Delhi District Court
Lieutenant General S. B. Akali (Retd) ... vs State And Ors on 19 April, 2025
IN THE COURT OF DISTRICT JUDGE-05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Presided by:-
Sh. Abhishek Srivastava, DHJS
PC No. 43/2017
CNR No:- DLCT01-017726-2017
1. Lt. General S.B. Akali (Retd.),
S/o Late Sh. Amar Singh Akali,
R/o H. No. 6/6, Old Rajinder Nagar,
New Delhi-110060.
Through his special power of Attorney
Mr. B.B. Akali.
2. Sh. B.B. Akali,
S/o Late Sh. Amar Singh Akali,
R/o H. No. 6/6, Old Rajinder Nagar,
New Delhi-110060. .......Petitioners.
Vs.
1. State.
2. Sh. Kanwaljit Singh (Grand son of late Sh. Amar Singh Akali)
S/o late Sh. Sat Sangat Singh,
R/o Bunglow No. 22B, Road No. 72,
Punjabi Bagh (West), New Delhi-110026.
3. Ms. Charanjit Kaur (Grand Daughter of late Sh. Amar Singh Akali)
W/o Sh. Manjit Singh,
R/o A-2/34, 1st Floor, Paschim Vihar,
New Delhi-110063
4. Ms. Jitendera Gaba (Grand Daughter of late Sh. Amar Singh Akali)
PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 1 of 53
Judgment dated 19.04.2025
W/o Sh. Pawan Kumar Gaba,
R/o L-61, West Patel Nagar,
New Delhi-110008.
5. Ms. Tajinder Wadhwan (Daughter of late Sh. Amar Singh Akali),
W/o Late Sh. Surjit Singh Wadhwan,
R/o D-401, Vijaya Apartments,
Ahinsha Khand-2, Indrapuram,
Ghaziabad-201014. ......Respondents
Date of Institution:- 09.10.2017
Date of conclusion of
final arguments:- 07.04.2025
Date of Judgment:- 19.04.2025
JUDGMENT
1. By this judgment, this court shall dispose of the present petition under Sections 276 of the Indian Succession Act, 1925 (hereinafter referred to as Act) filed by the petitioners, seeking grant of probate in respect of Will dated 18.08.1979 executed by Late Sh. Amar Singh Akali S/o Late Sh. Bhai Bahal Singh (hereinafter referred to as the deceased testator) in their favour.
2. The facts of the case, as appeared from reading of the petition (in light of documents filed), in brief, are as under:-
(a) That the petitioners have filed the present petition for grant of probate of the Will dated 18.08.1979 executed by their father Late Sh. Amar Singh Akali, as they both are jointly appointed executors under the Will. The Will dated 18.08.1979 was duly registered with the office of the registrar concerned vide registration No. 1618, Book No. 3, Volume 141, pages 193-194 on 21.08.1979. The petitioner No. 1 has executed a special power of attorney dated 06.10.2017 in favour of the petitioner No. 2 who happens to be his PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 2 of 53 Judgment dated 19.04.2025 real younger brother for the purpose of filing and prosecuting the present probate petition.
(b) That the deceased testator was the owner of the immovable property i.e. property bearing House No. 6/6, Old Rajinder Nagar, New Delhi-110060 (hereinafter referred to as subject property). The deceased testator during his lifetime executed the aforesaid Will whereby he bequeathed the subject property in favour of his wife namely Smt. Laj Kaur and two sons namely Major S. B. Akali and B. B. Akali (petitioners). The deceased testator instructed in the Will that after the death of his wife Smt. Laj Kaur, the subject property shall be divided equally in the name of his both sons. The mother of petitioners Smt. Laj Kaur expired on 30.08.1994 and after her death the subject property devolved upon the petitioners.
(c) That the testor expired on 01.12.1982 leaving behind petitioners and the respondent Nos. 2 to 5 as his legal heirs. Petitioners and the respondent No. 5 are real brother and sister. Respondent Nos. 2 to 4 are grandchildren of the deceased testator being children of Late Sh. Sat Sangat Singh, Son of Late Amar Singh Akali (the deceased testator). Petitioners and Late Sh. Sat Sangat Singh are related to each other by uterine blood (as descended from a common ancestress/mother i.e. Late Smt. Laj Kaur). Sh. Sat Sangat Singh expired on 22.01.2012 leaving behind his legal heirs i.e. the respondent Nos. 2 to 4.
(d) The subject property was constructed by the deceased testator in the year 1959, and as such required urgent repairs. However, since in the revenue records the subject property still stands in the name of the deceased testator, the petitioners could not enter into any PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 3 of 53 Judgment dated 19.04.2025 contractual arrangement for its renovation with any civil company/ civil contractor. In order to enable the petitioners to get the property transferred in their own names in the records of concerned departments/ authorities, after mutual discussion and consent with the respondents, relevant / required documents were prepared and handed over to the respondent Nos. 2, 3, 4 and 5 for getting their signatures.
(e) That the respondent No. 5 signed the same in the first week of April, 2017. Documents handed over to respondent No. 2 were kept by him for getting the same signed by respondent Nos. 3 and 4. However, he failed to return the same. The behaviour of respondent No. 2 subsequently changed and after having the documents for more than two months refused to sign the same without getting his share from the subject property. The petitioners then were constrained to file the present petition.
(f) The deceased at the time of his death had a fixed place of abode (i.e. at House No. 6/6, Old Rajinder Nagar, New Delhi-110060 i.e at subject property) within the jurisdiction of this Court. As such, this Court has territorial jurisdiction to entertain the present petition.
(g) That as per the knowledge of the petitioners, no other petition has been filed for grant of probate of Will in any other Court, as such there is no impediment for grant of probate in favour of the petitioners.
3. The record of the Court file shows that upon filing of this petition, notice of the petition was directed to be issued to the respondents including the respondent/ State through concerned District Collector. Further, citation in terms PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 4 of 53 Judgment dated 19.04.2025 of Section 283 of the Act was directed to be published in Hindi newspaper "Veer Arjun" and English newspaper "Indian Express" calling upon all the persons claiming interest in the estate of the deceased testator to come and see the proceedings and file objections vide Order dated 11.10.2017. Citation was also directed to be displayed on the notice board of the Court and of the concerned District Collector.
4. As per material available on record, citation was duly published in the newspaper "Veer Arjun" dated 26.10.2017 and newspaper "Indian Express"
dated 27.10.2017. The citation has also been published on the notice board of this court on 27.10.2017. As per the record, notice of this petition was served upon all the respondents. Joint written statements/ objections were filed on behalf of the respondent Nos. 2 to 4. Respondent No. 5 made a statement in the Court that she has no objection if the probate of the Will is granted in favour of the petitioners.
5. In their joint written statements/ objections, the respondent Nos. 2 to 4 took the following preliminary objections:-
(a) That the Will in question is not genuine.
(b) That the subject property was purchased by their grandmother Late
Smt. Laj Kaur. That there exists one more Will purported to have been executed by Late Smt. Laj Kaur which is in the exclusive domain of the petitioners.
(c) That the petitioner No. 2 has no authority in law, nor has been duly authorized under SPA dated 06.10.2017 to sign, verify and present the petition in manner prescribed under law. The said SPA dated 06.10.2017 has not been validly executed under law.
(d) That the present petition is liable to be dismissed on the sole ground that the same has not been prepared, signed, verified and presented PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 5 of 53 Judgment dated 19.04.2025 in the manner prescribed under law. That the petition in present form is not in consonance with the provisions of Sections 276, 279, 280 and 281 of the Indian Succession Act, 1925. The present petition is neither verified nor authenticated nor there is any declaration with regard to the status of the attesting witness to the purported Will which is sought to be probated.
(e) That the present petition is hopelessly time barred.
(f) That this Court has no pecuniary jurisdiction to try and entertain the present petition.
6. On merits, the respondent Nos. 2 to 4, in their joint written statements/ objections, inter alia pleaded that;
(a) That the grandmother of the respondent Nos. 2 to 4 Smt. Laj Kaur was earlier married to one Sh. Ganga Ram with whom she had two children namely Sh. Guru Charan Singh Kalra and Sh. Sat Sangat Singh Kalra. After the death of Sh. Ganga Ram, Smt. Laj Kaur re- married with the deceased testator Sh. Amar Singh Akali with whom she had three children i.e. both the petitioners and the respondent No. 5. Late Sh. Amar Singh Akali had adopted the Late Sh. Sat Sangat Singh Kalra.
(b) That Late Sh. Amar Singh Akali could never have executed the Will in question as the relations between the deceased testator and the petitioner No. 1 were never cordial which is evident from one such letter dated 25.02.1971 which was sent by the petitioner No. 1 to Late Sh. Sat Sangat Singh Kalra.
(c) That the petitioners along with some relatives had forcefully entered into the premises of respondent No. 4 on 24.09.2017 thereby threatening the respondent No. 4 to sign pre-notarised and PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 6 of 53 Judgment dated 19.04.2025 typed documents. Petitioners manhandled and threatened the respondent No. 2 as well who was present there.
(d) In view of preliminary objections raised and submissions made hereinabove, the petition of the petitioners is liable to be dismissed with costs.
7. Petitioners thereupon filed the replication to the written statements/objections of the respondents Nos. 2 to 4 wherein they denied the case of the respondent Nos. 2 to 4 and reaffirmed the contents of the petition.
8. On the basis of pleadings of the parties, following issues were framed by the Ld. predecessor of this Court vide Order dated 24.07.2018:-
(1) Whether the petition as filed, is not in the proper form in accordance with the provisions, as laid down in the Indian Succession Act, and also the Rules framed by our own High Court as objected to by respondent No. 2 to 4 ? OPR 2 to 4 (2) Whether the petition suffers from undue delay and latches to the extent that, it would raise suspicion with respect to the execution of the Will itself, as alleged by the respondent No. 2 to 4 ? OPR 2 to 4 (3) Whether the petition as filed has not been duly instituted in as much as the SPA has not been duly executed in accordance with law, as alleged by respondent No. 2 to 4 ? OPR 2 to 4 (4) Whether this Court has no pecuniary jurisdiction to try and entertain the present petition ? OPR 2 to 4.
(5) Whether the Will dated 18.08.1979 alleged to have been executed by Late Sh. Amar Singh Akali S/o Late Sh. Bhai Behal Singh was a validly and genuinely executed document by him in his sound disposing mind, and without any fear or undue influence and was his last and final Will, as claimed by the petitioner ? OPP.
9. During the trial of this petition, six witnesses viz; petitioner No. 2 Sh. B. B. Akali as PW1; Sh. Satish Kumar Thakral (son of one of deceased attesting PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 7 of 53 Judgment dated 19.04.2025 witnesses namely Late Sh. Siri Ram Thakral) as PW2; petitioner No. 1 Lt. General Sh. S. B. Akali as PW3; Ct. Hotam Singh as PW4, Sh. Sunil Dutt, Secretariat Officer, Land & Development Office, Nirman Bhawan as PW5; and Sh. Yogender Paul (the other attesting witness) as PW5 (as two witnesses were numbered as PW5, for convenience, I will refer to this witness as PW6) were examined in support of the case of the petitioners.
10. Sh. B. B. Akali (petitioner No. 2) has been examined by the petitioners as PW1, who has tendered his evidence by way of affidavit Ex.PW1/A alongwith following documents:-
(i) Ex. PW1/1: Original SPA dated 06.10.2017
(ii) Ex. PW1/2: Original Will dated 18.08.1979
(iii) Ex. PW1/3: Death Certificate of Sh. Amar Singh Akali
(iv) Ex. PW1/4: Death Certificate of Late Smt. Laj Kaur
(v) Ex. PW1/5: Copy of order dated sheet dated 14.01.1994 and judgment dated 14.01.1994
(vi) Ex. PW1/6 (Colly): Copy of affidavit of Sh. Sat Sangat Singh Kalra
(vii) Mark PX7: Affidavit of Ms. Tajinder Wadhwan (respondent No. 5)
(viii) Mark PX8: Police complaint dated 24.09.2017
11. PW1 was cross-examined on behalf of the respondent Nos. 2 to 4. During Cross-examination of PW1 following documents were exhibited/ marked:-
(i) Ex. PW1/R1: Petition itself
(ii) Mark PW1/DX1: Affidavit of legal heir for substitution shown to witness (execution of which he denied)
(iii) Ex. PW1/DX2 (OSR): Discharge summary of petitioner No. 1 produced by the witness
(iv) Ex. PW1/D3: A letter pertaining to the year 1972 written by the witness to his step brother Sh. Sat Sangat Singh Kalra and his wife.PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 8 of 53 Judgment dated 19.04.2025
12. Sh. Satish Kumar Thakral (son of one of deceased attesting witnesses namely Late Sh. Siri Ram Thakral) was examined as PW2.
13. Lt. General Sh. S. B. Akali (petitioner No. 1) has been examined by the petitioners as PW3, who has tendered his evidence by way of affidavit Ex.PW3/A. He relied on documents already exhibited during examination of PW1.
14. PW3 was cross-examined on behalf of the respondent Nos. 2 to 4. During Cross-examination of PW3 following documents were exhibited/ marked:-
(i) Ex.PW3/D1: List of witnesses filed along with the petition
(ii) Ex.PW3/D2: Complaint dated 24.09.2017 made by petitioners to the police
15. Ct. Hotam Singh from PS Rajinder Nagar was examined as PW4. He has brought roznamcha B for proving an entry No. 27 as per which a complaint was filed by one Sh. S.B. Akali on 24.09.2017. Same was exhibited as Ex.PW4/1.
16. Sh. Sunil Dutt, Secretariat Officer, Land & Development Office, Nirman Bhawan was examined as PW5. He has brought the summoned record. He deposed that as per record, Will dated 18.09.1979 i.e. Ex.PW5/A (OSR) is at page 18C in file No. 6/6, Old Rajinder Nagar, New Delhi. As per record, affidavit of Sh. Sat Sangat Singh Ex.PW5/B (OSR) is at page No. 21 in file No. 6/6, Old Rajinder Nagar, New Delhi. As per record, lease deed dated 30.08.1969 Ex.PW5/C (OSR) in favour of Sh. Siri Ram is at page No. 7 in file No. 52/31, Old Rajinder Nagar, New Delhi. Signature of Sh. Siri Ram is appearing on each page of Ex.PW5/C at point 'X'. The photocopy of the Will executed by Sh. Siri Ram Mark Z is at page No. 8C in file No. 52/31, Old Rajinder Nagar, New Delhi. Signature of Sh. Siri Ram is appearing on Mark 'Z' at point 'A'.
17. Sh. Yogender Paul (the other attesting witness) is examined as PW5 (examined through LC Dr. Ajaya Kumar Sharma). As two witnesses were PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 9 of 53 Judgment dated 19.04.2025 numbered as PW5, for convenience, I will refer to this witness Sh. Yogender Paul as PW6.
18. All the witnesses PW1 to PW6 were cross-examined on behalf of the respondent Nos. 2 to 4. PE was thereafter closed vide order dated 26.08.2022 and the petition was posted for RE.
19. On behalf of respondents one witness was examined. Respondent No. 2 Sh. Kanwaljit Singh as RW1. RW1 has tendered his evidence by way of affidavit Ex.RW1/A alongwith following documents:-
(i) Mark A (Colly): Affidavits dated 05.04.2017
(ii) Ex.RW2 (OSR): Letter dated 25.02.1971
20. RW1 was cross-examined on behalf of the petitioners. During Cross- examination of RW1 following documents were exhibited/ marked:-
(i) Ex.RW1/P1: Vakalatnama dated 21.01.1994 purportedly signed by Sh.
Sat Sangat Kalra on behalf of the petitioners as well as their mother.
21. No other witness was examined on behalf of the respondents. RE was accordingly closed vide order dated 19.12.2022.
22. Final arguments have thereafter been heard on behalf of petitioners and respondent Nos. 2 to 4. Besides, written submissions have also been filed on behalf of petitioners and respondent Nos. 2 to 4.
23. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record. My issue wise findings on the issues settled by Ld. predecessor of this Court vide Order dated 24.07.2018 are as under:-
ISSUE NOs. 5 AND 2 (5) Whether the Will dated 18.08.1979 alleged to have been executed by Late Sh. Amar Singh Akali S/o Late Sh. Bhai Behal Singh was a validly and genuinely executed document by him in his sound disposing mind, PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 10 of 53 Judgment dated 19.04.2025 and without any fear or undue influence and was his last and final Will, as claimed by the petitioner ? OPP.
(2) Whether the petition suffers from undue delay and latches to the extent that, it would raise suspicion with respect to the execution of the Will itself, as alleged by the respondent No. 2 to 4 ? OPR 2 to 4
24. Both these issues are taken together as they involve common discussion. Onus to prove issue No. 5 was on the petitioners whereas to prove issue No. 2 was on respondent Nos. 2 to 4.
25. The petitioners are propounding a Will dated 18.08.1979 of Late Sh. Amar Singh Akali. The petitioners having set up the Will dated 18.08.1979 must prove this Will in order to succeed in this probate petition. While dealing with this issue, this court will also examine whether there were/ are suspicious circumstances surrounding the Will dated 18.08.1979 making it unreliable.
26. Law relating to proof of Wills is no longer res-integra, in view of the authoritative pronouncements of Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321; Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209 : 2020 SCC OnLine SC 464 and various other judgments. It is a well settled legal position that the onus to prove the due execution of the Will by the testator in a sound and disposing state of mind is upon the propounder of the Will. Moreover, as per the provisions of Section 68 of the Indian Evidence Act, 1872 (Section 67 of the Bharatiya Sakshya Adhiniyam, 2023), even a registered Will is required to be proved by examining at least one of the attesting witnesses to the Will, who shall prove the execution thereof by the testator in terms of Section 63 of the Indian Succession Act, 1925.
27. Moreover, in case, the execution of the Will is surrounded by suspicious circumstances, onus to remove all the legitimate suspicions, before the document is accepted by the Court as the last and genuine Will of the testator, PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 11 of 53 Judgment dated 19.04.2025 shall also be upon the propounder of the Will. No doubt, if a Caveat is filed alleging exercise of undue influence, fraud or coercion in respect of execution of the Will, the same is required to be proved by the Caveator, however, even without any such plea, the circumstances, may give rise to doubts as to whether the testator was acting of his own free will in execution of the Will and onus to remove such legitimate doubts shall also be the part of initial onus of the propounder. The issue as to what circumstances can be considered to be suspicious circumstances surrounding the execution of the Will, shall depend upon the peculiar facts and circumstances of each case and no straight jacket formula can be laid down in this regard.
28. This Court shall now proceed to examine whether, in the facts and circumstances of the case and in the light of aforesaid legal principles, petitioners, being the propounder of the Will dated 18.08.1979; Ex.PW1/2, have been able to discharge their onus to prove the due execution of the said Will by the deceased testator in a sound disposing state of mind.
29. Case of the petitioners is that the Will dated 18.08.1979; Ex.PW1/2 was attested by two attesting witnesses; namely, Sh. Siri Ram Thakral and Sh. Yogender Paul. Sh. Siri Ram Thakral had already expired, as such, he could not be examined. His son Sh. Satish Kumar Thakral was examined as PW2 who identified signatures of his father on the Will. The other attesting witness Sh. Yogender Paul was examined as a PW5 (for convenience, I will refer to this witness as PW6).
30. Before I examine the deposition of Sh. Yogender Paul (PW6) and Sh. Satish Kumar Thakral (PW2) as to whether it amounts to proving of the subject Will, let me at this stage reproduce the ratio of a judgment of the Hon'ble Supreme Court in the case of M.B. Ramesh (Dead) By LRs. V/s. K.M. Veeraje Urs (Dead) by LRs and Others (2013) 7 SCC 490. The relevant paras of the PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 12 of 53 Judgment dated 19.04.2025 judgment in M.B.Ramesh's case (supra) are paras 18, 19, 27, 28, 29 and 30 and which paras read as under:-
"18. That takes us to the crucial issue involved in the present case viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by Section 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section "which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances", as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available.
19. The relevant provisions of these three sections read as follows:
Section 63 of the Succession Act:
"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)-(b) *****
(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 PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 13 of 53 Judgment dated 19.04.2025 the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of 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."
Section 68 of the Evidence Act:
"68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence."
Section 71 of the Evidence Act:
"71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
XXXXX XXXXX XXXXX
27. The approach to be adopted in matters concerning wills has been elucidated in a decision on a first appeal by a Division Bench of Bombay High Court in Vishnu Ramkrishana v. Nathu Vithal. In that matter, the Respondent Nathu was the beneficiary of the will. The Appellant filed a suit claiming possession of the property which was bequeathed in favour of Nathu, by the testatrix Gangabai. The suit was defended on the basis of the will, and it came to be dismissed, as the will was held to be duly proved. In appeal it was submitted that the dismissal of the suit was erroneous, because the will was not proved to have been executed in the manner in which it is required to be, under Section 63 of Indian Succession Act. The High Court was of the view that if at all there was any deficiency, it was because of not examining more than one witness, PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 14 of 53 Judgment dated 19.04.2025 though it was not convinced that the testatrix Gangabai had not executed the will. The Court remanded the matter for additional evidence under its powers under Order 41 Rule 27 Code of Civil Procedure. The observations of Chagla C.J., sitting in the Division Bench with Gajendragadkar J. (as he then was in Bombay High Court) in paragraph 15 of the judgment are relevant for our purpose: (AIR pp. 270-71) "15...We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent - and grossly negligent- in not complying with the requirements of Section 63 and proving the will as they ought to have should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not." (Emphasis supplied)
28. As stated by this Court also in H. Venkatachala Iyengar and Jaswant Kaur, while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court's role in matters concerning the wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind as observed by this Court in para 77 of Gurdev Kaur v. Kaki. In the present matter, there is no dispute about these factors.PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 15 of 53 Judgment dated 19.04.2025
29. The issue raised in the present matter was with respect to the due execution of the will, and what we find is that the same was decided by the trial Court, as well as by the first appellate Court on the basis of an erroneous interpretation of the evidence on record regarding the circumstances attendant to the execution of the will. The property mentioned in the will is admittedly ancestral property of Smt. Nagammanni. She had to face a litigation, initiated by her husband, to retain her title and possession over this property. Besides, she could get the amounts for her maintenance from her husband only after a Court battle, and thereafter also she had to enter into a correspondence with the Appellant to get those amounts from time to time. The Appellant is her stepson whereas the Respondents are sons of her cousin. She would definitely desire that her ancestral property protected by her in a litigation with her husband does not go to a stepson, but would rather go to the relatives on her side. We cannot ignore this context while examining the validity of the will.
30. In view of the above factual and legal position, we do hold that the Plaintiffs/Respondents had proved that Smt. Nagammanni had duly executed a will on 24.10.1943 in favour of the Plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The finding of the Trial Court as well as the First Appellate Court on issue No. 2 was clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the Trial and Appellate Court, though concurrent, were bad in law and perverse and contrary to the evidence on record. The second appeal was, therefore, rightly allowed by him. Accordingly, we dismiss the present civil appeal. The Suit No. 32 of 1975 filed by the Respondents in the Court of Principal Civil Judge at Mandya in Karnataka will stand decreed. They are hereby granted a declaration of their title to the suit property, and for a permanent injunction restraining the Defendants from interfering with PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 16 of 53 Judgment dated 19.04.2025 their possession thereof. In case their possession has been in any way disturbed, they will be entitled to recover the possession of the concerned property, with future mesne profits. In the facts of the present case, however, we do not order any costs." (emphasis added)"
(Underlined by me)
31. A reference to the aforesaid paras show that technicalities must not come as an insurmountable obstruction to defeat a litigant and once an attesting witness is examined, and his statement if read holistically shows proof of the execution and attestation of the Will then the Will should be held to be proved.
32. I am reproducing herein below the examination-in-chief and cross- examination of Sh. Yogender Paul (PW6);
"At this stage witness is shown the original WILL already exhibited as Ex. PW-1/2 from the court records and is asked to point out his signatures on the same.
At this stage the witness has identified his signatures on the document on Ex. PW-1/2 and the same is now marked points as point 'X' and 'Y'. I state that I stood as a witness to this document while putting my signatures thereon when the testator approached me for at the time of the registration of Ex. PW-1/2.
I state that when I put my signatures on the exhibit document the testator had already put his signatures on the WILL as well as the first attesting witness signatures were already there on the document. (Vol. I do not remember exactly who put signatures first and who later on but when I put my signatures, the signatures of both the testator as well as first attesting witness were already there on the document.) 1 state that the date on the document was already marked when the testator came to me for the purpose of registration of the document. I was present in the office of Sub-Registrar, Asaf Ali Road, New Delhi at the time of the registration of the WILL on that day.PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 17 of 53 Judgment dated 19.04.2025 It is correct that the WILL is inscribed on two pages, page No. 1 and 2 whereas overleaf of both the pages the stamps and details of the registration are existing.
There is no mention of my address on the WILL in question. XXX by Sh. Manish Garg Ld. Counsel for the respondent No. 2 to 4. It is correct that Ex. PW-1/2 does not bear my signature on page No. 1. (Vol. I signed as a marginal witness on the WILL).
I state that to me, the meaning of marginal witness is the second attesting witness.
I do not remember the date and time when the testator came to me for the purpose of registration of the said WILL.
The testator came to me at the office Sub-Registrar, Asaf Ali Road, New Delhi for the purpose of attestation of the said WILL. I used to sit there the outside of the office of Sub-Registrar along with some other 5-6 Advocates.
I used to do the business of drafting as an Advocate there and also used to help the known parties as attesting witness.
I did not know the testator when the testator approached me for the attestation of the said WILL. (Vol. I signed being known to the Sub- Registrar as marginal attesting witness as it was mandatory, the marginal witness had to sign being an advocate.) I have been practising as an Advocate while sitting there at the Sub- Registrar office from 1970 to 2018.
It is correct that I had signed hundreds of such documents being marginal and second attesting witness. I have never signed as first attesting witness for any WILL.
I usually did not go through the contents of the WILL/documents but I used to confirm and check the antecedent like the particular and signatures of the parties in respect of WILL/document.PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 18 of 53 Judgment dated 19.04.2025 I used to confirm from the parties whether the documents bear their signatures and other particulars before putting my signature on the document before registration.
I confirmed from the testator of Ex. PW-1/2 that he is executing a WILL, however, I did not ask for the details of the recitals mentioned in the WILL.
I did not maintain any record for my being marginal/ second attesting witness for the WILL/ document.
I do not remember as of now whether I used to maintain a rubber seal/ stamp then as an Advocate.
In the beginning I did not have any rubber seal for that matter but in the year 2018 I used to maintain one.
I received a summon from the court thereafter I came to know that I have to appear and depose for a WILL. Though, I had returned the summon mentioning thereon that I cannot move considering my present state of health to appear in the court to depose for the WILL. It was a bare summon without any application and the copy of the WILL. I do not recognize any of the petitioners.
I used to charge nominal fees of Rs.5 or 10 for signing as marginal witness on the WILL.
I do not know who is or was the first attesting witness for the said WILL. I used to sign as marginal witness for the WILL/documents as an Advocate and as per the requirement of the office of the Sub-Registrar. I do not have any document pertaining to my signatures of 1979 to be verified, I do not keep any record.
(Objected by Ld. Counsel for the petitioners that such verification or corroboration of the signatures of witness is not necessary when the witness has already and clearly identified his signatures on the WILL in question).PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 19 of 53 Judgment dated 19.04.2025 The petitioners never approached me before and after the above said summoning instance from the Hon'ble Court in respect of the said WILL. I do not remember the date of the WILL, and its execution and date of registration and the same for its presentation for the purpose of registration.
Q. How many copies of the WILL were prepared and maintained at the time of registration?
Ans. The maintenance of such record is a job of the office of Sub- Registrar. Again said, it was prepared and submitted in duplicate and the original copy was supposed to be handed over to the testator and the duplicate one was kept for official records.
Q. Since you have been practising as an Advocate in the office of Sub- Registrar and assisting the testators for that matter from 1970 to 2018, are you fully conversant with the procedure for registration of WILL? Ans. The WILL/ documents were submitted in the office of Sub- Registrar but I am not concern with the procedure etc. The testator and parties directly approach the office of Sub-Registrar for obtaining the certified copies of the WILL /documents etc. I do not help the parties for their such requirements.
It could be possible that the Sub-Registrar office is maintaining the records pertaining to the year 1979. Again said, it is the job of the Sub- Registrar and not of mine. There is a provision of a Record Keeper to maintain the such record.
As per my experience, such record pertaining to the year 1979 is available at Asaf Ali Road office or not, only the officials of Asaf Ali Road Sub-Registrar can tell.
I do not know the name who has put the signatures at points Z and Z-1 on Ex. PW-1/2 but I know the same are that of testator. I do not know the name who has put the signatures at point Z-2 on Ex. PW-1/2 but I know the same are that of the first attesting witness. I do not remember PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 20 of 53 Judgment dated 19.04.2025 at present whose signatures are there on the exhibited WILL at points Z-3, 2-4 and 2-5 on Ex. PW-1/2."
33. Before we start examining/ appreciating the testimony of Sh. Yogender Paul (PW6), we have to keep in mind that the Will in question was of the year 1979 and the witness was examined in the year 2019 (after 40 years). Further, at the time of his examination (through Ld. Local Commissioner), witness was of 100 years. From reading of his deposition, the following things emerge;
(a) PW6 did not know the testator personally.
(b) PW6 replied in cross-examination that he had confirmed from the testator of Ex.PW1/2 that the testator was executing a Will. He, however, did not ask for the details of recitals mentioned in the Will.
(c) PW6 was conscious of the fact that he was to stand as an attesting witness to the Will in question Ex.PW1/2 (and had put his signatures thereon) when the testator approached him at the time of registration of Ex.PW1/2.
(d) When he put his signatures on Ex.PW1/2, the testator and the first attesting witness had already put their signatures on Ex.PW1/2.
(e) The date (18.08.1979) on the document was already marked when the testator had come to him for the purpose of registration of the Will.
(f) He did not know the first attesting witness.
(g) PW6 was an advocate who practiced in the Sub-registrar office from 1970-2018. PW6 had signed hundreds of such documents being marginal and second attesting witness. He never signed as the first attesting witness. He used to sign as a marginal witness for the Will/ documents as an Advocate and as per requirement of the PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 21 of 53 Judgment dated 19.04.2025 office of Sub-Registrar. He used to charge a nominal fee of Rs. 5 or 10 for signing as a marginal witness on the Will.
(h) He identified his signatures on the Will Ex.PW1/2 at points 'X' and 'Y'.
(i) Ex.PW1/2 does not bear his signature on page No. 1. PW6 tried to explain that he signed as a marginal witness. For him, the meaning of marginal witness was a witness who signed as a second attesting witness.
(j) He deposed in his cross-examination to the effect that I do not know the name who has put the signatures at points Z and Z-1 on Ex. PW-1/2 but I know the same are that of testator. I do not know the name who has put the signatures at point Z-2 on Ex. PW-1/2 but I know the same are that of the first attesting witness. I do not remember at present whose signatures are there on the exhibited WILL at points Z-3, Z-4 and Z-5 on Ex. PW-1/2.
(k) He did not remember the date on the Will, its execution and date of registration.
34. So, PW6 identified his signatures on Ex.PW1/2 as one of the attesting witnesses to the Will which he had put on the date of registration on the asking of the testator. However, when he put his signatures (on the date of registration i.e. 20.08.1979) on Ex.PW1/2, the respective signatures of the testator and the first attesting witness were already there on Ex.PW1/2. In other words, Will dated 18.08.1979 was not signed by the testator in the presence of PW6.
35. The settled legal principle in this regard is that Section 63 (c) of the Indian Succession Act, 1925 makes provision for an acknowledgment by the testator and attestation by witnesses in the execution of a Will, the acknowledgment may take the form of express words, conduct, or a combination thereof, as long as it PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 22 of 53 Judgment dated 19.04.2025 unequivocally demonstrates the testator's recognition of the Will's execution. When a testator requests someone to attest his Will, it is reasonable to infer that the testator is acknowledging the Will's execution since the Succession Act does not mandate that the testator sign the Will in the presence of the attesting witnesses only. This principle was expounded by the Hon'ble Supreme Court in its decision in Ganesan V/s Kalanjiam, (2020) 11 SCC 715 when it held as under:
"5. The appeals raise a pure question of law with regard to the interpretation of Section 63(c) of the Act. The signature of the testator on the Will is undisputed. Section 63(c) of the Succession Act requires an acknowledgment of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgment may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgment on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the Will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the Will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will."
(Underlined by me)
36. The aforesaid principle laid down in Ganesan (supra) makes it clear that a personal request by the testator to a person to attest his Will is reasonable inference of the testator admitting that the Will has been executed by him.
PC No. 43/2017Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 23 of 53 Judgment dated 19.04.2025
37. As is come on record that PW6 was an advocate who practiced in the Sub- registrar office from 1970-2018 and had signed hundreds of such documents being marginal/ second attesting witness. Further, he used to charge a nominal fee of Rs. 5 or 10 for signing as a marginal witness on the Will. Would/ should this fact affect the reliability of PW6 ? To attest is to bear witness to a fact. The object of attestation is to establish that the purported executant in fact executed the document. For a valid attestation, the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If we examine the testimony of PW6 in light of these principles, it is plain that the Will was attested by PW6. PW6 has deposed to the effect that I stood as a witness to this document while putting my signatures thereon when the testator approached me for at the time of the registration of Ex. PW-1/2. PW6 further deposed in cross-examination I usually did not go through the contents of the WILL/documents but I used to confirm and check the antecedent like the particular and signatures of the parties in respect of WILL/document...I used to confirm from the parties whether the documents bear their signatures and other particulars before putting my signature on the document before registration...I confirmed from the testator of Ex. PW-1/2 that he is executing a WILL, however, I did not ask for the details of the recitals mentioned in the WILL. Once it is proved on record that PW6 had put his signatures on the Will with an intent to attest, the mere fact that PW6 was an advocate who practiced in the Sub-registrar office from 1970-2018 and had signed hundreds of such documents being marginal/ second attesting witness, or that he used to charge a nominal fee of Rs. 5 or 10 for signing as a marginal witness on the Will, in the considered view of this Court, would not erode the value/ quality of testimony of PW6.
PC No. 43/2017Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 24 of 53 Judgment dated 19.04.2025
38. Now coming to another aspect. It is further clear from the testimony of PW6 that this is a case where both the attesting witnesses did not put their respective signatures at the same time. Evidence of PW6 establishes that the Will was attested by him. The attestation of second witness Sh. Siri Ram Thakral, however, could not be established by him (as Sh. Siri Ram Thakral did not sign the Will in the presence of PW6). In such an event, in order to prove due execution, it was necessary to examine both the attesting witnesses. However, in the present case, the other attesting witness Sh. Siri Ram Thakral could not be examined as he had already expired. The petitioners accordingly examined the son of Late Sh. Siri Ram Thakral, namely Sh. Satish Kumar Thakral as PW2 who identified the signatures of Late Sh. Siri Ram Thakral on the Will.
39. I am now reproducing herein below the examination-in-chief and cross- examination of Sh. Satish Kumar Thakral (PW2);
"I am a retired Chief Engineer from Ministry of Power and now I work as a Consultant. I retired in September, 2010.
I am not a summoned witness, I was asked by Lt. General S.B. Akali to appear and depose about the case.
About a month back, both Mr. S.B. Akali and B.B. Akali had come to my house to ask me to depose about the case and they had shown me a Will, which I saw for the first time. Both the brothers told me that my father had stood a witness to the said Will and asked me to identify my father's signature on the said document. The said document was a photocopy. I have seen the document and identified my father's signature thereon at the appropriate point. I can identify the said signature of my father on the original of the document, as well, if shown to me. At this stage, the witness has been shown the original Will and he has been asked to point out his father's signature on the said Will. At this PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 25 of 53 Judgment dated 19.04.2025 stage, the witness has identified his father's signature at points now being at points A and B on the Will already Ex.PW1/2.
I state that I have also seen the address on the Will which also is the correct address of my father and written in his own handwriting. My father is no more. My father has expired on 27 January, 1982. My father was matriculate and he used to sign in English. I used to see my father signing and writing in normal course on various documents in the course of his life i.e. at the time of my college admission and several other opportunities like that.
I know that the Will Ex.PW 1/2 had been made by the father of Sh. B.B. Akali and Sh. S.B. Akali. I do not recall the name of their father. My father knew the father of Sh. S.B. Akali and Sh. B.B. Akali, through his friends circle. They had been neighbours in Rajinder Nagar itself. I never knew Sh. S.B. Akali and Sh.B.B. Akali before they approached me one month back. I had seen the father of both Sh. S.B. Akali and Mr. B.B. Akali just once, long long ago when I was a child and when I had already left home at the age of 15 years for my engineering studies. I do not have any personal knowledge of the execution of the Will, I only identifies the signature and writing on this documents. My father had never told me that he had gone to stand a witness to any Will. I came to know about his having stood as a witness only from the copy of this document first through Sh. S.B. Akali and Sh. B.B. Akali and now through the original Will.
Whatever, I have stated is true and correct.
XXX by Sh. Manish Garg Ld. Counsel for the respondent No. 2 to 4. My father was a Civil Contractor and he was also a document writer. He used to write documents at home itself. I do not exactly know about the special qualification he might had obtained for writing documents, but my father only had told me that he was having some certificate/licence for document writing, but I never asked him to show it. I do not PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 26 of 53 Judgment dated 19.04.2025 remember the exact date when Sh. S.B. Akali and Sh. B.B. Akali have approached me to depose in this case.
I am not having any document signed and written by my father as of now, but I can certainly produce the same on the next date. (Witness is directed to produce the documents which may had been written and signed by his father in the relevant year 1979 or around) I do not have any such document to produce.
To court: My father is no more. I do not have access to any of those documents. My mother had succeeded to his properties by virtue of a Will executed by my father. I do not have that Will in my possession. It was with my brother Mr. Jitender Kumar Thakral, but even the said brother is no more. His wife has the Will but his wife resides at Dubai. My brother only was looking after the affairs of my father as such I do not have any such documents. My father was having account with PNB at Gurudwara Road, Karol Bagh, but I do not have his account number. I did not try to enquire from the bank about his account number. I am 68 years old and I cannot run around and go to the bank. My father had no passport even. He died in 1982 when there was no Voter ID card system nor the AADHAR card.
Both the petitioners contacted me at my present address. I have been residing at the C-43, Retreat Apartment, Patparganj, Delhi for the last 2 or 3 years or so. Last I resided in the Rajinder Nagar house was perhaps way back in 2006. The Rejinder Nagar property was divided into four shares and one share came to me in the form of one flat. The said flat no.52/31, Second Floor, Rajinder Nagar, Delhi continues to be in my possession. I have let it out. Petitioners had managed to approach me at the Patparganj address as they first gone to Rajinder Nagar address and then they came to know about my present address through the tenants. They are four or five students who are my tenants. I do not remember the names of my tenants. One of them is one Mr. Kaushik. I do not know his PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 27 of 53 Judgment dated 19.04.2025 first name. Between the period from 2006 i.e. when I lastly resided at Rajinder Nagar and the period of 2 and half year from when I started residing at Patparganj, in between I resided at the government flat at Chanakaya Puri. I am aware about the controversy involved in the present case. I had also gone through the file of this case, though not the whole of it in depth but just cursory glance through the file. The petitioners had shown me their file.
It is wrong to suggest that I am not aware about the complete facts of this case. I am aware that in all the petitioners and their brothers are four brothers and this knowledge I have derived while going through the Will. It is wrong to suggest that the petitioners and they brothers in all are five brothers. Vol., atleast in my knowledge, they are four brothers. They have one sister. (The witness from his demeanor does not seem very certain).
The petitioners when they came to me, had shown me only the Will, and not the entire facts of the case. It is wrong to suggest that I am deposing at the instance of the petitioners. Vol., though the petitioners had requested me and asked me to identify the signature of my father, since I could identify the same, I agreed to appear before the court and to identify the signatures. The petitioners had approached me at my house 8-10 days prior to the last date of hearing. It was in the day time. I do not know the exact time but it might have been late morning hours or afternoon. At that time, only my wife was present at home and no other person. The petitioners introduced themselves to me. I believed the petitioners. Vol., I had no reason to disbelieve from the way whatever they were talking. I did not see any need to check their ID proof."
40. From reading the deposition of Sh. Satish Kumar Thakral (PW2), the following things emerge;
(a) PW2 appeared as a witness on the asking of petitioners.
PC No. 43/2017Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 28 of 53 Judgment dated 19.04.2025
(b) His father died on 27 January, 1982.
(c) PW2 identified the signatures of his father on the Will Ex.PW1/2.
(d) PW2 deposed that he has seen the address on the Will which is the correct address of his father and written in his own handwriting.
(e) PW2 deposed that his father used to sign in English. He had seen his father signing and writing on various documents during his lifetime i.e. at the time of his college admission and several other opportunities like that.
(f) That his father knew the father of the petitioners through a friend circle. They had been neighbours in Rajinder Nagar.
(g) However, he did not know the petitioners before the petitioners approached him.
(h) PW2 deposed in cross-examination that his father was a Civil Contractor and he was also a document writer.
(i) PW2 deposed in cross-examination that he was not having any document signed and written by his father. Witness has explained the reasons for not having any such documents (which I reproduced herein above and underlined).
(j) PW2 deposed in cross-examination that Since 2006, he resided at Rajinder Nagar. Then he shifted to a government flat at Chanakyapuri. And, for the last 2-3 years he is residing at the C-43, Retreat Apartment, Patparganj, Delhi where the petitioners approached him. Flat no. 52/31, Second Floor, Rajinder Nagar, Delhi continues to be in his possession which he has let out.
41. Contention of the respondent Nos. 2 to 4 is that the PW2 is a motivated and tutored witness and is not reliable. Following submissions in this regard were made;
PC No. 43/2017Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 29 of 53 Judgment dated 19.04.2025
(a) PW2 failed to produce any document signed and written by his father.
(b) There is a contradiction in the statement of PW2 and PW3.
(c) PW2 contradicted himself.
42. Let us consider each submission one by one.
43. It is a fact that the PW2 identified signatures of his father on Will Ex.PW1/2. Further, the address appearing of his father on the Will (Flat no. 52/31) is of the same house which he/ PW2 still occupies and his tenant(s) are residing there. In his cross-examination PW2 was asked to produce some documents signed and written by his father. He failed to produce the same. He however explained the reasons for not providing the same which I have reproduced and underlined herein above. I am again reproducing the same;
"My father is no more. I do not have access to any of those documents. My mother had succeeded to his properties by virtue of a Will executed by my father. I do not have that Will in my possession. It was with my brother Mr. Jitender Kumar Thakral, but even the said brother is no more. His wife has the Will but his wife resides at Dubai. My brother only was looking after the affairs of my father as such I do not have any such documents. My father was having account with PNB at Gurudwara Road, Karol Bagh, but I do not have his account number. I did not try to enquire from the bank about his account number. I am 68 years old and I cannot run around and go to the bank. My father had no passport even. He died in 1982 when there was no Voter ID card system nor the AADHAR card."
44. Explanation furnished by the witness/ PW2 for not producing documents signed and written by his father appears to be bonafide. One thing may be noted in this context. After examination of PW2, petitioners subsequently examined a witness Sh. Sunil Dutt, JSO from Secretariat Officer, Land & Development PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 30 of 53 Judgment dated 19.04.2025 Office, Nirman Bhawan as PW5. PW5 has brought a lease deed dated 30.08.1969 Ex.PW5/C (OSR) in favour of Sh. Siri Ram (which lies at page No. 7 in file No. 52/31, Old Rajinder Nagar, New Delhi). Signature of Sh. Siri Ram is appearing on each page of Ex.PW5/C at point 'X'. PW5 has also brought the photocopy of the Will executed by Sh. Siri Ram in favour of his wife Mark Z (which lies at page No. 8C in file No. 52/31, Old Rajinder Nagar, New Delhi). Signature of Sh. Siri Ram is appearing on Mark 'Z' at point 'A'. So, some other signatures of the attesting witness Sh. Siri Ram is available on record. This Court however would not attempt to compare them with the one appearing on the Will as originals of Ex.PW5/C or Mark Z are not on record. I have noted this fact just to show that there is truth in the statement of PW2 when he deposed to the effect that [M]y mother had succeeded to his properties by virtue of a Will executed by my father.
45. Next submission is that there is a contradiction in the statement of PW2 and PW3. PW2 has deposed that about a month back, the petitioners had come to his house to ask him to depose about the case (PW2 stated so while he was examined in chief on 10.10.2018). PW3 however deposed contrary to this. Relevant cross-examination of PW3 is reproduced herein below;
"...Neighbours told us that Sh. Satish had shifted from that address and they gave us the new address i.e. Flat No. 43, Revenue Apartment, Patparganj, Delhi...Before June, 2018 we had no need to make any enquiry about the sons of Sri Ram or for Satish. Point A Even when we filed the petition, neither I nor my brother knew that Sri Ram had any son with the name of Satish. Point A. At this stage witness is confronted with the list of witness which was filed alongwith the petition on 09.10.2017 and which is very well showing the name of Sh. Satish Kumar Thakral, therein at Sl. no. 6 and witness is called upon to explain away between the said contents at point PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 31 of 53 Judgment dated 19.04.2025 now being B to B as to what he has stated above at point A to A and the witness states as under:-
"I can not say the reason for this contradiction. It might be my loss of memory. But I know for sure that we started making any enquiry about the son of Sri Ram in June or July 18 itself as stated by me above."
List of witness is exhibited at this stage as Ex.PW3/D1. It is correct that I have also signed the petition. I executed a Power of Attorney already Ex.PW1/1, in favour of my brother, even though I have signed the petition, for the simple reason that I was not keeping good health and I am suffering from Cancer so that the attorney can be used as and when required..."
46. Once it is on record that the name of PW2 is appearing in the list of witnesses Ex.PW3/D1 which was filed on 09.10.2017 alongwith the petition, PW3 is clearly lying when he is deposing to the effect that [B]efore June, 2018 we had no need to make any enquiry about the sons of Sri Ram or for Satish . PW3 has provided a certain explanation in this regard which I will examine a bit later.
47. But merely because the name of the PW2 is appearing in the list of witnesses filed by petitioners, it can not be assumed that PW2 was aware about this case or that he was indeed approached by the petitioners at that time. No suggestion was given to PW2 on behalf of the respondent Nos. 2 to 4 that he was aware of the case since 09.10.2017. The list of witnesses was also not put to PW2.
48. So far as contradiction qua address of PW2 is concerned that PW2 deposed that both the petitioners approached him at C-43, Retreat Apartment, Patparganj, Delhi whereas PW3 deposed the address of PW2 as Flat No. 43, Revenue Apartments, Patparganj, Delhi; the contradiction, in the considered opinion of this Court, is not a material one, having no bearing on respective PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 32 of 53 Judgment dated 19.04.2025 testimonies of PW2 and PW3. PW3 has correctly deposed the flat No. of PW2, however he was wrong in stating the name of the flat as 'Revenue' instead of 'Retreat'.
49. Last contention of the respondents in this connection is that PW2 contradicted himself. It was submitted that PW2 deposed in his examination in chief to the effect that [A]bout a month back, both Mr. S.B. Akali and B.B. Akali had come to my house to ask me to depose about the case and they had shown me a Will, which I saw for the first time. And, then later on deposed in his examination-in-chief that I know that the Will Ex.PW1/2 had been made by the father of Sh. B.B. Akali and Sh. S.B. Akali. I do not recall the name of their father.
50. It may be noted that before making subsequent statement in his examination-in-chief (which was objected to by the respondent Nos. 2 to 4), PW2 in his examination-in-chief has already identified his father's signature on the Will Ex.PW1/2 (just before making subsequent statement). When viewed in the context, clearly, there is no contradiction in both the statements made by PW2 in his deposition. PW2 is clear in his statement that he was approached by the petitioners about a month back for identifying signatures of his father in a Will and a copy of the Will was also shown to him by the petitioners. He identified the signatures of his father on the Will Ex.PW1/2. And, then he stated that he knew that the Will Ex.PW1/2 had been made by the father of Sh. B.B. Akali and Sh. S.B. Akali.
51. So, if we read the testimony of PW2 with the testimony of PW6, it is evident that the petitioners have been able to prove that the signatures appearing on the Will dated 18.08.1979 Ex.PW1/2 are of Late Sh. Siri Ram Thakral who had put his signatures thereon as one of the attesting witnesses.
PC No. 43/2017Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 33 of 53 Judgment dated 19.04.2025
52. Ld. Counsel for respondent Nos. 2 to 4 relied on two decisions of Hon'ble Supreme Court viz. Dhani Ram (died) through LRs. & others V/s Shiv Singh, Civil Appeal No. 8172 of 2009 decided on 06.10.2023 and Lalitaben Jayantilal Popat V/s Pragnaben Jamnadas Kataria & Ors., Civil Appeal No. 7434 of 2008 decided on 19.12.2008 to contend that Will dated 18.08.1979 Ex.PW1/2 has not been proved as per Section 63 of the Indian Succession Act, 1963. A close scrutiny of the facts and the controversy involved in the Dhani Ram Supra and Lalitaben Jayantilal Popat Supra would show that they were decided on different factual matrices and are distinguishable on facts.
53. In Dhani Ram Supra Hon'ble Supreme Court observed that a bare perusal of the statements made by two attesting witnesses namely Lok Nath Attri (DW-2) and Chaman Lal (PW-4) demonstrates that they are not on the same page. Hon'ble Supreme Court further noted that Lok Nath Attri (DW-2) claimed that Leela Devi signed the Will in his presence and in the presence of Chaman Lal. However, and most significantly, he did not state that Chaman Lal and he affixed their signatures in the document in the presence of Leela Devi. On the other hand, Chaman Lal claimed that he put his signatures at the bottom of the pages at the request of Dhani Ram and that he never saw Leela Devi affix her signatures in the document. Hon'ble Supreme Court accordingly concluded as Section 68 of the Evidence Act requires at least one attesting witness to the Will to prove its execution in terms of Section 63 of the Succession Act, but it is clear that neither Lok Nath Attri nor Chaman Lal passed muster in satisfying this requirement. In consequence, Section 71 of the Evidence Act had a role to play in the matter, as one attesting witness, Chaman Lal, denied the very execution of the document in his presence while the other attesting witness, Lok Nath Attri, did not establish its execution in terms of the legal mandate. It was, therefore, PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 34 of 53 Judgment dated 19.04.2025 incumbent upon Dhani Ram to lead other evidence to prove the execution of the Will by Leela Devi.
54. In Lalitaben Jayantilal Popat Supra, the Hon'ble Supreme Court held that when it is not proved that both the attesting witnesses had either attested the Will in the presence of each other or that the testator had acknowledged his signature in the presence of the other attesting witness, the Will is not legally proved. In the present case, it is a proven fact that both the attesting witnesses had not attested the Will in the presence of each other. But the petitioners have been able to prove on record that one of the attesting witnesses namely Sh. Yogender Paul (PW6) has attested the Will in question on a personal request of the testator and as such a reasonable inference can be drawn that the testator must have acknowledged his signature on the Will to the attesting witness before asking him to put his signature. Petitioners have further been able to prove on record that the other attesting witness namely Sh. Siri Ram has already expired, and proved his signature on the Will in question by getting it identified by the son of the attesting witness namely Sh. Satish Kumar Thakral (PW2).
55. This Court now proceeds to examine as to whether the execution of the Will dated 18.08.1979 Ex.PW1/2 was surrounded by any suspicious circumstances. And, if there were any, whether the petitioners have been successful in removing those suspicious circumstances, before the Will dated 18.08.1979 Ex.PW1/2 is accepted by this Court as the last and genuine Will of the testator Late Sh. Amar Singh Akali.
56. Case of the petitioners is that the testator expired on 01.12.1982 leaving behind petitioners and the respondent Nos. 2 to 5 as his legal heirs. Petitioners and the respondent No. 5 are real brother and sister being children of deceased testator and Smt. Laj Kaur. Wife of deceased testator namely Smt. Laj Kaur (before marrying the deceased testator) was married with one Sh. Ganga Ram PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 35 of 53 Judgment dated 19.04.2025 with whom she had two children namely Sh. Guru Charan Singh and Sh. Sat Sangat Singh. Respondent Nos. 2 to 4 are children of Sh. Sat Sangat Singh. Petitioners and Late Sh. Sat Sangat Singh as such are related to each other by uterine blood (as descended from a common ancestress/mother i.e. Late Smt. Laj Kaur). Sh. Sat Sangat Singh expired on 22.01.2012 leaving behind his legal heirs i.e. the respondent Nos. 2 to 4.
57. Further case of the petitioners is that the subject property was constructed by the deceased testator in the year 1959, and as such required urgent repairs. However, since in the revenue records the subject property still stands in the name of the deceased testator, the petitioners could not enter into any contractual arrangement for its renovation with any civil company/ civil contractor. In order to enable the petitioners to get the property transferred in their own names in the records of concerned departments/ authorities, after mutual discussion and consent with the respondents, relevant/ required documents were prepared and handed over to the respondent Nos. 2, 3, 4 and 5 for getting their signatures. The respondent No. 5 signed the same in the first week of April, 2017. However, respondent Nos. 2 to 4 refused to sign the same without getting their shares from the subject property. The petitioners as such filed the present petition.
58. Case of the respondent Nos. 2 to 4, on the other hand, is that the deceased testator Late Sh. Amar Singh Akali had adopted the Late Sh. Sat Sangat Singh Kalra. That the subject property was purchased by the grandmother Late Smt. Laj Kaur and there exists one more Will purported to have been executed by Late Smt. Laj Kaur. That Late Sh. Amar Singh Akali could never have executed the Will in question as the relations between the deceased testator and the petitioner No. 1 were never cordial which is evident from one such letter dated 25.02.1971 which was sent by the petitioner No. 1 to Late Sh. Sat Sangat Singh PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 36 of 53 Judgment dated 19.04.2025 Kalra. Lastly, that the deceased testator expired on 01.12.1982, mother of the petitioners expired on 30.08.1994 and father of respondent Nos. 2 to 4 on 22.02.2012 and the petitioners filed the present petition after a long delay.
59. Three things are required to be noted at the outset; Firstly, the respondent Nos. 2 to 4 are children of the step-son of the deceased testator; secondly, respondent Nos. 2 to 4 have admitted in cross-examination that they have not filed any documents showing that the subject property was purchased out of the funds of their grandmother namely Smt. Laj Kaur or that the deceased testator had adopted Late Sh. Sat Sangat Singh Kalra as his child; and thirdly, respondent Nos. 2 to 4 have failed to show that Late Smt. Laj Kaur had executed any Will.
60. I am now reproducing herein below the relevant portion of examination- in-chief and cross-examination of petitioner No. 2 (PW1);
"10. That after the death of Sh. Amar Singh Akali, the need to take any legal recourse never arose because each and every legal representative of late Sh. Amar Singh Akali accepted the said Will executed by him as true, correct and lawful. Furthermore, during the life time of late mother of the petitioners, the petitioners and their mother (now deceased) gave Second Floor of property no. 6/6, Old Rajinder Nagar, New Delhi on rent to a Tenant namely "Sarabjit Singh". Later on, against whom, the present petitioners and their mother (now deceased) preferred a petition under section 14(1)(e). The said petition was contested by Advocate Sh. Sat Sangat Singh Kalra, (now deceased) the father of the respondent nos. 2 to 4 on behalf of the present petitioners and their mother (now deceased) and Advocate Sh. Sat Sangat Singh Kalra (now deceased), the father of the respondent nos. 2 to 4 had specifically pleaded the facts related to the execution of the WILL in question.
True copy of the order sheet dated 14.01.1994, judgment dated 14.01.1994 and Vakalatnama of Late Sh. Sat Sangat Singh Kalra, PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 37 of 53 Judgment dated 19.04.2025 Advocate filed in favour of the present petitioners is being exhibited as EXHIBIT-PW-1/5 (Colly).
11. That the late father of the respondent nos. 2 to 4 was an experienced Advocate and after the death of Sh. Amar Singh Akali i.e. the Executant of WILL, he himself was regularly advising Petitioner No 2 for taking it up with the concerned Authority i.e. the L&DO, Nirman Bhawan, New Delhi for the purpose of recording the names of petitioners in the records of L&DO. In this regard, Late Sh. Sat Sangat Singh Kalra, Advocate i.e. the father of the Respondent nos. 2 to 4 had also executed his own affidavit stating therein "THE WILL IS GENUINE AND SHOULD BE EFFECTED", which was deposited with the L&DO by the Petitioner No
2. True copy of the affidavit dated 14.07.1988 executed by late Advocate Sh. Sat Sangat Singh Kalra, the late father of the Respondent nos. 2 to 4 along with other documents is being exhibited as EXHIBIT-PW-1/6 (Colly).
12. That unfortunately on 22nd February, 2012 Sh. Sat Sangat Singh Kalra, Advocate expired leaving behind his legal heirs i.e. the respondent no. 2, 3 and 4.
13. That since the property bearing House no. 6/6, Old Rajinder Nagar, New Delhi was constructed by Late Sh. Amar Singh Akali i.e. father of the present petitioners in the year 1959 hence, it needs urgent repairs but since in the revenue records the same still stands in the name of the deceased father of the petitioners so they cannot enter into any contractual arrangement for its renovation with any civil construction company / civil contractor.
14. That to enable the present petitioners to get the property transferred in their own names in the records of concerned departments / authorities, after the mutual discussions and consent with the respondents, Respondent No 2 suggested that since he runs shops in Karol Bagh and a PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 38 of 53 Judgment dated 19.04.2025 Departmental store in Inderpuri and his younger sister i.e. Respondent No 4 herein is a lawyer, they were well versed with court matters / procedures, the petitioners could give the typed papers to him to get them finalized from all respondents. The Petitioners had given the typed but un-notarized /unattested papers to Respondent No. 5 on 05th April, 2017 to be given to Respondent No. 2 when she visits his residence where he had scheduled an 'Akhand Paath' in the next few days and where all Respondents were also to be visiting. When after many visits to Respondent No. 2, he gave only excuses for not being able to get the same done, the petitioners insisted for the papers to be returned. He returned to the petitioners only those documents signed by respondent no. 5 and duly attested / notarized. But the respondent nos. 2 to 4 never returned the remaining documents to the petitioners... XXX by Sh. Manish Garg Ld. Counsel for the respondent No. 2 to 4.
...I do not remember exactly when I came to know about the Will of my father, however, it was about 5-6 years after the death of my father. Prior to the death of my father, I did not know about the said Will. I cannot say as to whether, when I learnt about this Will, it was in the possession of my mother or not. My mother told me about the Will. I saw the Will in her possession. My mother gave the Will Ex.PW1/2 to my brother Lt. General Mr. S.B. Akali. I also retained the copy of the said Will. Vol., there were number of copies available with my mother.
Two persons had signed as witnesses to the execution of the Will Ex.PW1/2. The names of the witnesses were, one Sh. Siri Ram and the other one name was not legible on the Will. Vol., these names I have come across only recently when we had to file the case. I do not know any such person as Sh. Siri Ram, he might have come sometime to our house but I cannot say exactly who he was...
XXXXX PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 39 of 53 Judgment dated 19.04.2025 It is correct that vide application dated 15.07.1988 (page-2 of Mark PX6, my mother had asked for mutation in her name and not in our names i.e. me and my brother, co-petitioner, as well. Vol., since the mutation was required to be done only in the name of my mother due to filing of one eviction suit in the court filed by my mother against the tenant.). It is wrong to suggest that it was not a civil suit but it was an appeal...
(At this stage, since counsel for respondent himself is wanting to refer to the contents of the marked document, same are now to be exhibited, though only to the extent of identification as Ex.PW1/6, colly.) ...It is wrong to suggest that Sh. Satsangat Singh had given the NOC at page 11 of Ex.PW1/6, colly., only for my mother's application and not for our rights in the property. Vol.. Sh. Satsangat Singh Kalra, Advocate, has very well mentioned-about the genuineness of the said Will in the said NOC now being at point A to A...
...After the death of my mother, I filed an application for mutation before L & D Office, in the name of myself and my brother Sh. S.B. Akali, co-petitioner. It is correct that the said application was not bearing the signature of my brother Mr. S.B. Akali. At that time, Sh. Satsangat Singh Kalra, Advocate was alive i.e. in the year 2002.
In view of document at page 11 of Ex.PW1/6, which was already an NOC of Mr. Satsangat Singh Kalra, Advocate, I did not see any need to obtain any separate fresh NOC. Sh. Satsangat Singh Kalra was alive until 2012, when he died. Mutation application was pending all those years, and that is why I did not file this petition. Mutation application remain pending even till date.
The petition was filed by us only in 2017 for two reasons, firstly that Mr. Satsangat Singh Kalra, advocate had never raised any dispute or objection to the Will during his entire lifetime, and it is only his children PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 40 of 53 Judgment dated 19.04.2025 later on who raised the dispute; and secondly, now there is an urgency as the subject matter property being an old construction required to be demolish and reconstructed, for which we needed the complete papers.
Neither I nor my mother ever saw any need to ask Mr. Gurcharan Singh Kalra to give an NOC qua the Will in question for the simple reason that he was not a beneficiary under the said Will Ex.PW1/2. Vol., due to family circumstances, we were not maintaining any relation or contact ever with the said Sh. Gurcharan Singh Kalra initially i.e. till my childhood and it was only when we grew up, we started to interact with each other...
XXXXX (At this stage, Ld. Counsel for the respondent wants to put across an original letter to the witness which pertains to the year 1972 as to whether it was written by him. After seeing the letter the witness replies as under :-) I have seen the original letter which is now being exhibited as Ex.PWI/D3 and I say that I had written this letter to my deceased step brother Sh. Sat Sangat Singh Kalra and to his wife, now deceased. It is wrong to suggest that I have filed this false case. It is wrong to suggest that I have tendered a false affidavit in order to take the undue advantage. It is wrong to suggest that I have deposed falsely."
61. From reading the deposition of petitioner No. 2 (PW1), the following things emerge;
(a) That father of the respondent Nos. 2 to 4 namely Late Sh. Sat Sangat Singh Kalra was having the knowledge of the Will dated 18.08.1979 Ex.PW1/2. This is apparent from the fact that he even appeared as an advocate for petitioners and their mother in an eviction petition [refer Ex.PW1/5 (Colly)]. A bare perusal of judgment dated 14.01.1994 passed in said petition shows that there PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 41 of 53 Judgment dated 19.04.2025 is reference to Will dated 18.08.1979 Ex.PW1/2. Further, for getting the subject property mutated in the name of the mother of the petitioners, father of the respondent Nos. 2 to 4 namely Late Sh. Sat Sangat Singh Kalra even filed an affidavit dated 14.07.1988 (Ex.PW1/6) in the concerned department stating that the Will in question is genuine.
(b) PW1 disclosed the reasons for filing the present petition. PW1 deposed that the petition was filed by us only in 2017 for two reasons; firstly, that Mr. Satsangat Singh Kalra, advocate had never raised any dispute or objection to the Will during his entire lifetime, and it is only his children later on who raised the dispute; and secondly, there is an urgency as the subject property being an old construction required to be demolished and reconstructed, for which they needed the complete papers.
62. So, the Will dated 18.08.1979 Ex.PW1/2 was in the knowledge of everybody including both the petitioners, their mother Late Smt. Laj Kaur and father of respondent Nos. 2 to 4 namely Sh. Sat Sangat Singh Kalra. Petitioners have been able to show that Late Sh. Sat Sangat Singh Kalra during his lifetime raised no dispute or objection to the Will and it was only after his death, the respondent Nos. 2 to 4 raised a dispute for the first time in the year 2017. And, the present petition was filed on 07.10.2017.
63. Hon'ble Supreme Court in Kunwarjeet Singh Khandpur V/s. Kirandeep Kaur & Ors.; AIR 2008 SC 2058, held;
"15. Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of Administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in The Kerala State Electricity Board's case (supra).PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 42 of 53 Judgment dated 19.04.2025
16. Similarly reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom.268). Para 16 reads as follows:
"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus:--
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates".
17. XXXXX"
(Underlined by me) PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 43 of 53 Judgment dated 19.04.2025
64. If we consider the delay in filing the present petition as one of the suspicious circumstances surrounding execution of Will in question, in the considered view of this Court, the petitioners have been successful in removing the said suspicion.
65. Before parting with both these issues (Issue Nos. 5 and 2), two things need to be addressed. First, Respondent Nos. 2 to 4 had argued on the reliability of PW3. As already noted PW3 lied on the aspect as to when did petitioners gather knowledge about PW2 Sh. Satish Kumar Thakral. Having said that PW3 lied on this aspect, few things can be observed. PW3 himself had clarified by saying that it might be because of his loss of memory. PW3 further deposed that he was not keeping good health and he was suffering from Cancer and for that reason he has executed an attorney in favour of the petitioner No. 2. And, the petitioner No. 2 who has been examined as PW1 has deposed to the effect [T]wo persons had signed as witnesses to the execution of the Will Ex.PW1/2. The names of the witnesses were, one Sh. Siri Ram and the other one name was not legible on the Will. Vol., these names I have come across only recently when we had to file the case.
66. In any case, one contradiction, in the facts of the present case, has failed to persuade this Court to throw out the probate petition solely on this ground itself. Contradictions can appear in testimonies of witnesses however such contradictions in the opinion of this Court can not totally destroy the case which is otherwise proved by other witnesses/ evidences. Hon'ble Supreme Court has repeatedly held that the doctrine of falsus in uno falsus in omnibus has no application in India i.e. merely because a witness is found to be stating false in one part of a statement, his testimony as a whole can not be disbelieved.
67. The other thing which needs to be addressed is that an argument was made on behalf of the respondent Nos. 2 to 4 that the Will was executed on PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 44 of 53 Judgment dated 19.04.2025
18.08.1979 which was presented for registration before the concerned sub- registrar on 20.08.1979 and same was registered as document No. 1618 Vol. 141 Addl. Book No. 3 at pages 193-194 on 21st August 1979. It was submitted that this raises suspicion on the authenticity of the Will. In the considered view of this Court, there is nothing suspicious in this. It has come on record that the testator and one of the attesting witnesses (Sh. Siri Ram) had already signed the Will whereas the other attesting witness (Sh. Yogender Paul) signed when the Will was presented for presentation.
68. Perusal of record reveals that the petitioners tried to summon the witness from the registrar office to prove the registration. From reading the order dated 27.04.2019 shows that one witness Sh. Naresh Kumar from Office of Sub Registrar-III, Asaf Ali Road, Delhi was present who submitted that the summoned record is no longer available in their office and the same has already been sent to Delhi Archives. Order dated 13.09.2019 shows that one witness Sh. Svajit Singh was present from the office of Delhi Archives who submitted that the summoned record relates to document No. 1618 in Book No. 3 whereas his department has received records of registration only upto No. 1604 plus part of 1605. So, relevant records could not be summoned from the department without any fault of the petitioners.
69. Registration of the Will is not compulsory. Law is well settled that registration of the Will alone does not prove that it was also duly executed. The Sub-Registrar signs the Will for the purpose of its registration and not for the purpose of its attestation as held by the Hon'ble Supreme Court of India in case Bhagat Ram V/s Suresh; AIR 2004 Supreme Court 436. In this case, the Hon'ble Supreme Court held that on account of registration of a document including of Will or codicil, a presumption as to the correctness or regularity of attestation cannot be drawn. Registration of the Will is no guarantee that it was PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 45 of 53 Judgment dated 19.04.2025 executed duly and validly as per the provisions of section 63 of Indian Succession Act. Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved. Presumption attached to the registered documents is only in respect of matters of the registration as per requirement of provisions of Indian Registration Act and not in respect of factum of attestation within the meaning of section 63 (c) of Indian Succession Act and section 68 of Indian Evidence Act. Meaning thereby, the petitioners in any case have to prove the due execution of the Will which the petitioners, in the present case, have done.
70. From the above discussion this Court concludes that the propounder of the Will (petitioners) have been able to prove due and valid execution of the Will dated 18.08.1979 Ex.PW1/2 and have further been successful in removing the suspicious circumstances around the Will from the mind of the Court.
71. Issue No. 5 as such is decided in favour of the petitioners and against the respondent Nos. 2 to 4, and Issue Nos. 2 is decided against the respondent Nos. 2 to 4 and in favour of the petitioners.
ISSUE NO. 1(1) Whether the petition as filed, is not in the proper form in accordance with the provisions, as laid down in the Indian Succession Act, and also the Rules framed by our own High Court as objected to by respondent No. 2 to 4? OPR 2 to 4
72. Onus to prove Issue No. 1 was on the respondent Nos. 2 to 4.
73. Case of the respondent Nos. 2 to 4 is that that the present petition filed on behalf of the petitioners is not maintainable in the present form for following reasons:-
(a) The petition is not verified in terms of Section 281 of the Indian Succession Act, 1925 by one of the attesting witnesses of the Will.PC No. 43/2017
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 46 of 53 Judgment dated 19.04.2025
(b) The present petition is filed for probate of Will dated 18.08.1979, however, a bare perusal of Will shows that no executor is named in the Will.
74. Ld. Counsel for the respondent Nos. 2 to 4 while elaborating on the aspect of non-maintainability of the present petition in the present form submitted that the respondent Nos. 2 to 4 had raised these objections at the earliest at the time of filing of the written statement (in para 1.5) which was replied by the petitioners in their replication as that the contents of para under reply relates to the provisions of law and need no comments being matter of record . It was further submitted on behalf of the respondent Nos. 2 to 4 that the Ld. predecessor of this Court also raised a query in this regard with the petitioners (on 28.03.2023) as to how a probate can be granted to the petitioners as they are not the executors appointed under the Will in question. Despite a query raised by this Court, the petitioners did not amend the petition, rather, moved an application under Section 151 CPC for treating the present petition for 'grant of probate' as a petition for 'grant of letters of administration'.
75. Ld. Counsel for the petitioners, on the other hand, while relying on judgments of Hon'ble High Court of Delhi passed in Sh. Rahul Sharma V/s State & Ors., Test Case 38/2006 decided on 13.03.2012; Preethi Swaminathan V/s Govt. of NCT of Delhi & Others, 2018 SCC OnLine (Delhi) 9949; and S. Surjit Singh Sahani V/s State & Others, Test Case No. 27 of 2018 had submitted that once the petitioners have been able to prove the Will, the petitioners can be granted 'letters of administration' instead of 'probate'. He further submitted that, in any case, the petitioners have already filed an application under Section 151 CPC in this regard.
76. Hon'ble Delhi High Court in Khem Chand & Others V/s State & Ors.; 2010 SCC OnLine Del 1998, while observing that, though the expression used PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 47 of 53 Judgment dated 19.04.2025 in Section 281 is 'shall', the provision being procedural in nature, non- veification or defective verification would be treated as mere irregularity and not an illegality, held that such non-verification is not a defect that would make the petition liable to be thrown out at the threshold.
77. Pertinently, the petitioners are only beneficiaries and not the executors appointed under the Will dated 18.08.1979. Yet, a prayer has been made for the grant of a Probate instead of a Letters of Administration.
78. According to Section 222 (1) of the Indian Succession Act, 1925 a probate shall be granted only to an executor appointed by the will.
79. Further, Section 232 of the Indian Succession Act, 1925 provides the remedy available to the legatee if no executor is appointed or the one named in the will expires, becomes incapable or refuses to act. The provisions reads as under:
"232. Grant of administration to universal or residuary legatees.-- When-- (a) the deceased has made a will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or
(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered."
80. The Hon'ble Madras High Court in Madhy V/s Vairamanai and others, CRP (PD) No 3381/2022 decided on 27.10.2022 (MANU/TN/7926/2022) while PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 48 of 53 Judgment dated 19.04.2025 deciding the maintainability of a probate petition under Order VII Rule 11 of the Code of Civil Procedure, 1908 on the objection that the same can only be filed by the executor named in the Will and not by a beneficiary observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
81. Hon'ble High Court of Delhi in Kumkum Devi Vs. The State (NCT of Delhi) and Ors.; MANU/DE/0722/2024, held;
"23. In judgement of the Apex Court in Vatsala Srinivasan vs Shyamala Raghunathan, MANU/SC/0498/2016 : (2016) 13 SCC 253, the executor who had filed the probate petition had expired when the proceedings were pending and thereafter the respondent, who was the legatee under the will, applied for the grant of a letter of administration in the same proceedings. While addressing the question of whether the proceedings stood abated on the demise of the executor, it was held that the essence of both the proceedings is the same and they relate to ascertainment of genuineness and authenticity of the Will. In any case, so as to establish the Will, the probate proceedings are required. The function of the executor is to execute the Will. The main purpose can be very well achieved by obtaining a Letter of Administration so that the property can be administered by the Administrator as per Section 232 of the Indian Succession Act, 1925. It is, therefore, clear that an executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the will. Therefore the action of an executor in applying for a probate is not in substance a personal action and as observed earlier by me the maxim actio personalis moritur cum persona could not apply to such a case. If the executor fails in his duty, any of PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 49 of 53 Judgment dated 19.04.2025 those whom he represents are entitled to intervene and carry on the proceedings with a 'formal modification' that the prayer must then be for letters of administration with the will annexed".
24. The Madras High Court applied the findings in Vatsala Srinivasan (supra), in Madhy vs Vairamanai, CRP No 3381/2021 (sic) decided on 27.10.2022 while deciding the maintainability of a probate petition under Order VII Rule 11 of the Code of Civil Procedure, 1906 on the objection that the same can only be filed by the executor named in the Will and not by a beneficiary. It was observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
25. It is therefore observed that the present petition seeking for a Probate is hereby treated as a petition for Letter of Administration." (Underlined by me)
82. So far as the objection of the respondent Nos. 2 to 4 that they had taken specific objections in this regard is concerned, I would like to quote what Hon'ble High Court of Delhi in Digvijai Singh & Anr. vs State & Ors; MANU/DE/2222/2024, has held;
"33. It is also crystallised proposition of law that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power vested in the Courts, to ensure that injustice is not done to any party who has a just case and a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. It has been held in United Bank of India Vs. Naresh Kumar & Ors., MANU/SC/0002/1997 :
1996:INSC:1073 : (1996) 6 SCC 660 and Uday Shanker Triyar Vs. Ram PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 50 of 53 Judgment dated 19.04.2025 Kalewar Prasad Singh, MANU/SC/2173/2005 : 2005:INSC:558 : (2006) 1 SCC 75 that technical pleas can always be cured."
(Underlined by me)
83. Further, as already noted, the petitioners through an application under Section 151 CPC have already prayed for treating the present petition as petition for 'grant of letters of administration' instead of 'grant of probate'.
84. This Court accordingly holds that though the present petition as filed, is not in the proper form in accordance with the provisions of the Indian Succession Act, 1925, same are mere irregularity and not an illegality and the petition can not be dismissed on these grounds alone. Issue No. 1 is decided accordingly.
ISSUE NO. 3(3) Whether the petition as filed has not been duly instituted in as much as the SPA has not been duly executed in accordance with law, as alleged by respondent No. 2 to 4 ? OPR 2 to 4
85. Onus to prove Issue No. 3 was on the respondent Nos. 2 to 4.
86. Contention of respondent Nos. 2 to 4 is that since the Special Power of Attorney dated 06.10.2017 executed by the petitioner No. 1 in favour of the petitioner No. 2 is for specific purpose for obtaining the 'probate' and not for 'Letters of administration', the said SPA can not be said as duly executed in accordance with law.
87. While dealing with Issue No. 1 this Court has already noted that the essence of both the proceedings (probate and letters of administration) is the same and they relate to ascertainment of genuineness and authenticity of the Will. As such, merely for this reason it can not be said that the SPA is not duly executed as in accordance with law. In any case, the present petition is filed by both the petitioners and both the petitioners have examined themselves as witnesses.
PC No. 43/2017Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 51 of 53 Judgment dated 19.04.2025
88. Issue No. 3 is accordingly decided against the respondent Nos. 2 to 4 and in favour of the petitioners.
ISSUE NO. 4(4) Whether this Court has no pecuniary jurisdiction to try and entertain the present petition ? OPR 2 to 4.
89. Onus to prove Issue No. 4 was on the respondent Nos. 2 to 4.
90. Respondent Nos. 2 to 4 have not led any evidence showing that this Court has no pecuniary jurisdiction to entertain the present petition. On the other hand, it was argued on behalf of the petitioners that the District & Sessions Court is the competent Court in all matters to file a petition for grant of a probate/ letters of administration of the Will. It was further submitted that in any case, according to valuation report filed by the Executive Magistrate (Karol Bagh) Delhi the total value of the subject property is Rs. 1,00,55,730/- (One Crore Fifty Five Thousands Seven Hundred Thirty) and as such this Court has a pecuniary jurisdiction to entertain and to decide the present petition.
91. Considering the fact that the respondent Nos. 2 to 4 have not led any evidence on this aspect, in view of submissions made on behalf of the petitioners, the Issue No. 4 is decided against the respondent Nos. 2 to 4 and in favour of the petitioners.
RELIEF
92. In light of the finding that the Will dated 18.08.1979 Ex.PW1/2, is the last and final Will of Late Sh. Amar Singh Akali and that it was executed by Late Sh. Amar Singh Akali out of his free will and with sound disposition of mind, there is no hindrance in grant of letters of administration in respect of the aforesaid Will by this Court in favour of the petitioners. Petitioners being beneficiaries under the Will dated 18.08.1979, are thus entitled in terms of aforesaid Will, to grant of letters of administration in respect of subject property i.e. property bearing House No. 6/6, Old Rajinder Nagar, New Delhi-110060, PC No. 43/2017 Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. Page No. 52 of 53 Judgment dated 19.04.2025 forming part of the estate of deceased testator Late Sh. Amar Singh Akali. The present petition is thus allowed and it is hereby ordered that the letters of administration in respect of property i.e. property bearing House No. 6/6, Old Rajinder Nagar, New Delhi-110060, forming part of the estate of deceased testator Late Sh. Amar Singh Akali, with copy of Will dated 18.08.1979, Ex.PW1/2 be granted to the petitioners in Form provided under Schedule VII of the Indian Succession Act, 1925 under the seal of this Court, subject to their furnishing Administration Bond with Surety/sureties in terms of Section 291 of the Indian Succession Act, 1925 in the form No. 180 of Volume-6A of Delhi High Court Rules and payment of requisite Court fee as per valuation report to be filed by concerned SDM/ Executive Magistrate within three months from today. The petitioners are directed to exhibit the inventory in the Court within six months of the grant and account of the estate within a year of the grant in terms of Section 317 of the Indian Succession Act, 1925 in Form No. 178 & 179 respectively of Volume-6A of the Delhi High Court Rules. The Will dated 18.08.1979, Ex.PW1/2 be filed and preserved as per Rules in terms of Section 294 of the Indian Succession Act, 1925.
93. Before parting with judgment, it is hereby clarified that since this Court is not supposed to go into the issue of title of deceased Sh. Amar Singh Akali over the subject property, this Court has not examined the issue of ownership of the subject property and accordingly, nothing in the present judgment shall be deemed to have the effect of conferring any title over the subject property to the petitioners.
94. File shall be consigned to the record room after due compliance. (Announced in the open court on this 19th day of April, 2025 This Judgment consists of number of fifty three of signed pages).
(Abhishek Srivastava)
District Judge-05,
Central, THC, Delhi
Digitally signed
by ABHISHEK
ABHISHEK SRIVASTAVA
PC No. 43/2017 SRIVASTAVA Date:
2025.04.19
Lieutenant General S.B. Akali (Retd.) & Anr. Vs. State & Ors. 17:06:07 +0530 Page No. 53 of 53
Judgment dated 19.04.2025