judge not in high court or district court.
In your case, the unregistered and mere photocopy of the alleged will produced by the defendants has no bearing at all. Move an application and insist putting of the original alleged will on court file and then challenge it on the various grounds cited by you as well as told by various experts and your engaged lawyer. It is difficult to prove the execution of the will as per law so you have not to worry.
