Question: A will is registered but its original copy is with the opposite party who is trying to hide it since it is against the interests of such opposite party. In these circumstances, if I am the beneficiary of the will, can I prove this registered will by producing its certified copy?
Answer: Yes, you can do that, i.e., you can prove such registered will by producing its certified copy in accordance with the rules laid down in the Evidence Act relating to proof a document by secondary evidence.
In a recent case, namely, H.V. Nirmala v. R. Sharmila, (2018) 3 SCC 303, proof of a registered will by production of a certified copy of such will was held to be valid by the Supreme Court, when it was done by following the provisions of the Evidence Act, 1872, for adducing secondary evidence. In this case, the original will dated 12-03-1980 was not in possession of the plaintiff but it was in possession of Defendant No. 1. For this reason, the plaintiff filed its certified copy after obtaining it from the Registrar’s office. The plaintiff proved the will dated 12-03-1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the will. The Supreme Court held that such evidence was sufficient to prove the will.
Section 68 of the Evidence Act, referred to above, is reproduced below:
“68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”
In this regard, it is also noteworthy that Section 65 of the Evidence Act, inter alia, lays down that secondary evidence may be given of the existence, condition or contents of a document in a case where the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved (i.e., the opposite party) and when, after the notice mentioned in Section 66, such person does not produce it. In such a situation, any type of secondary evidence, as defined in Section 63 of the Evidence Act, including its certified copy, may be given in evidence instead of the original of the document (which is called the primary evidence).