Delhi District Court
Isaac Samuel vs State Ors on 16 March, 2026
DLST010000412011
IN THE COURT OF SH. ARUL VARMA,
DISTRICT JUDGE-02, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
PC 5848/2016
Filing No. 32017/2011
CNR No. DLST01-0000412011
In the matter of
Issac Samuel
E-158, Ground Floor
East of Kailash
New Delhi-110065 ......Petitioner
VERSUS
1. State of NCT, Delhi
2. Mrs Joyce Qureshi
(since deceased through LRs)
(2.1) Mr Emmanuel Jawid Qureshi
(Husband of Mrs Joyce Qureshi)
E-140 East of Kailash
New Delhi-110065
(2.2) Mr Ebenezer Khuram Qureshi
(Son of Mrs Joyce Qureshi)
14317, West Lisbon Lane
Surprise, Arizona, 85379
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United States of America
(2.3) Ms Ruth Saira Qureshi
(Daughter of Mrs Joyce Qureshi)
2331, Maputo Place
Apartment 36 Dulles
Virginia, 20189, United States of America
3. Mrs Roxana Samuel
W/o Mr Frank Samuel
E-158, 1st Floor, East of Kailash
New Delhi-110065 .......Respondents
Date of Institution : 26.11.2011
Date of reserving the judgment : 10.03.2026
Date of Pronouncement : 16.03.2026
Decision : Dismissed
JUDGMENT/ORDER
Index to the Judgment
I. BRIEF FACTS/CASE OF THE PETITIONER...............................................3 II. ISSUES FRAMED.........................................................................................4 III. EVIDENCE................................................................................................... 5 IV. ARGUMENTS OF COUNSEL FOR THE PARTIES.................................12 V. ISSUE WISE ANALYSIS & FINDINGS THERETO..................................14 i. Issue no 1: Whether the testatrix Late Smt Shanti Samuel legally and validly executed the WILL dated 20.11.1985 ?.........................................14 VI. RELIEF........................................................................................................28 PC5848/2016 Page. 2 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.03.16 17:29:19 +0530 I. BRIEF FACTS/CASE OF THE PETITIONER
1. The facts as asseverated by the Petitioner are hereby succinctly recapitulated:
(a) It was asserted by the petitioner that Mrs Shanti Samuel died at E-158 East of Kailash, New Delhi-110065. It was alleged that the deceased Late Mrs Shanti Samuel duly executed her last WILL/testament dated 20.11.1985 qua her estate including immovable and movable properties before her death. It was alleged that by the WILL/testament dated 20.11.1985 testatrix bequeathed her entire estate including immovable property along with super structure standing thereon exclusively to her son (petitioner herein) to the exclusion of her other legal heirs.
(b)It was alleged that Late Ms Shanti Samuel duly executed her last WILL dated 20.11.1985 in her perfect senses and sound disposing mind in the presence of two witnesses and subsequently got it registered with Sub-Registrar of Assurances vide Book no 3, Volume No 334 from pages 102-103, Document Registration no 4437 dated 04.12.1985.
(c) It was also contended that the petitioner herein is a permanent resident of Delhi and is a sole beneficiary under the last WILL dated 20.11.1985. It was stated that PC5848/2016 Page. 3 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.03.16 17:29:22 +0530 the said WILL was executed and registered in Delhi and thereafter handed over by deceased Late Mrs Shanti Samuel to petitioner herein and all the legal heirs of deceased Late Mrs Shanti Samuel were very well aware of this fact.
(d)It was alleged that the petitioner herein was advised that there is no need for probate as all the legal heirs had accepted the same. However, it was brought to the fore that respondent no 2 herein filed the probate petition in order to seek the probate of an alleged WILL dated 23.10.2007 ostensibly executed by deceased Late Mrs Shanti Samuel. It was alleged that the said will dated 23.10.2007 is not only a sham but is also a forged and fabricated document. Hence, the petitioner filed the present petition for grant of probate of the WILL dated 20.11.1985 before this Court.
II. ISSUES FRAMED
2. A perusal of record reveals that inadvertently issues were not framed in the present matter. Accordingly, on 16.03.2026 the following issues were framed:
"1. Whether the testatrix Late Smt Shanti Samuel legally and validly executed the WILL dated 20.11.1985 ?OPP PC5848/2016 Page. 4 of 28 Issac Samuel Vs State & Ors Arul Digitally signed by Arul Varma Date: 2026.03.16 Varma 17:29:25 +0530
2. Relief."
III. EVIDENCE
3. It is pertinent to note that the present matter was firstly filed as Testamentary Case no 13/2011 titled Isaac Samuel Vs State before the Hon'ble High Court of Delhi and vide order dated 22.11.2011, the matter was transferred before the Ld Predecessor of of this Court. Ld Counsel for parties had averred that the case should be treated along with Test Cas no PC/127/2011 titled Joyce Quereshi Vs Roxana Samuel & ORs, which was pending before the Ld Predecessor of this Court.
4. Vide the said order dated 22.11.2011, it was clarified that the Ld Trial Court may proceed to record the evidence of the witnesses concerned by the petitioner in Test Cas no. PC/127/2011. During the course of arguments, both the Ld Counsels submitted that the evidence of both the matters i.e. the present matter and PC no 1227/2011 were led in latter case.
5. Accordingly, in the said proceedings i.e. Test Cas no PC/127/2011 titled Joyce Quereshi Vs Roxana Samuel & ORs, 05 witnesses were examined by petitioner therein, succinct testimonies whereof are as follows:
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6. 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 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. She was cross examined at length by Ld Counsel for respondent no 3 (petitioner in the present case).
7. 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 PC5848/2016 Page. 6 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.03.16 17:29:34 +0530 examined by Ld Counsel for respondent no 3 (petitioner in the present case).
8. 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.
9. He deposed in his evidence by way of affidavit that he was the family friend of the parties. He deposed that he was very mush 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. 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 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 (petitioner in the present case).
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10. 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 (petitioner in the present case).
11. 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.
12. 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 (petitioner in the present case).
13. Further, in the said proceeding bearing PC/127/2011 titled Joyce Quereshi Vs Roxana Samuel & Ors, five witnesses were examined by the respondents therein, succinct testimonies whereof are as follows:
14. RW1 Mrs Monica Sherring: She tendered her evidence by way of affidavit RW1/A. She deposed that she had 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 PC5848/2016 Page. 8 of 28 Issac Samuel Vs State & Ors Digitally signed by Arul Varma Arul Date:
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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. 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.
15. 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.
16. 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 PC5848/2016 Page. 9 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.03.16 17:29:44 +0530 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/respondent in the present matter.
17. 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/respondents in the present matter.
18. 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.
19. She was cross-examined by Ld Counsel for petitioner /respondent in the present matter.
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20. 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 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.
21. 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.
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IV. ARGUMENTS OF COUNSEL FOR THE PARTIES
22. At the very outset, Ld Counsel for respondent has submitted that the present matter involves adjudication of a short issue of law. He submitted that in terms of Section 68 of Indian Evidence Act, at least one witness out of two attesting witnesses, is required to be examined to prove the genuineness and validity of WILL. Ld Counsel further submitted that it is only in the eventuality of not being able to examine either of the witnesses, recourse has to be had to Section 69 of Indian Evidence Act.
23. Ld Counsel for respondent further submitted that in the present case, there were two attesting witnesses namely R. Edwards and Mr Veer Bhan. He also submitted that the one of the attesting witnesses namely R. Edwards had expired on 06.03.1993. Thus, it was imperative that the petitioner ought to have made efforts to summon and examine the other witness Mr Veer Bhan, which was not so done in the present case.
24. Ld Counsel for respondent contended that the petitioner circumvented the mandate of Section 68 of Indian Evidence Act and straightaway took recourse to Section 69 of Indian Evidence Act without fully exhausting the remedies available under Section 68 of Indian Evidence Act.
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25. It was contended that the petitioner only made bland averments that efforts were made to search for other witness namely Veer Bhan sans cogent proof. Ld Counsel has placed reliance on Master Chanakya Vs State & Ors Test Cas. 40 /1999 to contend that beyond mere averments, petitioner ought to have resorted to due methods including summoning other attesting witness under Order XVI CPC, which was not done so. Thus, Ld Counsel submitted that WILL has not been proved as per Section 68 of Indian Evidence Act.
26. Per contra, Ld Counsel for petitioner submitted that petitioner made all efforts to trace out the other attesting witness namely Veer Bhan, and since Veer Bhan could not trace out, the petitioner resorted to Section 69 of Indian Evidence Act and examine Ms Monica Sherring daughter of deceased Mr R. Edwards. Ld Counsel contended that the petitioner has complied with the mandate of Section 69 of Indian Evidence Act. Ld Counsel for petitioner also contended that the WILL dated 1985 is an admitted document, and execution thereof has not been disputed by the respondent.
27. Ld Counsel for petitioner submitted that the deceased testator made an open declaration qua the WILL dated 1985 PC5848/2016 Page. 13 of 28 Issac Samuel Vs State & Ors Digitally signed Arul byDate:Arul Varma Varma 2026.03.16 17:29:56 +0530 in front of all family members whereby she confirmed her bequest to petitioner Isaac Samuel.
28. In rebuttal, Ld Counsel for respondent submitted that the respondent only admitted the signatures of the testator on the impugned WILL dated 1985, and a caveat was added that the WILL dated 1985 was superseded by WILL dated 2007.
V. ISSUE WISE ANALYSIS & FINDINGS THERETO i. Issue no 1: Whether the testatrix Late Smt Shanti Samuel legally and validly executed the WILL dated 20.11.1985 ?
29. 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 and the Evidence Act. 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 PC5848/2016 Page. 14 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.03.16 17:29:59 +0530 act during her life.
"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."
30. 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.
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31. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. "(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator 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."
32. 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 PC5848/2016 Page. 16 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.03.16 17:30:06 +0530 person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the 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 PC5848/2016 Page. 17 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.03.16 17:30:09 +0530 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.
33. 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:
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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 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;
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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 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."
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34. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as Cheeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testatrix had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in probate proceedings relates to the genuineness and due execution of the Will.
35. The above makes it explicit that ordinarily, to prove the WILL, one of the attesting witnesses is examined before the Court. However, if no attesting witness is found, then the WILL shall be proved in accordance with Section 69 of the PC5848/2016 Page. 21 of 28 Issac Samuel Vs State & Ors Digitally signed by Arul Arul Varma Date:
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Indian Evidence Act. At this juncture, it would be apt to reproduce Section 69 of Indian Evidence Act:
"69. Proof where no attesting witness found- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
36. Further, in Ashutosh Samanta & Ors Vs Ranjan Bala Dasi & Ors (2023) 19 SCC 448 it was held as thus:
"16. In Babu Singh v Ram Sahai, the Court held as follows with regard to Section 69:
17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act. In the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved."
37. In the present case, there were two attesting witnesses of the WILL dated 20.11.1985 namely Sh R. Edwards and Sh PC5848/2016 Page. 22 of 28 Issac Samuel Vs State & Ors Digitally signed Arul byDate:Arul Varma Varma 2026.03.16 17:30:26 +0530 Vir Bhan Bhatia. It has come on record that one of the attesting witnesses namely R Edwards expired on 06.03.1993. In such eventuality, the onus was with petitioner to make efforts to summon and examine the other witness namely Sh Vir Bhan Bhatia.
38. Ld Counsel for petitioner contended that efforts were made to examine the said witness. However, the record belies assertions of Ld Counsel for petitioner. Mere bland averment, no other proof has been placed on record to give rise to an inference that due diligence was exercised by the petitioner to trace the other attesting witness namely Sh Vir Bhan Bhatia. The law is clear that if an attesting witness is alive and capable for giving evidence, then subject to the process of Court, he has to be necessarily examined in order to prove the WILL. It is only in the eventuality of the attesting witness not being found, that recourse to Section 69 of the Indian Evidence Act can be taken. In this regard, recourse can be had to Master Chanakya Vs State & Ors Test Cas 40/1999, wherein the Hon'ble Court held as thus:
"24. The aforesaid provision is applicable in a case where the attesting witness is either dead or out of the jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced despite a diligent search. In the present case, the testimony of PW-1 does not help the Petitioner in proving the Will. PW-1 has not seen the testator or the attesting witnesses signing the Will. Thus, the evidence of PW-1 cannot be considered relevant for proving the Will. The Petitioner ought to have resorted to all due methods provided under Order 16 of PC5848/2016 Page. 23 of 28 Issac Samuel Vs State & Ors Arul Digitally signed by Arul Varma Date: 2026.03.16 Varma 17:30:30 +0530 Civil Procedure Code, 1908 to summon the attesting witnesses before resorting to other evidence. Mere statement of the Petitioner about non-availability of the attesting witness and that the whereabouts of the attesting witness is not known does not attract the application of Section 69 of the Indian Evidence Act. Only when the witness does not appear pursuant to court summons and after all the processes under Order 16 Rule10 are exhausted, Will can be proved in the manner indicated under Section 69 of the Indian Evidence Act i.e. by examining the witnesses who can prove the handwriting of the testator or executants. The judgement of the Madras High Court in N.Durga Bai vs Mrs.C.S.Pandari Bai, TOS.22 of 2010 discussing the similar aspect is relevant, wherein it has been held as under:
"...14. Now, coming to the other contention of the plaintiffs in the proof affidavit to the effect that the attesting witnesses could not be traced and their whereabouts are not known is taken into consideration. Mere assertion in the evidence itself is not sufficient to dispense with the proof of diligent search which was supposed to be made to establish the fact that their whereabouts are not known to the plaintiff. In the proof affidavit P.W.1 in the chief examination except stating that two of the attesting witnesses Munusamy and R. Subramani 2019:DHC:4504 TEST. CAS. 40/1999 Page 21 of 26 whereabouts are not known to them and the scribe who drafted the Will also passed away, the plaintiff has not stated anything about the diligent search made by them to find out the address of the attesting witnesses. It is the stand of the Plaintiffs' counsel that since the attesting witnesses were also working with the testator in the Binny Mills and after the Mill was closed in the year 1984 the attesting witnesses' whereabouts are not known to them. In this regard when a careful reading of the Will Ex. P1 it is seen that the addresses of the attesting witnesses were clearly given in the place while signing as identifying witness. One of the attesting witnesses Munusamy's address was shown as No. 10, Bharathi Nagar, Kolathur, Chennai-99 and his avocation is shown as business. Similarly, another attesting witness namely Subramani son of PC5848/2016 Page. 24 of 28 Issac Samuel Vs State & Ors Digitally signed by Arul Arul Varma Date:
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Ramasamy, and his address was given as No. 7, Elumalai Street, George Colony, Chennai-11 and his occupation also shown as IP Limited. i.e. India Pistons Limited Company. When the specific address of the attesting witnesses has been given, the entire evidence of P.W.1 when carefully seen they have not made any attempt to summon these witnesses before this Court by resorting to Order 16 Rule 10 of CPC. No coercive step was also taken as against them to procure their presence before the Court..."
25. It is not the case of the Petitioner that the attesting witness in the instant case cannot be found. In fact all throughout, the Petitioner has contended that he is aware of the whereabouts of the witness and time and again assured that he would produce the said witness before the Court. This is evident from several orders passed by this Court. Later, Petitioner dropped the said witness on the ground that whereabouts were not known and the Petitioner was therefore unable to produce the said witness before the Court. The Petitioner did not exhaust all the remedies for producing the witness before this Court. The Petitioner could have resorted to Order 16 Rule 10 of Civil Procedure Code, 1908 for the purpose of seeking appearance of the attesting witness. No assistance was taken from the Court to summon the said witness. Thus, the evidence led through PW-1 [Kapil Sharma] cannot be taken into consideration for dealing with the issue relating to proof of Will. In this regard, reference can be made to the judgment of the Supreme Court in Babu Singh and Ors. v. Ram Sahai, AIR 2008 SC 2485, which reads under as:
"Evidence Act, 1872 Section 69- Applicable in absence of attesting witness only when the party moves court for purposes under Order 16 Rule 10 CPC but despite issuance of summons, the witness fails to obey the summons, can the Will be proved in the manner indicated in Section 69- Mere statement of counsel of the plaintiff that the attesting witness was won over by the opposite party not sufficient to prove his absence- Handwriting of the attesting witness and signature of the person executing the Will must be PC5848/2016 Page. 25 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date: Varma 2026.03.16 17:30:40 +0530 proved- Burden of proof then shifts on others- Civil Procedure Code, 1908, Order 16 Rule 10.
Section 69 of the Evidence Act would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69 i.e. by examining witness who was able to prove the handwriting of the testator or executants. The burden of proof then may be shifted to others.
Whereas, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Evidence Act, in the event the ingredients thereof, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved.
The Calcutta High Court in Amal Sankar Sen case, AIR 1945 Cal 350, rightly observed: (AIR p.352) "...In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the processes under Order 16 Rule 10, which the Court considered to be fit and proper had been exhausted that the foundation Will be laid for the application of Section 69, Evidence Act."
39. The facts of the present case reflect that no effort was made by the petitioner to take recourse to Order XVI CPC to summon the attesting witness.
40. In view of the above, the petitioner could not have taken recourse to Section 69 of the Indian Evidence Act without PC5848/2016 Page. 26 of 28 Issac Samuel Vs State & Ors Digitally signed Arul by Arul Varma Date: 2026.03.16 Varma 17:31:01 +0530 fully exhausting the remedies available u/s 68 of the Indian Evidence Act. Thus, it cannot be gainsaid that WILL has not been proved in accordance with law. It was also submitted by the petitioner that the respondents had acknowledged the execution of impugned WILL dated 20.11.1985 that the deceased testatrix had made open declaration qua WILL dated 20.11.1985 in front of all family members whereby she confirmed her bequest to the petitioner Isaac Samuel. This contention too cannot be countenanced inasmuch as onus is on the propounder to establish that the WILL was validly executed and is a genuine one. In this regard, recourse can be had to Jai Prakash Aggarwal Vs State & Ors Test Cas 9/2001 dated 10.01.2017 wherein the Hon'ble Court observed as thus:
"33. The Counsel for the petitioner has also argued that the respondent No4 who is now opposing the petition in fact had in reply supported the petitioner and is bound by the admissions.
34. A probate proceeding is not an inter-partes proceeding and a judgment therein is a judgment in rem. It is for this reason, that probate is not granted on admissions or even when none contests the proceeding and is granted only on proof of the Will. In the present case, the petitioner having failed to prove the documents to be the Will and Codicil, notwithstanding the fact that the respondent no 4 who alone is now contesting, may have at one stage supported the petitioner, probate cannot be granted."
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Issac Samuel Vs State & Ors Digitally
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41. Thus, the petitioner cannot rely solely upon a purported admission made by the respondents, but has to establish his case within the parameters set forth under Section 63 of the Indian Succession Act coupled with Section 68 of the Indian Evidence Act. The petitioner has clearly failed to do so.
VI. RELIEF.
42. Ergo, in view of the above in extenso discussion, the petition is hereby dismissed.
43. Original Will Ex PW1/R1 shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.
44. File be consigned to record room after necessary compliance.Digitally signed
Pronounced in the open Court Arul by Arul Varma Date:
on this 16th March, 2026 2026.03.16 Varma 17:31:08 +0530 (ARUL VARMA) DISTRICT JUDGE-02/SOUTH, SAKET COURTS/NEW DELHI PC5848/2016 Page. 28 of 28 Issac Samuel Vs State & Ors