Delhi District Court
Isabella Makhani vs The State on 17 March, 2026
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE -02,
WEST, DELHI.
P.C. No. 16027-2016
CNR No. DLWT01-001230-2016
DLWT010012302016
Mrs. Isabella Makhani
W/o Mr. Jeffrey Makhani,
R/o House No. 18 A,
St. Ann's CGHS Ltd.
Sector 7, Ploat No. 8 A,
Dwarka, New Delhi-110075
PETITIONER
VERSUS
1. THE STATE
2. Mr. Anthony Trinidade (deceased).
Through Lrs:
(i) Mrs. G.J. Jayaseeli,
W/o Late Sh. Anthony Trinidad
R/o 1667-A, Housing Board Colony,
Sector 10 A, Gurgaon Haryana.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 1/66
(ii) Ms Melanie,
D/o Late Sh. Anthony Trinidad
R/o C-32, Preet Vihar,
New Delhi-110092
3. Ms. Penelope Trinidade,
D/o Late Mr. Vincent Manuel Trinidade,
R/o C-1824, Palam Vihar, Gurugram- 122017.
RESPONDENTS
Date of institution of the case : 11.01.2016
Date on which reserved for judgment : 27.02.2026
Date of pronouncement of Judgment : : 17.03. 2026
JUDGMENT:
(1) This is a petition preferred under Section 276 of the Indian Succession Act 1925, for grant of Probate of Will dated 23.10.2008.
CASE OF THE PETITIONER AS PER PETITION (2) It is averred in the petition by the petitioner that late Smt. Maggie Trinidade W/o late Sh. Valendtine Francis Trinidade, (hereinafter referred to as 'the deceased'), R/o C-
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 2/66 2B/41B, MIG Flats, Janak Puri, New Delhi-110058 (hereinafter referred to as 'property in question'), died on 22.12.2014.
(3) It is further averred in the petition that the property in question was purchased by the husband of the deceased Mr. Francis Trinidade from Mr. Madan Lal Khera by virtue of a registered sale deed.
(4) It is further averred in the petition that during his lifetime, the husband of the deceased had executed a registered Will in favour of his wife i.e. the deceased, which is registered as document No. 5816 in Additional Book No. 3, Volume No. 323, dated 12.09.1984 and by virtue of which the property in question had devolved exclusively upon the deceased/testatrix. It is further averred that being the beneficiary of the last Will and codicil of her husband, the deceased, Ms Maggie Trinidade, executed a Will in question dated 23.10.2008 in favour of the beneficiary/petitioner wherein vide registered as document No. 11889 in Additional Book No. 3, Volume No. 7663 on pages 195 to 196 on dated 23.10.2008 in the office of Sub-registrar II, Basai Darapur, Delhi.
(5) It is further averred that the present last Will was executed P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 3/66 by the deceased by revoking and cancelling the earlier Will executed on 28.01.2003 registered in the office of Sub- Registrar, II. It is further averred that the petitioner has come to know about Will dated 23.10.2008 through her mother Mrs P.D. Sousa, who is administrator of this Will, which is locked in subject property.
(6) It is further averred in the petition that no class-I heir of the deceased is in the knowledge of the petitioner, and the deceased left for heavenly abode without leaving behind any legal heirs and successors. It is further averred that the deceased executed her last Will dated 23.10.2008, (hereinafter to be referred as Will in question) in the presence of two witnesses (1) Mr. Joan Fernades S/o late Shri Vincent Fernandes and Sh. A.K. Verma S/o Sh. T.C. Verma. It is further averred that the said Will dated 23.10.2008 was the last Will of the deceased and the said Will was executed by the deceased in sound and disposing mind in the presence of the abovesaid witnesses.
(7) It is also averred in the petition that as per the Will dated 23.10.2008, the deceased had bequeathed all her properties in favour of the petitioner.
(8) The petitioner had filed the present petition by making only state as party, vide order dated 26.02.2016, the court P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 4/66 directed the SDM Patel Nagar and SHO, PS Janakpuri to make inquiries regarding blood relatives of deceased and file report in the Court on 15.03.2016, report was filed by SDM, by stating that there are two relatives of the deceased i.e. Sh. Anthony Trinidad and Sh. Penelope Trinidad and thereafter court notice was issued to them.
(9) Notice of the petition was issued to the State and also the private respondents and they appeared before the court and filed their joint objections.
(10) Valuation report has been filed on behalf of Teshildar, Patel Nagar, in respect of property flat bearing no. C2B/41B, MIG Flats, Janak Puri, New Delhi. As per valuation report, the value of the above said property is Rs.58,95,360/- ( Rupees Fifty Eight Lakh Ninty Five thousand Three Hundred Sixty only).
CASE OF RESPONDENT NO. 2 & 3 AS PER THEIR OBJECTIONS (11) The respondent no. 2 & 3 have filed joint objections by taking preliminary objections that deceased Mrs. Maggie Trinidade was the aunt and her husband/Mr. Valentine Francis was the real uncle (real brother of the father) of the respondent no. 2 & 3. It is further contended P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 5/66 that the family of the deceased persons and the respondent no. 2 & 3 are governed by the Portuguese family law relating to marriage and succession/inheritance. It is further averred that as per the Portuguese law, even the marriages are conducted under a system which is called communion of assets, whereby after marriage the spouse acquires half undivided right in the assets of the other. This joint right in the property of the spouse is terms as "quota". It is further contended that under the Portuguese law of inheritance, there is a prohibition on disposition by will or gift by a spouse of the movable and immovable properties as the properties are acquired by each spouse with half undivided in the assets of the other spouse.
(12) It is further contended that the deceased person being governed by Portuguese law of inheritance were well aware of their movable and immovable properties as well as their right to disposition of properties. The alleged Will is a forged and fabricated document, as the deceased Mrs. Maggie Trinidade had no right of disposition of the property belonging to communion family of either herself or her husband as both were governed by Portuguese law of family inheritance.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 6/66 (13) It is further contended that the forefathers of the respondent no. 2 & 3 and deceased uncle and aunt were of Portuguese origin and serveral generations of their family were born during the Protuguese regime in Goa. It is further contended that Goa is the only state in India which continues to be governed by Portuguese laws with respect to family law relating to marriage and succession laws. It is further contended that the corresponding family and marriage laws applicable to other states of India are not applicable and not extended to the State of Goa.
(14) It is further contended that though the alleged wills of the deceased persons are not admitted, it is alternatively without prejudice to the pleadings. It is submitted that the will propounded by the petitioner is forged. It is further contended that if any such illegal will at all is executed by one of the spouse in respect of the communion property, then the said will is null and void under the eyes of law. Accordingly, the petition is not maintainable and the petitioner and her mother are guilty of forgery and fraud and they are not entitled to the relief of probate.
(15) It is further contended that petitioner has not come to this court with clean hands and suppressed the material facts that the respondent no. 2 & 3 are the real newphew and P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 7/66 niece of the deceased persons. It is further submitted that it was only through the efforts of this Hon'ble court that respondent no. 2 & 3 were made parties to the petition vide directions of this court passed on various dates of hearing i.e. 11.01.2016, 26.02.2016, 15.03.2016 and 18.04.2016 and were granted an opportunity to participate in the proceedings.
(16) It is further contended that petition is liable to be rejected under order 7 rule 11 CPC as the petitioner has not given the complete facts and has failed to file the documents which are the very basis of the petition. It is further contended that various Wills have been made the basis of the present petition for grant of probate but the petitioner has deliberately failed to fle the alleged Wills/documents which are being made as the basis of the petition.
(17) It is further contended that the original Will of the deceased has not been produced as the petitioner and her mother are very well aware of their fraud and forgery.
(18) It is further averred that late Mrs Maggie Trinidade died on 22.12.2014 and they have been informed by the then Sub Inspector of Janakpuri Police Station/ Mr. Joginder Singh, on the same day that when the deceased's body was discovered, the petitioner's mother was inside the house and P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 8/66 was found by the police personnel going through important files and documents belonging to the deceased. However, she did not stop her mysterious activities despite warning by the police as such she was turned out of the house by the aforesaid officer. It is further contended that the aforesaid unnatural behaviour of the mother of the petitoner clearly shows that she had no attachment, compasson or love for the deceased aunt of respondent no. 2 & 3.
(19) It is further contended that the petitioner has been trying for almost one year i.e. the calender year 2015, to obtain possession of the property in quetion by hook or by crook and it is only when they could not succeed that they filed a petition to this court to grab the property.
(20) It is further contended that the alleged Will dated 23.10.2008 is forged and the same is clearly proved by the following facts:
a) That ostensibly there is an unusual and unreasonably large gap between the typed matter and signatures of the deceased. It is further contended that there is a big gap between signatures and typed matter goes to point out suspicion and forties the forgery and fraud of petitioner and her mother, forging and fraud of petitioner and her mother forging the alleged will P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 9/66 on some blank signed papers which might be kept by deceased for some other purposes but the mother of the petitioner who was habitual to go in the house of the deceased, when no relative or friend or well wisher is around, finding the blank paper has got the Will typed and also manipulated the registration by dubious means in order to grab the property. It is further averred that had the deceased any intention to give the property to the petitioner/or her mother then she would have brought her inention to the notice of close friends and relative and the father and nun of church who very often used to visit her. It is further averred that the deceased was unable to move out of her flat for the last many years and was confined to house due to very poor visibility as she was suffering from major problem of her eyesight and lost the vision considerably.
b) It is further contended that the photographs on the copy of the Will are not clear and purposely the petitioner and her mother have not filed the original Will which goes to show that the registration and photography was done by using fraudulent tactics.
c) It is further contended that the alleged will P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 10/66 of the husband of the deceased dated 12.09.1984 and the alleged earlier Will of the deceased dated 28.01.2003 have been illegally concealed by the petitoner and her mother.
d) It is further contended that no reasons have been detailed in the alleged Will dated 23.10.2008, propounded by the petitioner, as to in whose favour the previous Will was registered and by the same has been revoked by the deceased, disentitling the previous beneficiary.
e) It is further contended that the deceased was joint owner under the Portuguese dominion law of the suit property as well as immovable property in Goa. The deceased was also well aware of the details of her FDR, Bank account, bankers name, branch and each and every household items, jewellery items, beloning to her. Had the alleged Will dated 23.10.2008 been drafted by the deceased then there is no reason or explanation why a peron of her caliber would not give the specific details of all her movable and immovable properties. It is further contended that the deceased was well educated lady who was working as personal secretary in a very reputed MNC M/s Larsen & Toubro Ltd in Delhi P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 11/66 REJOIDER TO THE OBJECTIONS OF RESPONDENT NO. 2 & 3.
(21) The petitioner has filed rejoinder to the above said objections filed on behalf of respondent no. 2 & 3 and it is contended that the objection of Portuguese origin and being governed by Portuguese law is not sustainable as had the executants wished to be governed by any other law other than Indian Succession Act, she would not have executed the present Will under the Indian Succession Act.
(22) . It is further contended that not only the executant wished to be governed by any other law other than the Indian Successin Act, even her husband did not want to be governed by any other law other than the Indian Succcession Act, as even he had executed a Will in favour of the executant under the provisions of the Indian Succession Act.
(23) It is further contended that the executants of the present Will and the earlier Will did not even disclose their Portuguese origin and as such the objections raised in the application are devoid of any meirts.
(24) It is further contended that the executants of the P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 12/66 Will had got the instrument registered before the office of the Registrar, with her free Will and consent and a such the objections raised herewith are not maintainable.
ISSUES.
(25) From the pleadings of the parties, following issues have been framed vide order dated 01.07.2016:
1) Whether the will dated 23.10.2008 executed by Late Ms Maggie Trinidade W/o late Mr. Rrancis Trinidade is her last, genuine, legal, valid Will and duly executed in her sound disposing mind? OPP.
2) Whether the petitioner is entitled for Probate/letters 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 respondents/objectors no. 2 & 3 in the written statement/objections? OPD
4) Relief.
EVIDENCE ON BEHALF OF PETITIONER (26) Petitioner has examined 5 witnesses in support of her petition. Petitioner entered in the witness box as PW 1 and tendered her evidence by way of affidavit Ex. PW-1/1. PW- 1 relied on the following documents in support of her P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 13/66 assertions -
Ex. PW1/A-1 (OSR) - Copy of her Aadhar Card. Ex. PW1/B - Certified Copy of Will.
(27) Ms Joan Fernades, one of the attesting witness to the Will appeared in the witness box and tendered her evidence by way of affidvit Ex. PW-2/A. (28) Sh. A.K. Verma, another attesting witness to the Will appeared in the witness box and tendered his evidence by way of affidvit Ex. PW-3/A. The witness deposed that he has seen the Will already exhibited as Ex. PW-1/B. The PW-3 has identified the signatures of decesed testatrix at each page at point A, his signaturess are at second page and last page at point B and signatures of other atteting witness Ms Joan Fernandis at point C, on Will Ex PW-1/B. (29) Ms P.D. Sousa, mother of the petitioner and executor of the Will appeared in the witness box as PW-4 and tendered her evidence by way of affidavit Ex. PW4/A. (30) Sh. Vivek Yadav, LDC from the office of Sub- Registrar-II, Basai Darapur appeared as PW-5 and brought the original registered Deed of Family Will bearing registration No. 11889 in Book No. 3, Volume No. 7663 on P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 14/66 pages 195 to 196 on dated 23.10.2008 executed by Smt. Maggie Trinidade, the certified copy of the same is already exhibited on record as Ex. PW3/DX ( OSR).
(31) All the above said witness have been duly cross- examined by ld. Counsel for respondent no. 2 & 3.
(32) Vide separate statement of ld. Counsel for the petitioner on 22.12.2017, evidence on behalf of petitioner's stands closed.
EVIDENCE ON BEHALF OF RESPONDENT NO. 2 & 3 (33) The respondent no. 2 & 3 in order to prove their case examined three witnesses.
(34) Shri Joginder Singh, Retired Sub-Inspector from Delhi Police appeared as RW-1 and deposed that on 22.12.2014, he was posted as ASI in Police Station, Janak Puri and on receipt of DD No. 26-A, he alongwith Const. Anil and Const. Shiv Lal reached at the spot at C-2B/41B, Janak Puri. The original DD No. 26A is exhibited as Ex. RW-1/A & B. RW-1 further deposed that after entering into the flat he had seen in a bed room of the flat that one old lady was seemed to be sleeping covered with quilt. On inquiry he came to know the name of old lady as Maggie P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 15/66 Trinidade. She used to live alone in the flat. He called the crime team and got it inspection photographs of the spot. RW-1 further deposed that he found mother of Isbella Makhani sitting in the flat.
(35) In further examination in chief RW-1 deposed that as per the record, coy of daily diary was submitted in the court of Sh. Jatin Goyal, SDM, HQ-1, Patel Nagar, Delhi on 23.07.2018 in response to the court notice to produce the record. He further deposed that daily diary dated 22.12.2014 (West) pertains to the information at Sl. no. 26 and marked as Mark-X. He further deposed that this information was received on telephone by HC Shiv Lal that one lady lives in H. No. C-2/B/41-B, Janak Puri, which is locked from inside for the last two hours and police help was sought by some informant stating that the said informant has come to meet her.
(36) RW-1 further deposed that as per the direction of the concerned SHO, he reached at the spot and found that the said premises situated at the first floor was already unlocked. There were may people gathered at the out side and in side the said flat. He further deposed that when he reached the spot, he came to know that HC Shiv Lal had already got opened the premises with the help of one lady residing opposite side and she used to have key of said P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 16/66 premises with her also. RW-1 further deposed that after inspection by crime team, the dead body was shifted to mortuary DDU, Delhi. During investigation he recorded the statement of 3-4 persons present there. He further deposed that respondent no. 2 & 3, who had reached the spot after the incident, also came to mortuary and identified the dead body, he recorded their statements.
(37) RW-1 further deposed that on 23.12.20214, postmortem was got conducted of the dead body and dead body was handed over to Mr. Anthony (now deceased) and Ms. Penelope i.e. respondent no. 2 & 3 respectively. He further deposed that he had not noticed any suspicious activity at the premises. He had submitted the statements, recorded by him on the spot with the inquest file. However. RW-1 voluntarily deposed that Ms. Isabella Anthony stated on the spot that she had a Will in her favour executed by the deceased. But later, the relatives of deceased reached at the spot and thereafter they accompanied him to mortuary. RW- 1 has been duly cross examined by Ld counsel for the petitioner.
(38) Ms Gerorge Joseph Jayaseeli appeared in the witness box as RW-2 and tendered her evidence by way of affidavit Ex. RW2/A. RW2 has been duly cross examined by Ld counsel for the petitioner.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 17/66 (39) Ms Penelope Trinidade appeared in the witness box as RW-3 and tendered her evidence by way of affidavit Ex RW-3/A. RW3 has been duly cross examined by Ld counsel for the petitioner.
(40) Vide order dated 08.08.2025, on the submission of ld. counsel for the respondents, evidence on behalf of respondents stands closed.
FINAL ARGUMENTS (41) I have heard the final arguments from the ld. Counsel for the petitioner as well as ld. Counsels for respondent no. 2 & 3 and have gone though the entire case file and the written submissions filed on behalf of respondent no. 2 & 3.
(42) Ld. counsels for respondent no. 2 & 3 filed joint written arguments on behalf of respondent no. 2 & 3.
(43) It is averred in the written arguments that the present petition is liable to be dismissed as the alleged Will dated 23.10.2008 is surrounded by grave suspicious circumstances, suffers from non-production of the original Will and is founded upon suppression of material facts. It is P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 18/66 further averred that the explanation offered- that the original Will dated 23.10.2008 is likely to be within the subject property sealed by the police is vague, un-sustaintiated and unsupported by any official record.
(44) . It is further submitted that onus lies heavily upon the propounder of the Will to dispel all legitimate suspicions and prove due execution of Will in accordance with law. It is further submitted that probate cannot be granted on secondary evidence and the probate proceedings are proceedings in rem and the court must insist on the best evidence.
(45) It is further averred that suspicious circumstances surrounding the execution of the will is that the Will is curiously titled " Deed of Family Will" whereas the sole beneficiary, Ms. Isabella Makhani, an outside with no blood relation to the deceased. It is further averred that the heading and the bequest are contradictory, raising serious doubt about whether the deceased even understood the contents. This contradiction itself casts serious doubt on whether the deceased/testatrix was even aware of what she was signing.
(46) It is further averred that the deceased/testatrix was issueless and the natural line of succession would favour her P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 19/66 niece/nephew/natural legal heirs. Exclusion of natural heirs without explanation is a classic suspicious circumstance under settled jurisprudence. This was the nephew of the deceased and his wife who were taking care of her.
(47) . It is further averred that the Will names the petitioner herself as the executor and her mother and real brother as the administrator. This creates an inherent conflict of interest, as both the control and administration of the estate are concentrated in the hands of the petitioner's own family. It is further averred that no evidence has been led to show the independent involvement of the deceased or any neutral scribe/attesting witness. This increase the likelihood of undue influence and manipulation.
(48) It is further averred that beneficiary Ms. Isabella Makhani is presenter of the alleged Will alongwith the testatrix Ms Maggi Trinidad, the petitioner took a leading part in making of the Will under which she receives entire benefit, which shows that the deceased/testatrix was under
the undue influence of the beneficiary and all her family members. Although the petitioner denies her presence intentionally at the time of so-called execution of the Will in question but her name being there in the Will as presenter creates grave suspicion. Thereafter ld. counsel for the respondents mentioned the contradictions in the cross-
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 20/66 examination of the witnesses of the petitioner.
(49) . It is further averred that the petitioner claimed that both the witnesses signed the petition in her presence. The true fact is that the petition was signed by the petitioner on 23.12.2015 but the attesting witness Mr. A.K. Verma signed it on 17.10.2015 at 2:00 P.M. almost before two months from the date of signing of the petitioner, which shows the manipulation of the petitioner.
(50) It is further averred that no independent scribe, neutral advisor, or independent witness has been examined to show that the testatrix acted of her own free will.
(51) It is further averred that there is large gap between signature and typed portion on the 3 pages. Strangely, registration particulars mentioned only 2 pages i.e. 195-196. Further the photograph of the deceased as pasted on the Will is quite old of her young age.
(52) . It is further averred that petitioner claims that the testatrix derived title from a Will dated 12.09.1983 executed by her husband Mr. Valentine Trinidad. It is further averred that only a fabricated photocopy of Will ( Mark A) with malafide intention has been produced, which is neither proved nor admissible. Even otherwise in the said P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 21/66 photocopy of Will the undivided land is leasehold, meaning thereby the said alleged husband of the testatrix was not the absolute owner of the suit property. It is germane to mention here that the Hon'ble Predecessor Court vide its order dated 11.01.2016 directed the petitioner to file the death certificate and the Will of the husband of the testatrix which has not been filed by the petitioner till date. It is submitted that the petitioner has thus failed to establish the root of the title of testatrix over the property in question, rendering the present probate.
(53) It is further averred that the petitioner has deliberately concealed the existence of blood relatives including the respondent, while filing the probate petition. It is submitted that such concealment is material, intentional, and amounts to fraud upon the court. Concealment of legal heirs vitiates the probate petition and demonstrates lack of bona fides. The petition itself is defective.
(54) It is further averred that the propounder must prove the due execution, sound disposing mind and absence of coercion or undue influence.
(55) Ld. counsel for respondent no. 2 & 3 relied upon following judgments :
1. Dhani Ram Vs Shiv Singh ( SC): Law Finder DocId # P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 22/66 2340275, H. Venkatachala Iyengar Vs B.N. Thimmajamma, ( SC) LAW Finder Doc ID # 113675.
2. Murthy & Ors - Appellants Vs C. Saradambal & Ors, Respondent Civil Appeal No. 4270 of 2010 decided date 10.12.2021.
ISSUE -WISE FINDING My issue wise findings are as under:-
Issue no.(1) and Issue no. (3).
1) Whether the will dated 23.10.2008 executed by Late Ms Maggie Trinidade W/o late Mr. Rrancis Trinidade 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/objectors no. 2 & 3 in the written statement/objections? OPD (56) The burden of proof of issue no. 1 is upon the petitioner and in order to prove the said issue, the petitioner has examined total five witnesses and the details of said witnesses is as under:
1.PW-1 Ms Isabella Makhani (Petitioner).
2.PW-2 Ms Joan Fernandes (attesting witness of the Will in question).
3.PW-3 Sh. A.K. Verma, ( another attesting witness of the P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 23/66 Will in question).
4.PW-4 Ms P.D. Sousa, ( Executor appointed in the Will in question).
5.PW-5 Sh. Vivek Yadav, ( LDC from the office of Sub-
Registrar-II, Basai Darapur, New Delhi.
(57) . The burden of proof of issue no. 3 is upon the respondent. In order to prove the said issue, the respondent no. 2 & 3 have examined total three witnesses & the details of said witnesses is as under:
1.RW-1 Sh. Joginder Singh, Retired Sub-Inspector.
2.RW-2 Ms Geroge Joseph Jayaseeli ( L.Rs of respondent no. 2).
3.RW-3 Ms Penelope Trinidade ( Respondent no. 3).
(58) Respondent no. 2 & 3 have contended that the family of the deceased and respondent no. 2 & 3 are governed by Portguese family law relating to the marriage and succession/inheritance. It is further contended by respondent no. 2 & 3 that the fore-fathers of respondents and Late Smt. Maggie Trinidade and Late Sh. Valentine Francis Trinidade were of Portguese origin and several generations of their family were born during the Portuguese regime in Goa.
(59) The petitioner has averred in rejoinder that the deceased Mrs. Maggie Trinidade and her husband Mr. P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 24/66 Valentine Francis Trinidade as well never intended to be governed with Portuguese laws, as had that been their intention they would not have executed their respective Wills under the Indian Succession Act.
(60) The petitioner has averred in rejoinder that it is correct that the deceased persons despite being governed by Portuguese law of inheritance were well aware of their moveable and immoveable properties as well as their right to disposition of properties and as such they executed their respective Will under Indian Succession Act.
(61) The petitioner has averred in rejoinder that it is pertinent to mention here that the deceased Mrs. Maggie Trinidad and her husband Mr. Valentine Francis Trinidade as well never intended to be governed with Portuguese laws as had that been their intention they would not have executed their respective Wills, under the Indian Succession Act.
(62) The petitioner has not denied the fact that the deceased and her family members are governed by the Portuguese family law relating to marriage and succession/inheritance. The petitioner has also not denied that the deceased, her husband and several generation of their family were born P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 25/66 during the Portuguese regime in Goa.
(63) Ld counsel for the respondents have contended that the estate of deceased is liable to be distributed as per Portuguese Family law relating to marriage and succession/inheritance. He further contended that the deceased had no right to bequeath property by executing the Will in question as there is prohibition on disposition by will or gift by a spouse of the movable and immovable properties as the properties are acquired by each spouse with half undivided right in the assets of the other spouse.
(64) The abovesaid contention of respondent no. 2 & 3 that the estate of deceased is liable to be distributed as per Portuguese Family law relating to marriage and succession/inheritance is not disputed by the petitioner.
(65) As per Portuguese Civil Code 1867, as applicable in the State of Goa, there is no absolute prohibition on the testatrix to bequeath her property by way of Will. The testatrix can bequeath half of her properties by way of Will.
(66) The Will in question has been prepared in Delhi in respect of immoveable property situated in Delhi. So, the provisions of the Indian Succession Act, 1925 regarding preparation of Will are applicable in the present case.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 26/66 (67) Hon'ble Apex Court in a case titled Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008, held as follows:
"The jurisdiction of the Probate Court is limited be- ing 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 re- lating to the right, title and interest of any other per- son is beyond the domain of the Probate Court.".
(68) Under Portuguese cure code 1867, as applicable in the State of Goa, there is no absolute prohibition on the testatrix to bequeath her properties by way of Will. The testatrix can bequeath half of her properties by way of the Will.
(69) In a case titled Jose Paulo coutinho Vs. Maria Luiza Valentine Pereira & Anr of Hon'ble High court of Delhi, decided on 13.09.2019 and has observed as under:
"It is not disputed before us that the Portuguese Civil Code, 1867 (hereinafter referred to as 'the Civil Code') as applicable in the State of Goa before its liberation in 1962 would apply. The Civil Code is in two parts - one part deals with all substantial civil laws including laws of succession and the other part deals with procedure. As far as the present case is concerned, the parties are ad idem that in so far as the succession to the properties in Goa is concerned, they are governed by the Civil Code. The main dispute is that whereas the appellant, who is one of the legal heirs of the daughters of JMP, claims that even the property of JMP in Bombay is to be dealt with under the Civil Code, the case of the respondent i.e., the daughter who was bequeathed the property in Bombay, is that as far as the immovable property situate P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 27/66 outside Goa in any other part of India is concerned, it would be the Indian succession Act, 1925 which would apply.
5. It would be apposite to digress a little and refer to certain provisions of the Civil Code in relation to succession. Succession is governed under Title II, Chapter I of the Civil Code. Under the Civil Code1, a person cannot dispose of all his property by way of Will. There are two portions of the property - one which can be disposed by Will, Gift, etc. and the other which is the indisposable portion in terms of Article 1784 of the Civil Code which reads as follows: "Legitime means the portion of the properties that the testator cannot dispose of, because it has been set apart by law for the lineal descendants or ascendants.
Sole paragraph: This portion consists of half of the properties of the testator, save as provided in Clause2 of Article 1785 and Article 1787."
6. Normally, if a person has children or parents, he can only dispose of half of the property by will or gift and the remaining property has to be allotted to his heirs whether ascendants or descendants in the shares laid down in the Civil Code. Where a person has no children or where he leaves behind illegitimate 1 In this judgment, the articles of Portuguese Civil Code have been quoted from the translation of the Code made by Manohar Sinai Usgaocar, Senior Advocate, Civil Code in Goa, First Edition, 2017, Vaikuntrao Dempo Centre for Indo Portuguese Studies. The wording in a translation made by the Government of Goa in some articles is slightly different but the meaning is the same and that has no impact on the judgment in hand. children or the deceased leaves behind only ascendant heirs who are not the parents then the indisposable portion is less than half. The Code provides that the estate of every person can be divided into two parts - one which he can dispose of by testamentary disposition and the other which he cannot dispose of. The second part which he cannot dispose of has to be inherited by the heirs in the shares as laid down in the Civil Code and this part which cannot be disposed, is called legitime. This legitime is destined for the heirs in the direct ascending or descending line.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 28/66
7. Another interesting aspect of the Civil Code is that after the death of a person, inventory proceedings are started wherein the entire properties (both movable and immovable) and liabilities of the deceased are inventorised. In these proceedings normally one of the eldest members of the family is appointed as Cabeca de Casal, i.e. the administrator. The administrator is required to prepare an inventory of all the properties of the deceased. Once the properties of the deceased are inventorised and evaluated, these have to be shared in accordance with the shares laid down in the Civil Code. In case the deceased had made some testamentary bequests, then those bequests are to be adjusted against that portion of the estate which was not the legitime. As pointed above, only half of the total property could be bequeathed and any bequest in excess of half would not be a valid bequest.
In view of the aforesaid, we are clearly of the view that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Indian Succession Act or the laws of succession would not be applicable to such Goan domiciles.
III. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP?
32. We shall now deal with the issue "what is the effect of the grant of probate of the Will of late JMP by the High Court of Bombay?" At the outset, we may say that the order granting probate has not been produced by any side though it is admitted by all sides that probate was granted and the appellants herein had notice of the probate case. Assuming that probate had been granted, what is the effect of the grant of probate on the laws of inheritance? Grant of probate has nothing to do with inheritance. The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance. To give an example, supposing a Hindu bequeathes his ancestral property by a Will and probate P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 29/66 of the Will is granted, such grant of probate cannot adversely affect the rights of those members of the coparcenary who had a right in the property since birth. Similar is the case in Goa. The legitime is the right of the heirs by birth. When both the spouses are alive, they own half of the property. Mere grant of probate will not mean that the husband can Will away more than half of the property even if that be in his name.
33. This Court in Krishna Kumar Birla vs. Rajendra Singh Lodha12 held as under:
"57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be 12 (2008) 4 SCC 300 filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. 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 (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court." In view of the clearcut exposition of law in the aforesaid case, we hold that grant of probate by the Bombay High Court did not in any manner affect the rights of inheritance of all the legal heirs of the deceased.
34. In view of the above discussion, we answer the question framed in Paragraph 1, holding that it will be the Portuguese Civil Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.
(70) It is settled law that the probate court has not to decide right, title & interest of the parties as well as of the deceased in the property, bequeathed by way of Will. While P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 30/66 dealing with probate/letters of administration case, the court is concerned only with the question, as to whether, the document put forward before it, is the last genuine Will and testament of the deceased and it has been voluntarily executed by the testator and it is attested in accordance with the provisions of Law and whether at that time, the testator had sound disposing mind. The probate court has also to see whether there is any suspicious circumstances surrounding the execution of the Will and the said suspicions have been dispelled by the propounder of the Will. The question relating to the title of the parties as well as of the testator in respect of suit property, is alien to the probate jurisdiction of the court.
(71) Before further deciding the contentions of the respondents, I would like to discuss various statutory provisions and relevant judgments involved in the present case for deciding the above said both issues.
(72) 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".
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 31/66 (73) Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
(74) 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".
(75) The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 32/66 "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."
(76) The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble High Court of Delhi. Some of the judgments have been mentioned below to appreciate the law, applicable on the facts of the present case.
(77) 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 P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 33/66 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 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.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 34/66 (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."
(78) In a case titled "Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Hon'ble Supreme Court of India, the Hon'ble Supreme court has held as follows:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 35/66 benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations..."
(79) In a case titled "Hari Singh & Anr. Vs State & Anr"
176 (2011) DLT 199 (DB), the Hon'ble High Court has relied upon its own judgement given in FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia, which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid custom of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 36/66 which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 37/66 hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
(80) In a case titled Inder Bala Bose vs Maninder Chandra Bose AIR 1982 SC 133, the Hon'ble Supreme Court has held that "any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally in a normal situation or is not expected from a normal person."
(81) The Hon'ble Apex Court in a case titled Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008 has held as follows:
"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 Pro- bate Court."
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 38/66 (82) 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 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 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, P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 39/66 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 P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 40/66 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. (83) 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 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 P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 41/66 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."
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 42/66 (84) 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 fOllows:
"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 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 P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 43/66 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".
(85) In a judgment titled as Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead Through Lrs.) Civil Appeal no. 2435 of 2010, decided on 20 November, 2023, the Hon'ble Supreme Court of India has observed as follows:-
20. Trite to state, mere registration of a Will does P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 44/66 not attach to it a stamp of validity and it must still be proved in terms of the above legal mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam 1, this Court held that the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with to prove a Will and 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 it was duly and validly executed and that cannot be done by simply proving that the signature on (2003) 2 SCC 91 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 principles were affirmed in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 2.
29. In Bhagavathiammal vs. Marimuthu Ammal and others 12, a learned Judge of the Madurai Bench of the Madras High Court observed that the difference between Section 68 and Section 69 of the Evidence Act is that, in the former, one attesting witness, at least, has to be called for the purpose of proving execution and in the latter, it must be proved that the attestation of one attesting witness, at least, is in his handwriting and the signature of the person executing the document is in the handwriting of that person. It was rightly observed that Section 69 of the Evidence Act does not specify the mode of such proof and, in other words, the handwriting can be spoken to by a person who has acquaintance with the handwriting or the signature can be proved by comparison with the admitted handwriting or signature of the person executing the document.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 45/66 (86) In the light of Legal principles as carved out in catena of Judgments by the Hon'ble Superior Courts and some of them as discussed above, it is obligatory for the petitioner to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the testatrix:
(ii) That the testatrix while executing the Will was in sound disposing state of mind:
(iii)That the testatrix had executed the Will out of her own free will, meaning thereby that she was a free agent when she executed the Will and she was fully aware about the contents of the Will at the time of signing it.
(iv)The petitioner has to prove that the Will in question is the last Will of the testatrix:
(v) The petitioner has also to remove all the suspicious circumstances, surrounding the execution of the Will:
(vi) For proving the Will, at least one of the attesting witnesses of the Will, who is alive must be examined in the Court, as per Section 68 of Indian Evidence Act.
(87) It is settled proposition of law that onus is always on the propounder of the Will to prove the validity and due P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 46/66 execution of the Will and to remove all the suspicious circumstances surrounding the execution of the Will.
(88) Ld counsel for the respondents has argued that the petitioner has not produced the original Will in question and it raises grave suspicion regarding the due execution of the Will in question. Ld counsel for the respondents has further argued that the explanation offered by the petition that the original Will is likely to be within the property sealed by the police is vague, unsustainable and unsupported by official record.
(89) PW-1 has deposed that the petitioner does not have the original Will in her possession and the certified copy of the subject Will was procured by her after she came to know about the execution of the same from her mother Mrs. P.D. Sousa, who happens to be the administrator of the subject Will.
(90) PW-1 further deposed that the original subject Will is likely to be within the subject property ie property bearing number. C-2B/41B, Janakpuri, New Delhi-58, which was purchased by the husband of the deceased Mr. Valentine Francis Trinidad from Mr. Madan Lal Khera by virtue of a registered sale deed registered as document no. 4843, in additional Book Number 3, Volume number 318, on P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 47/66 08.08.1984.
(91) Vide order dated 26.02.2016, it has come on record that the abovesaid property of deceased has been sealed by the Local police and keys of the property has been deposited in the malkhana of PS Janakpuri. Vide order dated 18.04.2016, this court had directed the SDM Patel Nagar not to hand over the keys of the property in question to any person without the orders and permission of the court.
(92) Section 70 in The Indian Succession Act, 1925
70. Revocation of unprivileged Will or codicil.-- No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.Illustrations(i)A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.(ii)A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation.
(93) It is not the case of the respondents that the deceased had torn and destroyed the original Will. The house of the deceased, where she was residing, has been sealed by the P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 48/66 police and this house is not in possession of the petitioner. So, the contention of petitioner that the original Will in question is in the house of the deceased is probable. Hence, in view of the abovesaid facts, it is held that non-producing of original Will by the petitioner does not raise any suspicion regarding due to execution of Will in question.
(94) It is further submitted by the respondents that onus lies heavily upon the propounder of the Will to dispel all legitimate suspicious and prove due execution in accordance with law. It is further submitted that probate cannot be granted on secondary evidence and the probate proceedings are proceedings in rem and the court must insist on the best evidence.
(95) Section 237 in The Indian Succession Act, 1925 states as under:
237. Probate of copy or draft of lost Will.--
When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced.
(96) Section 240 of the Indian Succession Act, 1925, states that where no will of the deceased is forthcoming, but there P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 49/66 is reason to believe that there is a Will in existence, letters of administration may be granted, limited until the Will or an authenticated copy of it is produced.
(97) In the present case, the Will in question is a registered Will and certified copy of the same has been produced by the petitioner and has been proved by PW/Sh. Vivek Yadav, LDA from the office of Sub-Registrar-II, so, it is proved that Ex PW-1/B is the authenticated certified copy of the original Will of the deceased. In view of abovesaid facts, there is no force in the contention of respondents that probate/letters of administration cannot be granted on the certified copy of the original Will of the deceased.
(98) The next contention of respondent no. 2 & 3 is that the Will in question is a forged and fabricated Will. The burden is upon the respondents to prove that the Will in question is forged and fabricated.
(99) The respondent no. 2 & 3 have mentioned following circumstances in their objections for alleging that the Will in question is forged and fabricated.
1. It is contended in the objection by respondents that ostensibly there is an unusual and unreasonably large gap between the typed matter and signatures of the deceased. It is further contended that it is a P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 50/66 common practice that a prudent person while signing an impotant document like Will is careful enough to sign immediately after the typed matter without leaving any gap so as to ensure that no line or word could be added between the typed matter and the signatures at any time thereafter. The unusual gap in the alleged will between the signatures and typed matter clearly shhows that the Will is forged.
2. It is further contended in the objection that there is a big gap between signatures and typed matter goes to point out suspicion and forties the forgery and fraud of petitioner and her mother forging the alleged will on some blank signed papers which might be kept by deceased for some other purposes but the mother of the petitioner who was habitual to go in the house of the deceased when no relative or friend or well wisher is around, finding the blank paper, has got the Will typed and also manipulated the registration by dubious means in order to grab the property.
3. It is further contended in the objections that had the deceased any intention to give the property to the petitioner/or mother then she would have brought her inention to the notice of close friends and relative and the father and nun of church who P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 51/66 very often used to visit her. It is further averred that the deceased was unable to move out of her flat for the last many years and was confined to house due to very poor visibility as she was suffering from major problem of her eyesight and lost the vision considerably, she was unable to move out of house alone witihout an escort. In order to give it cover the mother of petitioner has got the Will forged and fabricatged in the name of her married daughter.
(100) The respondent no. 2 & 3 have not deposed abovesaid facts in their examination in chief by way of their affidavits. The abovesaid grounds of challenging the Will in question has not been deposed on oath in the court by responents. The abovesaid suspicious circumstances alleged in the objections have not been raised during the evidence by respondents.
(101) No question regarding gape between the typed matter and signatures of deceased, on the Will, has been asked to any of the witness of the petitioner. Even, no suggestion has been given to any of the witness of the petitioner that there is unusual gape between the typed matter and signatures of deceased in the Will in question.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 52/66 (102) RW-3 has deposed, in her examination in chief by way of affidavit that though the alleged will of the deceased person is not admitted, it is alternatively without prejudice to the pleadings that the will propounded by the petitioner is forged. RW-3 further deposed that if any such illegal Will at all is executed by any of the spouse in respect of the communion property, then the said will is null and void in the eyes of law. Accordingly, the petition is not maintainable and they are not entitled to the relief of probate.
(103) RW-3 further deposed that even otherwise the Will in question allegedly executed by deceased Mrs Maggie Trinidade is not at all worthy of probate as the same is forged and fabricated document having no legal enforceability in the eyes of law.
(104) In the objections, respondent no. 2 & 3 have mentioned that there is a big gape between the signatures and typed matter those to point out suspicion and fortiies, the forgery and fraud of petitioner and her mother forging the alleged Will on some blank signed papers which might be kept by deceased for some other purposes but the mother of the petitioner, who was habitual to go in the house of deceased, when no relative or friend or well-wisher is around, finding the blank papers has got the Will typed and also manipulated the registration by dubious means in order P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 53/66 to grab the property.
(105) In the objections, the respondents have admitted the signatures of the deceased on the Will in question. Moreover, no evidence has been led by the respondents to prove that the Will in question is forged and fabricated.
(106) During cross examination RW-2 deposed that it is correct that she does not have any document to prove the fact that will dated 23.10.2008 is forged and fabricated. She, voluntarily, deposed that her husband told her that Will is forged and fabricated, however, no document in this respect was provided to her by her deceased husband.
(107) PW-2/Ms Joan Fernandes has deposed in her evidence by way of affidavit that the deceased had executed the Will on 23.10.2008, in the office of Sub Registrar, office of SR II, New Delhi in his presence. During cross- examination, PW-2 deposed that Mrs Maggi singed the Will before the Court. Again said in District Centre, Janakpuri.
(108) PW-3/Sh. A.K. Verma, had deposed in his evidence by way of affidavit that the deceased had executed the subject Will on 23.10.2008, in the office of Sub Registrar, Office of SR II, New Delhi. PW-3 has identified the signatures of deceased at each page at point A, her signatures at point B P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 54/66 and signatures of other attesting witness Ms Joan Fernadis at point C, on the Will Ex. PW-1/B. (109) PW-5/Sh. Vivek Yadav has brought the summoned record in respect of Will in question. During cross- examination, he deposed that it is correct that record brought by him is containing photocopy of Will. He voluntarily deposed that it bears the original signatures of deceased testator and attesting witnesses.
(110) I have perused the will in question. There is no unusual gap between the typed matter and signature of deceased, on the will in question. Even, this contention has not been deposed on oath by the respondents and no question or suggestion in this regard has been put to the witness of the petitioner.
(111) In view of the abovesaid facts and testimonies of the witnesses, it is held that the respondent no. 2 & 3 have failed to prove that the Will in question is forged and fabricated.
(112) Ld counsels for the respondents have argued that the Will in question was presented before Sub-Registrar by the petitioner and she has led active role in the exuection of the will in question. The witnesses have deposed that the petitioner was not present at the time of execution of Will in P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 55/66 question. In the certified copy of the Will, it is written that the Will in question has been executed and presented by Mrs. Maggie Trinidade and Ms. Isabella Makhani but there is no signatures of the petitioner in the Will in question. The photographs in the Will in question are only of deceased as well as both attesting witnesses. Moreover, it is also settled law, if beneficiary of the Will is present at the time of execution of the Will, then it does not create any suspicion on the due execution of Will in question. The respondents have to prove active role played by the petitioner in the exeuction of the Will in question but no such role has been described by respondents in their evidence. So, abovesaid contention of the respondents stands rejected.
(113) Ld counsel for the respondents have further argued that the title of the Will has been written as "Deed of Family Will" whereas the petitioner does not belong to the family of the deceased. It is settled law that the no nomiclature of the document does not define the nature of the document. Merely, by writing deed of family Will on the Will in question, does not make the Will suspicious.
(114) Ld counsel for the petitioner has argued that the petitioner has proved the due execution of the Will in question. She further argued that the petitioner has examined two witnesses, who identified the signatures of the deceased P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 56/66 on the Will as their signatures. She further argued that there is no suspicion surrounding the execution of the Will in question. She further argued that the Will in question was executed by the deceased, voluntarily, in favour of the petitioner.
(115) Ld counsel for the respondents has argued that the petitioner has failed to prove the due execution of the Will in question. It is further argued that the attesting witnesses examined on behalf of petitioner have failed to prove that the deceased had signed that Will in their presence. He further argued that it has also not been proved that the attesting witnesses had signed the Will in the presence of the deceased. He further argued that the petitioner has failed to prove that the deceased was aware about the contents of the Will at the time of singing the Will. Ld counsel for respondents has further argued that the petitioner has failed to fulfill the requirements of Section 63 of the Indian Succession Act.
(116) Ld counsel for the petitioner has argued that the Will in question is a registered Will. So, presumption of truth is attached with the Will in question and it has been executed as per law by the deceased, after fulfilling the legal requirements.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 57/66 (117) In a case titled "Pratap Singh And Another vs The State & Another, decided on 12 August, 2010 as under:
"8. Much emphasis has been laid that the alleged Will is a registered Will but registration of a Will is not mandatory. The Appellant No. 1 who had appeared in the witness box has stated that their father executed the Will dated 11th March, 1983 which was duly registered with the Sub- Registrar, Delhi as document No. 686 in Additional Book No.3, Volume No.272 on pages 103 to 104. It is well settled, merely because the Will is a "registered Will", it is no assurance that the same is genuine and validly executed document with a sound disposition of mind and free Will".
(118) In a case titled Leela & Ors Vs Muruganantham & Ors, Civil appeal no. 7578 of 2023, Hon'ble Supreme Court of India, in para no. 20 has observed as follows:
20. There can be no doubt with respect to the manner in which execution of a Will is to be proved. In the light of plethora of decisions including the decisions inMoturu Nalini Kanth v. Gainedi Kaliprasad (Dead,through Lrs.)2 and in Derek AC Lobo's case (supra) this position is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It is not the case of the appellant that the Will dated 06.04.1990 is a registered one.
23. The Trial Court rightly held that the propounder of the Will has to establish by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound disposing state of mind and that he understood the nature and effect of the dispositions and put his signature out of his own free will.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 58/66 (119) In view of abovesaid judgments, it is held that mere registration of Will does not prove the due execution of the Will. The burden is upon the petitioner to prove that the Will in question has been executed and proved in terms of Section 63 of Indian Succession Act.
(120) In the present case, the petitioner has examined both the attesting witnesses i.e. PW-2/Ms. Joan Fernandes and PW-3/Sh. A.K. Verma and the examination in chief of both witnesses has been reproduced in the succession paras.
(121) PW-2 has deposed in her examination in chief by way of affidavit as under:
1. That, I am attesting witness in the subject Will having been executed by deceased Maggie Trinidade wife of late Valendtine Francise Trinidade, as such I am competent to swear the present affidavit.
2. That, the deceased had executed the subject Will on 23.10.2008, in the office of Sub-
Registrar, office of SR-II, New Delhi, in my presence.
(122) PW-2 has not identified the signatures of the deceased as well as her signatures on the Will while tendering her affidavit in evidence.
(123) PW-3 has deposed in her examination in chief by way P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 59/66 of affidavit as under:
1. That, I am attesting witness in the subject Will having been executed by deceased Maggie Trinidade wife of late Valendtine Francise Trinidade, as such I am competent to swear the present affidavit.
2. That, the deceased had executed the subject Will on 23.10.2008, in the office of Sub-Registrar, office of SR-II, New Delhi, in my presence.
(124) PW-3 has identified the signatures of the deceased, his signatures and signatures of PW-2, on the Will in question while tendering his affidavit in evidence.
(125) During cross examination, PW-2 deposed that she does not know where the Will was got typed. She does not know who has got the will in question typed. She further deposed that Mrs. Maggi signed the Will before the court. Again said in District Center Janakpuri.
(126) During cross examination, PW-2 further deposed that deceased was having eye problem and she was operated and her visibility was bad. She could see a little.
(127) During cross examination following questions have been asked to PW-2:
Q In whose presence you signed the Will in question?
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 60/66 Ans. I signed in the presence of judge at the office/court.
Q Did you sign before Mrs. Maggi deceased testatrix?
Ans. No. I was called by the said judge inside the room and I signed the Will.
Q Except judge who else were present when you signed the Will?
Ans Except the judge, no other person known to me was present when I signed the Will. Q Have you read the Will?
Ans No. (128) PW-3 has deposed during his cross examination that the alleged Will was signed by him at his own seat at Sub-
Registrar office, Premises, Janakpuri. He further deposed that he does not know what is written in the Will.
(129) The following questions have been asked from PW-4/ Ms. P.D. Sousa:
Q Is it correct that the visibility of Mrs. Maggie was very poor since 2003 onwards?
Ans. I am not aware.
Q Do you know that she was suffering from Floaters in her eyes?
Ans Yes, I know.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 61/66
Q Do you know she has undergone eye
operation at any time in her life?
Ans She had undergone cataract eye operation.
(130) From the testimony of PW-2 &v PW-3, it is proved that both witnesses do not know the contents of the Will in question. It is also come on record that the PW-2 has not read the Will in question. It has also come on record from the testimony of PW-2 that the eye-sight of deceased was very bad and she could see a little. PW-2 has also not sure about where the deceased signed the Will. It is also proved that PW-2 has not signed the Will in the presence of deceased. It is also strange that one attesting witness i.e. PW-2 had signed the Will before the judge inside a room whereas PW-3 had signed the Will at his own seat at sub-
registrar Office, Janakpuri.
(131) PW-2 and PW-3 have not deposed in their evidence that Will in question was signed by the deceased in their presence or they had signed the Will in question, in presence of the deceased. They have also not deposed about the fact as to whether Will in question was read by the deceased before signing it or the same was read over to the deceased by anyone at that time. They have also not deposed as to who drafted the Will and what was the mental condition of deceased at the time of execution of Will in question.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 62/66 (132) It is settled law that for due execution of the Will, as per Section 63 (c) of Indian Succession Act, each of the attesting witness must have seen the testatrix signing the Will or affixing his mark on the Will or has received from the testatrix a personal acknowledgment of his signatures on the Will, if testatrix has not signed the Will in presence of attesting witnesses.
(133) It is also settled law that each of the attesting witnesses must have signed the Will in the presence of the testatrix, however, the presence of all witnesses at the same time is not required.
(134) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & 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 P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 63/66 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;
(135) Reliance is also placed on the following judgments:
1. Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead Through Lrs.) Civil Appeal no. 2435 of 2010, decided on 20 November, 2023, ( supra ).
2.Dhani Ram (D) Thr. Lrs. vs Shiv Singh on 6 October, 2023, 2023 Live Law (SC) 862, ( supra ).
3. Janki Narayan Bhoir vs. Narayan Namdeo Kadam ( supra ), JT 2002 (10) SC 340.
P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 64/66 (136) In view of abovesaid discussions and judgments, it is held that the petitioner has failed to prove the due execution of Will in question and the testimony of the attesting witnesses falls short to fulfill the mandatory requirement of Section 63 of Indian Succession Act.
(137) PW-2 and PW-3 have also failed to prove that the deceased was aware about the contents of the Will in question at the time of signing the Will, which is a manadtory requirement for proving the due execution of the Will.
(138) In view of the foregoing facts and discussions, it is held that the petitioner has failed to prove the due of execution of the Will in question. Therefore, the issue no. 1 & 3 are decided in favour of the respondents and against the petitioner.
Findings on issue no. 2.
Issue no. 2: whether the petitioner is entitled for probate/letters of administration on the basis of the aforesaid Will, as claimed? OPP.
(139) In view of the findings on issue no. 1 & 3, it is held that the petiitoner is not entitled for issuance ofprobate/letters of administration on the basis of the Will P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 65/66 in question. Therefore, the issue no. 2 is decided in favour of the respondents and against the petitioner.
RELIEF (140) In view of the findings on issue no. 1to 3, the petition of the petitioner stands dismissed. Parties bear their own cost.
(141) File be consigned to record room after due compliance.
Digitally signedSHIV Announced in the open court (Shiv Kumar ) by SHIV KUMAR Date:
KUMAR 2026.03.17 16:44:21 +0530 On 17.03.2026 District Judge-02 (West), THC, Delhi P.C. NO.16027-2016 Isabella Makhani Vs State of NCT of Delhi & Ors. 66/66