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Section 239: Probate of copy where original exists

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 238 All 391 Sections of Indian Succession Act Section 240

Legal Commentary & Landmark Judgments: Section 239

Section 239 permits the Probate of a Copy of a Will where the original exists but is in the possession of a person residing outside the State who refuses to deliver it.

  • Original in Hands of Recalcitrant Person: 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 or neglected to deliver it up, probate may be granted of a copy or draft.
  • Proof of Demand and Refusal: The petitioner must prove that a formal demand was made upon the custodian and that he refused or neglected to produce the original.
  • Limited Duration: The grant is limited until the original or an authenticated copy is brought into court.
Key Landmark Precedents:
  • Chiranjilal Shrilal Goenka v. Jasjit Singh (1993) 2 SCC 507: The Supreme Court recognized that statutory emergency mechanisms like Section 239 prevent cross-border custodians from sabotaging estate administration in the forum of the assets.
  • Suguna v. Thulasi AIR 2005 Mad 157: Affirmed that Section 239 overcomes jurisdictional boundaries where foreign custodians act contumaciously.
Courtroom Practice & Strategic Litigation Guidance:

Before filing under Section 239, serve a registered legal notice on the out-of-state custodian demanding the original will within 15 days; annex the notice, postal receipt, and refusal endorsement to the petition to satisfy the statutory condition precedent.

Section 238 All 391 Sections of Indian Succession Act Section 240