Delhi District Court
Joyce Quereshi vs Roxana Samuel Ors on 19 March, 2026
DLST010000262010
IN THE COURT OF SH. ARUL VARMA, DISTRICT
JUDGE-02, SOUTH DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
PC No. 5826/16
Filing No. 29826/2010
CNR No. DLST01-000026-2010
In the matter of
Mrs. Joyce Qureshi
(since deceased, through LRs)
(i) Mr. Emmanuel Jawid Qureshi (Husband),
E-140, East of Kailash,
New Delhi - 110065.
(ii) Mr. Ebenezer Khuram Qureshi (Son),
14317 West Lisbon Lane,
Surprise, Arizona, 85379
United States of America.
(iii) Ms. Ruth Saira Qureshi (daughter),
2331 Maputo Place
Apartment #6, Dulles,
Virginia, 20189,
United States of America.
...Petitioner
VERSUS
1. State
2. Mrs. Roxana Samuel,
PC No. 5826/16
Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 1 of 40 Arul Digitally signed
by Arul Varma
Date: 2026.03.19
Varma 15:38:32 +0530
W/o Mr. Frank Samuel
E-158, 1st floor
East of Kailash
New Delhi -110065.
3. Mr. Isaac Samuel,
E-158, Ground floor,
East of Kailash,
New Delhi.
4. Ms. Shehnaz Masih ( @ Shehnaz Wilson),
25 Christ Church Compound
1 Buttler Road,
Behind St. Stephen Hospital
Delhi - 110054. ...Respondents
Date of Institution : 18.09.2010
Date of reserving the judgment : 16.03.2026
Date of Pronouncement : 19.03.2026
Decision : Petition Allowed
JUDGMENT/ORDER
Index to the Judgment
I. BRIEF FACTS/CASE OF THE PETITIONER.........................................4 II. OBJECTIONS OF RESPONDENT NO. 3...............................................5 III. ISSUES FRAMED..................................................................................7 IV. EVIDENCE LED BY THE PETITIONER.............................................7 V. EVIDENCE LED BY RESPONDENTS. NO 3........................................9 VI. ARGUMENTS OF COUNSEL FOR THE PARTIES...........................12 VII. ISSUE WISE ANALYSIS & FINDINGS THERETO.........................17 i. Issue no 1: Whether Will dated 23.10.2007 in favour of petitioner is valid?...................................................................................................17 ii. Issue no 2: Whether the objections filed on behalf of respondent no 3 are maintainable?............................................................................30 PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 2 of 40 Arul by Arul Varma Date:
Varma 2026.03.19 15:38:36 +0530 VIII. OBJECTIONS....................................................................................31 i. Original will was not filed along with petition seeking probate of the will.................................................................................................31 ii. Citation was not published.............................................................31 iii. Respondent no. 4 Shahnaz Masih was not arrayed as party from the inception........................................................................................ 32 iv. Petition was not accompanied by proper verification as required by law.................................................................................................. 33 v. All the executors mentioned in the will were not arrayed as petitioners............................................................................................35 vi. Petitioner being a foreign citizen, could not file the probate petition at hand...................................................................................36 vii. Testatrix was medically unfit.........................................................37 IX. RELIEF..................................................................................................38 PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors. Arul by Arul Varma Date:
Page no. 3 of 40 Varma 2026.03.19 15:38:40 +0530 I. BRIEF FACTS/CASE OF THE PETITIONER
1. The facts as asseverated by the petitioner are hereby succinctly recapitulated:
(a) It was alleged that the Petitioner (Mrs. Joyce Qureshi) is the daughter of the Testatrix and that the respondent Nos. 2 and 3 (Mrs. Roxana Samuel and Mr. Isaac Samuel) are the daughter and son of the Testatrix, respectively. It was alleged that the the Testatrix, who was a permanent resident of E-158, East of Kailash, New Delhi, passed away on 04.03.2008. At the time of her death, she had a fixed place of abode within the territorial jurisdiction of this Court. It is the case of the Petitioner that during her lifetime, the Testatrix executed a Will dated 23.10.2007.
(b) It was alleged that the the Will was executed while the Testatrix was in a sound disposing state of mind and body, free from any pressure or undue influence and that the same was duly registered in the office of the Sub-Registrar-V, New Delhi, entered in Book No. 3, Volume No. 1590, at pages 26-29, as Registration No. 3780 on 23.10.2007.
(c) It was also brought to the fore that the document was executed in the presence of two attesting witnesses. It was alleged that the testatrix appointed the Petitioner and Respondent Nos. 2 and 3 as the joint executors and trustees of her estate. It was alleged that as per Paragraph 5 of the said Will, the Testatrix bequeathed Digitally signed by PC No. 5826/16 Joyce Quereshi vs. Roxana Samuel Ors.
Arul Arul Varma
Date:
Page no. 4 of 40 Varma 2026.03.19
15:38:44
+0530
the property situated at E-158, East of Kailash, New Delhi, in the following manner:
Specific Bequest / Portion of Beneficiary Property Exclusive rights over the Mr. Isaac Samuel (Son) Ground Floor, including front and rear open spaces.
Exclusive rights over the First Mrs. Roxana Samuel Floor, including front and back (Daughter) open spaces.
Exclusive rights over the Second Floor, including open Mrs. Joyce Qureshi terraces and the right to raise (Petitioner) further construction as per bye- laws.
(d) It was alleged that the subject property is situated in Delhi, and the Will was executed/registered in Delhi;
hence, this Court is competent to entertain the petition. Hence, the present probate petition was filed. Upon the death of the petitioner namely Smt Joyce Quereshi, her Legal Heirs namely Mr Emmanuel Jawid Qureshi, Mr Ebenezer Khura, Qureshi and Ms Ruth Saira Qureshi were impleaded as petitioner vide order dated 21.11.2019.
II. OBJECTIONS OF RESPONDENT NO. 32. During the course of trial, Ld Counsel for respondent no 3 had filed objections on behalf of respondent no. 3 wherein he contended that the present petition is barred by the provisions of Indian Succession Act, 1925 ans is liable to PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 5 of 40 Arul by Arul Varma Date:
Varma 2026.03.19 15:38:47 +0530 be dismissed. It was also contended that the petitioner did not file the original WILL before this Court and in absence thereof, present petition is not maintainable.
3. Ld Counsel stated that the present WILL is a sham document and is forged and fabricated as deceased late Smt Shanti Samuel lacked testamentary capacity and that she did not understand and/or approve the content of the alleged WILL. Ld Counsel also contended that the execution of the alleged WILL was procured by undue influence of Mrs Roxana Samuel and /or Mrs Joyce Quereshi and that the disputed WILL is void under Section 61 of the Indian Succession Act, 1925 being caused to be made by fraud or coercion, or by such importunity as takes away the free agency of the testatrix.
4. Ld Counsel also submitted that till the year 2021 deceased testatrix was having bad eye sight and that she was having open angle glaucoma and cataract in both eyes. He contended that the testatrix was operated in 2001 and had undergone eye surgery, however, despite that her eye sight did not improve and continued to be deteriorated and due to this the deceased testatrix was unable to read properly.
5. Ld Counsel further contended that much prior to her death, deceased late Mrs Shanti Samuel had duly executed her true and last WILL/testament dated 20.11.1985 qua her immovable and movable properties, when she was in her perfect senses and sound state of mind in the presence of two witnesses and that thereafter she handed over the said WILL to respondent no 3 and this fact was known to other Digitally signed by Arul PC No. 5826/16 Arul Varma Joyce Quereshi vs. Roxana Samuel Ors. Date:
Page no. 6 of 40 Varma 2026.03.19
15:38:50
+0530
LRs of the deceased testatrix. Ld Counsel thus submitted that the execution of the WILL is shrouded with suspicion.
6. Further, respondent no. 2/ Roxana Samuel did not have any objections to the grant of probate and her statement to this effect was recorded on 10.11.2010.
III. ISSUES FRAMED
7. Vide order dated 21.04.2011, the following issues were framed:-
"1. Whether Will dated 23.10.2007 in favour of petitioner is valid? OPP
2. Whether the objections filed on behalf of respondent no. 3 are maintainable? OPP
3. Relief."
IV. EVIDENCE LED BY THE PETITIONER
8. PW-1 Mrs Joyce Qureshi: She tendered her evidence by way of affidavit ExPW1/A. She relied upon following documents
(a) Death certificate of Shanti Sameul as Ex P-1
(b) Original WILL dated 23.10.2007 as Ex P-2
9. She deposed in her evidence by way of affidavit that Late Smt Shanti Samuel, who executed the will dated 23.10.2007 was her mother. She further deposed that during her life time, Smt Shanti Samuel was in her perfect state of health and sound disposing mind and without any pressure or persuasion of anybody, she made her last and final WILL and Testament dated Digitally signe PC No. 5826/16 Arul by Arul Varma Date:
Joyce Quereshi vs. Roxana Samuel Ors. 2026.03.19 Page no. 7 of 40 Varma 15:38:54 +0530 23.10.2007. She was cross examined at length by Ld Counsel for respondent no 3
10. PW-2 Ms Roxana Samuel: She tendered her evidence by way of affidavit as Ex PW2/A. She deposed in her evidence by way of affidavit that Late Smt Shanti Samuel, who executed the will dated 23.10.2007 was her mother. She further deposed that during her life time, Smt Shanti Samuel was in her perfect state of health and sound disposing mind and without any pressure or persuasion of anybody, she made her last and final WILL and Testament dated 23.10.2007. PW-2 Ms Roxana Samuel was cross examined by Ld Counsel for respondent no 3.
11. PW-3 Dr Anupam Murmu: He tendered his evidence by way of affidavit as PW3/A. He relied upon following documents:
(a) Will/testament dated 23.10.2007 executed by Late Smt Shanti Samuel already Ex P2.
12. He deposed in his evidence by way of affidavit that he was a family friend of the parties. He deposed that he was very much familiar with Late Smt Shanti Samuel. He also deposed that testatrix had executed the WILL dated 23.10.2007 in his presence and in the presence of one Mr Ian Ashley Goodwin.
13. He further deposed that one Dr KK Singh was also present at the time of execution of the WILL dated 23.10.2007. It was also deposed by this witness that the said WILL was also got registered with the office of PC No. 5826/16 Joyce Quereshi vs. Roxana Samuel Ors. Arul Digitally signed by Arul Varma Page no. 8 of 40 Varma Date: 2026.03.19 15:38:57 +0530 Registrar/Sub-Registrar, New Delhi in his presence on 23.10.2007. He further deposed that at the time of execution of the WILL dated 23.10.2007, the testatrix was in a sound state of mind and that she executed the said WILL without any force, favoritism or coercion. He was cross-examined by Ld Counsel for respondent no 3.
14. PW-4 Dr KK Singh : He tendered his evidence by way of affidavit Ex PW4/A. This witness also deposed on the similar vein as was deposed by PW-3 Dr Anupam Murmu. He was further cross-examined at length by Ld Counsel for respondent no 3.
15. PW5 Mr Ian Ashley Goodwin: He tendered his evidence by way of affidavit Ex PW5/A. He relied upon following documents:
(a) Will/Testament dated 23.10.2007 executed by late Smt Shanti Samuel already Ex P2.
16. This witness also deposed on the similar vein as was deposed by PW-3 Dr Anupam Murm and PW-4 Dr KK Singh. He was cross-examined at length by Ld Counsel for respondent no 3.
17. DE stood closed on 05.12.2013.
V. EVIDENCE LED BY RESPONDENTS. NO 318.In the proceeding only five witnesses were examined by the respondents therein, succinct testimonies whereof are as follows:
19. RW1 Mrs Monica Sherring: She tendered her evidence by way of affidavit RW1/A. She deposed that she had Digitally PC No. 5826/16 signed by Arul Joyce Quereshi vs. Roxana Samuel Ors. Arul Varma Date:
Page no. 9 of 40 Varma 2026.03.19 15:39:02 +0530 seen the original WILL dated 20.11.1985 Ex PW1/R1 in Court. She had brought her original Pan Card, and copy of the same was Ex RW1/1 and she had also brought the original death certificate of his father, copy thereof was Ex RW1/2. She deposed Mr R Edwards was his father, who expired on 06.03.1993. She further deposed that being a daughter, she has seen her father's writing and signing.
20. She also deposed that she is familiar with the handwriting and signatures of her father and that she can identify the same. She deposed that WILL/Testament dated 20.11.1985 Ex PW1/R1 bears the signatures of her father in his own handwriting at points A to A on its second page. She was cross examined by Ld Counsel for petitioner.
21. RW2 Isaac Samuel: He tendered his evidence by way of affidavit as R2. He relied upon following documents:
(a) Original Power of attorney dated 31.12.2010 as Ex RW2/1
(b) Photocopy of LPG connection card as Ex RW2/2,
(c) Original acknowledgment and acceptance for registration of telephone connection as Ex RW2/3
(d) Statement of account dated 31.07.1993 of A/c no 004196 as Ex RW2/4
(e) Photocopy of his ration card as Ex RW2/5
(f) photocopy of his passbook of Bank of India of SB A/c no 17867 as Ex RW2/6.
PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 10 of 40 Arul by Arul Varma Date:
2026.03.19 Varma 15:39:09 +0530
22. He further deposed that her mother late Shanti Samuel was undergoing Opthalmic treatment at Dr Rajinder Prasad Opthalmic Eye Hospital, AIIMS. He also deposed that he had discovered her OPD card no 427284 during 2002. It was deposed that her mother had only 10% eye vision and she lost her remaining eye vision completely. He was also cross-examined by the Ld Counsel for petitioner.
23. RW3 Sh Surender Kumar, Medical Record Technician:
He was summoned witness. It was stated that the summoned record was not traced out as the records for OPDs are maintained only upto five years. The notification dated 12.11.2014 was marked as RW3/A. It was further deposed that OPD card dated 24.02.2003 was issued by the AIIMS but they did not have the parallel record as the same was more than five years old. The OPD card dated 24.02.2003 was Ex RW3/1. He was cross-examined by Ld Counsel for petitioner
24. R4W1 Shahnaz Masih: She tendered her evidence by way of affidavit Ex R4W1/A. She deposed in her evidence filed by way affidavit that testatrix had no intention of making any WILL and that she wished that her entire estate should be divided equally among all surviving legal heirs. She further deposed that she too has share in the said property. She was cross-examined by Ld Counsel for petitioner.
25. RW4 Mahendra Verma, Medical Record Officer: He was the summoned witness. He deposed that as per the office memorandum dated 28.10.2014, the medical PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors. Arul by Arul Varma Date:
Page no. 11 of 40 Varma 15:39:13 2026.03.19 +0530 records in digitized form are to be maintained for the last 10 years and hard copy of medical record are to be maintained for the last 3 years. He had brought the photocopy of the said OM, which was Marked as Mark A. It was deposed that the medical records of all the patients of Holy Family Hospital from the year 2008 to 2010 has been destroyed. He had brought the photocopy of letter dated 15.02.2016 issued by the medical record officer of Holy Family Hospital, which was marked as Mark B. It was further deposed that the Holy Family maintains the record of admission and discharge of the patient in digitized form and details of any patient can be obtained therefrom either through OPD card No or IPD card no.
26. It was further deposed that he had made efforts to trace the records of OPD no 828341 from the hospital records. No such record was traceable with the hospital. He had produced a letter from the hospital under the signature of Dr Sumbul Warsi, DCH, MRCP, Medical Superintendent, Holy Family Hospital, New Delhi, which was Ex RW4/1.
VI. ARGUMENTS OF COUNSEL FOR THE PARTIES.
27. At the very outset, Sh Kamal Mehta, Ld Counsel for petitioner submitted that the WILL dated 23.10.2007 has been interchangeably mentioned as Ex P1 and Ex P2 which has been clarified in the examination in chief of PW-5 Ian Ashley Goodwin dated 05.12.2013.
Digitally
PC No. 5826/16 signed by
Joyce Quereshi vs. Roxana Samuel Ors. Arul Arul Varma
Page no. 12 of 40 Date:
Varma 2026.03.19
15:39:16
+0530
28. Ld Counsel for petitioner has contended that the WILL dated 23.10.2007 executed by the testator Late Smt Shanti Samuel has been cogently proved to be a genuine and a valid WILL. To substantiate his contention, Ld Counsel has invited the Court's attention to the testimonies of PW-3 Dr Anupam Murmur, PW-4 KK Singh and PW-5 Ian Ashley Goodwin. It was submitted that a perusal of testimony of PW-4 would reveal that PW-3 was present at the time of execution of WILL. Further, PW-4 deposed that the attesting witnesses namely PW-3 Anupam Murmur and PW-5 I Ian Ashley Goodwin were the attesting witnesses of the WILL and were present at the time of execution thereof.
29. Ld Counsel further narrated the sequence and signing and execution of WILL. Ld Counsel further contended that the said witness affirmed the fact that the testator had put her signatures on Ex.P2 as a WILL and not as an affidavit. Ld Counsel further contended that both the witnesses PW-3 and PW-5 deposed not only qua the factum of execution and attestation of the WILL but also deposed qua the factum of testator being of a sound disposing mind. Ld Counsel specifically invited the Court's attention to cross- examination of PW-3 Dr Anupam Murmur, who emphasized the fact that the testator had met PW-3/attesting witness in a Church about a month ago, which reflects the fact that the testator was contemplating execution of a WILL, which demonstrates that she was possessing requisite compos mentis as she was pursuing her day to day activities.
Digitally
PC No. 5826/16 signed by Arul
Joyce Quereshi vs. Roxana Samuel Ors. Arul Varma
Page no. 13 of 40 Date:
Varma 2026.03.19
15:39:20
+0530
30. Lastly, Ld Counsel for petitioner contended that Ex P-2 is a registered WILL and there is a presumption of genuineness of the registered WILL. It was emphasized that the signatures of the attesting witnesses as well as of the executant/testator were endorsed in the presence of Sub-Registrar, as is evident from a perusal of the back portion of Ex P2/WILL. As far as the date of execution of WILL is concerned, Ld Counsel invited the Court's attention to cross examination of PW-3 conducted on 05.12.2013, wherein the said witness categorically affirmed that the WILL was executed on 23.10.2007. It was submitted by Ld Counsel for petitioner that as per the cross-examination of PW-5 Ian Ashley Goodwin conducted on 05.12.2013, it has been affirmed that the WILL was not only executed on 23.10.2007 but was also registered before the office of Sub-Registrar on the same day.
31. Ld Counsel for petitioner also contended that a perusal of WILL would reflect that the thought process of the testator and the factum of equal distribution of personal belongings as well as equitable distribution of immovable properties would demonstrate that the testator had a sound disposing mind. Further, the WILL has two photographs of the testator, one a coloured photograph and the other black and white photograph, at the back portion of the WILL, and it can be visibly seen that the testator was wearing spectacles at the time of execution and registration of the WILL.
32. Per contra, Sh Bhagat Singh, Ld Counsel for respondent no 3 submitted that this is a case where there are PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors. Arul by Arul Varma Date:
Page no. 14 of 40 Varma 2026.03.19 15:39:23 +0530 suspicious circumstances galore. Ld Counsel firstly contended that the late testator had four children namely Isaac Samuel, Roxana Samuel, Joyce Quereshi and Fostina Wilson. Ld Counsel further contended that although Fostina Wilson had predeceased the testator namely Smt Shanti Samuel, she had a daughter namely Shehnaz Masih @ Wilson, who was not impleaded by the petitioner at the time of filing the suit. Ld Counsel contended that although Shehnaz Masih was impleaded at the fag end of the trial, non impleadment of her in the trial from the inception, is a suspicious circumstances in itself.
33. Ld Counsel also contended that the conduct of the petitioner to make endeavors to debar a natural Legal Heir viz., Shehnaz Masih is suspicious circumstances. Ld Counsel also submitted that the application under Order I Rule 10 CPC to implead Shehnaz Masih was filed belatedly only to fill lacunae in the case of the petitioner. Ld Counsel further contended that at the time of filing of Probate Petition, the original WILL was not filed by the petitioner. It was further submitted that it is only after the respondent had preferred the application under Order VII Rule 11 CPC seeking rejection of the plaint, when the petitioner adduced on record, that the original WILL dated 23.10.2007 was filed. Ld Counsel contended that no reason was put forth by the petitioner, at the time of filing of probate petition, for filing a copy of the WILL and not the original thereof.
34.Ld Counsel further contended that in this regard, contrary claims were made by the petitioner. It was submitted that PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors. by Arul Varma Page no. 15 of 40 Arul Date:
Varma 2026.03.19 15:39:27 +0530 qua the application moved under Section 151 CPC dated 06.06.2011, for bringing on record the original WILL dated 23.10.2007, it was averred that the original WILL was in custody of PW-4 Dr KK Singh whereas in the cross-examination of PW-1 dated 27.09.2012, she firstly averred that she came into the possession of the WILL dated 23.10.2007 four days after the death of her mother in March, 2008. It was also contended that the testimony of PW-4 Dr KK Singh would also make it explicit that he never affirmed that he was ever in possession of the impugned WILL. Ld Counsel contended that in the cross-
examination of PW-1 Joyce Quereshi dated 27.09.2012, she had again said that the WILL was not in possession of her brother Isaac Samuel/RW-2. Ld Counsel contended that even through RW-2 Isaac Samuel affirmed that he was not in possession of the WILL, however, no question were put to him in this regard by the petitioner during his cross- examination.
35. Ld Counsel for respondent contended that a perusal of original WILL would reveal that on the back portion of the WILL, names of inter alia Joyce Quereshi is mentioned as a person, who presented the WILL in registration. Ld Counsel further submitted that this is in contrary to the cross-examination of PW-1 dated 27.09.2012 wherein she categorically averred that she was in USA at the time of registration of WILL dated 23.10.2007. Ld Counsel further submitted that signatures of Joyce Quereshi, Isaac Samuel, Roxana Samuel and Shanti Samuel are conspicuously PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors. Arul by Arul Varma Date:
Page no. 16 of 40 2026.03.19
Varma 15:39:30
+0530
missing from the original WILL at the back portion where certification is given by Sub-Registrar.
36. Ld Counsel for respondent also stated that a perusal of verification clause of the probate petition, filed by the petitioner, reveals that it falls foul of Order VI Rule 15(2) CPC inasmuch as the deponent /petitioner has not specified, by reference, to the numbered paragraphs, what he verifies of his own knowledge and what he verifies upon information received and believes to be true.
37. Ld Counsel for respondent no 4 adopted the arguments of Ld Counsel for respondent no 3.
VII. ISSUE WISE ANALYSIS & FINDINGS THERETO i. Issue no 1: Whether Will dated 23.10.2007 in favour of petitioner is valid?
38.Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act, 1925 and the Indian Evidence Act, 1872. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
"Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act during her life.
PC No. 5826/16 Digitally
signed by Arul
Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 17 of 40
Arul Varma
Date:
Varma 2026.03.19
15:39:36
+0530
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
"Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
"Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
39. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that if the person "does not know what he is doing" for any reason (such as intoxication, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its purport or import.
40. 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 PC No. 5826/16 Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 18 of 40 Arul Digitally signed by Arul Varma Varma Date: 2026.03.19 15:39:48 +0530 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 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."
41. 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 PC No. 5826/16 Arul Digitally signed by Arul Varma Joyce Quereshi vs. Roxana Samuel Ors. Date:
Page no. 19 of 40 Varma 2026.03.19 15:39:54 +0530 or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the 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 the execution of the Will.
Digitally signed by PC No. 5826/16 Arul Arul Varma Joyce Quereshi vs. Roxana Samuel Ors. Date:
Page no. 20 of 40 Varma 2026.03.19 15:40:36 +0530
42. Hon'ble Supreme Court of India in Meena Pradhan vs. Kamla Pradhan in Civil appeal no. 3351/2014 on 21.09.2023 has held as under:
"9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3 Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3 Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3 Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3 Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Digitally signed by Arul PC No. 5826/16 Joyce Quereshi vs. Roxana Samuel Ors. Arul Varma Date:
Page no. 21 of 40 Varma 2026.03.19
15:40:40
+0530
Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence etcetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious Digitally PC No. 5826/16 signed by Joyce Quereshi vs. Roxana Samuel Ors. Arul Arul Varma Date:
Page no. 22 of 40 Varma 2026.03.19 15:40:44 +0530 circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' 1. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances."
43. It is the duty of the propounder of the Will to prove the legality and validity of the Will. In order to prove the Will dated 23.10.2007, the petitioner examined total five witnesses. Petitioner/ Joyce Quereshi examined herself as PW-1. The petitioner also examined respondent no. 2/ Roxana Samuel as PW-2. She examined Dr. Anupam Murmu as PW-3 being one of the attesting witnesses of the Will of Late Shanti Samuel. During his evidence, he relied upon original Will of Late Shanti Samuel already Ex. P2.
She also examined and Sh. Ian Ashley Goodwin as PW-5 being one of the attesting witnesses of the Will of Late Shanti Samuel.
44. Further, PW-2 proved the signatures of the testatrix on Will dated 23.10.2007 Ex. P2. His testimony also shows that the testatrix was in good physical health and sound Digitally signed PC No. 5826/16 Joyce Quereshi vs. Roxana Samuel Ors. Arul by Arul Varma Date:
Page no. 23 of 40 Varma 2026.03.19 15:40:48 +0530 disposing state of mind at the time of execution of the Will dated 23.10.2007 Ex. P2.
45. PW-5 also proved the signatures of the testatrix on Will dated 23.10.2007 Ex. P2. His testimony also shows that the testatrix was in good physical health and sound disposing state of mind at the time of execution of the Will dated 23.10.2007 Ex. P2. At this juncture, it would be apt to refer to the following extracts of testimonies of witnesses of the petitioner. They revealed that the witnesses withstood the test of cross-examination, and proved the attestation and execution of the impugned WILL:
46. PW-2 Ms Roxana Samuel, who deposed as thus:
"Que. Please inform the court that how and with whom your mother went to the Office of Sub- Registrar for so-called Testament dated 23.10.2007?
Ans. I accompanied my mother to the Office of Sub-Registrar, however, I do not remember who else accompanied us and how we went there. Que. Please inform the court that how many people were present at the Office of Sub-Registrar at the time of execution & registration of so-called Testament dated 23.10.2007?
Ans. Dr Anupam Murmu and Mr Ian Goodwin were present there at the time of signing and registration of Will.
I do not know who and where the Will dated 23.10.2007 was drafted/prepared. Que. When and where your mother appended her signatures on so-called Will dated 23.10.2007? (Ex P2)?
Ans. She had not put her signatures in the said Will in my presence.
Que. Is it correct that you were present at Sub- Registrar Office on 23.10.2007?
Ans. Yes, I was present, but I did not go for registration inside the room.
PC No. 5826/16 Digitally
signed by
Joyce Quereshi vs. Roxana Samuel Ors. Arul Arul Varma
Page no. 24 of 40 Date:
Varma 2026.03.19
15:40:52
+0530
Que. When and where Dr Anupam Murmu and Mr Ian Goodwin appended their signatures on so- called Will dated 23.10.2007 (Ex P2) and who first appended his signature on the document? Ans. They put their signatures on the Will at the Sub-Registrar's office, however, I do not know who first appended his signatures as I was not present inside the room."
47. PW-3 Dr Anupam Murmu, during his cross-examination averred as thus:
" on 23.10.2007, Mrs Shanti Samuel came to the Office of Sub-Registrar in a car and was accompanied by her daughter Mrs Roxana Samuel. I suppose some driver was driving the car. I am not aware who collected Ex P2 after its registration from the Office of Sub-Registrar. It is correct that I reached Sub-Registrar's office before Mrs Shanti Samuel and I do not recall who all were present with me before Mrs Shanti Samuel came. I do not know who got the number for the registration of Ex P2. I do not remember if Mr Ian Goodwin reached Sub-Registrar office before or after Mrs Shanti Samuel. Mrs Shanti Samuel first signed on Ex P2 and thereafter, I put my signatures on it. I do not know whether Mrs Shanti Samuel had ever executed a Will dated 20.11.1985 or not. At the time of signing of Will Ex P2, I along with Mrs Shanti Samuel, Mr Ian Goodwin and Dr KK Singh were present along with few others whom I did not recollect. The signatures on the Will were taken in the court of Sub-Registrar and in the present of Sub-Registrar. It is correct that after pending the signature on Ex P2. It was submitted at the counter and then it was present before Sub-Registrar for registration, however, I do not know the exact process."
48. Further, PW-4 Dr KK Singh avowed as thus:
" At the time of execution of Will Ex P2, I along with Dr Anupam Murmu, Ashley Goodwin were present there. Ms Roxana Samuel was in the campus of the office, but I am not sure whether she was present in the court of Sub-Registrar or not at the time of execution of said Will. I am not aware who drafted Will Ex P2. I am also not aware where it was drafted. Ex P2 does not bear my signature. I am not Digitally signed by PC No. 5826/16 Joyce Quereshi vs. Roxana Samuel Ors. Arul Arul Varma Date:
Page no. 25 of 40 Varma 2026.03.19 15:40:56 +0530 an attesting witness to the Will dated 23.10.2007, I was only present at the time of execution of Will in question. Yes, all the nine signatures on the Will Ex P2 were appended by Mrs Shanti Samuel in m presence in the office of Sub-Registrar. I am not sure it was before the Sub-Registrar or in its campus. It is also correct that the both the attesting witnesses signed on the Will in my presence. It is wrong to suggest that before entering the court of Sub- Registrar, the Will in question was already signed by the testatrix or the attesting witnesses. First, Mrs Shanti Samuel signed on the Will, thereafter, Dr Anupam Murmu and Mr Ashley Goodwin signed the same."
49. Significantly, PW-5 Mr Ian Ashley Goodwin deposed in his cross-examination dated 05.12.2013 as thus:
'On 23.10.2007, I along with Ms Shanti Samuel, Dr Murmu, Dr KK Singh, Ms Roxana Samuel and her husband, were there at Sub-Registrar's office. It is correct that when Ms Shanti Samuel appended her signatures on Ex P2, Ms Rozana Samuel was also present there. It is correct that after appending signatures on Ex P2, it was given for registration. I have no knowledge of any other Will, if any, executed by Ms Shanti Samuel. Mr Frank Samuel called me on23.10.2007 at Sub-Registrar's Office to be a witness to the Will [Again said, Mr Frank Samuel took me along with him to Sub-Registrar's office in his car.] I cannot tell when, with whom and how Ms Shanti Samuel reached Sub- Registrar's office as she was already present there. Ms Shanti Samuel, Ms Roxana Samuel, Dr Murmu and Mr KK Singh were already at the Sub- Registrar office. I am not aware as to why Mr KK Singh was not made an attesting witness to Ex P2, it was the sweet will of the deceased testatrix. I am not aware as to who collected the Will from the office of Sub-Registrar, after its registration. The Will Ex P2 was prepared and drafted at the office of Sub-Registrar and it was got printed after I reached there. The print out of Ex P2 was taken in the presence of Ms Shanti Samuel, Ms Roxana Samuel, Mr Frank Samuel, Dr Murmu and Ms KK Singh.Digitally signed
by Arul Varma Arul Date:PC No. 5826/16
Varma 2026.03.19 15:41:00 +0530 Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 26 of 40
50. Thus, the cross-examination of all the above witnesses did not impeach their credit and the respondents could not establish that the deceased testator was not in a sound disposing mind. In this context, it would be apt to reproduce the relevant extracts of Ashok Baury Vs State Test Cas 11/2018, wherein it was held as thus:
"8. Soundness of mind, for the purposes of contracting, is defined in Section 12 of the Indian Contract Act, 1872 and which in my view would have application in the matter of soundness of mind requisite for making of a Will as well. As per the said provision, (i) a person is said to be of sound mind, if, at the time of making of the contract, he is capable of understanding it and of forming a rational judgment as to its effect upon his interests; (ii) a person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind; and, (iii) a person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind.
9. As would be obvious from the above, a common thread is found to run between Section 12 of the Contract Act and Section 59 of the Indian Succession Act.
10. Chapter VII titled "Of the Burden of Proof", of Part III titled "Production and Effect of Evidence", of the Evidence Act deals with the issue with which this Court is concerned herewith. Per Section 101 thereunder, whosoever desires any Court to give judgment as to any legal right or liability dependant on the existence of facts, which he asserts, must prove that those facts exist. Since the propounder of a Will as per Section 59 of the Indian Succession Act is required to prove that the testator at the time of making of the Will was of sound mind, the burden of proof would be on the propounder. However that would be so where none is opposing the Will propounded and the Will has to be proved for the satisfaction of the Court. However when a document propounded as Will is contested, what would be required to be proved is only that what is in issue and only if the party disputing the document propounded as a Will disputes/controverts that the testator/testatrix, at Digitally signed by PC No. 5826/16 Arul Arul Varma Date:
Joyce Quereshi vs. Roxana Samuel Ors. Varma 2026.03.19 15:41:04 Page no. 27 of 40 +0530 the time of making the Will was of sound mind, would soundness of mind be in issue and required to be proved. However if soundness of mind is not specifically denied then as per the Rules aforesaid contained in Order VIII Rule 5 of the CPC, soundness of mind shall be deemed to have been admitted. In the event of denial of the soundness of mind, the question as herein arises, on whom should the onus be, whether on the propounder or on the opposite party, arises.
11. Section 114 under the aforesaid Chapter VII of Part III of the Evidence Act enables the Court to presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the case.
12. The common course of natural events and human conduct is of soundness of mind and unsoundness of mind an aberration. If a testator/testatrix has led a normal life, performed day to day functions in the normal course of human conduct, the presumption under Section 114 would be of soundness rather than unsoundness of mind."
51. The above makes it explicit that the presumption u/s 114 of the Indian Evidence Act would be of soundness rather than unsoundness of mind. Further, while proof of soundness of mind requires bare statement to be made, proof of unsoundness of mind has to be established. In this regard, in Ashok Baury (supra), it was held as thus:
"15......... The applicant/Relation No.10 Arun Sood cannot be permitted to, taking advantage of having the onus of the issue as to the soundness of mind placed on the petitioner, steal a walkover by ultimately arguing that the petitioner has failed to prove soundness of mind. As observed in the order dated 25 th November, 2019 also, proof of soundness of mind requires a bare statement to be made. On the contrary to prove unsoundness of mind, one would be required to prove consistent conduct to prove unsoundness of mind, even if medical records of unsoundness of mind are not available."
Digitally signed by Arul PC No. 5826/16 Arul Varma Joyce Quereshi vs. Roxana Samuel Ors. Date:
Page no. 28 of 40 Varma 2026.03.19 15:41:08 +0530
52. The soundness of mind of the testator is also reflected from the manner of bequest as well. As per the WILL, the properties of the testator have been bequeathed as follows:
Specific Bequest / Portion Beneficiary of Property Exclusive rights over the Mr. Isaac Samuel (Son) Ground Floor, including front and rear open spaces.
Exclusive rights over the Mrs. Roxana Samuel First Floor, including front (Daughter) and back open spaces.
Exclusive rights over the Second Floor, including Mrs. Joyce Qureshi open terraces and the right (Petitioner) to raise further construction as per bye-laws.
53. Thus, all the legal heirs have got more or less an equal share in the property, further corroborating the fact that some thought was put in by the testator at the time of making the bequest.
54. Significantly, the respondents were not able to establish unsoundness of mind of the testator. No medical documents, affecting the mental capacity of the testator have been proved by the respondents. Moreover, the WILL in the present petition was duly registered before the office of Sub-registrar, and being a registered document, there is a presumption of it being genuine. The onus to assail its genuineness was on the respondent, she could have Digitally signed by PC No. 5826/16 Arul Arul Varma Joyce Quereshi vs. Roxana Samuel Ors. Varma Date:
Page no. 29 of 40 2026.03.19
15:41:11
+0530
examined the Sub-Registrar concerned but he chose not to do so. In this context, it would be apposite to refer to the following observations made in Rajesh Sharma Vs Krishan Kumar Sharma Sharma, FAO 6412022:
"18. So far as the objection that Sh. J.C. Chopra, Advocate who was present at the time of the registration, and Sh. Sushil Chadha, who had drafted the Will, should have been called in the witness box is concerned, I may note that the probate court has rightly dealt with the same that a Will is proved through the testimony of one attesting witness and it was not necessary in the facts of the present case to have summoned Sh. J.C. Chopra, Advocate who was present at the time of registration of the Will before the Sub-Registrar and nor was Sh. Sushil Chadha who had drafted the Will required to be called in the witness box. At this stage, I would like to state that learned counsel for the respondent argued that presence of Sh. J.C. Chadha was required for proving registration of the Will inasmuch as no one was called from the office of the Sub-Registrar for proving registration of the Will, Ex. PW-1/1, but in my opinion, this objection is misconceived because a court takes judicial notice of official seals as per Section 57 of the Evidence Act, 1872 and if the respondent/objector wanted to prove that the Will was not duly registered the onus was upon the respondent/objector to summon the record of the Sub-Registrar to establish that the Will was not duly registered. Obviously, this respondent/objector did not do so because he was fully aware that the Will stands duly registered before the SubRegistrar. Accordingly, this objection urged on behalf of the respondent/objector is also rejected.
ii. Issue no 2: Whether the objections filed on behalf of respondent no 3 are maintainable?
55.During the course of arguments, Ld Counsel for respondent no 3 had demurred and raised myriad grounds for rejecting the petition, the same are hereinafter dealt with objection-wise:
Digitally signedPC No. 5826/16 Arul by Arul Varma Date: Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 30 of 40 Varma 2026.03.19 15:41:14 +0530 VIII. OBJECTIONS i. Original will was not filed along with petition seeking probate of the will.
56. Ld Counsel for respondent had submitted that there are various discrepancies which reflect that the petitioner had not filed the Original WILL at the time of filing of the present probate petition. Ld Counsel contended that a perusal of Section 276 of Indian Succession Act would reveal that the application for probate has to be filed with original WILL, which was not done so in the present case. It was submitted that the WILL was filed belatedly. This contention of Ld Counsel for petitioner is bereft of any justification inasmuch as the original WILL was eventually placed on record on 10.02.2011.
57.A perusal of order sheet dated 10.02.2011 reveals that an objection was raised by the respondent no 3 qua non filing of the original WILL, whereby the Ld Counsel for petitioner undertook to file the same during the course of the day, and the original WILL was duly filed on the said date itself. The present lis has been adjudicated upon a perusal of original WILL, therefore no grounds are made to entertain the objection of Ld counsel for respondent.
ii. Citation was not published.
58. Ld Counsel for respondent raised the objection that the citation was not published qua the interested parties in the present matter calling upon them to inspect the proceedings before a grant of probate. However, this contention of Ld Counsel for respondent holds no water PC No. 5826/16 Digitally signed by Joyce Quereshi vs. Roxana Samuel Ors. Arul Arul Varma Page no. 31 of 40 Varma Date:
2026.03.19 15:41:18 +0530 inasmuch the legal heirs or the interested parties have already appeared and contested the present matter. The proceedings have continued as a contentious case. The purpose of the citation to notify the interested parties has already been met through their actual appearance. Thus, the absence of citation is considered a procedural irregularity, rather than a fatal flaw, as notice was duly issued to them. The heirs/interested parties were aware of the case. Therefore, this objection too is hereby overruled.
iii. Respondent no. 4 Shahnaz Masih was not arrayed as party from the inception.
59. Ld Counsel for respondent had submitted that the late testator had four children namely Isaac Samuel, Roxana Samuel, Joyce Quereshi and Fostina Wilson. It was submitted that Ms Fostina Wilsin predeceased the testator, she had a daughter namely Shahnaz Masih @ Wilson, who was not impleaded by the petitioner at the time of filing of the suit, but was arrayed later on only at a belated stage of trial. Ld Counsel submitted that the endeavor to debar the said natural heir i.e. Shahnaz Masih@ Wilson is a suspicious circumstances. In the opinion of this Court, this conduct of petitioner would not prejudice the case of the petitioner. A perusal of the impugned WILL Ex P-2 would reveal that at paragraph 3, the testator had specifically excluded the child (respondent no 4) and husband of Late Ms Fostina Wilson from the estate.
60.In view of the specific exclusion, nothing much would turn upon non impleadment of the respondent no 4 in the Digitally signed by Arul PC No. 5826/16 Arul Varma Date:
Joyce Quereshi vs. Roxana Samuel Ors. Varma 2026.03.19 15:41:23 Page no. 32 of 40 +0530 present petition. The fact of the matter is that before the conclusion of the trial, respondent no 4 has been arrayed as a party and has been heard in the matter.
61.In fact, the exclusion of respondent no 4 from the bequest is also not a suspicion circumstances. In this context, it would be apposite to reproduce the relevant extracts of Rabindra Nath Mukherjee (supra) wherein it was held as thus:
3. A perusal of the two impugned judgments shows that the following were regarded as suspicious circumstances:
(1) Deprivation of the natural heirs by the testatrix.
(2) Identification of the testatrix before the Sub-registrar by an Advocate of Calcutta who had acted as a lawyer of one of the executors in some cases. (3) The witnesses to the documents were interest in the appellants. (4) Active part played by one Subodh, a close relation of Rabindra, one of the executors, in getting execution of the will. He has been described as ubiquitous.
4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritence of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will. iv. Petition was not accompanied by proper verification as required by law.
62. Ld Counsel for respondent had contended that a perusal of verification clause of probate petition filed by the petitioner reveals that it falls foul of Order VI Rule 15 (2) PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors. Arul by Arul Varma Date:
Page no. 33 of 40 Varma 2026.03.19 15:41:29 +0530 CPC inasmuch as the deponent /petitioner has not specified, by reference to the numbered paragraphs, what she verifies of his own knowledge and what she verifies upon information received and believes to be true. This contention of the Ld Counsel too cannot be countenanced inasmuch as the Indian Succession Act provides for a specific manner and signing of verification of the petition for probate.
63.At this juncture, it would be apposite to refer to Section 280 and Section 281 of Indian Succession Act, which are hereunder:
"280. Petition for probate, etc., to be signed and verified.-The petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the following manner, namely:--
"I (A.B.), the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.".
281.Verification of petition for probate, by one witness to will.-Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:--
"I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last Will and testament in my presence)."
64. At this juncture, it would be apt to reproduce the verification clause by the petitioner as well as the witness of the WILL, in the probate petition at hand:
"VERIFICATION:
Digitally signed by Arul Arul Varma Date:
PC No. 5826/16 Varma 2026.03.19
Joyce Quereshi vs. Roxana Samuel Ors. 15:41:33
+0530
Page no. 34 of 40
I, Mrs Joyce Qureshi the petitioner in the above petition do hereby solemnly affirm that what is stated therein is true to the best of my information and belief:
Place: Delhi Petitioner Dated:
VERIFICATION BY WITNESS OF THE WILL:
I Dr Anupam Murmu, S/o Mr B.B Murmu, R/o B-7/193, Paschim Vihar, New Delhi-110063, one of the witnesses to the last will and testament of the testator mentioned in the present petition, declare that I was present and saw the said testator made her signature upon the will annexed the present petition.
Verified on this 13 day of SEPTEMBER 2010 Delhi Dated 13/9/10 Witnesses"
65. The above verification by the petitioner, as well as by the witness to the WILL, is completely in consonance with the mandate of Section 280 and Section 281 of the Indian Succession Act, and therefore the objection of Ld Counsel for respondent qua improper verification, is overruled.
v. All the executors mentioned in the will were not arrayed as petitioners.
66. There does not seem to be any bar in one of the executors filing the petition for probate. In any case, the other executor did not object to filing of the present petition on this ground, and it is trite law that they cannot be allowed to argue beyond the pleadings. Be that as it may, respondent no 2 did not give consent to be an executor, as it apparent from the cross-examination of PW-1 dated 27.09.2012, wherein she deposed as thus:
PC No. 5826/16Joyce Quereshi vs. Roxana Samuel Ors. Digitally signed by Arul Varma Page no. 35 of 40 Arul Date:
Varma 2026.03.19 15:41:36 +0530 "Que. Is is correct that Ex P2 names three executors?
(Question disallowed being asked on the contents of document) Que. Have you taken consent of respondent no 3 before filing the present petition?
Ans. I have talked to respondent no 3 on a number of occasions but he did not give any consent. I did not disclose this fact in my petition."
vi. Petitioner being a foreign citizen, could not file the probate petition at hand.
67. Ld Counsel for respondent no 3 had contended that Mrs Joyce Quereshi, being a foreign citizen, could not file the present probate petition. However, this contention of Ld Counsel for respondent no 3 is bereft of any justification in light of the fact that there is no bar on a foreign citizen being a petitioner. In this context, it would also be apt to refer to Section 223 of Indian Succession Act, which is reproduced hereunder:
"223. Persons to whom probate cannot be granted.-Probate cannot be granted to any person who is a minor or is of unsound mind [nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made [by notification in the Official Gazette] by the [State Government] in this behalf]."
68. Thus, it is apparent from the above that the petitioner herein is clearly not falling in the above category of excluded persons. Therefore, there is no impediment in granting her /her legal heirs a probate qua the impugned WILL.
Digitally
signed by
PC No. 5826/16 Arul Arul Varma
Date:
Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 36 of 40 Varma 2026.03.19 15:41:43 +0530 vii. Testatrix was medically unfit.
69. Ld Counsel for respondent no 3 had averred that in his cross-examination dated 07.01.2016 respondent no 3 Isaac Samuel had averred that his mother late Smt Shanti Samuel was undergoing Opthalmic treatment at Dr Rajinder Prasad Opthalmic Eye Hospital, AIIMS and she had only 10 % eye vision. He also averred that he had discovered her OPD card no 427284 during 2002 and had asked for records to be summoned from AIIMS, whereafter RW-3 Surender Kumar, Medical Record Technician, AIIMS was examined on 04.01.2018, who testified that the summoned records have not been traced out as the records for the OPDs are maintained only up to 5 years.
70. A perusal of cross-examination of RW-3 Surender Kumar, on 06.01.2018 reveals that he could not comment on whether the testator was undergoing Opthalmic treatment at Dr Rajinder Prasad Opthalmic Eye Hospital, AIIMS. He however deposed that the OPD card issued by AIIMS Ex RW3/1 is genuine. However, a perusal of his further testimony reveals that the patient was diagnosed as suffering from Gluacoma. There was no evidence adduced on record by the respondent to substantiate the claim that testator had only 10 % eye vision and that she did not have proper eye sight to read the WILL.
71. In fact, a perusal of Ex RW3/1 would reveal that her vision has been stated to be GL 6/9- GL 6/12, which gives an inference that she had the requisite vision correction upon Digitally signed Arul by Arul Varma Date:
PC No. 5826/16 Varma 2026.03.19
15:41:48
+0530
Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 37 of 40 using spectacles. Further, a perusal of the WILL would reveal that the photographs attached with the WILL, of the testator, reflect that the testator was wearing glasses at the time of attestation and execution of the WILL before the office of Sub-registrar. Thus, respondent could not establish that the testator suffered from poor eyesight to render her incapable of reading the contents of the WILL. This inference gets fortified by the evidence on record, which demonstrates that the deceased testator was carrying out her day to her activities, like visiting church etc.
72. Further, as far as other discrepancies as raised by the Ld Counsel for respondent no 3 is concerned, viz. different stands taken qua presence of testatrix at registrar's office, different stands taken qua the preparation of the Will, credibility of attesting witnesses is doubtful, and testatrix did not understand English, fall in the realm of minor inconsistencies, and are not fatal to the case of the petitioner. Recourse can be had to Rajesh Sharma (supra) wherein the Hon'ble Court held as thus:
"16. So far as the objection that the attesting witness PW-1, Sh. Ved Prakash Gupta had wrongly mentioned that the deceased testatrix had four sons and two daughters and whereas she has four sons and three daughters is concerned, all that needs to be said is that such minor contradictions cannot take away the factum of the Will otherwise having been duly proved to have been executed and attested, and more so because Will in question is a registered Will.
IX. RELIEF.
73. Ergo, in view of the above in extenso discussion, the present petition is hereby allowed. The petitioner is held Digitally signed by PC No. 5826/16 Arul Arul Varma Joyce Quereshi vs. Roxana Samuel Ors. Varma Date:
2026.03.19 Page no. 38 of 40 15:41:52 +0530 entitled to grant of probate in line with the Will dated 23.10.2007 Ex. P-2, executed by Late Sh Smt Shanti Samuel. Since petitioner herein already expired on 16.10.2019 and her legal heirs were impleaded as petitioners vide order dated 21.11.2019, in the present probate petition, her Legal Heirs are hereby held entitled to grant of probate in line with the WILL dated 23.10.2007 Ex P-2 executed by Late Smt Shanti Samuel.
74. The Probate be issued to LRs of petitioner to administer the estate left behind by testatrix as mentioned in the WILL dated 23.10.2007 Ex P-2, on the prescribed form VI 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/Legal heirs of the petitioner within six months from the date of the judgment as per Section 289 & 291 of Indian Succession Act.
75. The petitioner, 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 petitioner shall also file true account of the properties and credits within 1 year in prescribed Form No. 179.
76. It is made clear that the granting of probate would not tantamount to any declaration of the title of the deceased to the estate in question. It is further clarified that till the petitioner does not furnish the requisite Court Fee, Administration Bond and Surety Bond and does not obtain PC No. 5826/16 Digitally signed Joyce Quereshi vs. Roxana Samuel Ors. Arul by Arul Varma Date:
Page no. 39 of 40 Varma 2026.03.19 15:41:55 +0530 the probate, duly signed and sealed by the Court as required under Section 290 of the Indian Succession Act, this judgment shall not be read as proof of the same.
77. Original Will Ex. P/2 shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.
78. File be consigned to record room after necessary compliance.
Digitally signed Pronounced in the open Court Arul by Arul Varma Date: on this 19th March, 2026 Varma 2026.03.19 15:42:00 +0530 (ARUL VARMA) DISTRICT JUDGE-02/SOUTH, SAKET COURTS/NEW DELHI PC No. 5826/16
Joyce Quereshi vs. Roxana Samuel Ors.
Page no. 40 of 40