Report No. 110
I. Grants Limited in Duration
36.2. Sections 237-238-Introductory.-
Section 237 deals two situations. When a will has been lost or mislaid since the testator's death, probate may be granted of a copy or draft of the will. This is the first situation dealt with in the section. The second situation relates to the cases where a will, "has been destroyed by wrong or accident and not by any act of the testator". Here again, a copy or the draft may be utilised for the grant of probate. In both the cases, the probate is limited until the original will or a properly authenticated copy is produced.
36.3. Loss of will before death-applicability of section 237.-
According to judicial construction of section
237, the words "since the testator's death" qualify only the word "mislaid", and have no reference to the word "lost"1. Thus, according to judicial construction, probate can be granted where the will is lost before or after the testator's death. In our opinion, it is desirable to codify this interpretation so as to make the section self-contained.
Of course, the general rule2 that there is a rebuttable presumption that the testator destroyed the will where the will lost proved to be in his custody and is not forthcoming applies in India also. At least, it was so held in a Calcutta case3.
But another case4 seems to create a doubt in this regard, inasmuch as it holds that there is no rule of law that under certain circumstances a presumption should be made that the will was revoked. In our opinion, the earlier Calcutta case takes a more practical view, and that view should be incorporated in the section5.
1. Sarat Chandra v. Golab Sundari, (1913) 18 CWN 527.
2. For the English law, see Welch v. Phillips, (1836) 1 Moo PC 299 (302); Halsbury's, 3rd Edn., Vol. 39, p. 897, f.n. (a), (b), (e).
3. Anwar Hossein v. Secretary of State, 1904 ILR 31 Cal 885; Halsbury's, 4th Edn., Vol. 17, p. 449, para. 448.
4. Efari v. Podai, AIR 1928 Cal 307 (309) [The case cites Allan v. Morrison, 1900 AC 60 (PC) which, however, holds to the contrary].
5. See para. 36.10, infra.
36.4. Section 238-Narrow scope.-
Under section 238, probate can be granted if the will has been lost or destroyed and no copy has been made or draft preserved. Probate is then granted of the contents of the will "if they (the contents) can be established by evidence". "Evidence" here, of course, means secondary evidence. The topic was discussed in detail in the leading English case of Sugden v. Lord St. Leonards, (1875-1880) All ER Reprint 21, where a will was established by parol evidence alone.
36.5. Defect in section 237 as to destruction otherwise than the act or mistake of testator.-
Reverting to section 237, it would appear that section 237 is narrowly drawn. The words 'wrong or accident' do not, if taken literally, cover the cases where a natural calamity, such as a flood, destroys the will. The section is also defective, inasmuch as the language does not make it clear that the section applies only where the testator had no intention of revoking the will. If an act of the testator done with the intention of revoking the will result in "destruction of the will", it is obvious that the section should not be applicable. This situation should be excluded from the scope of the section1.
1. Para. 36.2, supra.
36.6. Testator not mentally competent.-
On the other hand, where, though the will is destroyed by the physical act of the testator, the testator is not a person in possession of his mental faculties, the situation should be included in the section. We are recommending to cover these points1.
This criticism applies, in substance, to section 238 also.
1. See para. 36.10, infra.
36.7. Want of symmetry between sections 237 and 238.-
With reference to section 238, it is further to be pointed out that it does not deal with the various situations so elaborately as the preceding section-section 237-does. The situations to which sections 237 and 238 apply are the same, the only difference being that if a copy or draft of the will is available then section 237 applies, and in other cases section 238 applies. Logically therefore, the provisions in both the sections should as far as possible, be couched in the same language. At present, however, the wording of the two sections (237-238) differs creating an anomaly. This difference should be removed1.
1. For the concrete recommendation, see para. 36.10, infra.
36.8. Loss or destruction of part of the will.-
There also remains to be considered the situation of loss or destruction of a part of the will: Judicial decisions1 have expressly held that probate can be granted if a part of the will is lost or destroyed, it is desirable that the point should be expressly dealt with2.
1. Kedar Nath v. Sarojini, 1899 ILR 26 Cal 634 (case under section 25, Probate and Administration Act, 1881).
2. For concrete recommendation, see para. 36.10, infra.
36.9. Need to expand the scope of sections 237-238.-
Apart from these amendments of a verbal nature, as a matter of policy, it is also desirable that sections 237 and 238 should apply whether the will was lost or mislaid before the death. In fact, this is the position in English law1, which permits the grant of probate of a copy or draft in such circumstances.
1. Webb (in re:), Smith v. Johnson, (1964) 2 All ER 91 (92) (Faulks, J.) (Probate granted of completed draft. There was evidence that later on the testatrix said that it was her will).
36.10. Recommendation to revise sections 237-238 and to insert section 238A.-
In the light of the above discussion, we recommend that sections 237-238 should be redrafted, and new sections should be inserted as follows:-
(a) a will has been lost or mislaid before or after the testator's death, or has been destroyed by a natural event and not by any act of the testator amounting in law to revocation of the will, and
(b) a copy of the will or the draft of the will has been preserved, probate may be granted of such a copy or draft, limited until the original or a properly authenticated copy of it is produced.
238. When a will has been lost or mislaid in the circumstances mentioned in section 237, and no copy of draft of the will has been preserved, probate may be granted of its contents if they can be established by evidence.
238A. In sections 237 and 238, "will" includes a part of a will.
238B. Where a will proved to have lost in the custody of the testator before his death is not forthcoming after his death, the court may presume that it was destroyed by an act of the testator amounting in law to its revocation".
36.11. Section 239.-
This takes us to section 239. According to section 239, when the will is in the possession of a person residing out of the State in which application for probate is made, who has refused to or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted of the copy so transmitted, limited until the will or an authenticated copy of it is produced.
The section needs no change.
36.12. Section 240.-
According to section 240, where no will of the deceased is forthcoming, but there is reason to believe that there is a will in existence, letters of administration may be granted, limited until the will, pr an authenticated copy of it is produced.
The section needs no change.