Delhi District Court
Satish Kumar Mehta vs The State on 13 December, 2025
IN THE COURT OF SHIV KUMAR :
DISTRICT JUDGE-02,
(WEST DISTRICT), TIS HAZARI COURTS:DELHI.
Probate Case No. 81/2022
CNR No. DLWT010104042022
DLWT010104042022
1. Sh. Satish Kumar Mehta (deceased)
Through Lrs.
(I) Mrs. Nirmal Mehta
W/o Late Sh. Satish Kumar Mehta
R/o H-105, Punjabi Bagh, West
New Delhi-110026.
(ii) Dr. Amit Mehta
S/o Late Sh. Satish Kumar Mehta
R/o H-105, Punjabi Bagh, West
New Delhi-110026.
(iii) Dr. Samit Mehta
S/o Late Sh. Satish Kumar Mehta
R/o Vivekanand Gram, Phase-I
Near Jogiwala Chowk,
main Haridwar-Dehradun Road,
Dehradun, Uttrakhand-248001.
2. Sh. Chander Mohan Mehta
S/o Late Sh. Balwant Singh Mehta
Mehta House, H-409, Aquem Baixo,
Navelim Margoa, Goa.
..........Petitioners
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 1/51
Versus
1. The State
Through Secretary
NCT of Delhi
I.P. Estate, Vikas Marg
New Delhi.
2. Late Sh. Hem Raj Mehta
Through LRs
(I) Mrs Ritika Sachdev
R/o 63, Vidhya Apartment
Indra Enclave, Rohtak Road,
Delhi-110087
(ii) Ms Charu Mehta
R/o J-155, RBI Colony,
Paschim Vihar
New Delhi-110063
3. Sh. Tilak Raj Mehta ( Deceased)
Through LRs
(I) Rama Mehta
W/o Sh. Tilak Raj Mehta
C/o Sanyo and Sanyo Batteries,
Sundew Apartments, Vishant Road,
Margoa, Goa-403601
Also at
R/o F-3, Exotica Apartments,
Madgaon, Goa-403601
(ii) Puneet Mehta
S/o late Sh. Tilak Raj Mehta
C/o Sanyo and Sanyo Batteries.
Sundew Apartments, Vishant Road,
Margoa, Goa-403601
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 2/51
Also at
R/o F-3, Exotica Apartments,
Madgaon, Goa-403601
(iii) Gaurav Mehta
S/o late Sh. Tilak Raj Mehta
C/o Sanyo and Sanyo Batteries.
Sundew Apartments, Vishant Road,
Margoa, Goa-403601
Also at
R/o F-3, Exotica Apartments,
Madgaon, Goa-403601
4. Late Smt, Usha Bamba
Through LRs
(I) Anil Bamba
S/o late Smt. Usha Bamba
R/o 534/17, Dayanand Colony,
New Railway Gate, Kaithal
Haryana- 136027
(ii) Arun Bamba
S/o late Smt. Usha Bamba
R/o 534/17, Dayanand Colony,
New Railway Gate, Kaithal
Haryana- 136027
5. Smt. Sneh Lata Kumar
W/o Shri Brij Kumar
D/o late Shri Balwant Singh Mehta
R/o Ground Floor, Idina Apartments
Opposite Pandva Chappel,
Margoa, Goa- 403601.
6. Smt. Kamlesh Kochchar
W/o Shri Chaman Lal Kochchar,
R/o BK1/158, Shalimar Bagh,
New Delhi-110088.
......Respondents
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 3/51
PETITION UNDER SECTION 276 AND 278 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE/LETTERS OF
ADMINISTRATION IN FAVOUR OF THE PETITIONER.
Date of institution of the case : 27.05.2009
Date reserved for judgment on : 14.11.2025
Date of pronouncement of judgment : 13.12.2025
JUDGMENT
(1) Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 and 278 of the Indian Succession Act for grant of probate/letters of administration in favour of the petitioner on the basis of Will dated 25.05.1983 executed by Sh. Balwant Singh Mehta.
(2) It is pertinent to mention that initially, the present petition was filed by one of the petitioner/Sh. Satish Mehta and thereafter, respondent no. 4 was transposed as petitioner no. 2 vide order dated 21.07.2011. Before transposition of respondent no. 4 as petitioner no. 2, the respondent no. 4 has filed the reply of the petitioner and has admitted the execution of the Will dated 25.05.1983 by Late Sh. Balwant Singh Mehta and he prayed in the reply that probate/letters of administration be issued jointly to petitioner and respondent no. 4.
CASE OF THE PETITIONERS, AS PER THEIR PETITION (3) According to the petition, the case of the petitioner, in nutshall, is that Sh. Balwant Singh Mehta, was ordinarily, resident of House PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 4/51 no. 105, Shivaji Park, Punjabi Bagh (West), New Delhi-110026. It is averred in the petition that Sh. Balwant Singh Mehta expired on 24.05.1988 at the abovesaid address and left behind his wife, three daughters and four sons. It is further averred that the wife of Sh. Balwant Singh Mehta died on 15.08.2008. It is further averred that petitioners and respondent no. 2 to 6 are near relatives of Late Sh. Balwan Singh Mehta (hereinafter referred to as "the deceased").
(4) It is further averred that Sh. Balwant Singh Mehta executed a Will dated 25.05.1983 in favour of the petitioners and the said Will is duly registered with the concerned Sub-Registrar. It is further averred that Late Sh. Balwant Singh Mehta was of sound disposing mind at the time of execution of the will and the said Will is his last Will to the best of petitioner's knowledge.
(5) It is further averred that Late SH. Balwant Singh Mehta has bequeathed the immoveable property ie. H-105, Shivaji Park, New Punjabi Bagh, New Delhi in favour of the petitioners in equal shares by virtue of his aforesaid Will dated 25.05.1983 with condition that they will have no right to sell the same during the life time of wife of the testator and mother of the said beneficiaries and as such, the petitioners have become the absolute owners of the said property with saleable rights too in the ratio of half share each.
(6) It is further averred that the total value of the subject property is to the tune of Rs. 2,10,74,592/- (Two crores ten lakhs seventy four thousand five hundred ninety two only).
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 5/51(7) It is further averred that the deceased was absolute and exclusive owner of the aforesaid property and had full power to dispose it of the manner he wished. It is further averred that to the best of petitioner's knowledge, no petition has been made by any body to any other court for the grant of probate and for letters of administration in respect of estate of the deceased. It is further averred that the subject property is within the territorial jurisdiction of this Hon'ble Court.
(8) Notice of the petition was issued to the State and respondents in this petition. Citation for general public was published in the English daily newspaper "Nav Bharat Times" dated 13.08.2009 and Citation was also affixed on the notice board of the court.
(9) On 24.08.2009, Ld counsel for respondent no. 5 to 7 submitted that she does not want to file any reply/objection on behalf of respondent no. 5to7 as they are supporting the petitioner. Respondent no. 2 & 3 have filed joint objections and respondent no. 4 has filed his reply separately.
CASE OF RESPONDENT NO. 2 & 3 AS PER THEIR WRITTEN STATEMENT:
(10) Respondent no. 2 & 3 have filed written statement by taking the preliminary objections that the Late Sh. Balwant Singh Mehta had four daughters and four sons besides his wife. It is further contended that his 4th daughter, namely, Smt Swaran Handa wife of PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 6/51 Late Sh. Vishwa Nath was born out of the wedlock of the deceased Sh. Balwant Singh Mehta and Smt Pushpawanti. It is further contended that Smt Swaran Handa died in the year, 1958 leaving behind her two children out of three as one of the child per-deceased her. It is further contended that out of three children, two children are still alive and their names are Sh. Vinod Bhatia (daughter) w/o Sh.
Vinod Bhatia and Sh. Lalit Kumar Handa(son). It is further averred that the petitioner has not impleaded the legal heirs of the Late Smt Swaran Handa, as such, the petition is bad for mis-joinder of necessary parties.
(11) It is further contended that the petitioners have not mentioned the names of the legal heirs of Late Smt Swaran Handa, who are necessary parties in the present case.
(12) It is further contended that the petitioner has not supplied the correct photocopy/certified copy of the Will allegedly executed on 20.05.1983. It is further contended that the bare perusal of the Will, copy of which is supplied to the objectors is neither having any information regarding the registration, date of registration, authority of registration and all the copies so supplied are of different facts and pleadings. It is further averred that mere perusal of the documents supplied as the alleged Will dated 20.08.1983 is having no legal force as the same appears to be not only forged and fabricated but it does not have the original and correct signature of Late Sh. B.S. Mehta.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 7/51(13) It is further contended that even if Late Sh. Balwant Singh Mehta had signed the will, it was done under the undue influence, force and fabrication, which are not true as mentioned in the Will. It is further averred that the facts are contrary to the facts mentioned in the alleged Will dated 20.05.1983.
(14) It is further contended that on the face of the Will, it appears to be fabricated as the witness shown to have signed the Will are neither neighbours nor relatives nor friends nor the persons, those who could be witnesses of the alleged Will. It is further contended that even, one of the witnesses, has been shown to be of Usampur which is distinct area of Delhi and was not properly inhabited in the year 1985 when the alleged Will have been shown to be executed.
(15) It is further contended that on the Will, the witnesses are different and on the alleged documents, the witnesses are different. It is further contended that the witness shown in the Will, appears to be witness, namely, Sh. Monohar Lal Chopra and another witness is shown to be one Shri Prem Chand While in the registration of the document, which is supplied to the objector, there have been shown different witnesses. It is further contended that the signatures on every page are different from each other which are not signatures of Late Sh. Balwant Singh Mehta as the objectors are well aware about the signatures of Late Sh. Balwant Singh Mehta.
(16) It is further contended that even, the facts in the Will supplied to the anwering objectors, the financial position of the objector no. 3 PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 8/51 was very critical. It is further averred that he was almost a pauper from the year 1983 to 2000 and he was living in one room accommodation in Goa and as such, the facts allegedly mentioned in the Will are contrary to the facts that the answering respondent no.3 is well established is false on the face of it. It is further submitted that Late Shri Balwant Singh Mehta was well aware about the poor financial status of the answering respondent No.3 and as such, the alleged facts are contrary to the knowledge of late Shri Balwant Singh Mehta.
(17) It is further contended that it clearly appears that the Will is either forged and fabricated or Late Shri Balwant Singh Mehta had executed the Will against his wishes, against the facts and the petitioner would have abetted or coerced Late Shri Balwant Singh Mehta to sign the pre-written Will to the benefit of the petitioner and as such, the alleged Will is not the free consented Will of Late Sh. Balwant Singh.
(18) It is further contended that the answering objector No.2 was not having property bearing No.J-156, Reserve Bank Colony, Near Paschim Puri, New Delhi. It is further submitted that number of house of the objection No.2 is J-155 Reserve Bank Colony and this fact also clearly proves that late Shri Balwant Singh Mehta though had full knowledge about the correct address of the objector No.2, however, by giving wrong number it is also established that the Will is not only forged and fabricated but the same is a fabrication of some interested persons i.e. petitioner.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 9/51(19) It is further contended that late Shri Balwant Singh Mehta was not keeping good health, even much prior to the year 1983. He had number of continuous diseases of skin problem and as a result of the same, his mental condition were also not proper. It is further submitted that Late Sh. Balwant Singh Mehta was also had vices of taking liquor in large quantity every day and under the influence of liquor, he used to forget his all memories and it appears that the alleged Will has been a master mind work of the interest persons, who are having adverse interest than that of the answering objector and as such, also the alleged Will dated 20.5.1983 does not effect the right of the answering respondent as the same is fabrication on the part of the petitioner.
(20) It is further contended that the petitioner has not disclosed as to who was in the custody of the alleged Will dated 20.5.1983 and how they have got possession of the said Will. In absence of the aboveaid fact, it is clearly established that the Will is forged and fabricated. It is further contended that both the answering respondents were very close to their father late Shri Balwant Singh Mehta who was very affectionate towards not only the objectors but also towards all the family members of the objectors.
(21) Replication of the objections of respondent no. 2 & 3 has been filed on behalf of the petitioners and the petitioners denied all the objections taken by respondent no. 2 & respondent no. 3 and reiterated the contents mentioned in the petition. It is further contended in the replication by the petitioners that respondent no. 2 PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 10/51 & 3 had broken their relationship with their father and in the old age, they ignored him absolutely. It is further submitted that they were not in visiting terms and the testator had no skin disease and he was keeping good health through out till his death.
(22) On the basis of the pleadings, the following issues were framed vide order dated 01.06.2010.
ISSUES
1. Whether the petitioner is entitled to grant of probate/letter of administration to administer the property bearing no. H-105, Shivaji Park, Punjabi Bagh (West), New Delhi of Late Shri. Balwant Singh Mehta, as mentioned in the schedule attached to the petition? OPP.
2. Whether this petition is bad for non-joinder of Smt. Neelam Bhatia and Shri Lalit Kumar, Children of Smt Swarn handa? OPD.
3. Relief.
EVIDENCE ON BEHALF OF PETITIONER (23) Petitioners, in support of their case, have examined four witnesses i.e.
1. Sh. D.N. Vohra as PW-1 PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 11/51
2. Sh. Satish Mehta as PW-2
3.Sh. Chander Mohan Mehta as PW-3
4. Sh. Sevajit Record Attendant as PW-4.
(24) Sh. D.N. Vohra (attesting witness of the Will) has appeared in the witness box as PW-1 and he deposed that he knew Sh. Balwant Singh Mehta, who was residing opposite his house in Shivaji Park but he does not remember his exact address. PW-1 further deposed that Sh. Balwant Singh Mehta was residing with his family. PW-1 further deposed that he recognized sons of Sh. Balwant Singh Mehta by face but he does not know their names. PW-1 further deposed that in his old age, Sh. Balwant Singh Mehta was residing with his sons but he cannot say as to who looked after him. PW-1 further deposed that Sh. Balwant Singh Mehta had executed a Will and he was one of the witnesses to the same. PW-1 further deposed that he has seen the Will dated 25.05.1983 Ex PW-1/1 and it bears his signatures at Portion X. (25) In his cross examination, PW-1 deposed that he was living in the same locality where Sh. Balwant Singh Mehta was residing and there was no relation between them. PW-1 further deposed that since it is not clear as to what are visiting terms, he cannot respond to the suggestion that he was not on visiting terms with Sh. Balwant Singh Mehta. PW-1 further deposed that because of his age, he cannot recollect as to whether or not, he visited the house of Sh. Balwant Singh Mehta on any marriage or festival itself. PW-1 further deposed that he can not recollect because of his age as to whether on PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 12/51 25.05.1983, he was taken to the house of Sh. Balwant Singh Mehta by Sh. Satish Kumar Mehta. PW-1 further deposed that he can not recollect the time when he went to the house of Sh. Balwant Singh Mehta on 25.05.1983. PW-1, voluntarily, deposed that he cannot recollect as to who else was present on 25.05.1983 in the house of SH. Balwant Singh Mehta when he signed the Will. PW1 further deposed that he also can not recollect as to for how long, he remained present in the house of Sh. Balwant Singh Mehta.
(26) During cross examination, PW-1 further deposed that he does not recollect as to whether prior to 25.05.1983, he had ever met Sh. Balwant Mehta or not and he, voluntarily, deposed that they were living in the same vicinity.
(27) During cross examination, PW-1 further deposed that he can not admit or deny the suggestion that all the sons of Sh. Balwant Singh Mehta had cordial relations with him and they used to serve him well. PW-1 further deposed that he can not recollect if house of Sh. Balwant Singh Mehta was single storeyed or double storeyed.
(28) In the cross examination, following questions have been put to PW-1:
Q I suggest to you that you never visited the house of Sh. Balwant Singh Mehta and simply signed the will as a witness on asking of the petitioner. What have you to say?PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 13/51
Ans. Until and unless the suggestion is complete as regards the date when I allegedly simply signed the Will, I cannot respond.
Q. I suggest to you that since you had signed the will on the asking of the petitioner, you do not remember any details. What have you to say?
Ans. I am 85 years old and I cannot recollect the details.
Q I suggest to you that in good faith you signed the Will at the request of Sh. Saitsh Kumar. What have you to say?
Ans. I cannot say anything since long period have elapsed and I am 85 years old.
(29) PW-2 has filed his evidence by way of affidavit in the court and in the testimony of the witness, the court held that there is no requirement for formal tendering of chief affidavit, in view of order dated 13.07.2011 passed by Hon'ble Division Bench of Hon'ble High court of Delhi in FAO (OS) 62/11 and thereafter, PW-2 was tendered for cross-examination.
(30) During cross examination, PW-2 deposed that at the time of his father's death, he was residing in Delhi. He again said that at the time of his father's death, he was in Goa. He again said that before PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 14/51 the death of his father, he had come to Delhi. PW-2 has further deposed that he started his business in Goa. PW-2 admitted that his children were also brought up in Goa only.
(31) During cross examination, PW-2 further deposed that Smt Swaran left behind two children, namely, Ms Neelam and Lalit and he is in contact with Ms. Neelam and Sh. Lalit. PW-2 further deposed that since Smt Swaran Handa died in 1964, it was for the proponents of the Will to implead in this case Ms. Neelam and Sh.
Lalit. PW-2, voluntarily, deposed that his father mentioned about only three daughters, in the Will.
(32) PW-2 further deposed that it is correct that there was never any dispute between them, the brothers and sisters. PW-2 further admitted that it is correct that all of us the brothers and sisters left the suit property with sweet Will for the better prospects.
(33) PW-2 further deposed that it is correct that all of us the brother and sisters used to visit their parents on all occasions and also used to stay with them in the suit property for few days. PW-2 further deposed that "it is correct that my brothers and sisters residing in Delhi also used to visit my parents in the suit property and stay with them for few days".
(34) PW-2 admitted that all of them had very cordial relations with all their neighbours around the suit property. PW-2 also admitted that in Delhi there are 20-25 families who are their relatives and they used to keep visiting their parents in the suit property. PW-2 PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 15/51 voluntarily deposed that he did not visit any relative as he had shifted to Goa.
(35) PW-2 further deposed that House no. 104 Shivaji Park was occupied by Sh. Verma, whose full name he does not know and further deposed that House no. H-106, Shivaji Park was occupied by Sh. Vij, whose full name he does not know. PW-2 further deposed that he never interacted with Sh. Verma and Sh. Vij and never visited their house during the period 1965-1972.
(36) PW-2 admitted that during the time, when he was away from house, it is his brothers, who used to look after his parents. PW-2 further deposed that on 25.05.1983, he was in Goa. PW-2 further deposed that he does not remember as to when he came to Delhi for the first time after May, 1983. PW-2 further deposed that he also does not remember as to when he came to Delhi for the last time before May, 1983. PW-2 further deposed that he cannot admit or deny the suggestion that he did not come to Delhi for two years before May, 1983. PW-2 further deposed that he cannot admit or deny the suggestion that he did not come to Delhi for two years after May, 1983.
(37) PW-2 further deposed that his father was working as a sales representative in a cycle company. PW-2 voluntarily deposed that he did not work after 1975. PW-2 further deposed that name of that cycle company was Republic Cycle Industries, Moti Nagar, Delhi. PW-2 further deposed that from the year 1975 till his death his father never worked. PW-2 further deposed that except Sh. Hem Raj, all of PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 16/51 them the remaining three brothers used to support my parents financially and morally. PW-2 admitted that his father was not drawing any pension after he stopped working. PW-2 further deposed that the Will Ex. PW1/1 was received by him from his mother. PW-2 further deposed that after death of his father, he took his mother to Goa, in the year 1991 and many years thereafter she gave him this Will. PW-2 further deposed that the Will was given to him by his mother about 4-6 months prior to institution of the present case. PW-2 further deposed that his mother passed away on 15.08.2008.
(38) PW-2 admitted that he used to keep visiting his mother after death of his father but she never informed him about the Will. PW-2 further deposed that none of his relatives ever informed him about the Will. PW-2 further deposed that he does not know any Manohar Lal Chopra or Sh. Prem Chand and never saw them. PW-2 further deposed that after he received the Will, he came to know about names of these two persons. PW-2 further deposed that he never met them even after receipt of Will. PW-2 further deposed that he had no reason to meet them even after receipt of Will.
(39) PW-2 further deposed that Sh. Hem Raj is presently residing in House No. J-155, Reserve Bank of India Colony, Paschim Vihar, New Delhi. PW-2 further deposed that Sh. Hem Raj is not residing in House No. J-156 and the same also does not belong to him. PW-2 admitted that after death of his father, all of them the brothers and sisters and their children had cordial relations with each other and with his mother. PW-2 further deposed that there was never any PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 17/51 litigation between his mother and any of them the brothers and sisters. PW-2 further deposed that there was never any police complaint between his mother and any of them the brothers and sisters.
(40) Mr. Chander Mohan Mehta (petitioner no. 2) has appeared in the witness box as PW-3 and he tendered his evidence by way of affidavit Ex PW-3/X and he relied upon the documents i.e. Ex PW- 3/1 to Ex PW-3/3 mentioned in my affidavit. Cross examination of PW-3, on behalf of Respondents is Nil.
(41) PW-4/Mr. Sh. Sevajit appeared before the witness box as summoned witness and he deposed that he brought the summoned record i.e. registration record of Will dated 25.05.1983 registered on 04.06.1987 vide registration no. 6179 in additional book No. III, volume no. 504, on page no. 55 to 56 with the Sub-registrar-I, Kashmere Gate, Delhi executed by Late Sh. Balwant Singh Mehta. PW-4 further deposed that he had seen the certified copy of the Will dated 25.05.1983 registered on 04.06.1987 and compared with the record brought by him and found it correct. The copy of the Will has been exhibited as Ex PW4/1 (OSR) and the copy of the Will brought by PW-4 has been exhibited as Ex PW-4/2 (OSR).
(42) In his cross examination, PW-4 has deposed that he was working as record keeper since 1994 in this department and he has been authorized by his department to appearing in this court pursuant to the summons received from this court. PW-4 further deposed that he has not brought any authority letter issued by the department.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 18/51PW-4 further deposed that he could not tell the name of the witnesses, who signed near the endorsement at Point A & B on Will Ex PW4/2 while registration of the said Will as the handwriting mentioning name of the witnesses on the Will is not clearly readable to him. PW-4 further deposed that he cannot admit or deny that the names of the witness on the Will at Point A & B are mentioned as Sh. Ashwani Kumar, Advocate and Sh. Prem Chand. PW-4 admitted that one page of some other Will before the Will in question is in loose form in the register brought by him.
EVIDENCE ON BEHALF OF RESPONDENTS (43) R3W1: Sh. Tilak Raj Mehta/respondent no. 3 (now deceased) has appeared in the witness box and tendered his affidavit in evidence Ex R3W1/A. (44) In his cross examination, R3W1 deposed that he had gone to Prasad Naik, Advocate at Goa, to attest his evidence by way of affidavit. He was 8th or 9th standard pass and he neither know English nor read or write the same.
(45) R3W1 further deposed that he can identify the signatures of his father. R3W1 replied that on the Will Ex PW-1/1, Mark A and C are the signatures of his father whereas Mark B is not the signatures of his father.
(46) R3W1 further deposed that his father died in Delhi because of his prolonged ill health and he has been residing in Goa since 1971. R3W1 further deposed that he and his brother, Sh. Satish Kumar Mehta had opened a battery shop in Goa.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 19/51(47) R3W1 further deposed that from 1983 till 2000, he was engaged in battery business and in 1983, he has separated from his brother Satish Kumar Mehta and opened his separate shop of battery.
FINAL ARGUMENTS (48) I have heard Ld counsels for the petitioners and ld counsel for respondents and have perused entire record, including pleadings, documents and testimonies of the witnesses recorded in court from both sides and written submissions filed on behalf of petitioners and respondent no. 2.
ARGUMENTS ON BEHALF OF PETITIONERS.
(49) Ld counsel for the petitioner has argued that the petitioners have duly proved the Will in question by examining PW-1, who is one of the attesting witness of the Will in question.
(50) Ld counsels for the petitioners have further argued that the deceased died on 24.05.1988 and has bequeathed his self acquired property to the petitioner no. 1 & 2 by executing Will dated 25.05.1983 and the said Will is duly registered with Sub-registrar on 04.06.1987.
(51) Ld counsels for the petitioners have further argued that the Will in question is a registered Will and presumption of genuineness is attached to the Will in question.
(52) Ld counsels for the petitioners have argued that the attesting witness namely D.N. Vohara has been examined and he deposed that PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 20/51 Sh. Balwant Singh Mehta had executed a Will and he was one of the witness of the same and he has seen the Will dated 25.05.1983 and the said Will bears his signatures in portion 'X' and Will is exhibited as Ex. PW-1/1."
(53) Ld counsels for the petitioners have further argued that on 02.05.2019, the respondent no. 3 was examined whereby he admitted the signature of testator on the aforesaid Will dated 25.05.1983.
(54) Ld counsel for the petitioner have further argued that pursuant to the direction given in CM No. 1471 of 2023, the registration record of Will dated 25.05.1983 got registered on 04.06.1987 was brought before this Hon'ble Court, wherein the certified copy of the Will dated 25.05.1983 registered on 04.06.1987 was compared and it was found that both were same.
(55) Ld counsels for the petitioners have further argued that as per section 63 of the Indian Succession Act, 1925, the Will has been duly proved. Ld. counsel for the petitioner no. 2 has relied upon the judgment of Hon'ble Supreme Court of India, given in a Civil Appeal No. 3351 of 2014 titled as Meena Pradhan & Ors Vs Kamla Pradhan & Anr. decided on 21.09.2023.
ARGUMENTS ON BEHALF L.RS OF RESPONDENT NO. 3.
(56) Ld counsel for the respondent no. 3 has argued that the original unregistered Will is Ex. PW-1/1 and the certified copy of the Will dated 25.05.1983 is Ex. PW-4/1. It is further argued that the original registered Will is not placed on record and it is impossible that original registered Will exists because original unregistered Will PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 21/51 is already on record and it is impossible to register photocopy of documents. So, a fraud has been played by the petitioners with Sub- Registrar, Kashmiri Gate, Delhi.
(57) Ld counsel for the respondent no. 3 has further argued that that only one alleged signatures of Sh. Balwant Singh Mehta are present on the 1st page of the unregistered Will and two alleged signatures of Sh. Balwant Singh Mehta are present on the 3rd page of the registered Will. It is further argued that 2nd signature of Late Sh. Balwant Singh Mehta on the Will is in different ink & in different style.
(58) Ld counsel for the respondent no. 3 has further argued that there are two signatures of Sh. Balwant Singh Mehta, present on the 2nd page of the unregistered Will and signatures Mark B on the Will is in blue ink and signatures of the testator/Sh. Balant Singh Mehta on the Will at Mark C is in black ink and both are in different style. It is further averred that both signatures of Sh. Balwant Singh Mehta are with different pens in different style on Will Ex. PW-4/1.
(59) It is further argued that there are three attesting witnesses, in the Will in question and they are, namely, Sh. Manohar Lal Gupta ( Mark D), Sh. D.N. Vohra ( Mark E) and Sh. Prem Chand ( Mark F) and the address of Sh. Manohar Lal Gupta is not written on Will Ex. PW-1/1. It is further argued that the signatures of Sh. Prem Chand, on the Will, appears to be in same ink as like Mark B. PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 22/51 (60) It is further argued that according to page no. 4 of the alleged registered Will, there are two witnesses, namely, 1. Sh. Prem Chand
2. Sh. Ashwani Kumar Adv. who were allegedly present before the Sub-Registrar. But Sh. Ashwani Kumar, Advocate is not named in the array of attesting witness in the will and the address of Sh. Ashwani Kumar, Advocate is also neither mentioned nor he has signed the alleged registered Will.
(61) It is further argued that PW-2, namely, Sh. Satish Mehta has admitted the very fact that there were 4 brothers and 4 sisters and out of them, one is passed away in 1964 and his children are alive but they have not been made as party in the present petition. Hence, the petition is liable to be dismissed for non-joinder of necessary parties.
(62) It is further argued that in the said alleged Will Ex. PW-1/1, late Sh. Balwant Singh Mehta mentioned only about 3 daughters and did not name late Smt. Swaran Handa and this omission in the Will, itself raises serious questions, that is why, the 4th daughter has not been made party in the present case. It is further argued that it is hard to believe that the deceased could have not named the 4th daughter, if he had actually made above said alleged will and he would have mentioned all the children's name.
(63) It is further argued that PW-2 admitted that since 1972 only the parents were residing in the suit property and the marriage of all of them brothers and sisters were performed from suit property only PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 23/51 and it is hard to believe that R-2 namely Sh. Hem Raj left the family house in the year 1959 as his marriage was performed from the suit property in the year 1965 as admitted by PW-2.
(64) It is further argued that all the earning were given by all the respondents to joint family funds to the father, who was the Karta of the family and the deceased was in good terms with the respondents and so the respondents with the petitioners. It is further argued that respondents as well as petitioners left the house in sweet will and for betterment of themselves and the family. It is further argued that respondents regularly visited the father at Delhi as all the respondents except R-3 resided in Delhi, as compared to the petitioners, who were residing in Goa and not coming frequently as it was very difficult to come in those days from Goa to Delhi in 1960 to 1980.
(65) It is further argued that PW-2 stated in his cross that there are 20-25 families, who were in visiting terms with the deceased but despite that deceased chose not to made them as attesting witness and he made unknown persons as witnesses, this makes the Will very suspicious.
(66) It is further argued that PW-2 admit himself that he was not in visiting terms with his father due to his job profile and at that time all remaining brothers were taking care of his father, this fact also raises doubt over the petitioners that despite all these facts and circumstances, the alleged will is being executed by the testator in PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 24/51 favour of petitioners only. It is further argued that there was not a single incident that all the respondents were not full-filled their duties towards their parents and yet in the alleged will, the petitioners were made beneficiaries, which is highly suspicious itself and the alleged will is a forged and fabricated document and self- creation of petitioner no. 1 & 2 to grab the property.
(67) It is further argued that on each and every point of life, the respondent no. 3 supported his parents as admitted by PW-2. There is respect and love towards of each other and financial support towards family and father. Despite this fact, Respondent no. 3 was not made as beneficiary in the alleged Will, it also raises doubt over the genuineness of the alleged Will.
(68) It is further argued that neither in the petition nor in the evidence affidavit, it was stated how the petitioner no. 1 got the alleged Will. It is further argued that it is hard to believe that after the death of the deceased, his wife did not disclose about the Will if she has known the very fact from all most 32 years and suddenly before her death she gave the Will to petitioner no. 1 without telling to others children.
(69) It is further argued that PW-2 himself admitted that signatures of the testator on the Will in question is in different ink and with different pen, which raise high suspicion over the alleged will.
(70) It is further argued that R3W1 also examined himself and file the reply/objections to the petition and no question was put to him PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 25/51 related to the evidence affidavit and petitioner is solely relying upon the R3W1's admitted cross examination that Mark A and C on the Will in question, are signatures of his father and Mark B is not the signature of his father on Ex. PW-1/1. It is further argued that it is possible that by playing fraud, the petitioner has taken signatures on blank page from late Sh. Balwant Singh Mehta, which may be Mark A and C and later on typed the Will and afterward, when they saw that position of signatures is correct, then they themselves tried to sign on the alleged will which are at Mark C and one extra signatures is on 2nd Will.
(71) It is further argued that PW-1 Sh. D.N. Vohra did not answer a single question put to him in the cross-examination. Witness did not remember anything at all and unable to recollect anything. He did not remember a single incident of 25.05.1983 allegedly, when he signed the will and whoelse was present there and signed it in front of him. It is further argued that PW-1 completely denied the execution of the Will. It is further argued that he is an Advocate not a layman as he could have remembered all the facts but he chose not to state before the Hon'ble Court.
(72) It is further argued that petitioners have failed to bring other evidence as they may have summoned the other attesting witness or could have compared the signatures of late Sh. Balwant Singh through FSL or handwriting expert but failed to do so. It is further argued that compliance of section 68 and section 72 of the Indian Evidence Act 1872 have not been done by the petitioners. Ld. PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 26/51 counsel for the L.Rs of respondent no. 3 relied upon the following judgments:
1. Girija Dutta Singh Vs Gangotri Dutta Singh, AIR 1955 SC 346 at p.351.
2. S.B. Lttigi and another Vs. Smt. S.V. Sulochana and others, AIR 2007 (NOC) 710 ( Kant): 2007(1) AIR Kant R 467.
(73) It is further argued that both the wills, unregistered as well as registered are forged and fabricated documents which do not bear the actual signature of the testator and it is a self-created document of the petitioners. It is further argued that both the wills are full of suspicious as none of the attesting witnesses are from family, relative nor friend of the deceased. The address of the witnesses are also fake and not existing at that point of time. It is further argued that none of the attesting witness known to the deceased in any manner. It is further argued that none of the attesting witness of the registered will i.e. Sh. Prem Chand and Sh. Ashwani Kumar, Advocate were examined before the court, who were allegedly present before the Sub-Registrar-I, Kashmiri Gate on 04.06.1987, when the Will was registered before the Sub-registrar-I Kashmiri Gate which is mandatory as per section 68 of Indian Evidence Act, 1872.
(74) It is further argued that petitioners have completely failed to bring on record the original registered Will dated 25.05.1983, which was allegedly registered on 04.06.1987. It is further argued that the testator was suffering from skin diseases and various health related issues and was on death bed.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 27/51(75) Ld. counsel for L.Rs of respondent no. 3 has further relied upon the judgments i.e. 1. Smt. Guro V. Atma Singh and others, 1992 (2) Civil LJ 388 at p.390 ( SC), (2) Daya Devi Vs Angoori Devi, AIR 2002 Del 295. (3) Devi Bai and others Vs Godawari and another, 1995 (2) Civil LJ 393 at p.294 ( Raj.), (4) Raja Ram Singh Vs Arjun Singh, AIR 2002 Del 338 at p.344.
STATUTORY PROVISIONS RELEVANT TO THE PRESENT CASE. (76) Before adjudicating the issues, I would like to discuss various statutory provisions relevant for deciding the present case.
(77) 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".
(78) Section 59 of Indian Succession Act, declares that every person ( not being a minor) "of sound mind" may dispose of his property by Will.
(79) Section 61 of Indian Succession Act declares a Will as void and the section 61 reads as under:
Sec. 61. Will obtained by fraud, coercion or importunity- A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
(80) The execution of an unprivileged Will, as the case at hand relates PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 28/51 to, is governed by Section 63 of the Indian Succession Act, 1925, which reads thus:-
Sec. "63 Execution of unprivileged Wills --- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:-
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary".
(81) Section 276 of Indian Succession Act states as under;-
276. Petition for probate- (1) Application for probate or or letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 29/51 statement of the contents thereof, annexed, and stating-
a) the time of the testator's death
b) that the writing annexed in his last will and testament,
c) that it was duly executed,
d) the amount of assets which are likely to come to the petitioner's hands, and
e) when the application is for probate, that the petitioner is the executor named in the Will.
(2) In addition to these particulars, the petition shall further state-
(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property situate within the jurisdiction of the Judge, and
(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate;
(3) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another Sate, the petitioner shall further state the amount of such assets in each State and the District Judges within whose jurisdiction such assets are situate.
(82) Section 68 of the Indian Evidence Act, 1872 is also relevant in the present case regarding evidence of proof of Will and states as under:
"Section 68 of Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.
"Provided that it shall not be necessary to call an attesting witness in proof of the execution of any PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 30/51 document, not being a will, which has been registered in accordance with the provisions of Indian Registration Act 1908 unless its execution by the person by whom it purported to have been executed is specifically denied".
ISSUE WISE FINDINGS Finding on issue no. 1 & 2.
1. Whether the petitioner is entitled to grant of probate/letter of administration to administer the property bearing no. H-105, Shivaji Park, Punjabi Bagh (West), New Delhi of Late Shri. Balwant Singh Mehta, as mentioned in the schedule attached to the petition? OPP.
&
2. Whether this petition is bad for non-joinder of Smt. Neelam Bhatia and Shri Lalit Kumar, Children of Smt Swarn handa? OPD.
(83) Both issues are interconnected and having mutual bearing, therefore, both issues are being taken together. The onus to prove issue no. 1 is upon the petitioners and of issues no. 3 is upon the respondent no. 2 & 3, who are the only contesting respondents in the present case.
(84) In order to prove issue no. 1, the petitioners have examined PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 31/51 four witnesses, their names as under:
1. Sh. D.N. Vohra/PW-1.
2. Sh. Satish Metha/PW-2.
3.Mr Chander Mohan Mehta/PW-3
4.Sh. Sevajit/PW-4.
(85) In order to prove issue no. 2, the respondents have examined only one witness i.e. R3W1/respondent no. 3 himself.
(86) The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble Delhi High Court. Some of the judgments have been mentioned below to appreicate the law, applicable on the facts of the present case.
(87) In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon'ble Apex Court has laid down the following propositions:
(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 32/51
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 33/51 testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
(88) In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a Constitution Bench of the Hon'ble Supreme Court of India had the occasion to rule on the principles governing mode of proof of a Will before a probate court. Referring, inter alia, to its earlier decision of case titled H. Venkatachala Iyengar Vs. B.N. Thimmajamma & Ors (Supra) the Hon'ble Supreme court has held as follows:-
"4.... The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a susbtantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 34/51 will might be unnatural and might cut off wholly or in part near relations..."
( emphasis supplied) (89) In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court of Delhi made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid testament of the testator. These are as under:
I. The legal burden to prove due execution always lies upon the person propounding a will. The propounder must satisfy the judicial conscience of the court that the instrument so propounded is last will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by the law. The contestant opposing the will may bring material on record meeting such prima facie in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. (see the decision of the Supreme Court in Madhukar D. Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be applicable to all the cases. Every case depends upon its circumstances. Apart from other proof, conduct of parties is very material and has considerable bearing on evidence as to the genuineness of will which is propounded. Courts have to be vigilant and zealous in examining evidence. Rules relating to proof of wills are not rules of laws but are rules of prudence.PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 35/51
IV. Expanding on the care and caution to be adopted by the courts, and presumptions to be raised, in the decision reported as (1864) 3 Sw& Tr. 431 In The Goods of Geale, it was opined that where a person is illiterate or semi literate or the will is in a language not spoken or understood by the executor, the court would require evidence to affirmatively establish that the testator understood and approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was read over by, or to, the testator when he executed it. If a testator merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the circumstances under which the will was prepared. If a will is prepared and executed under circumstances which raise a well grounded suspicion that the executor did not express his mind under the will, probate would not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only raise a suspicion if they are circumstance attending, or at least relevant to the preparation and execution of the will itself.
VIII. Another point that has to be considered is about the improbability in the manner in which the instrument is scripted. Instance of suspicious circumstances would be alleged signatures of testator being shaky and doubtful, condition of the testator's mind being feeble and debilitated, bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption to hold against the will. Greater is the suspicion more heavy would be the onus to be discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter the rule of succession or where he desires a particular form of inheritance and to that extent, nature of bequest is not of much substance to invalidate a will, but consistent view taken by the courts is that this could be treated as a suspicious circumstance. What weightage has to be attached to this suspicion would depend upon case to case.PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 36/51
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
(90) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, the Hon'ble Apex Court has deduced the principles in order to prove the Will and the same are as under;-
I. This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
Iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the teatator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 37/51 his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence etc. cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc. (91) The Hon'ble Apex Court in a case titled as Janki Narayan Bhoir Vs Narayn Namdeo Kadam, JT 2002 (10) SC 340 has discussed the provisions of section 63 of Indian succession Act and Section 68 of Indian evidence act for proving due execution of Will by the testator as follows:-
"On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 38/51 but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act."
" In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness can prove execution of the Will in terms of clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also it falls short of attestation of Will at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there Will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
" Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section
68."
(92) In a judgment titled Dhani Ram (D) Thr. Lrs. vs Shiv Singh on 6 October, 2023, 2023 Live Law (SC) 862, Hon'ble Apex court has relied upon its earlier judgements titled Janki Narayan Bhoir vs. Narayan Namdeo Kadam ( supra )and in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others, and again held that to PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 39/51 prove that a Will has been executed, the requirements in clauses (a),
(b) and (c) of Section 63 of the Succession Act have to be complied with as fellows:
"16. In his cross-examination, Chaman Lal stated that his signatures in Ex. DW-2/A were made on the same day and at the same time. He stated that his signatures on the document were made on 03.11.1987 in the Tehsil. He, however, said that he did not go to the office of the Tehsildar but signed the document and came back from outside the Tehsil. He stated that he did not go inside the Tehsil. He denied that, after making Ex. DW-2/A Will, Leela Devi appeared before the Tehsildar (Sub-Registrar) with him and Lok Nath Attri. He further said that he did not know that Leela Devi signed Ex. DW-2/A in Lok Nath Attri's and his presence after admitting it as correct".
"We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo Kadam, wherein this Court held that, to prove that a Will has been executed, the requirements in clauses
(a), (b) and (c) of Section 63 of the Succession Act have to be complied with. It was pointed out that the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that the Will was duly and validly executed and that cannot be done by simply proving that the signature on the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These observations were affirmed and (2003) 2 SCC 91 quoted with approval by this Court in its later judgment in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 3. 23.
Viewed in the context of the legal requirements and the law laid down by this Court, we find that neither of the attesting witnesses in this case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the Will. Though Lok Nath Attri claimed that Leela Devi affixed her signatures in the Will in their presence, which was vehemently denied by the other attesting witness, Chaman PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 40/51 Lal, the fact remains that Lok Nath Attri also did not state that he affixed his signatures in the Will in the presence of Leela Devi. This is one of the compulsory requisites of Section 63(c) of the Succession Act."
"27. On the above analysis, it is manifest that compliance with the essential legal requirements, in terms of Sections 68 and 71 of the Evidence Act and Section 63 of the Succession Act, was not established in order to prove the execution of Ex. DW-2/A Will. As Dhani Ram failed to prove the execution of the Will in terms of the mandatory legal requirements, Shiv Singh would be entitled to succeed to the properties by way of intestate succession under Section 15 of the Act of 1956, as rightly held by the Himachal Pradesh High Court".
(93) In a judgment titled as Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead Through Lrs.) Civil Appeal no. 2435 of 2010, decided on 20 November, 2023, the Hon'ble Supreme Court of India has observed as follows:-
20. Trite to state, mere registration of a Will does not attach to it a stamp of validity and it must still be proved in terms of the above legal mandate. In Janki Narayan Bhoir vs. Narayan Namdeo Kadam 1, this Court held that the requirements in clauses (a), (b) and (c) of Section 63 of the Succession Act have to be complied with to prove a Will and the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will or must have seen some other person sign the Will in the presence of and by the direction of the testator or must have received from the testator a personal acknowledgment of his signature or mark or of the signature or mark of such other person and each of the witnesses has to sign the Will in the presence of the testator. It was further held that, a person propounding a Will has got to prove that it was duly and validly executed and that cannot be done by simply proving that the signature on (2003) 2 SCC 91 the Will was that of the testator, as the propounder must also prove that the attestations were made properly, as required by Section 63(c) of the Succession Act. These principles were affirmed in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others 2.PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 41/51
29. In Bhagavathiammal vs. Marimuthu Ammal and others 12, a learned Judge of the Madurai Bench of the Madras High Court observed that the difference between Section 68 and Section 69 of the Evidence Act is that, in the former, one attesting witness, at least, has to be called for the purpose of proving execution and in the latter, it must be proved that the attestation of one attesting witness, at least, is in his handwriting and the signature of the person executing the document is in the handwriting of that person. It was rightly observed that Section 69 of the Evidence Act does not specify the mode of such proof and, in other words, the handwriting can be spoken to by a person who has acquaintance with the handwriting or the signature can be proved by comparison with the admitted handwriting or signature of the person executing the document.
(94) In the light of Legal principles as carved out in catena of Judgments by the Hon'ble Superior Courts and some of them as discussed above, it is obligatory for the petitioner to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the testator:
(ii) That the testator while executing the Will was in sound disposing state of mind:
(iii)That the testator had executed the Will out of his own free will, meaning thereby that he was a free agent when he executed the Will and he was fully aware about the contents of the Will at the time of signing it.
(iv)The petitioner has to prove that the Will in question is the last Will of the testator:
(v) The petitioner has also to remove all the suspicious circumstances, surrounding the PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 42/51 execution of the Will:
(vi) For proving the Will, at least one of the attesting witnesses of the Will, who is alive must be examined in the Court, as per Section 68 of Indian Evidence Act.
(95) It is settled proposition of law that onus is always on the propounder of the Will to prove the validity and due execution of the Will and to remove all the suspicious circumstances surrounding the execution of the Will.
(96) Ld counsel for Lrs of respondent no. 3 has argued that the petitioners have failed to prove the due execution of the Will. It is further argued that the petitioners have not examined the other attesting witnesses of the Will for the reasons best known to them. It is further argued that the attesting witness, PW-1 has not proved the due execution as well as attestation of Will by other attesting witnesses and has not fulfilled the requirements of Section 63 of the Indian Succession Act and Section 68 of Indian Evidence Act.
(97) Ld counsels for the petitioners have argued that the Will in question is a registered Will. So, presumption of truth is attached with the Will in question and it has been executed as per law by the deceased, after fulfilling the legal requirements.
(98) In a case titled "Pratap Singh And Another vs The State & Another, decided on 12 August, 2010 as under:PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 43/51
"8. Much emphasis has been laid that the alleged Will is a registered Will but registration of a Will is not mandatory. The Appellant No. 1 who had appeared in the witness box has stated that their father executed the Will dated 11th March, 1983 which was duly registered with the Sub-Registrar, Delhi as document No. 686 in Additional Book No.3, Volume No.272 on pages 103 to
104. It is well settled, merely because the Will is a "registered Will", it is no assurance that the same is genuine and validly executed document with a sound disposition of mind and free Will".
(99) In a case titled Leela & Ors Vs Muruganantham & Ors, Civil appeal no. 7578 of 2023, Hon'ble Supreme Court of India, in para no. 20 has observed as follows:
20. There can be no doubt with respect to the manner in which execution of a Will is to be proved. In the light of plethora of decisions including the decisions inMoturu Nalini Kanth v. Gainedi Kaliprasad (Dead,through Lrs.)2 and in Derek AC Lobo's case (supra) this position is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It is not the case of the appellant that the Will dated 06.04.1990 is a registered one.
23. The Trial Court rightly held that the propounder of the Will has to establish by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound disposing state of mind and that he understood the nature and effect of the dispositions and put his signature out of his own free will.
(100) In view of abovesaid judgments, it is held that mere registration of Will does not prove the due execution of the Will. The petitioners have to prove the Will, as per requirements of law.
(101) Petitioners have examined one of the attesting witness i.e. Sh.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 44/51D.N. Vohra (PW-1) to prove the Will in question, as per section 68 of Indian Evidence Act.
(102) As per Section 68 of Indian Evidence Act, one attesting witness is required to be examined to prove the due execution of the Will. In other words, if one attesting witness proves the due execution of Will then there is no need to call second attesting witness of the Will. In this case, the petitioners have examined only one attesting witness of the Will. Now the question is whether the said attesting witness has proved the due execution of the Will as per Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.
(103) In the present case, the petitioners have examined only one attesting witness i.e. PW-1/Sh. D.N. Vohra. PW-1 has not deposed that Late Sh. Balwant Singh Mehta had signed the will in question in his presence. PW-1 has also not deposed that he signed the Will in question in the presence of Late Sh. Balwant Singh Mehta. The testimony of PW-1 is totally silent about the presence of any other witness at the time of signing the Will or signing the Will in question by the other witnesses in the presence of testator rather PW-1 deposed that he cannot recollect as to who else was present on 20.05.1983, in the house of Late Sh. Balwant Singh Mehta when he signed the Will. It is also not the case that PW-1 had received from Late Sh. Balwant Singh /testator a personal acknowledgment of his signatures.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 45/51(104) PW-1 has not identified the signatures of Late Sh. Balwant Singh Mehta(testator) and signatures of other witnesses, on the Will, in the Court. PW-1 has also not deposed that the Will in question bears the signatures of Late Sh. Balwant Singh Mehta (testator) and signatures of other attesting witnesses.
(105) It is settled law that for due execution of the Will, as per Section 63 (c) of Indian Succession Act, each of the attesting witness must have seen the testator signing the Will or affixing his mark on the Will or has received from the testator a personal acknowledgment of his signatures on the Will, if testator has not signed the Will in presence of attesting witnesses.
(106) It is also settled law that each of the attesting witnesses must have signed the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required.
(107) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr (Supra), the Hon'ble Apex Court has deduced the following principles regarding proving the Will as per Section 63 of Indian Succession Act with the aid of Section 68 of Indian Evidence Act:
iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a)................
(b)................
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 46/51 seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv...........................
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
(108) Reliance is also placed on the following judgments:
1. Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead Through Lrs.) Civil Appeal no. 2435 of 2010, decided on 20 November, 2023, ( supra ).
2.Dhani Ram (D) Thr. Lrs. vs Shiv Singh on 6 October, 2023, 2023 Live Law (SC) 862, ( supra ).
3. Janki Narayan Bhoir vs. Narayan Namdeo Kadam ( supra ), JT 2002 (10) SC 340.
(109) In view of abovesaid discussions and judgments, it is held that PW-1 has failed to prove the due execution of Will in question and his testimony falls short to fulfill the mandatory requirement of Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 47/51(110) PW-1 has also not deposed that the testator had read the Will before signing it or the contents of Will was read over to him by some persons or he knew the contents of Will. PW-1 has also not deposed about the mental condition of the testator at the time of execution of Will. During cross examination, PW-1 answered most of the questions that he cannot recollect. The petitioners have not examined any other attesting witnesses of the Will to prove that the testator was aware about the contents of Will and he signed the Will after understanding the contents of the Will. The petitioners have failed to prove that the Will in question was signed by the testator/Late Sh. Balwant Singh Mehta after understanding the contents of the Will and the testator was well aware about the contents of the Will, which is mandatory requirement to prove the due execution of the Will.
(111) There are also suspicious circumstances surrounding the execution of the Will in question, which have not been dispelled by the petitioners.
(I) The testator had good relations with the respondents and they used to regularly visit their father and also used to stay with their parents for few days. It is also admitted by the petitioners that Petitioner no. 1 (now deceased) was doing business in Goa since 1972 and Petitioner no. 2 was also residing in Goa since 1973. No single reason has been disclosed by the petitioner for excluding respondents from inheritance by their father, despite having good relations with the respondents and executing Will only in favour of both petitioners.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 48/51(112) Attesting witnesses of the Will had no relation with the testator. Petitioner no. 1/PW2 has admitted that in Delhi, there are 20-25 families, who are their relatives and they used to keep visiting their parents at their house. Petitioner no. 1 has deposed that he does not know any Manohar Lal Chopra and Sh. Prem Chand and never saw them. PW-1/Sh. D.N. Vohra has deposed that he cannot recollect as to whether or not, he visited the house of the testator on any marriage or festival itself and he does not recollect as to whether prior to 25.05.1983, he had ever met Sh. Balwant Singh Mehta or not. It is not proved that any of the witnesses of the Will used to visit testator during his life time or had acquainted with the testator. It is highly improbable that the testator would make witness in his Will to the persons, who are not well known or not well acquainted with him, when 20-25 families used to keep visiting him.
(113) The Will in question is dated 25.05.1983 and as per petitioner no. 1, his mother gave him the Will in question about 4-6 months prior to institution of present case. The present case has been filed on 27.05.2009. It is also highly improbable that mother of petitioners did not disclose the Will in question to anyone, including petitioners for about 32 years, despite having good relations with all her children and residing with petitioner no. 1 in Goa since year 1991.
(114) Petitioner no. 1/PW-2 has admitted that signatures of his father in circle A,B and C on Will Ex PW-1/1 are in different pens. There is no logic for a person to sign a single document, at the same time with different pen.
PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 49/51(115) The petitioners have not impleaded the children of Late Smt Swaran Handa, sister of petitioners and respondents, as parties in the present petition. PW-2 has deposed that he is in contact with Ms. Neelam and Mr. Lalit, both children of Late Smt Swaran Handa. The children of Late Smt Swaran Handa are necessary parties in the present petition. Therefore, the present petition is also bad for non- joinder of necessary parties.
(116) On the certified copies of registered Will Ex PW-4/1, there are two signatures of testator on the first page whereas on the first page of original Will, there is only one signature of the testator. On the second page of certified copy of the registered Will Ex PW-4/1, there is stamp of advocate Sh. Ashwani Kumar but on the original Will Ex PW-1/1, there is no stamp of advocate Sh. Ashwani Kumar on the second page. The Sub-registrar has also not kept original Will and made registration on the photocopy of the Will. These facts also make the will in question suspicious.
(117) In view of the foregoing discussion, it is held that the petitioners have failed to prove the legality, validity and due execution of the Will in question. Accordingly issue no. 1 & 2 are decided against the petitioners and in favour of the respondent no. 2 & 3.
RELIEF (118) In view of findings on issue no. 1 & 2, it is held that the petitioners are not entitled for any relief in the present case, PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 50/51 therefore, the petition stands dismissed. Parties to bear their own cost.
(119) File be consigned to record room after due compliance.
Digitally signedSHIV by SHIV KUMAR Date:
KUMAR 2025.12.13 Announced in the open court (SHIV KUMAR) 17:14:01 +0530 on 13.12.2025 District Judge-02,Court no.127, West Distt, THC: Delhi PC No. 21-2009 Satish Kumar & Ors Vs State & Ors. Page 51/51