Delhi District Court
Rajeev Khanna And Ans vs State And Ors on 18 August, 2025
RAJEEV KHANNA AND ANS. VS. STATE AND ORS.
DLST010029552017
IN THE COURT OF DISTRICT JUDGE-02,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 15/2017
Filing No. 1240/2017
CNR No. DLST01-002955-2017
In the matter of
1. Mr. Rajeev Khanna
S/o Shri Hans Raj Khanna
90/51, AB, Ground Floor,
Malviya Nagar,
New Delhi-110017.
2. Mr. Munesh Khanna
S/o Shri Hans Raj Khanna
97/4, (D-16), Ground Floor,
Near Jaicubpura Ramlila Ground,
Gurugram 122001 (Haryana)
...........Petitioners
Versus
1. State
Digitally signed
by YADVENDER
YADVENDER SINGH
SINGH Date:
2025.08.18
17:33:34 +0530
Page 1 of 30
Dr. Yadvender Singh/DJ-02/South/Saket/ND/18.08.2025
RAJEEV KHANNA AND ANS. VS. STATE AND ORS.
2. Mr. Sanjeev Khanna (Deceased)
Through LRs
2A Mrs. Meenakshi Khanna
W/o Late Sh. Sanjeev Khanna
2B Mr. Himanshu Khanna
S/o Late Sh. Sanjeev Khanna
Both R/o KW-26, 2nd Floor,
Malibu Town, Sector-47, Gurugram.
3. Mr. Hans Raj Khanna
S/o Late Shri Daulat Ram Khanna
97/4, (D-16), Ground Floor,
Near Jaicubpura Ramlila Ground, Indirapuri
Gurugram 122001 (Haryana)
..........Respondents
Date of Institution : 20.04.2017
Date of reserving the judgment : 23.07.2025
Date of pronouncement : 18.08.2025
Decision : Petition Allowed
PETITION UNDER SECTION 278 OF THE INDIAN
SUCCESSION ACT FOR PROBATE OF THE LAST WILL
AND TESTAMENT DATED 07.12.2010 OF LATE SMT.
SWADESH KHANNA W/O SHRI HANS RAJ KHANNA
JUDGMENT
1. The present petition has been filed by the petitioners Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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under Section 278 of the Indian Succession Act for probate of the last Will and testament dated 07.12.2010 of Late Smt. Swadesh Khanna.
2. The brief facts of the case of the petitioners are that the petitioners are the beneficiaries as well as the executors of the last Will dated 07.12.2010 of their mother Late Smt. Swadesh Khanna, who expired on 25.02.2013 while leaving behind her husband Sh. Hans Raj Khanna/respondent no.3, her sons namely Sh. Rajeev Khanna/petitioner no.1, Sh. Munesh Khanna/petitioner no.2 and Sh. Sanjeev Khanna/respondent no.2. The abovesaid Will was executed in presence of witnesses Sh. Jugal Dass and Sh. Gajraj Singh Verma. The present petition was filed on the basis of copy of the Will, which was handed over to the petitioners by their father/respondent no.3 and the original Will continued to be in possession of respondent no.3. The testatrix did not bequeath any property in the name of respondents no.2 and
3. The jurisdiction of this court has been claimed on the basis that out of two immovable properties left by the testatrix one of the property bearing No. 9051, AB, Malviya Nagar, New Delhi is situated within the jurisdiction of this court and accordingly the probate of the Will dated 07.12.2010 through present petition was sought.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.08.18 17:33:53 +0530 Page 3 of 30
Dr. Yadvender Singh/DJ-02/South/Saket/ND/18.08.2025 RAJEEV KHANNA AND ANS. VS. STATE AND ORS.
2.1 The petition bears the declaration of both the attesting witnesses. The original Will Ex.PW1/1 is found to be exhibited on 13.09.2018 during the evidence of PW1 Sh. Hans Raj Khanna/respondent no.3.
3. Reply/written statement was filed on behalf of the respondent no.3 whereby the present petition was not objected and the present petition was prayed to be allowed.
4. Vide order dated 13.09.2018 of Ld. Predecessor Court, on non-appearance on behalf of the respondent no.2 despite service, respondent no.2 was proceeded ex-parte.
5. On 10.09.2021, an application under Order IX Rule 7 CPC alongwith application under Order XXII Rule 1 and 4 CPC was filed on behalf of LRs of respondent no.2. The application under Order XXII Rule 1 and 4 read with Section 151 CPC filed by the LRs of respondent no.2 was allowed by the Ld. Predecessor Court vide order dated 21.02.2023. The application under Order IX Rule 7 CPC filed on behalf of LRs of respondent no.2 was dismissed by the Ld. Predecessor Court vide order dated 27.04.2023.
6. The LRs of the respondent no.2 challenged the order dated 13.09.2018 and 27.04.2023 by filing a petition under Section 115 CPC before the Hon'ble High Court of Delhi Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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and it was dismissed by the Hon'ble High Court of Delhi vide its order dated 19.12.2023 while upholding the orders of the Ld. Predecessor Court.
7. One application under Order VII Rule 11 CPC read with Section 151 CPC was also filed on behalf of the LRs of the deceased respondent no.2 and same was dismissed by this court vide order dated 18.11.2023.
8. On the basis of pleadings, following issue was framed by Ld. Predecessor Court vide order dated 21.04.2018:
"Whether the petitioners are entitled to seek grant of probate of the Will dated 7.12.2010? Onus to proof upon the parties"
9. In petitioners evidence, total 3 witnesses were examined on their behalf. They examined their father/respondent no.3 as PW1.
Petitioner no.1 examined himself as PW-2. Petitioners also examined one witness i.e. Sh. Ramesh Kumar Gera (son of one of the attesting witness of the Will) as PW3.
PW2 and 3 were duly cross-examined on behalf of LRs of respondent no.2.
10. Separate applications under Order 19 read with Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.08.18 Page 5 of 30 17:34:04 +0530 Dr. Yadvender Singh/DJ-02/South/Saket/ND/18.08.2025 RAJEEV KHANNA AND ANS. VS. STATE AND ORS.
Section 151 CPC for calling PW1 for cross-examination and for calling PW2 for cross-examination were dismissed by this court vide order dated 20.12.2023 and 23.07.2023 respectively.
11. As any objection/written statement was not filed on behalf of the respondent no.2 despite service and further the application under Order IX Rule 7 CPC as filed on behalf of LRs of deceased respondent no.2 was got dismissed, they did not lead any RE.
12. I have heard the final arguments and perused the record carefully.
13. Ld. counsel for the LRs of the respondent no.2 relied upon the paras no.22-23 of judgment in case titled 'Leela Vs. Muruganantham, AIR 2025 SC 230' ; paras no. 23.2, 23.3, 25.1, 28 and 29.3 of judgment in case titled 'Kavita Kanwar Vs. Mrs. Pamela Mehta & Ors, AIR 2020 SC 2614' and paras no.18 and 20 of judgment in case titled 'H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors.', 1958 SCC Online SC 31. He also argued about pendency of a civil in case titled Himanshu Khanna Vs. Muneesh Khanna bearing CS/2329/25 pending before the Ld. Civil Judge (Junior Division) whereby the validity of the Will of the testatrix has been challenged. He filed copies of the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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abovesaid judgments of the Hon'ble Supreme Court of India and filed copy of order dated 15.07.2025 of Ld. Civil Judge (JD), Gurugram whereby a fresh suit with case titled Himanshu Sharma Vs. Muneesh Khanna & Ors. is found to be received by assignment to Ld. Civil Judge (Junior Division), Gurugram and accordingly notice of the suit and stay application were issued to the defendants for 06.08.2025 by that court.
14. Time now to deal with the issue.
Whether the petitioners are entitled to seek grant of probate of the Will dated 7.12.2010? Onus to proof upon the parties.
15. It is the duty of the propounder of the Will to prove the Will in question in accordance with law. ON IDENTIFICATION OF SIGNATURES OF TESTATRIX AND ATTESTING WITNESSES ON THE WILL
16. In order to identify the signatures of the testatrix and attesting witnesses on the Will dated 07.12.2010, the petitioners examined PW1 and PW3. PW1 is father of the petitioners and respondent no.3 in the present case. PW3 is son of one of the attesting witnesses namely Sh. Jugal Dass Gera (since deceased).
17. Petitioner no.1 examined himself as PW2 and during Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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his evidence death certificate of one of the attesting witnesses Sh. Gajraj Singh Verma was exhibited as Ex.PW2/3. PW3 filed death certificate of his father Late Sh. Jugal Dass, who was another attesting witness of the Will in question during his evidence and it was exhibited as Ex.PW3/1. Accordingly, both the attesting witnesses of the Will are proved to be dead.
18. PW1 tendered his evidence through affidavit Ex.PW1/A whereby he deposed that he was present in person at the time of execution/witnessing of the Will and he saw the testatrix and two witnesses to the Will signing at the same time in the presence of one another. To show that testatrix was an educated lady he deposed that the testatrix was an M.A. B.Ed. and retired as Lecturer from the Government Senior Secondary School (Boys), Gurugram. He further deposed that the two witnesses of the Will dated 07.12.2010 were long time family friends and also had been working as colleagues with him for the last about 15-16 years in judicial courts at Gurugram. He exhibited the original Will as Ex.PW1/1 and identified the signatures of the testatrix at Points A, A1, A2 and A3 on the Will. He also identified the signatures of attesting witness Sh. Jugal Dass at Point B and another witness Sh. Gajraj Singh Verma at Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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Point C on the Will. During his examination-in-chief, he also identified the signatures of Sh. Jugal Dass at Point D and of Sh. Gajraj Singh Verma at Point E on the declaration part of the petition and stated that they put their signatures in his presence and he identified the same. He also stated during his examination-in-chief that in the declaration of the witnesses, both the witnesses filled their father's name in his presence at the time of affixing their signatures.
19. PW-3 is son of Late Sh. Jugal Dass, who was one of the attesting witnesses of the Will in question. He filed death certificate of his father, who expired on 20.05.2017 and he tendered his evidence through affidavit Ex.PW3/A whereby he deposed that both the attesting witnesses were employed and worked with him in District & Sessions Courts, Gurugram, Haryana and he was well conversant with their handwriting and signatures as they used to write and sign on several official letters and papers, etc. during the course of official duties. He further deposed that he could identify their signatures on Will dated 07.12.2010 of Late Smt. Swadesh Khanna at Point B and Point C respectively. He also identified the signatures of Late Sh. Gajraj Singh Verma and Sh. Gajraj Singh Verma father's name written in the declaration of the witnesses alongwith the petition. During Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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his cross-examination dated 18.11.2023, he answered that he knew Sh. Hans Raj Khanna/respondent no.3 as he was colleague of his father who was also posted in District Court, Gurugram. He also answered that his father retired as Stenographer in the year 1993 from the District Courts, Gurugram. He further answered that he served in the same court premises of District Courts Gurugram where his father was posted for some period.
20. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
"(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
21. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions;
and (iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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the execution of the Will.
22. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"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 its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
23. In the present case, both the attesting witnesses of the Will are proved to be dead.
24. Section 69 of the Indian Evidence Act, 1872 provides that "if no such attesting witness can be found, ...... it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.".
25. Ld. counsel for the LRs of the respondent no.2 relied Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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upon paras no.22 and 23 of judgment in case titled Leela Vs. Muruganantham, AIR 2025 SC 230; paras no. 23.2, 23.3, 25.1, 28 and 29.3 of judgment in case titled Kavita Kanwar Vs. Mrs. Pamela Mehta & Ors., AIR 2020 SC 2614 and paras no. 18 and 20 of judgment in case titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors.', 1958 SCC Online SC 31 and would argue that the petitioners failed to establish by satisfactory evidence that the Will was signed by the testatrix or it was validly attested.
26. Paras no. 22 and 23 of judgment in case titled Leela Vs. Muruganantham (supra) are reproduced as under:
"22. Section 68 of the Evidence Act makes it clear that at least one attesting witness has to be examined to prove execution of a Will. It is true that in the case at hand DW2 was the attesting witness who was examined in Court. Therefore, the question is whether they had deposed to the effect that the Will in question was executed in accordance with sub-rules (a) to (c) thereunder.
23. The Trial Court rightly held that the propounder of the Will has to establish by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound disposing state of mind and that he understood the nature and effect of the dispositions and put his signature out of his own free will."
27. Paras no. 23.2, 23.3, 25.1, 28 and 29.3 of judgment in Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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case titled Kavita Kanwar Vs. Mrs. Pamela Mehta & Ors. (supra) are reproduced as under:
"23.2. Elaborate provisions have been made in Chapter VI of the Succession Act (Sections 74 to 111), for construction of Wills which, in their sum and substance, make the intention of legislature clear that any irrelevant misdescription or error is not to operate against the Will; and approach has to be to give effect to a Will once it is found to have been executed in the sound state of mind by the testator while exercising his own free will. However, as per Section 81 of the Succession Act, extrinsic evidence is inadmissible in case of patent ambiguity or deficiency in the Will; and as per Section 89 thereof, a Will or bequest not expressive of any definite intention is declared void for uncertainty. Sections 81 and 89 read as under:- "81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.- Where there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted.
*** *** ***
89. Will or bequest void for uncertainty.- A Will or bequest not expressive of any definite intention is void for uncertainty."
Moreover, it is now well settled that when the Will is surrounded by suspicious circumstances, the Court would expect that the legitimate suspicion should be removed before the document in question is accepted as the last Will of the testator.
23.3 As noticed, as per Section 63 of the Succession Act, the Will ought to be attested by two or more Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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witnesses. Hence, any document propounded as a Will cannot be used as evidence unless at least one attesting witness has been examined for the purpose of proving its execution, if such witness is available and is capable of giving evidence as per the requirements of Section 68 of the Evidence Act, that reads as under: -
"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 its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 25.1. The objection on behalf of the appellant does not stand in conformity with the law declared in H. Venkatachala Iyengar and Rani Purnima Debi (supra) and scores of other decisions where this Court has consistently held that the probate proceeding is ultimately a matter of conscience of the Court; and irrespective of whether any plea in opposition is taken or not, a propounder of Will is required to satisfy the conscience of the Court with removal of all the suspicious circumstances. By the very nature and consequence of this proceeding, filing or non-filing of written statement or objections by any party pales into insignificance and is of no effect. The probate proceeding is not merely inter-partes proceeding but Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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leads to judgment in rem and, therefore, even when no one contests, it does not ipso facto lead to grant of probate. The probate is granted only on proof of Will as also on removal of suspicious circumstances, if there be any, to the final satisfaction of the conscience of the Court.
28. There is no doubt that any of the factors taken into account by the Trial Court and the High Court, by itself and standing alone, cannot operate against the validity of the propounded Will. That is to say that, the Will in question cannot be viewed with suspicion only because the appellant had played an active role in execution thereof though she is the major beneficiary; or only because the respondents were not included in the process of execution of the Will;
or only because of unequal distribution of assets; or only because there is want of clarity about the construction to be carried out by the appellant; or only because one of the attesting witnesses being acquaintance of the appellant; or only because there is no evidence as to who drafted the printed part of the Will and the note for writing the opening and concluding passages by the testatrix in her own hand; or only because there is some discrepancy in the oral evidence led by the appellant; or only because of any other factor taken into account by the Courts or relied upon by the respondents. The relevant consideration would be about the quality and nature of each of these factors and then, the cumulative effect and impact of all of them upon making of the Will with free agency of the testatrix. In other words, an individual factor may not be decisive but, if after taking all the factors together, conscience of the Court is not satisfied that the Will in question truly represents the last wish and Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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propositions of the testator, the Will cannot get the approval of the Court; and, other way round, if on a holistic view of the matter, the Court feels satisfied that the document propounded as Will indeed signifies the last free wish and desire of the testator and is duly executed in accordance with law, the Will shall not be disapproved merely for one doubtful circumstance here or another factor there.
29.3. The aforesaid factor of unexplained unequal distribution of the property is confounded by two major factors related with making of the Will in question: one, the active role played by the appellant in the process; and second, the virtual exclusion of the other children of testatrix in the process. As noticed, an active or leading part in making of the Will by the beneficiary thereunder has always been regarded as a circumstance giving rise to suspicion but, like any other circumstance, it could well be explained by the propounder and/or beneficiary. In the present case, it is not in dispute that out of the three children of testatrix, the appellant alone was present at the time of execution of the Will in question on 20.05.2003. As noticed, at the relevant point of time, the appellant was admittedly living away and in a different locality for about 20-22 years, whereas testatrix was residing at the ground floor of the building and the respondent No.1 was at the first floor. Even if we leave aside the case of the respondent No.2 who was living in Shimla, there was no reason that in the normal and ordinary course, the testatrix would not have included the respondent No.1 in execution of the Will in question, particularly when she was purportedly making adequate arrangements towards the welfare of respondent No.1. In other words, if the Will in question was being made without Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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causing any prejudice to the respondent No.1, there was no reason to keep her away from this process. Admittedly, the Will in question was not divulged for about three years. Therefore, the added feature surrounding the execution of the Will had been of unexplained exclusion of the respondent No.1 from the process."
28. Paras no. 18 and 20 of judgment in case titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors. (supra) are reproduced as under:
"18. What is the true legal position in the matter of proof of wills ? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression " a person of sound mind " in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ?
Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
......
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
29. Ld. counsel for the LRs of respondent no.2 also argued that both the attesting witnesses were not examined. However, in view of the settled position of law, aforesaid provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872, the examination of both the attesting witnesses in order to prove a document is not mandatory and moreover Section 69 of the Indian Evidence Act provides for alternative procedure when no attesting witness could be found. In view of the abovestated death certificates, it can safely be relied upon that both the attesting witnesses are not alive and the petitioners can prove the attestation of Will in question as per provisions of Section 69 of The Indian Evidence Act. In the absence of both the attesting witnesses, the petitioner cannot be denied the opportunity to prove the Will as per procedure laid down under Section 69 of the Indian Evidence Act. Accordingly, when any of the attesting witness was not alive then the submissions of Ld. counsel for respondent no.2 that while not examining at least one Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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attesting witness, the petitioner violated the mandatory requirement of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, 1872 are not maintainable. In these circumstances, it also cannot be said that the petitioner violated any principles of law as laid down by Hon'ble Apex Court in the abovestated judgments in order to prove the validity of a Will.
30. As abovestated, the petitioners examined PW1 and PW3 in order to identify the signatures of attesting witness and signatures of the testatrix on the Will in question. PW1 is husband of the testatrix who not only identified her signatures on the Will while deposing that he was present at the time of execution but he also identified the signatures of both the attesting witnesses on the ground that both the attesting witnesses had been his colleagues at their work place. PW3 is son of one of the attesting witnesses who not only identified the signatures of his father on Will in question but also identified the signatures of second attesting witness on the Will on the ground that both the attesting witnesses had worked with him at the same premises.
31. During the final arguments, Ld. counsel for the LRs of the respondent no.2 also argued that the Will in question bears the full signatures of the testatrix, however, the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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testatrix changed her signatures in the year 2004 from full signatures to S. Khanna as reflects from document Ex.PW2/4. Perusal of the document Ex.PW2/4 shows that it is a letter written by testatrix Smt. Swadesh Khanna to Assessment & Collection Department, Special Assessment Unit, R.K. Puram, New Delhi. It bears signatures of the applicant Smt. Swadesh Khanna as S. Khanna. Photocopies of one Indemnity Bond, Affidavit of the applicant (testatrix herein) are also found to be annexed which also bear her signatures as S. Khanna. The affidavit is found to be attested on 02.12.2004. However, possession certificate Ex.PW2/2 attached alongwith an allotment letter written by Haryana Urban Development Authority to the testatrix Smt. Swadesh Khanna in respect of one residential plot bearing No. 1248, Sector-46, Gurgaon bears the full signatures of allottee Smt. Swadesh Khanna (testatrix herein).
32. On comparison with naked eyes, the signatures of testatrix on Will Ex.PW1/1 and on this possession certificate Ex.PW2/2 appear to be of the same person. Moreover, respondent no.2 did not object the present petition and accordingly, did not file any objection and accordingly no evidence was led on behalf of the LRs of respondent no.2 in order to prove that the testatrix Late Smt. Swadesh Khanna Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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had changed her signature in the year 2004. The possibility to continue with the full signatures in the year 2010 cannot be ruled out completely in absence of any cogent evidence to the contrary.
33. In view of the abovesaid discussion, material available on record, settled position of law and in the absence of any contrary evidence, I am of the considered view that the petitioners have successfully proved the signatures of the testatrix and attesting witnesses on the Will. SOUND AND DISPOSING STATE OF MIND AND FREE WILL OF THE TESTATRIX
34. The petitioner no.1 examined himself as PW2 and tendered his evidence through affidavit Ex.PW2/A whereby he deposed that at the time of execution of the Will dated 07.12.2010, the testatrix was in good health and sound mental condition and had executed the said Will without any pressure and coercion from any corners and by her own free volition. He was cross-examined on 20.12.2023 on behalf of the LRs of respondent no.2. The further cross-examination was deferred as it was lunch time and at 02:00 pm when the matter was again taken up the adjournment for further cross- examination for PW2 was sought on behalf of LRs of respondent no.2 and vide a detailed order of the same date, Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.08.18 17:35:45 +0530 Page 25 of 30 Dr. Yadvender Singh/DJ-02/South/Saket/ND/18.08.2025 RAJEEV KHANNA AND ANS. VS. STATE AND ORS.
the further opportunity to further cross-examination of PW2 by LRs of respondent no.2 was closed by this court.
35. Perusal of cross-examination of PW2 shows that nothing regarding sound and disposing state of mind and free will of the testatrix was asked by the respondents from PW2 during his cross-examination. The petitioners' father PW1 was not cross-examined and no cogent evidence to the contrary was also filed by the respondents. The petitioners also proved that both the attesting witnesses had already expired. In view of the abovesaid discussion, I am of the considered view that the said Will was executed by the testatrix in her sound and disposing state of mind and free will.
36. Ld. counsel for the LRs of the respondent no.2 also objected the present petition on the ground that the Will in question is not registered. However, as per the settled position of law and the provisions of The Indian Succession Act, 1925, it is not mandatory that the Will must be got registered. Accordingly, this objection is untenable in the eyes of law.
37. Ld. counsel for the LRs of respondent no.2 also argued that the present petition is not maintainable as this court does not have jurisdiction in respect of one of the Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.08.18 17:35:51 +0530 Page 26 of 30 Dr. Yadvender Singh/DJ-02/South/Saket/ND/18.08.2025 RAJEEV KHANNA AND ANS. VS. STATE AND ORS.
property of the testatrix.
Perusal of the record shows that one application under Order VII Rule 11 CPC as filed on behalf of the LRs of the respondent no.2 on the same ground has already been dismissed by this court vide order dated 18.11.2023 and the revision petition against this order has also been dismissed by the Hon'ble High Court of Delhi vide its order dated 11.06.2025.
38. Section 270 of the Indian Succession Act, 1925 provides the jurisdiction of this court to grant probate as admittedly one of the property is situated within the jurisdiction of this court. While Section 273 of the Indian Succession Act, 1925 provides that Probate or Letters of Administration granted by District Judge in relation to properties allotted in another State are only valid if the value of the said property does not exceed Rs. 10,000/-, the said provision does not deal with the jurisdiction to entertain and decide the petition for grant of Probate or Letters of Administration. The said provisions only deals with binding force or effect of the letters of administration and probate granted by the District Courts.
39. In case titled Kanta Vs. State, 1985 SCC Online DLR 136, Hon'ble Delhi High Court observed that even a Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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movable property of trifling value conferred jurisdiction on the court, but ultimately decided against entertaining the case as substantial property was located out of the State and parties were residing in Bombay. So accordingly, the objection that this court does not have territorial jurisdiction at all is not maintainable. It was also argued by Ld. counsel for the LRs of respondent no.2 that no proof was given to show that PW3 was son of one of the attesting witness of the Will namely Late Sh. Jugal Dass Gera. However, cross- examination of PW3 shows that neither any question was asked on behalf of LRs of respondent no.2 on this aspect from PW3 nor any such suggestion was put to him during his cross-examination. Accordingly, in absence of any contrary evidence, this objection is also not maintainable.
40. Ld. counsel for LRs of respondent no.2 also argued that one civil suit bearing No. CS/2329/25 titled Himanshu Khanna Vs. Muneesh Khanna is pending before the Ld. Civil Judge (Junior Division), Gurugram whereby the validity of the Will dated 07.12.2010 executed by testatrix Late Smt. Swadesh Khanna has been challenged by the LRs of respondent no.2. He submitted that the civil suit had recently been filed. On inquiry, it was submitted that there was no stay on the disposal of the present petition by any Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
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court during the pendency of that civil suit. Accordingly, the pendency of the abovesaid civil suit which has recently been filed is not a bar to decide the present petition which was filed in the year 2017. Accordingly, the issue is decided in favour of the petitioners.
41. In view of the discussion herein above, the present petition is allowed. The probate of Will Ex.PW1/1 be issued to the petitioners as per the prayer in the petition. The probate be issued in the prescribed form VI along with authenticated copy of the Will Ex.PW1/1 upon furnishing of the proper Court Fee, Administration Bond and Surety Bond by the petitioner. The formalities of issuance of probate shall be completed by the petitioner/beneficiary within six months from the date of the judgment as per Section 289 & 291 of Indian Succession Act.
42. The petitioners, as per Section 317 of the Indian Succession Act, shall furnish full and true inventory of the properties and credits mentioned in the Will and exhibit the same in the Court within 6 months from the date of grant of probate in prescribed Form No. 178. The petitioners shall also file true account of the properties and credits within 1 year in prescribed Form No. 179.
43. It is made clear that the granting of probate would not Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.08.18 17:36:07 +0530 Page 29 of 30 Dr. Yadvender Singh/DJ-02/South/Saket/ND/18.08.2025 RAJEEV KHANNA AND ANS. VS. STATE AND ORS.
tantamount to any declaration of the title of the deceased to the estate in question. It is further clarified that till the petitioners do not furnish the requisite Court Fee, Administration Bond and Surety Bond and do not obtain the probate, duly signed and sealed by the Court as required under Section 289 of the Indian Succession Act, this judgment shall not be read as proof of the same.
44. The Will Ex.PW1/1 shall remain part of judicial file.
Pronounced in the open Court Digitally signed by YADVENDER YADVENDER SINGH on this 18th day of August, 2025. SINGH Date:
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