Full Judgment Text
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) No.17303 OF 2022
A. WILSON PRINCE …PETITIONER
VERSUS
THE NAZAR & ORS. …RESPONDENTS
J U D G M E N T
PANKAJ MITHAL, J.
1. This is a peculiar and an interesting case but with nothing to be
adjudicated upon by us.
2. One Rev. Salusbury Fynes Davenport, who possessed vast
Signature Not Verified
Digitally signed by
NIRMALA NEGI
Date: 2023.05.15
16:26:57 IST
Reason:
properties, died on 24.01.1972 at Udhagamandalam, Ooty.
During his lifetime, he had executed a Will dated 19.07.1969
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appointing respondent No.3 - M/s King and Partridge as the
executor of the Will. A senior partner of the said firm, Mr.
Chakravarthy Duraisamy, in furtherance of his responsibility as
the executor in the Will, applied under Section 222(1) and 272
of the Indian Succession Act, 1925, for grant of probate in
respect of the aforesaid Will.
3. In the probate case No.15 of 1972, the court at Ooty granted
probate vide order dated 29.07.1972 in favour of the executor.
The executor filed an inventory with the court on 20.01.1973
which was recorded on 24.01.1973. Finally, the executor
submitted final accounts in the matter on 09.07.1973 which
were recorded on 17.07.1973.
4. The matter with regard to the probate of the aforesaid Will dated
19.07.1969 of Rev. Salusbury Fynes Davenport came to at rest
as above.
5. Later on 30.01.2016, Smt. Mary Brigit (now deceased) applied
for the copy of the probate of the aforesaid Will. She, as the copy
was not supplied, preferred a Writ Petition No.11266 of 2018
praying for a direction in the nature of mandamus commanding
the respondents to furnish the probate copy granted in O.P.
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No.15 of 1972 on the file of respondent i.e. the Office of the
District Judge, Ooty, and to pass such other or other orders that
may be deemed fit and proper in the facts and circumstances of
the case.
6. In the aforesaid Writ Petition, a counter-affidavit was filed on
behalf of the executor named in the Will M/s King and Partridge
through P. Ranganatha Reddy, a senior partner in the said firm
at the relevant time. He stated that he had joined the firm in
January, 1992, as a consultant advocate and was inducted as
a partner in 1999. The other partners of the firm have also
joined after 1999. Since the petitioner through the medium of
the Writ Petition seeks relief in respect of the documents of O.P.
No.15 of 1972, she should approach the concerned court. The
probate was obtained by the executor through (late) Mr.
Chakravarthy Duraisamy, who at the relevant time, was the
senior partner of the firm. The said partner retired in the year
1987 and died in the year 1988. He further stated that the
petitioner and her daughters met him for the first time in 2013
and requested to return the copy of the Will and the papers
relating to the case. Since, the matter was old and he was not
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aware of it, he got a thorough search made of the old records
but could not succeed to find a single paper relating to the above
proceedings. Accordingly, he advised the petitioner and her
daughters to obtain the original Will and the copy of the probate
and other documents from the district court. He further stated
that late Chakravarthy Duraisamy, then the senior partner in
the firm, had faithfully discharged his obligation as per the Will
by obtaining the order of probate and by submitting the
accounts to the court.
7. On behalf of the district court, a separate counter-affidavit was
filed in the aforesaid writ petition and it was accepted that O.P.
No.15 of 1972 was filed in the Sub Court of Udhagamandalam
on 07.07.1972 by Mr. Chakravarthy Duraisamy, partner of M/s
King and Partridge for issuance of probate in respect of Will
dated 19.07.1969 executed by Rev. Salusbury Fynes Davenport.
The probate petition was allowed and the probate was ordered
to be issued on 29.07.1972. The Original Petition with
connected records were destroyed after complying with the
procedure prescribed under Destruction of Records Act, 1917,
upon due notification in the Nilgiris District Gazette. The
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available records and registers could not reveal if the Will was
returned to the executor who applied for the probate or it was
enclosed with the probate order. There is no reference of the
destruction of the Will along with the case records. As per the
practice prevalent in those days, the original Will used to be
enclosed with the probate order hence there is a possibility that
the original Will may have been returned to the executor along
with the probate order for the purposes of execution.
8. It may be noted that on the death of Smt. Mary Brigit,
petitioners Nos.2-9, probably her sons and daughters were
impleaded by the High Court as petitioners vide order dated
25.11.2021.
9. On the strength of the above pleadings, the Division Bench of
the High Court by the impugned order held that since the
records pertaining to O.P. No.15 of 1972 were destroyed and
were not available, no direction of the nature sought in the
petition can be issued to furnish a copy of the Will to the
petitioners.
10. This Special Leave Petition is the outcome of the above refusal
to supply the documents and the dismissal of the Writ Petition.
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11. It is pertinent to note that only one of the successors to Smt.
Mary Brigit i.e. A.Wilson Prince alone had come up by way of
this SLP. He is the only person seems to be aggrieved by the
order of the High Court dismissing the Writ Petition and all
others appear to have reconciled with the same.
12. The contention of the petitioner is that in testamentary matters
of this nature, the originals especially the Will are always kept
in safe custody and cannot be destroyed by applying the
Destruction of Records Act, 1917. It is an obligation on part of
the respondents to furnish details and records in connection
with the subject matter O.P. No.15 of 1972. The original Will
could not have been destroyed by the respondents and the
respondents are bound to supply the original or its copy.
13. It was argued that if a vigilance inquiry is ordered in the matter,
the truth would be out soon and in all probabilities the Will in
question will surface out.
14. The Office of the District Judge in reply accepting the facts
relating to the O.P. No.15 of 1972 states that about 24 years ago
in 1998, the staff of the district court had destroyed the case
record of O.P. No.15 of 1972 following the procedure prescribed
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under the Destruction of Records Act, 1917. This probably was
done in ignorance of the civil rules of practice laid down under
the heading of “III Preservation and Inspection of the Wills” and
presently only the “Register of Original Petitions received” and
the “Inventory Register” in relation to the above case are
available in the court record room. It is difficult to ascertain if
the original Will dated 19.07.1969 formed part of the records
and was also destroyed. In fact, at that time, the original Will
used to be enclosed with the probate order and in all
probabilities may have been returned to the executor of the Will.
15. The learned Registrar General of the High Court of Madras
apprises the court that the records pertaining to O.P. No.15 of
1972 were never transferred to the High Court by the erstwhile
Sub Court, Udhagamandalam.
16. In the facts and circumstances narrated above, it is amply clear
that :
i. Rev. Salusbury Fynes Davenport, during his lifetime,
had executed a Will dated 19.07.1969;
ii. He had named M/s King and Partridge as the
executor;
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iii. He died on 24.01.1972 at Udhagamandalam;
iv. The senior partner of the firm at that time, late
Chakravarthy Duraisamy applied for the probate of
the Will and probate O.P. No.15 of 1972 came to be
registered;
v. Probate was granted on 29.07.1972;
vi. Smt. Mary Brigit, claiming to be the beneficiary
under the Will in 2016, applied for the copy of the
probate and then in 2018 filed a writ petition for a
direction to supply the copy of the Will and the
probate;
vii. The Respondents allege that it is an old matter and
the record of O.P. No.15 of 1972 has been destroyed
in accordance with law some time in the year 1998;
viii. The record was never transmitted to the High Court;
ix. It is not clear if actually the original Will formed part
of the record and has also been destroyed but as per
practice, the original Will might have been returned
with the probate to the executor; and
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x. The office of the executor, after thorough search, is
unable to trace out any document in connection with
the above case.
17.
Accepting that it may be correct that the original Will in such
cases has to be preserved and kept in safe custody or at times
may be returned to the executor but the fact remains that if
an original Will so produced for the purposes of probate is
not traceable after such a long distance of time, what is the
way out?
18. There is no dispute to the fact that the probate was granted
on 29.07.1972 by the erstwhile Sub Court,
Udhagamandalam, in connection with the Will dated
19.07.1969 in favour of one of the partners of M/s King and
Partridge as the executor. The senior partner of the said firm,
in order to discharge his responsibilities as the executor, not
only applied for the probate and obtained it but also filed the
inventory in respect of the estate/assets of the deceased as
well the final accounts before the court on 20.01.1973 and
09.07.1973 respectively as required under Section 317 of the
Indian Succession Act, 1925; meaning thereby that the
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executor settled and disposed of the estate/assets of the
deceased as per the Will amongst the beneficiaries in the year
1973 itself leaving nothing to be done thereafter. There was
never any grudge from any corner that the assets of the
deceased were not properly distributed in consonance with
the Will.
19. In the writ petition filed by Smt. Mary Brigit she claimed that
under the Will, life estate was given to one Mr. J L Gabrial
and that since the beneficiary was a minor, the vesting of
property was postponed till the attainment of majority.
According to the writ petitioner, the life estate holder Gabrial
passed away on 22.02.1992 to leave the entrustment to be
open in favour of the writ petitioner’s father.
20. In fact, it is claimed by the writ petitioner in paragraph 3 of
the writ petition that she got the particulars about the filing
of the probate proceedings, only from Lloyds Bank, which has
main establishment at England. The writ petitioner claims
to have come across the involvement of Lloyds Bank only
from the diary maintained by her late father. The relevant
averments in the writ petition read as follows:-
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“From the diary of our late Father we have come
across the involvement of M/s Lloyds Bank local
branch which has main establishment at
England. On approach to the said Bank we were
provided with the particulars about the filing of the
Probate proceedings before the 1st Respondent on
24.01.1972 and the same was ordered by granting
Probate on 29.07.1972 in O.P.No.15 of 1972.”
21. The averments made in the writ petition make it clear that
the writ petitioner did not have any knowledge about the
contents of the Will and the bequest made under the Will.
Therefore, this appears to be a case where the writ petitioner
is on a treasure hunt, if not a wild goose chase, in the hope
that there exists a treasure and that if found, it will be hers.
The Court cannot go to the aid of such a person.
22. It is true that the original Will submitted for probate could
not have been destroyed. In the normal circumstances, with
the probate embossed on the Will, the original should have
been handed over to the Executor. Today it is not possible at
this distance of time to find out (i) whether it was actually
destroyed; or (ii) whether it was handed over to the Executor;
or (iii) whether the Executor having received it, lost it. The
possibility of the Executor handing over the original Will to
the legatee cannot also be ruled out.
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23. We do not know how the writ petitioner, who has not seen
the copy of the Will, claims to be a beneficiary (or the heir of
the beneficiary). We could have thought of providing some
relief that is possible within the framework of law to the
petitioner, if the petitioner has at least seen the copy of the
Will and is aware of the contents. On a guesswork made by
the writ petitioner, this Court cannot order an investigation
into what happened to the Will. Therefore, we think that the
High Court was right in expressing its inability to grant any
relief to the writ petitioner. Hence, the Special Leave Petition
is dismissed. No costs.
……………………………….. J.
(V. RAMASUBRAMANIAN)
……………………………….. J.
(PANKAJ MITHAL)
New Delhi;
May 15, 2023.