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[Cites 21, Cited by 0]

Delhi District Court

Harish Kumar Mehta vs State on 29 April, 2024

     IN THE COURT OF SHIV KUMAR : DISTRICT JUDGE-02,
         (WEST DISTRICT), TIS HAZARI COURTS:DELHI.


Probate Case No.- 36/18
CNR No. DLWT01-005010-2018


Sh. Harish Kumar Mehta
S/o late Sh. Ganesh Dass Mehta
R/o A-84, Pandav Nagar, Opposite Shadipur Depot,
New Delhi-110008


                                                       ..........Petitioner
                  Versus


1.    The State (N.C.T OF DELHI)
      Through the Chief Secretary,
      Delhi Secretariat, I.P Estate.


2.    Smt Sudesh Mehta
      W/o Late Sh. Om Prakash Mehta
      R/o S-3/71, Gali no. 4, First Floor
      old Mahavir Nagar, New Delhi-18.


3.    Smt Usha Ghavri
      W/o Sh Darshan Lal
      R/o 100/4, Thakkar Bapa Nagar
      Prakash Gali, Ahemdabad.


PC No 36/18        Harish Kumar Mehta Vs State & Ors      Page 1/35
 4.    Smt Veena Makhija
      W/o Late Sh. Mohan Lal Makhija
      R/o 28/9, West Patel Nagar,
      New Delhi-110008.


5.    Sh. Narender Kumar Mehta
      S/oLate Sh. Ganesh Dass Mehta
      R/o 14/6A, First Floor (Back side), Mangal
      Bazaar, Tilak Nagar, New Delhi-110018.


6.    Smt Sushma Rani
      W/o Sh. Vinod Kumar
      R/o 796, Mukeem Pura,
      Shabji Mandi, New Delhi 110007.
                                                         ......Respondents


PETITION UNDER SECTION 276 OF THE INDIAN SUCCESSION
           ACT, 1925 FOR GRANT OF PROBATE.

Date of institution of the case       :     01.06.2018
Date reserved for judgment on         :     25.04.2024
Date of pronouncement of judgment :         29.04.2024



                               JUDGMENT

1 Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 of the Indian Succession Act whereby which PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 2/35 the petitioner has sought grant of Probate of the will dated 08.08.2008 executed by late Smt Kunti Devi W/o Late Sh. Ganesh Dass Mehta.

CASE OF THE PETITIONER, AS PER HIS PETITION

2. According to the petition, the case of the petitioner in nutshall is that late Smt Kunti Devi W/o Late Sh. Ganesh Dass Mehta ( hereinafter referred to as ' the deceased') was Hindu by religion and she died on 13.12.2017 at New Delhi.

3. It is further averred in the petition that the deceased during her life-time has duly executed her last will dated 08.08.2008 and she bequeathed the property ie A-84, Pandav Nagar, Shadipur Depot, New Delhi-110008 (hereinafter referred to be as suit property) in favour of the petitioner. It is further averred in the petition that the will dated 08.08.2008 is a duly registered in the office of sub registrar, Janakpuri, Delhi and this is the last and final will of the deceased.

4. It is further averred that the husband of the deceased predeceased the deceased on 30.06.1963 and it is further averred that the deceased left behind the following legal heirs :

1. Smt Sudesh Mehta, W/o Sh. Late Sh. Om Prakash Mehta (Daughter).
2. Smt Usha Ghavri W/o Sh. Darshan Lal (Daughter).
3. Smt Veena Makhija, W/o Late Sh. Mohan Lal Mahija (Daughter).
4. Sh. Narender Kumar Mehta S/o Late Sh. Ganesh Dass Mehta (son).
5. Sh Harish Kumar Mehta S/o Late Sh. Ganesh Dass Mehta (son).
6. Smt Sushma Rani W/o Sh. Vinod Kumar (Daughter).
PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 3/35

5. It is further averred in the petition that the petitioner is the son and is the sole beneficiary in the will of the deceased.

6. It is further averred in the petition that the suit property comes under the slum department, Govt of Delhi and the same was originally allotted to Sh. Mohinder Pal Singh by the Govt of Delhi and thereafter, the said property was purchased by the deceased by virtue of agreement dated 11.06.1970.

7. It is further averred in the petition that the deceased was having absolute lease hold right over the said property as the said property was acquired by the deceased from Mr. Mohinder Pal Singh and the suit property is the self acquired property of deceased and the deceased has purchased it from her own source/savings.

8. It is further averred in the petition that the deceased was having fixed place of abode at A-84, Pandav Nagar, Shadipur Depot, New Delhi-110008 and she was residing with the petitioner and the petitioner was taking care of all her legal requirements.

9. Upon filing the present petition, notice of the same was issued to all respondents. Citation for general public was published in the daily newspaper " The Statesman " dated 20.07.2018. Notice was also served to State through Chief Secretary.

10. No one from general public has appeared in this case and has filed any objections despite such publication.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 4/35

NO OBJECTIONS ON BEHALF OF RESPONDENT NO. 2, 3,4 & 6.

11. R-2, R-3, R-4 and R-6 were served in the present case and they filed "No objection Certificate" in favour of the petitioner for allowing the probate petition in favour of the petitioner. The respondent no.5 has filed his objection/written statement and only respondent no 5 is the contested party in the present matter.

12. The Executive Magistrate/Tehsildar, Patel Nagar has filed valuation report in respect of the property bearing no. A-84, Pandav Nagar, JJ colony, New Delhi valuing the same to be of Rs. 7,04,748/- (seven lakh four thousand seven hundred forty-eight only).

13. In the present case, only respondent no. 5 is contesting the present probate petition and he has filed his objections/Written statement.

CASE OF RESPONDENT NO. 5, AS PER HIS REPLY.

14. It is contended on behalf of respondent no. 5 that the present petition is designed by the petitioner fraudulently with motive to defeat the legitimate right of other legal heir of deceased, Late Smt Kunti Devi. It is further contended that being the eldest son of the deceased, he is also one of the legal heirs of the deceased.

15. It is further contended on behalf of respondent no. 5 that the present petition is a counter blast of the settlement, which arrived during PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 5/35 the lifetime of the deceased and as per settlement, the property which is the subject matter of the alleged will, be divided/partitioned among all the legal heir/children of the deceased.

16. It is further contended on behalf of respondent no. 5 that the petitioner has committed the fraud, who has got designed the will dated 08.08.2008, fraudulently because at no point of time, the existence of the above-said will was in the knowledge either of the deceased or of any other legal heirs i.e. the other children of the deceased.

17. It is further contended that the last ritual of Late Smt Kunti Devi has been got performed at the house of answering objector in the presence of all the legal heir i.e. the children of Late Smt Kunti Devi including the petitioner and the objector and at that time, it was settled among them that if the property as mentioned in the alleged will, would not be partitioned/divided equally among them, its occupational rights would be sold in the open market and its sale proceeds would be divided equally among all the legal heirs.

18. It is further contended that the present petition is not maintainable because the deceased was not the owner of the suit property as the suit property falls, situates in the JJ Department, Slum wing, District West, NDMC and therefore only the MCD, District West is the owner of the suit property.

19. It is further contended that at the time of purchasing the occupational right of the suit property, the suit property was in the form of PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 6/35 one room set constructed from the Gara, Mitti and Reta and thereafter the respondent no.5 had got it demolished and got re-constructed the suit property from his own funds consisting ground floor, first floor and second floor which all are consisting of one room sets.

20. It is further contended that the father of the respondent no. 5 expired on 30.06.1963 leaving behind his widow Late Smt Kunti Devi, four daughters and two sons i.e. the petitioner and answering objector and all the responsibilities of mother, daughters and youngest brother i.e. petitioner had come upon the shoulder of the respondent no. 5.

21. It is further contended that he worked hard not only for education but maintained his family members by earning their sustenance and also running of DMS Booth in his own name and used to sell the milk in his young age.

22. It is further contended that the petitioner, who was completely dependent upon the respondent no. 5 not only built his career through his education but maintained all his family members by providing them the food, clothes and roof/shelter, which live example is the property as in present form, which has been shown in the alleged will and the petitioner has not elaborated the value of the property of alleged will.

23. It is further contended that the petition in the present form is also not maintainable because the legal heirs of the deceased are the joint owners of the suit property as shown in the alleged will and further contended that the petition filed by the petitioner is false, frivolous, PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 7/35 mischievous and fraudulently to grab the property left by the deceased. It is further contended that the deceased has not prepared any will and claimed that the will dated 08.08.2008 is a forged will.

24 It is further contended that the present petition is not maintainable because the deceased was suffering from various diseases and she was not fit and not in a position to speak properly, therefore, the Will dated 08.08.2008 is a fraudulent will.

25. It is further contended in the written statement by the respondent no 5 that the present petition is not maintainable since the same is not duly verified as per requirement of Indian Succession Act, 1925.

26. On merit all the contents mentioned in the petition are denied by the respondent no 5 and it is prayed that petition filed by the petitioner may be dismissed with exemplary costs.

REJOINDER FILED BY THE PETITIONER

27. Rejoinder has been filed on behalf of the petitioner to the Written statement/objections filed on behalf of objector no. 5 and the petitioner denied all the objections taken by the respondent no 5 and reiterated the averments made in the petition.

28. It is further averred in the rejoinder that the respondent no. 5 PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 8/35 never cared about the mother and even used to beat her for the sake of property. It is further avered that the respondent no. 5 used to harass and quarrel with the petitioner and Late Smt Kunti Devi every now and then, due to which, Late Smt Kunti Devi had also filed complaint/s against the respondent no. 5 before the concerned police officials on 06.07.2000 and even a Kalandra U/s 107/151 CrPC was also registered against the respondent no. 5 on the complaint of Late Smt Kunti Devi bearing no. 52B dated 05.04.2004, PS Patel Nagar, New Delhi.

29. On the basis of the pleadings, the following issues were framed vide order dated 30.11.2018.

1. Whether the Will dated 08.8.2008 executed by late Smt Kunti Devi W/o Late Sh. Granesh Dass Mehta is her last genuine, legal, valid Will and duly executed in her sound disposing mind? OPP

2. Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP

3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 5 in the written objections. OPR.

4. Relief.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 9/35

30. Parties were directed to adduce evidence.

EVIDENCE ON BEHALF OF THE PETITIONER.

31. Petitioner in support of his case has examined three witnesses i.e. (1). PW-1/Harish Kumar Mehta, petitioner, (2) PW-2/Sh. Devender, Junior Assistant from Sub-registrar office and (3) PW-3/Sh. Vinod Kumar, who is one of the attesting witness of the Will.

32. Sh. Harish Kumar Mehta, petitioner appeared in the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/A and relied upon the following documents:

1. Ex. PW-1/1 (OSR): Death certificate of the deceased.
2. Ex. PW-1/2 (OSR): Will dated 08.08.2008
3. Ex.PW-1/3: Copy of death certificate of the father of the petitioner (not objected).
4. Mark A: Copy of complaint dated 06.07.2000 and Kalandra bearing no. 52B dated 05.04.2004, PS Patel Nagar, lodged by Smt Kunti Devi.
5. Mark B: Copy of publication in newspaper Rashtriya Sahara dated 12.10.2004.

33. In his cross examination, PW-1 has deposed that his mother, Smt Kunti Devi did not know English Language. She could read only in Hindi Language. PW-1 admitted the suggestion that his mother had studied up 5th standard. PW-1 further deposed that Will in question was got drafted sometimes in the year, 2008 at Janakpuri Registrar office. PW-1 further deposed that at the time of preparation and the registration of the PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 10/35 abovesaid Will, his wife, his mother along with two witnesses were present and contents of the Will was read over to his mother by the counsel . He, voluntarily, deposed that the will was prepared with her consent.

34. PW-2 Sh. Devender, Junior Assistant from the office of Sub- Registrar-II brought the record of registered will dated 08.08.2008 and deposed that this Will was registered on 08.08.2008 vide registration no. 9337, book no. 3, Vol number 7636 on pages 191 to 192 and he filed the certified copy of the will Ex. PW-2/1 and further deposed that the original Will is already Ex PW-1/2. PW-2 has not been cross examined on behalf of respondent no. 5, despite given opportunity to him.

35. PW­3 Sh. Vinod Kumar S/o Sh. Madan Lal who is one of the attesting witnesses of the will, has tendered his evidence by way of affidavit Ex PW­3/A and he identified his signature at point A, on the Will Ex PW­1/2 and he also identified the signature of deceased Late Smt Kunti Devi on the Will Ex PW­1/2 and further deposed that she had signed the Will in his presence.

36. In his cross examination, PW­3 has deposed that he had never seen any document of ownership/title document in favour of Late Smt Kunti Devi. He, voluntarily, deposed that since she was living in this property, thus, he assumed her as the owner of the property. PW­3 denied the suggestion that Late Smt Kunti Devi was not the actual owner of the property. PW­3 admitted that he was well aware of the contents and the language of the Will in question. He further deposed that he can not tell as PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 11/35 to on what basis did the testator of the said Will called herself as the owner of the property. He further deposed that he can not say if the testator Kunti Devi has got it mentioned in her Will in question that she was the owner of the property bequeathed therein. PW­3 further deposed that except Narender Kumar, nobody else is objecting the Will in question. He further deposed that he can not tell the exact date of death of Kunti Devi, but the year was 2017. PW­3 further deposed that Late Smt Kunti Devi was fit at the time of making of this Will. PW­3 denied the suggestion that the Will was made without the consent of the deceased & without providing her information.

37. Vide order dated 08.02.2023, the evidence on behalf of the petitioner was closed, as per statement of ld counsel for petitioner.

EVIDENCE ON BEHALF OF RESPONDENT NO. 5

38. From the side of respondent no. 5 only one witness has been examined i.e respondent no. 5, Sh Narender Kumar Mehta as DW-1.

39. Respondent no. 5 appeared in the witness box as DW-1 and tendered his affidavit in evidence as Ex DW-1/A and thereafter, he closed his evidence.

40. In his cross examination, DW­1 deposed that he can read and write in English and he knew the contents of his affidavit. DW­1 further PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 12/35 deposed that he has not filed any complaint/ suit/petition for cancellation of Will dated 08.08.2008 Ex PW­1/2. DW­1 further deposed that he has not filed any document regarding settlement of the property mentioned in the Will dated 08.08.2008. He further deposed that settlement was done amongst the family members of the petitioner after the death of their mother.

41. DW­1 further deposed that he can not bring any other family members who were present at the time of aforesaid settlement. DW­1 further deposed that he did not know whether his mother had published a public notice Mark B, regarding disowning him with respect to the property mentioned in the said will due to his misbehaviour. After seeing the documents, DW­1, voluntarily, deposed that her mother did not know how to read and write in English, she had only studied till 6th class, again said 5th class.

42. DW­1 further deposed that he has not challenged, even after filing of the present case, the said publication notice Mark B. DW­1 further deposed that he has no knowledge whether any complaint Mark A was lodged against him regarding fight between him and his mother and regarding threats given to his mother by him that he will set her on fire by pouring oil.

FINAL ARGUMENTS

43. I have heard Ld counsel for the petitioner and ld counsel for respondent no. 5 and have perused entire record, including pleadings, PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 13/35 documents and testimonies of the witnesses recorded in court from both sides.

44. CONTENTIONS OF THE PETITIONER.

(i) Ld counsel for the petitioner has argued that the petitioner has duly proved the Will in question by examining PW-3, who is one of the attesting witness of the Will in question. He further argued that PW-3 has identified his signatures as well as signatures of the deceased on the Will in question. He further argued that PW-3 has proved that the deceased had signed the Will, voluntarily, after fully understanding the contents of the Will and the deceased was in sound disposing mind at the time of execution of the Will.
(ii) Ld counsel for the petitioner has further argued that the Will in question is a registered Will and presumption of genuineness is attached to the Will in question regarding the proceedings conducted at the office of sub-registrar.
(iii) Ld counsel for the petitioner has further argued that the deceased died on 31.05.2018 and has bequeathed the suit property in question to the petitioner and the petitioner is the sole beneficiary in the Will in question.
(iv) Ld counsel for the petitioner has further argued that the suit property is the self acquired property of the testatrix and the same was purchased by her from her own savings from Mr. Mahinder Pal Singh PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 14/35
(v) Ld. Counsel for the petitioner further argued that the petitioner has successfully discharged his onus by proving the due execution of the Will and there is no suspicious circumstances surrounding the execution of the Will in question.
(vi) Ld. Counsel for the petitioner further argued that he has examined one attesting of the Will and the said attesting witness is sufficent to prove the Will.
(vii) Ld counsel for the petitioner further argued that respondent no.

5 used to beat and harass the deceased, during her life time and the deceased had also filed complaints against the respondent no. 5 before the police officials of PS Patel Nagar and Kalandra U/s 107/151 CrPC was also registered against respondent no. 5, on the complaint of the deceased. He further argued that respondent no. 5 has left the suit property in the year, 2004 and since then, the respondent no. 5 has no concerned with the petitioner and his mother and it was the petitioner, who took care of the deceased during her life time.

45. CONTENTIONS OF RESPONDENT NO 5

(i) Ld. counsel for respondent no. 5 has argued that the present petition is a counter blast of the settlement, which arrived during the life time of the deceased. He further argued that during her life time, the deceased had agreed that the suit property will be divided amongst all the legal heirs of the deceased. He further argued that respondent no 5 is one of PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 15/35 the legal heirs of the deceased and he is entitled to obtain his share in the suit property.

(ii) Ld counsel for respondent no. 5 further argued that the petitioner has played fraud upon the deceased and has got prepared Will in question fraudulently from the deceased. He further argued that the Will in question was never in the knowledge of the deceased.

(iii) Ld counsel for the respondent no. 5 further argued that the last rituals of the deceased has been performed at the house of the respondent no. 5, in the presence of all legal heirs including the petitioner. He further argued that at that time, it was agreed that the occupational rights of the suit property will be sold in open market and its sale proceeds shall be divided equally among all the legal heirs.

(iv) Ld counsel for the respondent no. 5 further argued that the deceased was not the owner of the suit property because property falls in JJ Department, Slum Wing.

(v) Ld. Counsel for the respondent no. 5 further argued that the petitioner has failed to prove the due execution of the Will. He further argued that it is the duty of the petitioner to examine both attesting witnesses of the Will in court but he has mala fidely not examined the another witness of the Will as Will was never executed by his mother voluntarily with her free consent.

(vi) Ld. counsel for respondent no. 5 further argued that there are PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 16/35 many contradictions in the statements of the attesting witness PW3/Sh. Vinod. He further argued that it has not been proved by the petitioner that the deceased was fully aware about the contents of the Will.

(vii) It is further argued that there are suspicious circumstance surrounding the execution of the Will. It has been further argued that the Will in question is in English whereas the deceased did not know the English Language. It is further argued that no reason has been given in the Will for excluding the respondent no. 5 from the inheritance of the deceased.

STATUTORY PROVISIONS INVOLVED IN THE PRESENT CASE.

46. Before adjudicating the issues, I would like to discuss various relevant statutory provisions involved in the present case.

47. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death".

Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.

48. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-

"63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 17/35

49. The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.

"Section 68 of Indian Evidence Act states that 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 Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied.
ISSUE -WISE FINDING

50. My issue wise findings are as under:-

Issue no. 1 & 3.
1. Whether the Will dated 08.8.2008 executed by late Smt Kunti Devi W/o Sh. Granesh Dass Mehta is her last genuine, legal, valid Will and duly executed in her sound disposing mind? OPP
3. Whether the petition is liable to be dismissed for the objections raised by the respondents/objector no. 5 in the Written objections. OPR

51. Both these issues are interconnected and having mutual bearing, therefore both these issues are being taken together. The onus to prove issue no. 1 is upon the petitioner and of issue no. 3 is upon the respondent no. 5.

52. In order to prove issue no. 1, petitioner has examined total three witnesses i.e. Sh. Harish Kumar Mehta/petitioner/PW-1, Sh. Devender, Junior Assistant, from the office Sub-registrar, PW-2 and Sh.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 18/35

Vinod, one of the attesting witness as PW-3.

53. PW-1 has deposed in his examination in chief that Late Smt Kunti Devi died on 13.12.2017 and during her life time, she had executed Will in question in his favour and the said Will is duly registered in the office of Sub-registrar, Janakpuri, Delhi. PW-1 has exhibited death certificate of the deceased as Ex PW-1/1 and the Will dated 08.08.2008 as Ex PW-1/2.

54. PW­1 has further deposed in his examination in chief that the suit property was purchased by the testatrix from Sh. Mahinder Pal by way of agreement dated 11.06.1970 and the said property is the self acquired property of the deceased. He further deposed that all the legal heirs of the deceased were aware about the Will in question.

55. PW­1 has further deposed in his examination in chief that R­5 has never cared about the deceased and used to beat her for the sake of property. He further deposed that the Kalandra u/s 107/151 CrPC was also registered against respondent on the complaint of the deceased and DD no. 52B dated 05.04.2004 was registered and the copy of the said DD is Mark A.

56. During his cross examination, PW­1 has deposed that the deceased did not know the English language and she could read only in Hindi Language. He further deposed that at the time of preparation and registration of abovesaid Will, his wife and the deceased along with two PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 19/35 witnesses were present and the contents of the Will was read over to the deceased by the Counsel. He, voluntarily deposed that the Will was prepared with the consent of the deceased.

57. PW­2 has brought the record regarding registration of Will in question and proved the certified copy of the said Will Ex PW­2/1.

58. PW­3 has deposed in his examination in chief by way of affidavit that the deceased was the owner of the property in question. PW­3 further deposed that Smt Kunti Devi died on 13.12.2017 and during her life time, she executed her last Will dated 08.08.2008. PW­3 further deposed that deceased bequeathed the suit property in favour of the petitioner, in his presence and the Will in question has been duly registered in the office of Sub Registrar, Janakpuri, Delhi.

59. PW­3 further deposed in his examination in chief that he was one of the attesting witness and he put his signatures on the Will Ex PW­ 2/1. PW­3 further deposed that Sh. Narender Kumar Mehta was residing separately with his family and testatrix resided in the suit property with the petitioner, Sh. Harish Kumar Mehta, who used to look after the testatrix.

60. During his examination in court, PW­3 has identified the signatures of the deceased on the Will Ex PW­1/2 and further deposed that the deceased had signed in his presence.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 20/35

61. DW­1 has deposed in his examination in chief that the Will in question has been got prepared fraudulently by the petitioner with motive to defeat the legitimate rights of the other legal heirs of the deceased and the said Will was never in the knowledge of the deceased, during her life time. DW­1 further deposed that the deceased was not the owner of the suit property.

62. In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down the following propositions:

(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 21/35 that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."

63. In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles in order to prove the Will and the same are as under; -

i. This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:

ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 22/35 the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;

vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;

vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:

viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.

64. The Hon'ble Apex Court in a case titled as Janki Narayan Bhoir Vs Narayn Namdeo Kadam, JT 2002 (10) SC 340 has discussed the PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 23/35 provisions of section 63 of Indian succession Act and Section 68 of Indian evidence act for proving due execution of Will by the testator as follows:-

"On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act."
" In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause
(c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there Will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
" Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section 68."

65. In a judgment titled Dhani Ram (D) Thr. Lrs. vs Shiv Singh on 6 October, 2023, 2023 Live Law (SC) 862, Hon'ble Apex court has relied upon its earlier judgements titled Janki Narayan Bhoir vs. Narayan Namdeo Kadam ( supra )and in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, and again held that to prove that a Will has been executed, the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with as fellows:

"16. In his cross-examination, Chaman Lal stated that his signatures in Ex. DW- 2/A were made on the same day and at the same time. He stated that his signatures on PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 24/35 the document were made on 03.11.1987 in the Tehsil. He, however, said that he did not go to the office of the Tehsildar but signed the document and came back from outside the Tehsil. He stated that he did not go inside the Tehsil. He denied that, after making Ex. DW-2/A Will, Leela Devi appeared before the Tehsildar (Sub-Registrar) with him and Lok Nath Attri. He further said that he did not know that Leela Devi signed Ex. DW-2/A in Lok Nath Attri's and his presence after admitting it as correct".
"We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo Kadam, wherein this Court held that, to prove that a Will has been executed, the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with. It was pointed out that the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These observations were affirmed and (2003) 2 SCC 91 quoted with approval by this Court in its later judgment in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 3. 23. Viewed in the context of the legal requirements and the law laid down by this Court, we find that neither of the attesting witnesses in this case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the Will. Though Lok Nath Attri claimed that Leela Devi affixed her signatures in the Will in their presence, which was vehemently denied by the other attesting witness, Chaman Lal, the fact remains that Lok Nath Attri also did not state that he affixed his signatures in the Will in the presence of Leela Devi. This is one of the compulsory requisites of Section 63(c) of the Succession Act."
"27. On the above analysis, it is manifest that compliance with the essential legal requirements, in terms of Sections 68 and 71 of the Evidence Act and Section 63 of the Succession Act, was not established in order to prove the execution of Ex. DW-2/A Will. As Dhani Ram failed to prove the execution of the Will in terms of the mandatory legal requirements, Shiv Singh would be entitled to succeed to the properties by way of intestate succession under Section 15 of the Act of 1956, as rightly held by the Himachal Pradesh High Court".

66. It is settled proposition of law that onus is always on the propounder of the Will to prove the validity of the Will and to remove all the suspicious circumstances surrounding the execution of the Will.

67. The first contention of the respondent no 5 is that the deceased was not the owner of the suit property, so, she has no right to bequeath the PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 25/35 suit property to the petitioner by way of Will dated 08.08.2008.

68. The second contention of respondent no. 5 is that it was settled amongst all the legal heirs, including the petitioner that the suit property will not be partitioned amongst all the legal heirs and its occupational rights would be sold in the open market and its sale proceeds would be divided equally amongst all the legal heirs.

69. The third contention of the respondent no. 5 is that at the time of the purchase of the occupational rights of the suit property, the suit property was, in the form of, one room set, constructed from the gara, mitti and raita. It is further contended that the respondent no. 5 has got constructed the suit property from his own funds in the form of ground floor, first floor and second floor after demolishing the earlier kachi construction.

70. The fourth contention of respondent no. 5 is that the deceased was suffering from various old age ailments and was not in a fixed state of mind and even not in a position to speak properly. It is further contended that the petitioner with collusion of attesting witness and some erring officials have got prepared the Will in question fraudulently. It is further contended that the Will in question is a forged Will.

71. The fifth contention of the respondent no. 5 is that the present petition is not verified as per requirement of Indian Succession Act, 1925.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 26/35

72. The respondent no. 5 has also contended that the legal heirs of the deceased are the joint owner of the suit property.

73. Regarding first, second and third contention of the respondent no. 5, it is pertinent to mention that in the present petition, the petitioners are seeking Probate/letters of administration of the Will dated 08.8.2008. In such type of petition, the prime consideration is to find out and assess whether the Will, on the basis of which the petitioner is seeking Probate/letters of administration has been duly proved or not. Such Will has to be proved in accordance with the provisions contained in Indian Evidence Act as well as Indian Succession Act. In a proceeding for the grant of probate or for the grant of Letters of Administration with a Will annexed, the Court exercising testamentary jurisdiction is not concerned with title of property. In determining whether probate/letters of administration should be granted, the Court determines only upon the genuineness and due execution of the Will. Determination on issues of title are alien to probate proceedings. This court has not to decide whether the deceased was the owner of the suit property or not, at the time of her death. Even question whether property exists or not is also not to be considered by the probate court and court has only to see whether Will in question is genuine and validly executed or not. Reliance is place upon judgment of Hon'ble Apex Court titled Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008 and in this judgment, it is held by Hon'ble Supreme Court that.

"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will."
"A question of title arising under the Act cannot be gone into the proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 27/35

74. The fourth contention of respondent no. 5 is that the deceased was suffering from various old age ailments and was not in a fit state of mind and even not in a position to speak properly and the petitioner with collusion of attesting witness and some erring officials have got prepared the Will in question fraudulently. It is further contended that the Will in question is a forged Will. The respondent no. 5 has neither placed on record any medical document of the deceased nor examined any witness to prove that the deceased was suffering from various old age ailments and was not having sound disposing mind at the time of execution of the Will. The respondent no. 5 has not examined any document expert to prove that the signatures on the Will are not of deceased and the Will in question is a forged Will. Except bald statement of respondent no. 5, there is no other evidence on record to substantiate the abovesaid contention of respondent no. 5. Even, no family member has been examined on behalf of respondent no. 5 to prove the abovesaid contention. PW-3 has deposed that the deceased had signed the Will in his presence and he also identified the signatures of the deceased on the Will. PW-3 has also deposed that the deceased was fit at the time of making of the Will and no suggestion has been given to PW-3 on behalf of respondent no. 5 that the deceased was not fit at the time of making of this Will. Therefore, the abvoesaid contentions of respondent no. 5 are not tenable.

75. Regarding, the fifth contention of the respondent no. 5 that the present petition is not verified as per requirement of Indian Succession Act, 1925, I have perused the petition filed by petitioner. The petition is duly verified by the petitioner as well as by one of the attesting witness of the PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 28/35 Will. So, this contention of respondent no. 5 is not valid.

76. The next contention of respondent no. 5 is that the petitioner has failed to prove the due execution of the Will. It is further argued that the petitioner has not examined the second attesting witness of the Will for the reasons best known to him. It is further argued that the attesting witness, PW-3 has not proved the attestation of second attesting witness on the Will and has not fulfilled the requirements of Section 63 of the Indian Evidence Act. On the other hand, Ld counsel for the petitioner has argued that as per Section 68 of Indian Evidence Act, one attesting witness is sufficient to prove the due execution of the Will. He has further argued that PW-3 has identified his signatures as well as the signatures of the deceased on the Will and he has fulfilled the requirements of Section 63 of Indian Succession Act. He further argued that the Will in question is a registered Will. So, it should be presumed to be executed as per law by the deceased, after fulfilling the legal requirements.

77. I have perused the Will dated 08.08.2008 Ex PW-1/2. There are signatures of two attesting witnesses on the abovesaid Will and their names are as follows:

1. Sh. Vinod Kumar S/o Sh. Sewa Ram.
2. Sh. Vinod S/o Sh. Madan Lal.

78. The Will in question is a registered Will. Petitioner has examined one of the attesting witness i.e. Sh. Vinod S/o Sh. Madan Lal (PW-3) to prove the Will in question, as per section 68 of Indian Evidence Act.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 29/35

79. As per section 68 of Indian evidence Act, one attesting witness is required to be examined to prove the due execution of the Will. In other words if one attesting witness proves the due execution of Will then there is no need to call second attesting witness of the Will. In this case the petitioner has examined only one attesting witness of the Will. Now the question is whether the said attesting witness has proved the due execution of the Will as per section 63 of Indian succession Act and 68 of Indian evidence act.

80. In the present case, the evidence of PW3 by way of affidavit is totally silent about the attestation of Will in question by the second attesting witness, namely, Sh. Vinod Kumar S/o Sh. Sewa Ram. PW-3 has not deposed in his examination that the second attesting witness had signed the Will in the presence of the deceased. PW-3 even has not identified the signature of second attesting witness on the Will. PW-3 has not deposed about the fact as to where and when second attesting witness signed the Will in question or whether PW-3 was present at the time of signing of the Will by the second attesting witness or whether the second attesting witness signed the Will in the presence of deceased and whether the deceased signed the Will in the presence of second attesting witness or whether the deceased acknowledged his signature on the Will, in the presence of second attesting witness and whether he knew the second attesting witness or whether signatures appearing on the Will in question, is of the second attesting witness.

81. In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 30/35 & Anr (Supra), the Hon'ble Apex Court has deduced the following principles regarding proving the Will as per Section 63 of Indian Succession Act with the aid of Section 68 of Indian Evidence Act:

iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a)................
(b)................
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

iv...........................

v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;

82. The Hon'ble Apex Court in a case titled as Janki Narayan Bhoir Vs Narayn Namdeo Kadam, JT 2002 (10) SC 340 has discussed the provisions of section 63 of Indian succession Act and Section 68 of Indian evidence act for proving due execution of Will by the testator and relevant para is as follows:-

" The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there Will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
" Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section 68."
PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 31/35

83. In the light of above said judgments, it is held that PW-3, who is one of the attesting witnesses failed to prove that the Will in question bears the signatures of second attesting witness, namely, Sh. Vinod Kumar S/o Sh. Sewa Ram. PW-3 has also failed to prove that the second attesting witness has seen the deceased putting her signatures on the Will in question or the second witness has obtained the acknowledgement regarding signatures of the deceased on the Will from the deceased. It is held that PW-3 has not proved the attestation of Will by the second attesting witness and his testimony falls short to fulfill the mandatory requirements of Section 63 of Indian succession Act and 68 of Indian evidence act. In view of the above-said discussion, it is held that petitioner has failed to prove the due execution of Will in question. Therefore, the Will in question is not a valid Will and it is unenforceable.

84. It has been argued on behalf of respondent no. 5 that there are suspicious circumstances surrounding the execution of the Will. It is further argued that the Will in question is in English whereas the deceased did not know how to read & write in English. It is further argued that no reason has been given in the Will to exclude the respondent no. 5 from her inheritance by the deceased.

85. I have perused the Will in question. The Will in question has been written in English Language. In the Will no reasons has been given for excluding the respondent no. 5 from the inheritance of the deceased. Even, in the Will, names of legal heirs of the deceased, including respondent no. 5 has not been mentioned.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 32/35

86. Ld counsel for the petitioner has argued that there were strained relations between the deceased and respondent no. 5 and even, complaints against the respondent no. 5 were made by the deceased during her life time and a Kalandra U/s 107/151 Cr.P.C. was registered against the respondent no. 5 on the complaint of the deceased and the complaint and Kalandra are Mark A. He further argued that respondent no. 5 was disowned by the deceased by publication of notice Mark B.

87. The complaint is of year, 2000 and Kalandra is of year, 2004, whereas the deceased has died on 13.12.2017. There is gape of about 13 years from the registration of said Kalandra against the respondent no. 5. The petitioner has not summoned the original record of said complaint and Kalandra from PS Patel Nagar in order to prove the abovsaid documents. Petitioner has also failed to prove the public notice Mark B. The petitioner has not examined any witness, including family member to prove the strained relation between the deceased and respondent no 5. The petitioner has failed to prove that there were strained relations between the deceased and respondent no. 5. Even if the deceased wanted to exclude respondent no. 5 from her inheritance, due to strained relations, then she would have mentioned the said reasons for excluding respondent no. 5 from her inheritance in her Will also. Moreover, it is not disputed on the part of petitioner that the last rites of the deceased were performed at the house of respondent no. 5. If there were strained relations between the deceased and respondent no. 5 then last rites of the deceased would not have been performed at the house of the respondent no. 5.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 33/35

88. One of the main requirements for the validiy of the Will is that the testatrix must have signed the Will after understanding the contents of the Will. The attesting witness, PW­3 has not deposed in his testimony that the Will was read over and explained to the deceased before obtaining her signatures on the Will. The Will in question is in English Language. PW­ 1/petitioner has deposed during his cross examination that the deceased did not know English Language and she could read Hindi Language only. PW­ 1 further deposed that at the time of preparation of the Will, his wife was present and the Will was read over to the deceased by the counsel but he does not remember the name of said counsel. The petitioner has not examined his wife as well as the said counsel for the reasons best known to him. Even, the name of the counsel has not been disclosed. In the light of above observations, it is held that the petitioner has failed to prove that the Will in question was read over and explained to the deceased in Hindi Language before obtaining her signatures on the Will. The wife of the petitioner has played prominent role in the preparation of the Will which also creates doubt on the valid execution of the Will. The petitioner has failed to dispel the above said suspicions, surrounding the execution of the Will.

89. Therefore, in view of the foregoing discussions and observations, issue no 1 & issue no 3 are decided against the petitioner and in favour of respondent no. 5.

PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 34/35

90. Finding on Issue no.2 Issue no. 2: Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP The onus to prove issue No. 2 is upon the petitioner. Since the petitioner has failed to prove the due execution of the Will in question & issue no. 1 & 3 have been decided against the petitioner, consequently, also, issue no.2 is decided against the petitioner and in favour of respondent no.5.

RELIEF

91. In view of above discussions and findings, on issue no. 1, 2 and 3 being against the petitioner and in favour of the respondent no. 5, the petition of the petitioner stands dismissed without cost.

File be consigned to the Record Room after making all the necessary compliance and due formalities. Digitally signed SHIV by SHIV KUMAR Date:

KUMAR 2024.04.29 05:01:38 -0500 Announced in the open court (Shiv Kumar ) on 29.04.2024 District Judge-02 (West) Court no. 127, THC, Delhi.
PC No 36/18 Harish Kumar Mehta Vs State & Ors Page 35/35