Delhi District Court
Sunita vs The State on 5 May, 2025
IN THE COURT OF SHIV KUMAR :
DISTRICT JUDGE-02,
(WEST DISTRICT), TIS HAZARI COURTS:DELHI.
Probate Case No.- 05/2017
CNR No. DLWT01-000381-2017
DLWT010003812017
1. Ms. Sunita (deceased petitioner)
D/o Late Sh. Sundar Lal.
(Petition stands abated qua petitioner no. 1, vide order dated
08.07.2024).
2. Sh. Narender
S/o Late Sh. Sunder Lal
R/o F-78, Double Storey,
Karam Pura, Delhi-110015
..........Petitioner
Versus
1. State
2. Smt. Santosh, ( Deceased)
D/o late Sh. Sunder Lal
Through Legal Heir
A) Sh. Harish @ Lucky ( Son)
S/o Late Sh. Sita Ram.
B) Sh. Atish @ Aashu ( Son)
S/o Late Sh. Sita Ram,
Both are
R/o C-1/42 A, Gali No. 5,
Rajapuri, Uttam Nagar, New Delhi
PC No 5-17 Sunita & Ors Vs State & Anr. 1/27
3. Smt. Saroj
D/o late Sh. Sunder Lal
W/o Sh. Nathu Ram
R/o C-1/36 B, Gali No. 5,
Rajapuri, Uttam Nagar,
New Delhi
4. Sh. Sunil Kumar
S/o late Sh. Sunder Lal
R/o I-401, Ground Floor,
Front Side, Karam Pura, Delhi-110015
5. Smt. Kamlesh
D/o late Sh. Sunder Lal
W/o Sh. Vishnu Midha
R/o I-401, Ground Floor,
Back Side, Karam Pura, Delhi-110015
6. Smt. Rajni
D/o late Sh. Sunder Lal
R/o F-78, Double Storey,
Karam Pura, Delhi-110015
......Respondents
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE IN
THE ALTERNATIVE LETTERS OF ADMINISTRATION
WITH RESPECT TO THE WILL DATED 23.11.2010.
Date of institution of the case : 13.01.2017
Date reserved for judgment on : 06.03.2025
Date of pronouncement of judgment : 05.05.2025
PC No 5-17 Sunita & Ors Vs State & Anr. 2/27
JUDGMENT
(1) Vide this judgment, I shall decide the petition filed by the petitioner, under Section 276 of the Indian Succession Act whereby the petitioner has sought grant of Probate of the Will dated 23.11.2010, executed by late Smt. Mohar Kali.
CASE OF THE PETITIONER, AS PER HIS PETITION:
(2) The present petition has been filed by the petitioner no. 1 and petitioner no. 2. During proceedings of the present case, the petition no. 1 died on 08.10.2022 and vide order dated 08.07.2024, the petition insofar as, it pertains to petitioner no. 1 stands abated. Now, there is only one petitioner in the present petition i.e. Sh.
Narender.
(3) According to the petition, the case of the petitioner in nutshall is that the petitioner is son of Late Smt. Mohar Kali (hereinafter to be referred as "the deceased"), who died on 11.03.2013 at F-78, Karampura, Delhi-15 (4) It is further averred by the petitioner that during her life time, the deceased executed a Will dated 23.11.2010 and the deceased left behind the following legal heirs:
(1) Santosh D/o Sh. Sunder Lal W/o Sh. Sita Ram, who expired after the death of PC No 5-17 Sunita & Ors Vs State & Anr. 3/27 Late Smt Mohar Kali by leaving following two legal heirs:
A) Harish @ Lucky ( Son) S/o Late Sh. Sita Ram, B) Atish @ Aashu ( Son) S/o Late Sh. Sita Ram, (2). Smt. Saroj D/o late Sh. Sunder Lal W/o Sh. Nathu Ram (3). Sh. Sunil Kumar S/o late Sh. Sunder Lal (4). Smt. Kamlesh D/o late Sh. Sunder Lal W/o Sh. Vishnu Midha (5). Smt. Rajni D/o late Sh. Sunder Lal (5) It is further averred in the petition that Late Smt Sunita and petitioner/Sh. Narender are the beneficiaries of the Will in question, in exclusion of other legal heirs of the deceased. It is further averred that as per the said Will, the property bearing no. F-78, Double Storey, Karampura, Delhi-15, consisting three floors each having an area of 33.11 sq. mtrs of two rooms, one kitchen and one bathroom, latrine has been bequeathed to Late Smt Sunita and the petitioner/Sh. Narender.
(6) As per schedule of properties the deceased was the owner of complete built up property No. F-78, Double Storey, Karampura, Delhi-110015, having three floor, each having two room, kitchen, bathroom and latrine, PC No 5-17 Sunita & Ors Vs State & Anr. 4/27 having 33.11. Sq. Mtr.
(7) It is prayed by the petitioner that Probate of will dated 23.11.2010 executed by the deceased may be issued in his favour.
(8) Upon filing the present petition, notice of the petition was issued to respondents. Citation for general public was published in the daily newspaper " Asian Age "
dated 13.02.2017. Notice was also served to State through Chief Secretary. No one from general public has appeared in this case and has filed any objections despite such publication. Only respondent no. 5 has filed reply/objections in the present case.
CASE OF RESPONDENT NO. 5, AS PER HER WRITTEN STATEMENT:
(9) It is contended by respondent no. 5 that the present petition is liable to be dismissed as the petitioner has not come with clean hands and has suppressed the true material facts. It is contended that the deceased was not the absolute owner of the suit property. It is further contended that the deceased, during her life time, remained as a housewife and after death of her husband, she only remained as the custodian of the suit property and had no right or authority to deal with the said property as the owner.
(10) It is further contended by respondent no. 5 that the PC No 5-17 Sunita & Ors Vs State & Anr. 5/27 deceased never desired to deprive the objector from her legal rights in the said property being the daughter and the alleged Will dated 23.11.2010 is a forged and fabricated document and has been manipulated by the petitioner with the sole motive to get the suit property.
(11) It is further contended that the present petition is not maintainable in the present form or that this court has no pecuniary jurisdiction to entertain and adjudicate the matter in controversy or that petitioner has not placed on record the original copy of the Will.
(12) On merit most of the contents for the petition have been denied as wrong.
REJOINDER FILED ON BEHALF OF THE PETITIONER:
(13) Rejoinder has been filed on behalf of the petitioner to the Written statement/objections filed on behalf of respondent no. 5 and the petitioner denied the objections taken by the respondent no. 5 and reiterated the contents of their petition.
(14) It is pertinent to mention here that respondent no. 2 to 4 & 6 neither appeared despite service nor filed any written statement, therefore, vide order dated 10.04.2017, their right to file written statement stands closed.
ISSUES (15) On the basis of the pleadings, the following issues were framed vide order dated 09.08.2017.
PC No 5-17 Sunita & Ors Vs State & Anr. 6/27
1. Whether the Will dated 23.11.2010 executed by Late Smt. Mohar Kali W/o late Sh. Sunder Lal is her last genuine, legal, valid Will and duly executed in her sound disposing mind? OPP.
2. Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP
3. Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 5 in the written statement/objection. OPR.
4. Relief.
(16) Parties were directed to adduce evidence.
EVIDENCE ON BEHALF OF THE PETITIONER.
(17) Petitioner in support of his case has examined following witnesses:
(1). PW-1/Shri Narender Kumar (Petitioner no. 2). (2) PW-2/ Smt. Manju (attesting Witness of the Will).
(3)PW-3/ Sh. Chaman Lal (Summoned witness). (4)PW-4/Sh. Tarsem Kumar,( Summoned witness) (18) Sh. Narender Kumar/petitioner appeared in the witness box as PW-1 and tendered his affidavit in evidence as Ex PW-1/A. PW-1 has relied upon the following documents:
PC No 5-17 Sunita & Ors Vs State & Anr. 7/27 Ex PW-1/1: Original death certificate of deceased lSmt. Mohar Kali Ex PW-1/2: Original Will dated 23.11.2010. Ex. PW-1/3: Details of immovable and movable assets mentioned in Schedule-A. Mark A: Photocopy of the documents of the property in question.
Ex. PW-1/B:
(19) It is pertinent to mention here that PW-1 has not been cross-examined on behalf of respondent no. 5 as none appeared on behalf of respondent no. 5, on 07.03.2018, so, cross examination of PW-1 is nil, despite giving opportunity.
(20) PW-2, Smt. Manju, who is one of the attesting witnesses of the will dated 23.11.2010, has tendered her evidence by way of affidavit Ex PW-2/A and she identified the signatures of the testatrix, Smt. Mohar Kali at point C, on the Will and she also identified her signatures and identified the signatures of other attesting witness at point A & B respectively.
(21) PW-2 has been duly cross-examined on behalf of respondent no. 5 on 18.05.2018.
(22) PW-3, Sh. Chaman Lal has appeared before the court as summoned witness along with summoned record i.e. original office record and certified copy of the Will dated 23.11.2010, executed by late Smt. Mohar Kali and deposed that the said Will is registered at registration no.
PC No 5-17 Sunita & Ors Vs State & Anr. 8/27 10207 in the book no. 3, Volume no. 7893 on Page no. 67 to 70 dated 23.11.2010. PW-3 further deposed that the said Will is already exhibited as Ex PW-1/2 and he has placed on record the certified copy of the same.
(23) PW-4 Sh. Tarsem Kumar, has appeared before the court as summoned witness alongwith summoned record i.e. certified copy of death certificate of Ms Morkali which is registered. PW-4 further deposed that he is placing death certificate details, death certificate of Ms Morkali and certificate under section 65B of Indian Evidence Act regarding death certificate and exhibited the said documents as Ex. PW-4/A to Ex. PW-4/C bearing his signatures at point A respectively.
(24) Vide separate statement of Ms Meena Jha, ld. counsel for the petitioners recorded on 04.09.2024, the evidence on behalf of the petitioner was closed.
(25) It is pertinent to mention there that in this case respondent no. 5 is the only contesting respondent, however none has appeared on behalf of respondent no. 5 since several dates, therefore, vide order dated 08.07.2024, the respondent no. 5 proceeded ex-parte. Even no evidence has been led on behalf of respondent no. 5. Vide order dated 04.09.2024, the remaining respondents also proceeded ex-parte as none appeared on their behalf.
FINAL ARGUMENTS (26) I have heard final arguments from Ld counsel for PC No 5-17 Sunita & Ors Vs State & Anr. 9/27 the petitioner and have perused entire record, including pleadings, documents and testimonies of the witnesses, recorded in court on behalf of petitioner.
CONTENTIONS ON BEHALF OF PETITIONER (27) It is argued by ld. counsel for the petitioner that the mother of the petitioner was healthy and having sound disposing state of mind, at the time of execution of Will.
(28) It is further argued by ld. counsel for the petitioner that there is no suspicious circumstances surrounding the execution of the Will in question.
(29) It is further argued by ld. counsel for the petitioner that the respondent no. 5 has not led any evidence and has failed to prove that the deceased was under influence of petitioner or the Will in question is forged and fabricated.
(30) It is further argued by ld. counsel for the petitioner that Will in question is a registered Will so presumption of genuineness is attached to the proceedings conducted in the office of Sub-Registrar for registration of the Will in question.
(31) It is further argued by ld. counsel for the petitioner that the petitioner has duly proved the Will in question by examining one of the attesting witnesses, who has identified her signatures, signatures of second attesting witness and signatures of the deceased, on the Will in question.
PC No 5-17 Sunita & Ors Vs State & Anr. 10/27 STATUTORY PROVISIONS INVOLVED IN THE PRESENT CASE.
(32) Before adjudicating the issues, I would like to discuss various relevant statutory provisions involved in the present case.
(33) 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".
(34) Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
(35) 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 thus:-
"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 PC No 5-17 Sunita & Ors Vs State & Anr. 11/27 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".
(36) The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
"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 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 FINDING Findings on issues no. 1 & 3.
1. Whether the Will dated 23.11.2020 executed by Late Smt. Mohar Kali W/o late Sh. Sunder Lal is her last genuine, legal, valid Will and duly executed in his sound disposing mind? OPP.
&
3.Whether the petition is liable to be dismissed for the objections raised by the respondent/objector no. 5 in the written objections. OPR.
(37) The burden to prove issue no. 1 is upon the petitioner and burden to prove issue no. 3 is upon respondent no. 5. In order to prove issue no. 1, the petitioner has examined four witnesses and their names are under:
PC No 5-17 Sunita & Ors Vs State & Anr. 12/27 (1). PW-1/Sh. Narender Kumar (Petitioner no. 2). (2) PW-2/ Smt. Manju (attesting Witness of the Will). (3)PW-3/ Sh. Chaman Lal (Summoned witness). (4) PW-4 Sh. Tarsem Kumar, ( Summoned witness).
(38) In order to prove issue no. 3, the respondent no. 5 has not examined any witness.
(39) Before deciding the above said issues, I would like to discuss some of the judgments passed by Hon'ble Supreme Court of India as well as by the Hon'ble High Court of Delhi regarding the settled principles for proving the due execution of the Will.
(40) 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".
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 PC No 5-17 Sunita & Ors Vs State & Anr. 13/27 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 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."
(41) 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 PC No 5-17 Sunita & Ors Vs State & Anr. 14/27 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 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 PC No 5-17 Sunita & Ors Vs State & Anr. 15/27 evidence of the witness called falls short to the mandatory requirements of Section 68."
(42) In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court of Delhi has made reference to a case titled Jagdish Lal Bhatia vs Madan Lal Bhatia, FAO No. 874/2003 dated 21.11.2007, 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.
IV. Expanding on the care and caution to be PC No 5-17 Sunita & Ors Vs State & Anr. 16/27 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.
XI. Suspicion being a presumptive evidence, is a weak evidence and can be dispelled.
PC No 5-17 Sunita & Ors Vs State & Anr. 17/27 (43) In a case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21 September 2023, the Hon'ble Apex Court has deduced the principles in order to prove the Will and the same are as under; -
"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."
(44) In a case titled Kavita Kanwar Vs Mrs Pamela Mehta decided on 19.05.2020 passed by Hon'ble Supreme Court of India has held as follows:
23. It remains trite that a Will is the testamentary document that comes into operation after the death of the testator. The peculiar nature of such a document has led to solemn provisions in the statutes for making of a Will and for its proof in a Court of law. Section 59 of the Succession Act provides that every person of sound mind, not being a minor, may dispose of his property by Will. A Will or any portion thereof, the making of which has been caused by fraud or coercion or by any such importunity that has taken away the free agency of the testator, is declared to be void under Section 61 of the Succession Act; and further, Section 62 of the Succession Act enables the maker of a Will to make or alter the same at any time when he is competent to dispose of his property by Will. Chapter III of Part IV of the Succession Act makes the provision for execution of unprivileged Wills (as distinguished from privileged Wills provided for in Chapter IV) with which we are not concerned in this case.
(45) In view of the above said judgments, it is settled proposition of law that the onus is always upon the propounder of the Will to prove the due execution of the will and to remove all the suspicious circumstances PC No 5-17 Sunita & Ors Vs State & Anr. 18/27 surrounding the execution of the Will. The petitioner has also to prove that the deceased was aware about the contents of the Will at the time of signing the said Will and for proving the Will, one attesting witness of the Will must be examined in court.
(46) PW-1/Sh. Narender Kumar has deposed that late Smt. Mohar Kali had executed Will dated 23.11.2010 and the said Will was explained to her in vernacular language and thereafter the deceased signed the Will, in her full senses in the presence of two attesting witnesses namely Ms. Rajni and Ms. Manju. PW-1 further deposed that Will was prepared on the direction of late Smt. Mohar Kali. The respondents have not cross examined PW1/Sh. Narender Kumar despite giving them opportunity.
(47) PW-2/Ms. Manju, one of the attesting witness of Will in question has deposed that the Will in question was executed by the deceased in her presence as well as in presence of petitioner, Smt. Sunita and Ms. Rajni.
(48) PW-2 has identified her signature on Will Ex. PW- 1/2 at point 'A', signatures of second attesting witness at point 'B' and signature of deceased at point 'C'.
(49) During cross examination, PW-2 deposed that she does not know whether the deceased had given any property to respondent no. 5, during her life time. PW-2 further deposed that property in question was alloted to her late father in law and after his death, all the children got it transferred in the name of her mother in law and she PC No 5-17 Sunita & Ors Vs State & Anr. 19/27 became the owner.
(50) PW-2 further deposed that Will in question was prepared at Janakpuri and they all i.e. she, her mother in law, sister in law namely Ms. Sunita, Ms. Rajni and her husband, namely, Sh. Narender went to Janakpuri.
(51) Ld counsel for the petitioner has argued that the Will in question is a registered Will, so, presumption of genuineness of the Will is applicable in the present case.
(52) In a case titled "Pratap Singh And Another vs The State & Another, decided on 12 August, 2010 as under:
"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".
(53) 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.
PC No 5-17 Sunita & Ors Vs State & Anr. 20/27
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.
(54) In view of abovesaid judgments, it is settled law that mere registration of Will does not prove the due execution of the Will. The petitioner has to prove the Will, as per requirements of law.
(55) I have perused the Will in question. It has been executed by the deceased, in favour of Late Smt. Sunita and Mr. Narender/petitioner. In the Will, it is mentioned that the property in question was alloted to late Sh. Sunder Lal vide Lease and Conveyance Deed dated 18.04.1984 and the legal heirs of late Sh. Sunder Lal executed Relinquishment Deed dated 30.5.1996 in favour of the deceased.
(56) In the Will it is written that the deceased has already given due share to her other legal heirs except Late Smt Sunita and Sh. Narender/ petitioner, to whom, she wants to give their due share by virture of Will in question.
(57) The deceased had put her thumb impressions on the Will in question, but petitioner and PW-2 stated that the deceased had signed the Will in question. None of the witness has stated that the deceased had put thumb impression on the Will. There is no signatures of the deceased on the Will in question. This contradiction raises PC No 5-17 Sunita & Ors Vs State & Anr. 21/27 serious doubt upon due execution of the Will.
(58) I would like to discuss certain judgments of Hon'ble High Court of Delhi and Hon'ble Supreme Court of India regarding what are suspicious circumstances and of the fact that the burden is always upon the petitioner to dispel the said suspicions by leading evidence and same have been mentioned in succeeding paras.
(59) In a case titled " K.L. Malhotra through his legal heirs Vs Smt. Sudershan Kumari & Anr of Hon'ble High court of Delhi, on 01.04.2008, the relevant paras of the said judgments as follows:
"However, in a case surrounded by suspicious circumstances viz.: the disposition may appear to be unnatural, improbable or unfair in the light of the relevant circumstances; or there may be indications that the disposition was not the result of the testator's free will and mind, such suspicious circumstances make the initial onus very heavy; and unless satisfactorily discharged, the Court would be reluctant to treat the document as the last will of the testator. Where the propounder takes a prominent part in the execution of the will conferring benefit upon him, that is a suspicious circumstance attending the execution of the will; the propounder is required to remove the doubt by clear and satisfactory evidence. In other words the propounder must satisfy the conscience of the Court that the document is the last will and testament of the testator.
(60) In a case titled Shivakumar and others vs Sharanabasappa & Ors. AIR (SC) 3102, Hon'ble Supreme Court of India, on 24.04.2020, the relevant paras of the said judgement as under:
"7. As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the PC No 5-17 Sunita & Ors Vs State & Anr. 22/27 dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation."
(61) In a case titled " Smt Veena Khanna Vs State & Ors, Hon'ble High court of Delhi, decided on 29.04.2024, the relevant paras of the said judgement as follows:
"Unjust exclusion/ disinheritance of a natural heir in the Will:
"68. The RW4/ respondent No. 4, Smt. Asha Mehra, the contesting daughter, has been completely excluded from the Will Ex. PW-1/2. The unfair exclusion of a natural heir may be a strong indicator of a suspicious circumstance. When such exclusion is found to be blatant giving rise to serious doubt about the execution of the Will itself, the Court may decline the grant of Probate as has been held in catena of judgements".
"80. Therefore, the principle which emerges is that, though unnatural exclusion of a child from the property in a Will is one of the suspicious circumstance, only if compounded by other factors like active participation of the beneficiary in the Will, the Court may to come to the conclusion of the Will not being genuine".
(62) The petitioner has not disclosed as to who had prepared the Will in question, depiste the fact that wife of the petitioner is one of the attesting witnesses of the Will.
(63) As per PW-2 as well as contents of the Will in question, the property in question was allotted to the husband of the deceased and after his death, all his legal heirs transferred it in the name of their mother i.e. the PC No 5-17 Sunita & Ors Vs State & Anr. 23/27 deceased by executing relinquishment deed dated 30.5.1996. It means that all the children of husband of the deceased had become co-owners of the property in question after the death of Late Sh. Sunder Lal. The execution of relinquishment deed by them in faovur of deceased also shows that all the children have good relations with the deceased and, that is why, they relinquished their shares in the property in question in favour of their mother i.e. the deceased. The petitioner has also not alleged that there was strained relations between the deceased and her other children. It is quite improbable that the deceased will bequeath the property in question to only petitioner/Sh. Narender and Late Smt Sunita, who was also petitioner, in the present petition, by excluding her other children, when she had good relations with all of them and more particularly when other children have also relinquished their share in the property in question in favour of the deceased.
(64) As per Will, there are seven children of the deceased at the time of execution of Will in question and the names of the same are as follows:
a. Smt Santosh/Daughter (now deceased). b. Smt Saroj/Daughter.
c. Smt Sunita/Daughter (now deceased). d.Sh. Sunil Kumar/son.
e. Sh. Narender/son (petitioner).
f. Smt Kamlesh /Daughter.
g. Smt Rajini /Daughter.
PC No 5-17 Sunita & Ors Vs State & Anr. 24/27 (65) In the Will in question, reason for excluding other legal heirs is given as follows"
" That I have given due share to the above mentioned legal heirs except Ms. Sunita & Sh. Narender to whom I want to give their due share by virtue of this Will which is being executed by me."
(66) In the Will, details of the shares given to other legal heirs is not mentioned. The petitioner has also not disclosed the said details, as to whether, the share was given in cash or by way of any other property. There is no evidence on record that the deceased was owner of any other property. Petitioner has failed to prove that any share in moveable or immovable proporties was ever given by the deceased to other legal heirs. The reason for excluding other legal heirs from inheritance by the deceased is not proved and this raises doubt upon due execution of the Will in question and this doubt has not been removed/explained by the petitioner.
(67) It has come on record that the petitioner along with both attesting witnesses and Late Smt sunita, who was earlier one of the petitioners, in the present petition, were present with the deceased, at the time of execution of the Will in question. Petitioner and Late Smt Sunita (deceased petitioner) are the only benficiaries in the Will in question. The attesting witness/Smt Manju is the wife of petitioner/Sh. Narender, to whom share in the property in question has been given by the deceased, in the Will in question. PW2/Ms. Manju is an interested witness to support the case of petitioner as her husband/petitioner will get 50% share of the property in question. Therefore, it is held that PC No 5-17 Sunita & Ors Vs State & Anr. 25/27 the testimony of PW-2 is not reliable.
(68) The second attesting witness, Ms. Rajni, who is also daughter of the deceased has not been examined by the petitioner. No share in the property in question has been given by the deceased to Ms. Rajini and she would be uninterested wintess, if examined by the petitioner.
(69) The respondent no. 5 has stated in preliminary objection no. 1 that the deceased never desired to deprive her from her legal right in the said property being the daughter. In rejoinder, the petitioner has simply denied the said fact and not disclosed the reason for exclusion of respondent no. 5 from inheritance by the deceased.
(70) None of other daughters except Ms. Rajini and son of the deceased, who are excluded from inheritance were present at the time of the execution of Will. Petitioner and deceased petitioner Smt Sunita have played an active role in preparation and execution of the Will. The active role of petitioners in execution of Will in question raises serious doubts on the voluntariness of the deceased for executing the Will in question. The petitioner is the son and deceased petitioner Smt Sunita was the daughter of the deceased, so, both were in dominating position to influence the deceased, in the execution of the Will in question. The petitioner has not disclosed, as to why, Will in question had been executed by the deceased by excluding her other daughters & son. The abovesaid facts create doubts in the due execution of Will in question and the said doubts have not been removed/explained by the petitioner.
PC No 5-17 Sunita & Ors Vs State & Anr. 26/27 (71) In view of foregoing discussion, it is held that the petitioner has failed to remove the abovesaid suspicious circumstances surrounding the execution of the Will in question. The petitioner has also failed to prove the due execution of the Will in question. Accordingly, it is held that will in question is not valid and legal Will. Hence, issue no. 1 & 3 are decided against the petitioner no. 2 and in favour of the R-5.
Findings on issue no. 2
2. Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP (72) In view of the findings on issue no. 1 & 3, it is held that petitioner is not entitled for issuance of Probate/letters of administration, on the basis of Will in question. Accordingly the issue no. 2 is decided against the petitioner no. 2 and in favour of respondent no. 5.
RELIEF (73) In view of findings on issues no. 1 to 3, the petition of the petitioner stands dismissed.
(74) Parties to bear their own cost.
(75) File be consigned to record room after due compliance.
Digitally signed by SHIV SHIV KUMAR Date:
KUMAR 2025.05.05 Announced in the open court (Shiv Kumar ) 04:20:42 +0530 on 05.05.2025 DJ-02 (West) THC/Delhi PC No 5-17 Sunita & Ors Vs State & Anr. 27/27