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Section 238: Probate of contents or lost of destroyed will

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 237 All 391 Sections of Indian Succession Act Section 239

Legal Commentary & Landmark Judgments: Section 238

Section 238 authorizes the Probate of the Contents of a Lost or Destroyed Will where neither a copy nor a draft has been preserved.

  • Probate on Oral and Secondary Evidence: When a will has been lost or destroyed and no copy has been made or draft preserved, probate may be granted of its contents if they can be established by evidence.
  • Clear and Convincing Testimony: The contents, execution, and loss must be established by the clear, consistent testimony of attesting witnesses, the scribe, or persons who read the will.
  • Limited Grant: The grant is limited until the original will or an authenticated copy is produced in court.
Key Landmark Precedents:
  • Suguna v. Thulasi AIR 2005 Mad 157: Affirmed that Section 238 codifies the common-law rule in Sugden v. Lord St. Leonards, permitting proof of lost testamentary contents by credible parol evidence.
  • H. Venkatachala Iyengar v. B.N. Thimmajamma AIR 1959 SC 443: Emphasized that the conscience of the court must be completely satisfied when oral testimony is tendered to prove the dispositive terms of a missing will.
Courtroom Practice & Strategic Litigation Guidance:

Petitions under Section 238 require the highest evidentiary threshold; counsel must examine both attesting witnesses and the typist/scribe to reconstruct the exact bequests, and prove conclusively that the testator never destroyed the will with intent to revoke.

Section 237 All 391 Sections of Indian Succession Act Section 239