Delhi District Court
Malkeet Singh vs State on 25 March, 2025
IN THE COURT OF DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
DLCT010159082016
Presided by:-
Sh. Abhishek Srivastava, DHJS
PC No. 42484/16
CNR No. - DLCT01-015908-2016
Sh. Malkeet Singh
S/o Sh. Kawal Singh
R/o C-9/10, Subhadra Colony,
Dehli ........ Petitioner
Versus
1. State
Through Delhi Administration
2. Ms. Gurmeet Kaur
D/o Late S. Rattan Singh
R/o House No. 16, Shiv Colony,
Gali No. 4, Tigaon Road, Ballabhgarh
3. Sh. S. Balvinder Singh
S/o Late S. Rattan Singh
R/o C-9/10, Subhadra Colony,
Delhi
PC 42484/16 1 of 40
Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025
4. Sh. S. Harjeet Singh
S/o Late S. Rattan Singh
Deceased through legal heirs
(a) Ms. Satnam Kaur
W/o Late S. Harjinder Singh
(b) S. Pritpal Singh
(c) S. Amrit Pal Singh
All R/o C-2/19, Budh Vihar,
Phase-I, Delhi.
5. Ms. Harjeet Kaur
W/o S. Jagjeet Singh
D/o Late S. Rattan Singh
R/o 2112/164, Ganesh Pura,
Tri Nagar, Delhi
6. Ms. Surinder Kaur
W/o S. Bhupinder Singh
D/o Late S. Rattan Singh
R/o 453/34, Onkar Nagar,
Tri Nagar, Near Lal Mandir,
Delhi
7. S. Kawal Singh
S/o Late S. Rattan Singh
R/o C-9/10, Subhadra Colony,
Delhi
8. Sh. Punpreet Singh
S/o Sh. Balvinder Singh
R/o C-9/10, Subhadra Colony,
Delhi ........ Respondents
PC 42484/16 2 of 40
Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025
Date of Institution: 15.11.2016
Date of conclusion of final arguments: 14.01.2025
Date of Judgment: 25.03.2025
JUDGMENT
1. By this judgment, this court shall dispose of the present petition under Sections 276 read with 239 of the Indian Succession Act, 1925 (hereinafter referred to as Act) filed by the petitioner, seeking grant of probate in respect of Will dated 02.02.2012, duly registered on the same day i.e. 02.02.2012 with the Sub-Registrar-IV A, New Delhi vide registration No. 198 in Additional Book No. 3, Volume No. 245 on pages 193 to 196, executed by Late Sh. Rattan Singh S/o Late Sh. Bishan Singh (hereinafter referred to as the deceased testator) in his favour.
2. At the outset it may be noted that the petition was originally filed through Smt. Manjeet Kaur (mother) as Sh. Malkeet Singh- the beneficiary, was a minor at the time when the petition was filed. Sh. Malkeet Singh thereafter became major during the pendency of the case and he therefore was substituted in place of his mother Smt. Manjeet Kaur.
3. The present petition has been filed by the petitioner on 15.11.2016 which is not only duly verified by the petitioner in terms of provision of Section 280 of the Act, but also has been accompanied by certificates of both the attesting witnesses to the aforesaid Will viz. Sh. Mahender Singh and Sh. Surjeet Singh as per provisions of Section 281 of Act.
4. What is of utmost importance is that there is no original Will which has been filed in the present case. As per the petition, the natural guardian of the petitioner came to know about the Will in question through one of the PC 42484/16 3 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 Witnesses Sh. Surjeet Singh in the last week of July 2016. The said witness further intimated to the natural guardian of the petitioner that the original Will dated 02.02.2012 is lying with Ms. Harjeet Kaur (respondent No. 5). On asking of the natural guardian of the petitioner, the respondent No. 5 refused returning the same to the petitioner.
5. The facts of the case, as appeared from reading of the petition (in light of documents filed), in brief, are as under:-
(a) That the deceased testator was the sole and absolute owner of the property bearing No. C-9/10, Subhadra Colony, Sarai Rohilla, Delhi-35 measuring 124 Sq. Yds. and also of property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35.
(b) The deceased testator was married to Smt. Gurdeep Kaur. The deceased testator was/ is having three sons and three daughters namely; Ms Gurmeet Kaur (respondent No. 2), Sh. S. Balvinder Singh (respondent No. 3), Sh. S. Harjinder Singh (pre-deceased son, his wife and two sons are arrayed as respondent No. 4 (a) to (c)), Ms. Harjeet Kaur (respondent No 5), Ms. Surinder Kaur (respondent No.
6) and Sh. Kawal Singh (respondent No. 7). The testator expired on 05.02.2014 leaving behind his wife and three daughters and two sons.
(c) That the deceased testator during his lifetime had executed a Will dated 02.02.2012, duly registered on the same day i.e. 02.02.2012 with the Sub-Registrar-IV A, New Delhi vide registration No. 198 in Additional Book No. 3, Volume No. 245 on pages 193 to 196.
PC 42484/16 4 of 40
Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025
(d) As per the Will dated 02.02.2012, the deceased testator had married
all her daughters with pomp and show and they were not concerned with his movable and immovable properties. His elder son Sh. Harjinder Singh had expired in the year 2002 and he (the deceased testator) transferred his immovable property bearing No. C-9, Subhadra Colony, Sarai Rohilla, Delhi-35 measuring 124 Sq. Yds. in favour of the wife of his deceased son namely Smt. Satnam Kaur. The deceased testator also got married to both the sons of his Late son. Her daughter in law Smt. Satnam Kaur had sold the said property bearing No. C-9 and residing along with her sons in Budh Vihar. The deceased testator as such was free from responsibilities of the family of his elder son. To avoid any dispute after his death, the deceased testator published a public notice in 'Rastriya Sahara Hindi' on 23.09.2010 regarding excluding Smt. Satnam Kaur and her both sons namely Sh. Pritpal Singh and Sh. Amritpal Singh, and his other Son S. Balvinder Singh and his wife Smt. Inderjeet Kaur from his Will.
(e) Further, as per the Will dated 02.02.2012, the testator, during his lifetime, will remain owner of his properties viz. C-10, Subhadra Colony, Sarai Rohilla, Delhi-110035 (measuring 124 sq. yards) (hereinafter referred to as 'Subject property') and of property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35, and after his death his wife Smt. Gurdeep Kaur will remain owner of both the properties. That after the death of his wife, both the properties would go to his grandsons Sh. Malkeet PC 42484/16 5 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 Singh S/o Sh. S. Kawal Singh (petitioner) and Sh. Punpreet Singh S/o S. Balvinder Singh (respondent No. 8). The deceased testator excluded his younger son Sh. Kawal Singh from his properties as he was disobedient.
(f) That the property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35 had subsequently been sold by deceased testator on the instigation of other legal heirs and the sale proceeds were distributed among all the legal heirs.
(g) That the deceased testator at the time of his death had a fixed place of abode (i.e. at property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35) within the jurisdiction of this Court, as such, this Court has territorial jurisdiction to entertain the present petition.
(h) That as per the knowledge of the petitioner, no other petition has been filed for grant of probate of Will dated 02.02.2012 in any other Court, as such there is no impediment for grant of probate in favour of the petitioner.
6. The record of the Court file shows that upon filing of this petition, notice of the petition was directed to be issued to the respondents including the respondent/ State through concerned District Collector. Further, citation in terms of Section 283 of the Act was directed to be published in Hindi newspaper "Rashtriya Sahara" and English newspaper "Statesman" calling upon all the persons claiming interest in the estate of the deceased testator to come and see the proceedings and file objections vide Order dated 15.11.2016. Citation was also directed to be displayed on the notice PC 42484/16 6 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 board of the Court. As per material on record, citation was duly published in the newspaper "Statesman" dated 12.01.2017. The citation has also been published on the notice board of this court on 28.11.2016. As per the report of Ahlmad (made at the margin of the Order Sheet dated 15.11.2016), notices of this petition were served upon all the respondents.
7. A joint reply/ objection was filed on behalf of all the respondents except respondent No. 7. Respondent No. 7 filed a separate reply praying that he has no-objection if the petition is allowed.
8. Perusal of Order dated 28.02.2017 shows that the Ld. predecessor of this Court while observing that the respondent No. 8 though was made a beneficiary alongwith the petitioner under the Will dated 02.02.2012, joint reply/ objection was filed on behalf of respondent No. 8 as well (which was against the interest of respondent No. 8), examined (in part) the respondent No. 8 under Section 165 of the Indian Evidence Act, 1872. Respondent No. 8 was further examined on 01.03.2017. Ld. predecessor recorded in Order Sheet dated 01.03.2017 that during the course of examination of respondent No. 8, an original family Will dated 23.01.2014 was produced on behalf of respondents which was put to respondent No. 8 (was taken on record and given a mark Mark CRX3). Ld. predecessor further recorded that one Ms. Inderjeet Kaur (who happens to be mother of respondent No. 8) and respondent No. 3 (who happens to be father of respondent No. 8) had taken a strong objection against the statement of their own son i.e. Respondent No. 8. It appears that this all led to the Ld. predecessor to hold a preliminary inquiry of sort and issue show cause notices to remaining respondents and to their PC 42484/16 7 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 counsels. Reply through affidavits to the show cause notices were filed on behalf of respondent No. 2, 3, 5 and 6. Statement of mother of respondent No. 8 (though not a party to the petition) was also recorded. Ld. predecessor of this Court vide Order dated 14.07.2017 afforded an opportunity to respondent No. 8 to file a fresh separate written statement/ objection. Respondent No. 8 thereafter filed a separate reply praying that he has no-objection if the petition is allowed.
9. In their written statement/ objections, the respondents except respondent No. 7 and 8 inter alia pleaded;
(a) That the Will dated 02.02.2012 propounded by the petitioner is not the last and final Will of Late Sh. Rattan Singh and he subsequently executed another Will dated 23.01.2014 bearing signatures of all the legal heirs as well as two attesting witnesses whereby he bequeathed all his properties i.e. property bearing No. C-9, Subhadra Colony, Sarai Rohilla, Delhi-35 measuring 124 Sq. Yds., property bearing No. C-10, Subhadra Colony, Sarai Rohilla, Delhi-35 measuring 124 Sq. Yds., and property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35 in favour of all the seven legal heirs equally.
(b) That all the 6 legal heirs relinquished their shares in property bearing No. property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35 and property bearing No. C-10, Subhadra Colony, Sarai Rohilla, Delhi-35 measuring 124 Sq. Yds. in favour of their mother namely Smt. Gurdeep Kaur W/o Late Sh.
PC 42484/16 8 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
Rattan Singh vide two separate registered relinquishment deeds dated 28.10.2014 and 19.12.2014 respectively.
(c) Subsequently, Smt Gurdeep Kaur vide a registered Will dated 10.12.2014 bequeathed the property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35 in favour of all the 6 legal heirs. That the property bearing No. 2401 was subsequently sold by all the legal heirs for a consideration amount of Rs. 48,60,000/- and the amount was equally distributed amongst all the legal heirs equally.
(d) It is denied that the property bearing No. C-9, Subhadra Colony, Sarai Rohilla, Delhi-35 measuring 124 Sq. Yds. was transferred by the deceased testator in favour of the wife of Late Sh. Harjinder Singh, namely Smt. Satnam Kaur. As per the Will dated 23.01.2014, all the properties including this one was bequeathed to all the legal heirs by Late Sh. Rattan Singh.
(e) It is denied that the natural guardian of the petitioner came to know about the Will in question through one of the Witnesses Sh. Surjeet Singh in the last week of July 2016. It is further denied that the said witness further intimated to the petitioner that the original Will dated 02.02.2012 is lying with Ms. Harjeet Kaur (respondent No. 5). It is further denied that on asking of the petitioner, the respondent No. 5 refused to return the same to the petitioner.
10. Petitioner filed the replication to the written statement/ objection of the respondents wherein he denied the case of the respondents and reaffirmed the contents of the petition.
PC 42484/16 9 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
11. On the basis of pleadings of the parties, following issues were framed by the Ld. predecessor of this Court vide Order dated 09.10.2017:-
(1) Whether the Will dated 02.02.2012 (date of registration) was not the last and final Will of the deceased Sh. Rattan Singh as alleged by respondent Nos. 2 to 6 ? OPR 2 to 6 (2) Whether the Will dated 02.02.2012 (date of registration) was last and final Will validly executed by the deceased in his sound disposing mind ? OPP (3) Whether the deceased had executed another Will subsequently i.e. on 23.01.2014 in his sound disposing mind as claimed by respondent Nos. 2 to 6 ? OPR2 to 6 (4) Relief.
12. During the trial of this petition, four witnesses viz; guardian of the petitioner Smt. Manjeet Kaur as PW1; Sh. Anil Khatri, Junior Assistant from the Sub Registrar Office VI A, Pitampura, Delhi as PW2; Sh. S. Surjeet Singh (one of the attesting witnesses to the Will dated 02.02.2012) as PW3; and S. Mahinder Singh (other attesting witness to the Will dated 02.02.2012) as PW4 were examined in support of the case of the petitioner.
13. Smt. Manjeet Kaur (guardian of the petitioner) has been examined by the petitioner as PW1, who has tendered her evidence by way of affidavit Ex.PW1/A alongwith following documents:-
(i) Ex.PW1/1: Death Certificate of Sh. Rattan Singh
(ii) Ex.PW1/2: Death Certificate of Smt. Gurdeep Kaur
(iii) Mark PX3: Will dated 02.02.2012
(iv) Ex.PW1/4: List of Legal heirs PC 42484/16 10 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025
(v) Ex.PW1/5 (OSR): Copy of Aadhar Card of petitioner
14. PW1 was cross-examined on behalf of the respondent Nos. 2 to 6. During Cross-examination of PW1 following documents were exhibited/ marked:-
(i) Ex.PW1/R1: Relinquishment deed dated 28.10.2014
(ii) Ex.PW1/R2: Family Will dated 23.01.2014 of Late Sh. Rattan Singh
15. Sh. Anil Khatri, Junior Assistant from the Sub Registrar Office VI A, Pitampura, Delhi examined as PW2. The said witness has brought the certified copy of the Will dated 02.02.2012 which was registered vide registration No. 198, Addl. Book No. 3, Volume No. 245 on page Nos. 193 to 196 on 02.02.2012. The same was exhibited as Ex.PW2/A.
16. Sh. S. Surjeet Singh, one of the attesting witnesses to the Will dated 02.02.2012, has been examined by the petitioner as PW3, who has tendered his evidence by way of affidavit as Ex.PW3/A and has proved the Will dated 02.02.2012 as Ex.PW3/1 (already marked as Mark PX3). His aadhar card has been exhibited as Ex.PX1 (OSR).
17. The other attesting witness to the Will dated 02.02.2012 Sh. S. Mahinder Singh has been examined by the petitioner as PW4, who has tendered his evidence by way of affidavit as Ex.PW4/A.
18. All the witnesses PW1 to PW4 were cross-examined on behalf of the respondent Nos. 2 to 6. PE was thereafter closed vide order dated 24.07.2019 and the petition was posted for RE.
19. On behalf of respondents two witnesses were examined. Respondent No. 6 Ms. Surinder Kaur as RW1/1 and respondent No. 4 (b) Sh. Preetpal Singh as RW4/1.
PC 42484/16 11 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
20. RW1/1 has tendered her evidence by way of affidavit Ex.RW1/1/A alongwith following documents:-
(i) Ex.RW1/4 (OSR): Registered Will dated 10.12.2014 of Late Mrs. Gurdeep Kaur
(ii) Ex.RW1/5 (OSR): Relinquishment deed dated 19.12.2014.
21. Respondent No. 4 (b) Sh. Preetpal Singh has been examined as RW4/1 who tendered his evidence by way of affidavit Ex.RW4/1/A. Both the witnesses have been cross-examined by the Ld. Counsel for the petitioner. No other witness was examined on behalf of the respondents. RE was accordingly closed vide order dated 23.08.2023.
22. Final arguments have thereafter been heard on behalf of petitioner, respondent Nos. 2 to 6, and respondent No. 8. Besides, written submissions have also been filed on behalf of petitioner, respondent Nos.
2 to 6, and respondent No. 823. I have heard the submissions made on behalf of the parties and have also carefully perused the material available on record. My issue wise findings on the issues settled by Ld. predecessor of this Court vide Order dated 09.10.2017 are as under:-
ISSUE NOs. 1, 2 & 3 (1) Whether the Will dated 02.02.2012 (date of registration) was not the last and final Will of the deceased Sh. Rattan Singh as alleged by respondent Nos. 2 to 6 ? OPR 2 to 6 (2) Whether the Will dated 02.02.2012 (date of registration) was last and final Will validly executed by the deceased in his sound disposing mind ?
OPP PC 42484/16 12 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 (3) Whether the deceased had executed another Will subsequently i.e. on 23.01.2014 in his sound disposing mind as claimed by respondent Nos. 2 to 6 ? OPR2 to 6
24. All these issues are taken together as they involve common discussion.
Onus to prove issue No. 2 was on the petitioner whereas to prove issue Nos. 1 & 3 was on respondent Nos. 2 to 6.
25. It has already been observed hereinabove that the present petition has been filed by the petitioner which is not only duly verified by the petitioner in terms of provision of Section 280 of the Act, but also has been accompanied by certificates of both the attesting witnesses to the aforesaid Will in terms of Section 281 of the Indian Succession Act, 1925. Considering the fact that the PW1, through her testimony, has been able to prove that the deceased testator, at the time of his death had a fixed place of abode in the jurisdiction of this court (Ex.PW1/1), in the considered opinion of this court, this court has jurisdiction to entertain the present petition.
26. The petitioner is propounding a Will dated 02.02.2012 of Late Sh. Rattan Singh whereas the case of the Respondent Nos. 2 to 6 is that the Will dated 02.02.2012 is not the last Will of Late Sh. Rattan Singh as he subsequently executed another Will dated 23.01.2014.
27. The petitioner having set up the Will dated 02.02.2012 must prove this Will in order to succeed in this probate petition. As already noted, the original Will has not been produced. Rather, a certified copy of the same issued from the Sub-Registrar's office has been filed. Certified copy of the Will existing in the Sub-Registrars record is only secondary evidence PC 42484/16 13 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 of the Will and not primary evidence because primary evidence of the Will is the original Will itself.
28. Petitioner has disclosed in the petition that one of the attesting witnesses to the Will namely Sh. Surjeet Singh informed the natural guardian of the petitioner that the original Will is lying with Ms. Harjeet Kaur (respondent No. 5) and on the asking of the natural guardian of the petitioner, the respondent No. 5 refused to return the same. Thereafter, the natural guardian of the petitioner made efforts to obtain the certified copy of the Will from the registrar office which she obtained on 02.02.2016.
29. Perusal of records shows that the guardian of the petitioner namely Smt. Manjeet Kaur was examined as PW1. During her examination-in-chief, PW1 sought to exhibit the certified copy of the Will as Ex.PW1/3, however, the Ld. predecessor of this Court, while observing that no permission was sought to lead secondary evidence and document being only a secondary evidence is not admissible in evidence, directed it to be marked as PX3.
30. Thereafter (after examination of the natural guardian of the petitioner as PW1) an application was filed on behalf of the petitioner for allowing him to lead secondary evidence. It was submitted in the application that the original Will was lying with Smt. Harjeet Kaur and a notice was issued under Order XII Rule 8 CPC to Smt. Harjeet Kaur to produce the original Will. Smt. Harjeet Kaur however denied having the original Will dated 02.02.2012 executed by Late Sh. Rattan Singh. Reply was filed on behalf of respondent Nos. 2 to 6 to the aforesaid application of the petitioner. It was submitted in the reply that Smt. Harjeet Kaur was never in possession PC 42484/16 14 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 of the original will of petitioner and it may be possible that original will dated 02.02.2012 may be destroyed by the testator i.e. late Sh. S. Rattan Singh.
31. The aforesaid application of the petitioner was allowed by the Ld. predecessor of this Court vide Order dated 11.05.2018. Ld. predecessor of this Court observed that the present case/ situation falls within the exception as laid down in Section 65 of the Indian Evidence Act, 1872 as such there is no option but to allow the minor petitioner to lead secondary evidence to prove the execution of Will by getting the records of the Sub Registrar (besides as per the provision of Section 68 of the Indian Evidence Act by examining any one of the attesting witnesses).
32. At this stage, it is necessary to refer to Sections 70 and 237 of the Indian Succession Act, 1925 in as much as those sections provide as to how probate can be granted when the original Will is not found. Section 70 of the Indian Succession Act, 1925 reads as under:-
"70. Revocation of unprivileged will or codicil.- No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."
"237. Probate of copy or draft of lost will.- When a Will has been lost or mislaid since the testator's death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the PC 42484/16 15 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced."
33. A reading of Section 70 shows that a Will can be revoked in different methods; (a) by a operation of law (i.e. by marriage) as provided in Section 69; and (b) by acts of parties (i.e. by another Will or codicil, or by some other writing, or by burning, tearing or otherwise destroying). Section 237 provides that if a Will is lost or mislaid since the testator's death or the destruction is by a wrong or an accident which is not an act of the testator, and a copy of the Will has been preserved, then in such circumstances probate can be granted of the properly authenticated copy of the Will.
34. Hon'ble Delhi High Court in Ashwani Kumar Aggarwal V/s B.K. Mittal;
211 (2014) DLT 524; MANU/DE/2128/2014, held;
"5...I may note that Courts are deliberately hesitant to grant probate of a photocopy of the Will inasmuch as Will as a document can be revoked by destroying the same in any manner and absence of the original can strongly mean that the Will was revoked. Therefore, once the original Will is not on record, there has to exist on record such amount of credible evidence to show that the original of the Will was never destroyed by an intentional act of the testator or if the original Will is still available the same is lost or misplaced or the original is with a person who is deliberately not producing the same. In the absence of evidence in this regard, and that too credible evidence which the Court can believe, Courts do not grant probate of copies of the Will except in the circumstances which are specified in Sections 238 to 240..."
PC 42484/16 16 of 40
Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025
(Underlined by me)
35. The case of the petitioner is that original Will is with the respondent No. 5 whereas the case of the respondent Nos. 2 to 6 is the said Will was never in possession of respondent No. 5. Respondents though neither pleaded nor suggested to PW1 that the deceased testator had destroyed the Will dated 02.02.2012 in his lifetime, stated so in their reply to the application of the petitioner for leading secondary evidence. It may be noted that the original stand of the respondents (which remained throughout) is that the deceased testator revoked the Will dated 02.02.2012 by subsequently executing a Will dated 23.01.2014.
36. Guardian of the minor petitioner namely Smt. Manjeet Kaur is examined as PW1. The relevant portion of her cross-examination in this regard has been reproduced herein below;
"I gained first knowledge about the Will in question first time from Mahender Singh i.e. Chacha (paternal uncle) of my husband. We had met at a family function when Mahender directly revealed to me about the said Will. This function was sometime in the year 2016. I do not remember the date and month, but it was winter time. The occasion was the last rites of another Chacha (paternal uncle) of my husband namely Sh. Avtar Singh. Sh. Mahender Singh informed me the date of the said Will also as 02.02.2012. I inquired from Mahender Singh as to where the said Will was, and he told me that it was with Harjeet Kaur. I then inquired from Harjeet Kaur about the said Will, sometime a week and half after receiving the information from Mahender. Harjeet Kaur denied being in possession of any such Will. I had instructed my counsel to include this statement about Harjeet Kaur being in possession of the Will, PC 42484/16 17 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 in my affidavit. (At this stage, the witness is confronted with her affidavit wherein it is found not so mentioned).
I can not say why my counsel did not mention the Will being in possession of Harjeet Kaur when I had instructed him. I had also given this information about Harjeet Kaur being in possession of the original will, even at the time of drafting of the petition itself.
At this stage, the plaint is perused and the same is not found so mentioned.
My counsel had issued a legal notice to Harjeet Kaur calling upon her to produce the original Will.
At this stage, the Court file is given to the witness to point out to any such notice, referred to by her, however, she has not been able to point out and Ld. Counsel informs that no such notice had been issued."
37. In the petition and in the examination-in-chief of PW1, it is stated that it was Sh. Surjeet Singh who informed the natural guardian of the petitioner that the original was lying with Ms. Harjeet Kaur whereas in her cross- examination PW1 deposed that it was Sh. Mahender Singh who informed her that the original was lying with Ms. Harjeet Kaur. So, the petitioner in her deposition remained consistent so far as the fact that the original Will is with Ms. Harjeet Kaur is concerned, however, contradicted herself on the aspect of source from where she received/ derived the said knowledge. What is relevant to note that no suggestion at all was given to the witness PW1 that Ms. Harjeet Kaur was not in the possession of the original Will dated 02.02.2012 or that the testator in his lifetime had destroyed the said Will. What was suggested that the Will dated 23.01.2014 was the last and final Will of Sh. Rattan Singh.
PC 42484/16 18 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
38. It may be noted that both Sh. Surjeet Singh and Sh. Mahender Singh were/ are attesting witnesses to the Will dated 02.02.2012 and were examined on behalf of the petitioner as PW3 and PW4. PW3 Sh. Surjeet Singh proved the Will dated 02.02.2012 as PW3/1. Perusal of record reveals that the Ld. predecessor of this Court during the course of deciding application of the petitioner for leading secondary evidence examined Sh. Mahinder Singh under Section 165 of the Indian Evidence Act, 1872 on 19.04.2018. Sh. Mahender Singh when examined by Court under Section 165 had disclosed that on account of various disputes going on in the family, Rattan Singh, after executing the Will, handed over the original Will to Ms. Harjeet Kaur. He further had deposed that two three days before the death of Rattan Singh he had met him and asked him about where the papers of the property were to which the testator told him that they were lying with Ms. Harjeet Kaur. Subsequently, he was examined as witness on behalf of petitioner as PW4 on 28.03.2019 and 25.05.2019. Strangely, nothing was asked from this witness about the fact whether or not he informed the petitioner about the possession of the Will dated 02.02.2014 with Ms. Harjeet Kaur. Nothing was suggested to PW4 regarding the facts related to this issue.
39. Petitioner summoned one witness Sh. Anil Khatri, Junior Assistant, Sub Registrar Office VI A, Pitampura, Delhi. The said witness had brought the certified copy of the Will dated 02.02.2012 which was registered vide registration No. 198, Addl. Book No. 3, Volume No. 245 on page Nos. 193 to 196 on 02.02.2012. The same was exhibited as Ex.PW2/A. PC 42484/16 19 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025
40. Two witnesses were examined on behalf of respondent Nos. 2 to 6.
Respondent No. 6 Ms. Surinder Kaur as RW1/1 and respondent No. 4 (b) Sh. Preetpal Singh as RW4/1. Both the witnesses in their respective affidavits (tendered in evidence) deposed to the effect that Will dated 02.02.2012 upon which the petitioner is relying was not the last and final Will as afterwards two Wills were also executed and both are annexed herewith this reply/ objections. It clearly shows that it is not their own case of respondents that the testator during his lifetime had destroyed the original Will dated 02.02.2012. Their case is that the Will dated 02.02.2012 is not the last Will.
41. A crucial aspect in this case is that respondent No. 5 Ms. Harjeet Kaur did not appear in the witness box to rebut the case of the petitioner that she was in possession of the original Will dated 02.02.2012. Where a party to the suit/ petition does not appear into the witness box and states her/ his own case on oath and does not offer herself/ himself to be cross examined by the other side, a presumption would arise that the case set up by her/ him is not correct.
42. This Court accordingly holds that the petitioner on the basis of preponderance and balance of probabilities has been able to prove that Ex. PW3/1 is a correct/ true copy of Will dated 02.02.2012 of Late Sh. Rattan Singh and original of which was never revoked by Sh. Rattan Singh in his lifetime by destroying the same deliberately and same was in possession of Ms. Harjeet Kaur who failed to produce despite asking. This Court therefore decides that Ex. PW3/1 is a true/ correct copy of original Will dated 02.02.2012 of Late Sh. Rattan Singh and probate/ letters of PC 42484/16 20 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 administration of the same can be granted on the same being proved to have been validly executed and attested.
43. Let us now examine as to whether the petitioner has succeeded in proving the due execution and attestation of the Will dated 02.02.2012 of Late Sh. Rattan Singh. While dealing with this issue, this court will also examine whether there were/ are suspicious circumstances surrounding the Will dated 02.02.2012 making it unreliable. So far the aspect of Will dated 02.02.2012 stood revoked by execution of a subsequent Will dated 23.01.2024 of Late Sh. Rattan Singh is concerned, this Court will examine it while dealing with the issue as to whether the Late Sh. Rattan Singh had subsequently executed another Will dated 23.01.2014 in his sound disposing mind as claimed by the respondent Nos. 2 to 6.
44. Law relating to proof of Wills is no longer res-integra, in view of the authoritative pronouncements of Hon'ble Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426:
AIR 1959 SC 443; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321; Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209 : 2020 SCC OnLine SC 464 and various other judgments. It is a well settled legal position that the onus to prove the due execution of the Will by the testator in a sound and disposing state of mind is upon the propounder of the Will. Moreover, as per the provisions of Section 68 of the Indian Evidence Act, 1872 (Section 67 of the Bharatiya Sakshya Adhiniyam, 2023), even a registered Will is required to be proved by examining at least one of the attesting witnesses to the Will, who shall prove the execution thereof by the testator in terms of Section 63 of the Indian Succession Act, 1925.
PC 42484/16 21 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
45. Moreover, in case, the execution of the Will is surrounded by suspicious circumstances, onus to remove all the legitimate suspicions, before the document is accepted by the Court as the last and genuine Will of the testator, shall also be upon the propounder of the Will. No doubt, if a Caveat is filed alleging exercise of undue influence, fraud or coercion in respect of execution of the Will, the same is required to be proved by the Caveator, however, even without any such plea, the circumstances, may give rise to doubts as to whether the testator was acting of his own free will in execution of the Will and onus to remove such legitimate doubts shall also be the part of initial onus of the propounder. The issue as to what circumstances can be considered to be suspicious circumstances surrounding the execution of the Will, shall depend upon the peculiar facts and circumstances of each case and no straight jacket formula can be laid down in this regard.
46 Relevant observations of Hon'ble Supreme Court of India as to the legal position in the matter of proof of Wills in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443 are being reproduced herein below for ready reference:
"18...The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with PC 42484/16 22 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, ss.59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills, it would be idle to expect proof with mathematical certainty. The PC 42484/16 23 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very PC 42484/16 24 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21...It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn PC 42484/16 25 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or inactions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect."
(Underlined by me)
47. Petitioner, in order to prove the Will dated 02.02.2012, examined the guardian of the petitioner Smt. Manjeet Kaur as PW1 along with both the attesting witnesses of the Will namely Sh. S. Surjeet Singh and S. Mahinder Singh as PW3 and PW4 respectively. PW3 tendered his affidavit dated 25.10.2017 Ex.PW3/A in his evidence. He stated on oath PC 42484/16 26 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 in the affidavit Ex.PW3/A to the effect that the testator S. Rattan Singh executed a Will on 02.02.2012 which was witnessed by him along with Sh. S. Mahinder Singh. That he and Sh. S. Mahinder Singh signed the Will in presence of each other and in presence of Late Sh. S. Rattan Singh. Further that he and Sh. S. Mahinder Singh for the purpose of registration of Will of S. Rattan Singh appeared before the Sub-registrar VI-A and signed the said Will. PW3 was also orally examined by the Court while tendering the affidavit. He inter alia deposed that Sh. Rattan Singh was his cousin brother; that the Will was in Hindi language; that Sh. Rattan Singh was not able to read Hindi and he could read only Gurmukhi; that Sh. Mahender Singh had read over the contents of the Will to Sh. Rattan Singh and Sh. Rattan Singh after hearing and understanding the contents and found the contents to be correct had put his signatures thereon in Gurmukhi script; that he signed the Will in English and Mahender Singh in Gurmukhi; that no one had put any thumb impression on the Will; that none had signed on any other document apart from the Will; that we did not sign on any register whatsoever; that it took us about one and half hours at the registrar's office; that Sh. Rattan Singh might be 80 years but he was absolutely fine in all respects; and that Sh. Rattan Singh had executed the Will with his own free Will and without any pressure or influence from any person whatsoever. Witness was shown the certified copy of Will dated 02.02.2012 from the judicial record and was exhibited as Ex.PW3/1 (earlier marked as Mark PX3 when PW1 was examined in chief). He identified the signatures of the deceased testator at points A, PC 42484/16 27 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 A1, A2 and A3; of the other attesting witness Sh. Mahender Singh at point B; and of his own at point C.
48. PW3 was cross-examined on behalf of respondents. Relevant cross-
examination of PW3 is being reproduced herein below;
"The Will was got typed and prepared on the very same day when it was executed. I can not tell the name of the Advocate who prepared the Will.
It took one and half hours for the entire process of preparation of the Will and its execution. Sh. Rattan Singhji died on 05.02.2014. There were about four to five pages in the Will. It is wrong to suggest that I did not go to the office of Sub Registrar for execution and registration of the Will. Vol. I again take oath of Shri Guru Granth Sahibji. It is wrong to suggest that neither Sh. Rattan Singhji nor Sh. Mahender Singhji had signed the Will. Sh. Rattan Singhji had signed on each of the papers on the Will...I am not aware about any other Will or family Will might have been executed by Sh. Rattan Singhji. He never executed any other Will. It is not in my knowledge that he had made any other Will..."
49. The other attesting witness Sh. S. Mahinder Singh was examined as PW4 who tendered his affidavit dated 25.10.2017 Ex.PW4/A in his evidence. PW4 deposed on the same line as PW3. He deposed that Sardar Surjeet Singh is his brother and he can identify his signatures. He identified the signatures of the deceased testator at points A, A2, A3, A4, A5 and A6; of the other attesting witness Sh. S. Surjeet Singh at points C and CI; and of his own at points B and B1. Relevant cross-examination of PW4 is being reproduced herein below;
"...I had visited once Sardar Ratan Singh before the execution of the Will he had shared with me that his sons were not in his control and he wanted PC 42484/16 28 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 to execute a Will in favour of his grandsons. He had four grandsons. He had executed the Will not in favour of all the four grandsons but only in favour of two grandsons.
Question: Did he have any dispute with the other two grandsons ? Answer: Yes, he had dispute with them also.
Question: I put it to you that you are not fully aware of the family of late Rattan Singh. He did not have four grandsons but five grandsons. What would you like to say ?
Answer: I have informed whatever I knew about his family. XXXXX Question: Can you tell the Court how many persons had accompanied Sardar Rattan Singh to the Registrar Office for the registration of Will ? Answer: Sardar Ratan Singh and Sardar Surjeet Singh had together reached the Registrar Office and I had on my own directly reached the Registrar's Office at the time we had agreed upon. XXXXX I knew about the advocate. I was supposed to visit for the registration of the Will before I had visited him. I do not remember his name but his office was in chamber No. 2 or 3 in the office of the Sub Registrar's office, Pitampura. The Will was prepared in our presence. The Will must have been typed within 15 minutes or half an hour. The entire registration process must have taken about one hour to one and half hour. XXXXX I had collected the Will after its registration from the Registrar's office. After collecting the Will I had handed it over to Sh. Rattan Singh...I have no knowledge about any family settlement having been arrived at among the family members of Sh. Rattan Singh before his death. As far as my PC 42484/16 29 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 knowledge goes, Sh. Rattan Singh had two properties, one at 2401, Tola Ram Bazar, Ganesh Pura, Tri Nagar, Delhi and the other at C-9/10, Subhadra Colony, Sarai Rohilla, Delhi. As far as I am concerned, I know only about the execution of the Will. I can not say if he had sold the property of Ganesh Pura before filing the present petition. I had met Sh. Rattan Singh two days before he had passed away..."
50. As already noted, the petitioner also summoned a witness Sh. Anil Khatri, Junior Assistant from the Sub Registrar Office VI A, Pitampura, Delhi who exhibited the certified copy of Will dated 02.02.2012 as Ex.PW2/A.
51. From reading of respective testimonies of PW3 and PW4, following things emerge;
(a) Both the attesting witnesses to the Will dated 02.02.2012 were related to the deceased testator (being his cousin brothers).
(b) As the deceased testator was of the view that his sons were not in his control, he wanted to bequeath his properties to his grandsons.
(c) The deceased testator had four grandsons, he wanted to bequeath only in favour of his two grandsons as he had a dispute with his other two grandsons. (It may be noted that PW4 was asked a question that the deceased testator had not four grandsons but five grandsons to which the witness replied that he had stated whatever he knew about the family of deceased testator. No contrary suggestion was given to the witness on behalf of respondents.)
(d) The Will was typed and prepared on the same day when it was registered.
(e) At the time of registration, only four persons were present- the deceased testator, both the witnesses and an Advocate.
PC 42484/16 30 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
(f) Deceased testator was conversant with only Gurmukhi script. As the Will was typed in Hindi, contents of the same were read over by Mahender Singh to the deceased testator and after hearing and understanding the contents and found the contents to be correct, the deceased testator put his signatures on the said Will in Gurmukhi script.
(g) PW4 afterwards collected the Will from the registrar's office and handed over the same to the deceased testator.
52. From the cross-examination of both the witnesses PW3 and PW4, it appears that the case of the respondents is that both the witnesses did not accompany the deceased testator to the registrar's office (which was denied by the witnesses. Rather, both the witnesses identified the signatures of the deceased testator and of the other attesting witnesses on the Will dated 02.02.2012 Ex.PW3/1). Further case of the respondent is that the deceased testator executed another Will (which both the witnesses denied).
53. Here, I am dealing only with due execution of the Will dated 02.02.2012 Ex.PW3/1 (I will discuss a bit later whether the respondents have been successful in proving the due execution of a subsequent Will). As already noted, two witnesses were examined on behalf of respondent Nos. 2 to 6. Respondent No. 6 Ms. Surinder Kaur as RW1/1 and respondent No. 4 (b) Sh. Preetpal Singh as RW4/1. Both the witnesses in their respective affidavits (tendered in evidence) deposed to the effect that Will dated 02.02.2012 upon which the petitioner is relying was not the last and final Will. This itself shows that respondents admitting the due execution of PC 42484/16 31 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 Will dated 02.02.2012. Their case is that the Will dated 02.02.2012 is not the last Will.
54. RW4/1 in his cross-examination deposed to the effect that I have seen Sh.
Rattan Singh signing. RW4/1 was shown a certified copy of Will dated 02.02.2012 Ex.PW2/A from the judicial records and by looking the same, deposed it does appear to be the signature of Sh. Rattan Singh at points D, E, F and H. He further deposed the photograph appearing on this document at point X is of my grandfather. Likewise, RW1/1 identified the signatures of the deceased testator and his photograph on Will dated 02.02.2012 Ex.PW2/A.
55. One important aspect which appears from reading of cross-examination of PW4 is that the deceased testator was not happy at all with his sons and wanted to bequeath his properties to two of his grandsons. Here, we can refer to the contents of the Will dated 02.02.2012 Ex.PW3/1. I am reproducing the english translation of relevant recitals of the Will;
"I have six children- three sons and three daughters. All are married. First son 1. Late S. Harjinder Singh 2. S. Balvinder Singh 3. S. Kawal Singh, and daughters 4. Smt. Gurdeep Kaur 5. Smt. Harjeet Kaur, and 6. Smt. Surinder Kaur. I have married all my daughters to the best of my abilities with pomp and show and they all are happy in their respective matrimonial homes, and they have no concern with my movable and immovable properties.
I am the absolute owner in possession of one aforesaid immovable property H. No. 2401, Main Road, Totaram Bazar, Ganshpura, Tri Nagar, Delhi-110035.
PC 42484/16 32 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
My other immovable property is C/9-10, Subhadra Colony, Sarai Rohilla, Delhi-110035.
My elder son Sh. Harjinder Singh had expired in the year 2002. I had transferred my immovable property bearing No. C/9, Subhadra Colony, Sarai Rohilla, Delhi-110035 in favour of Smt. Satnam Kaur, wife of Harjinder Singh. Late Sh. Harjinder Singh has two sons- Preetpal Singh and Amritpal Singh. I have performed the marriage of both the sons of my Late son. My daughter in law Smt. Satnam Kaur after selling the said property bearing No. C/9 Subhadra Colony, Sarai Rohilla, Delhi-110035 has purchased her own property in Budh Vihar and resides there along with her sons. Now, I am free from the responsibilities of the family of my elder son. To avoid any dispute after my death, I got published a public notice in 'Rastriya Sahara Hindi' on 23.09.2010 at page No. 8 regarding excluding Smt. Satnam Kaur and her both sons namely Sh. Pritpal Singh and Sh. Amritpal Singh, and my other Son S. Balvinder Singh and his wife Smt. Inderjeet Kaur from my Will. I bequeathed both my immovable properties viz. property H. No. 2401, Main Road, Totaram Bazar, Ganshpura, Tri Nagar, Delhi-110035 and C/10, Subhadra Colony, Sarai Rohilla, Delhi-110035 in favour of my wife Smt. Gurdeep Kaur D/o Late Sh. Mohan Singh. During my lifetime, I will remain owner of these properties and after my death my wife will be owner in possession of the properties. After the death of my wife, both the properties would go to my grandsons Sh. Punpreet Singh S/o S. Balvinder Singh (date of birth- 21.07.1995) and Sh. Malkeet Singh S/o Sh. S. Kawal Singh (date of birth- 23.09.2003). I am not giving anything to my younger son Sh. Kawal Singh as he is disobedient..."
PC 42484/16 33 of 40 Malkeet Singh Vs. State & Ors. Judgment dated 25.03.2025
56. So, the testator has provided sufficient explanation in the Will dated 02.02.2012 as to why he bequeathed his properties to his wife (for her lifetime) and two of his grandsons, and excluded his sons and remaining two grandsons.
57. Further, recitals in the Will affords an explanation for the conduct of respondent No. 3 and his wife (who happen to be parents of respondent No. 8) which was recorded by the Ld. predecessor of this Court in the Order Sheet dated 01.03.2017 while examining the respondent No. 8 under Section 165 of the Indian Evidence Act, 1872. Ld. predecessor noted in the order sheet that one Ms. Inderjeet Kaur (who happens to be mother of respondent No. 8) and respondent No. 3 (who happens to be father of respondent No. 8) had taken a strong objection against the statement of their own son i.e. Respondent No. 8.
58. From the above discussion this Court concludes that the propounder of the Will (petitioner) has been able to prove due and valid execution of the Will dated 02.02.2012, Ex.PW3/1 and has further been successful in removing the suspicious circumstances around the Will from the mind of the Court. In this connection it may also be noted that in the present case, the Will dated 02.02.2012, Ex.PW3/1 is a registered one. A Will though is not compulsorily required to be registered, registration thereof makes it more reliable and credible.
59. Next what is to be seen is whether Will dated 02.02.2012 Ex.PW3/1 is the last Will of the deceased testator, or he subsequently executed another Will dated 23.01.2014 Ex.PW1/R2 thereby revoked the earlier Will dated 02.02.2012 Ex.PW3/1 (as pleaded by respondent Nos. 2 to 6). This aspect PC 42484/16 34 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 would not detain this Court much inasmuch as the respondents have failed to examine any of the attesting witnesses to the Will dated 23.01.2014 for proving it.
60. Still, to say that the respondents have failed to prove the Will dated 23.01.2014 would be an understatement as the Will dated 23.01.2014 appears to be a forged and fabricated document. Following dubious and suspicious circumstances surrounding Will dated 23.01.2014 emerge:-
(i) Both the witnesses examined on behalf of respondent Nos. 2 to 6, i.e. Respondent No. 6 Ms. Surinder Kaur as RW1/1 and respondent No. 4 (b) Sh. Preetpal Singh as RW4/1 had identified the signatures of the deceased testator on Will dated 02.02.2012 Ex.PW2/A. RW4/1 in his cross-
examination even deposed to the effect that he has seen Sh. Rattan Singh signing. Yet, on the Will dated 23.01.2014 Ex.PW1/R2 there are thumb impressions of the deceased testator, and the same is not having signature(s) of deceased testator (admitted by RW4/1 in his cross- examination).
(ii) RW4/1 admitted in his cross-examination that the testator after his accident in November, 2013 till he passed away was not in a position to get up from his bed. That the testator expired on 05.02.2014 i.e within thirteen days of execution of Will dated 23.01.2014.
(iii) The beneficiaries under Will dated 23.01.2014 are the legal heirs of the deceased testator (and the said Will also contains signatures of all the legal heirs of deceased testator), to whom the deceased testator had specifically excluded in the earlier Will 02.02.2012. Clearly, the making of Will dated 23.01.2014 appears to be an attempt at the instance of the disgruntled legal PC 42484/16 35 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 heirs of deceased testator to frustrate the rights of the beneficiaries (the two grandsons) of the earlier Will.
(iv) If the testator had an intention to revoke the earlier Will dated 02.02.2012 by this subsequent Will dated 23.01.2014, he must have specifically stated so in the subsequent Will dated 23.01.2014 (instead of generally stating that I, hereby revoke all previous Wills and Codicils, and declare this to be my last Will and Testament).
61. Before parting with this aspect, I want to refer to a circumstance seemingly against the propounder of the Will dated 02.02.2012 (petitioner). Petitioner has stated in the petition that the deceased testator during his lifetime, on the instigation of other legal heirs, had subsequently sold the property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35 and the sale proceeds were distributed among all the legal heirs. However, respondents themselves denied this fact. They submitted that the said property was sold by the legal heirs, after the death of the deceased testator, on 20.08.2015. RW4/1 in his cross-examination has deposed that the property bearing No. 2401, Main Road, Tota Ram Bazar, Ganesh Pura, Trinagar, Delhi-35 was sold in the year 2015 by the legal heirs of deceased testator.
62. The modus operandi the legal heirs of deceased testator employed was that first they manufactured a Will dated 23.01.2014 of deceased testator (Ex.PW1/R2) in favour of all legal heirs; then prepared a relinquishment deed dated 28.10.2014 in favour of their mother qua property bearing No. 2401 (Ex.PW1/R1); and then got executed a Will dated 10.12.2014 of her mother in their favour qua property bearing No. 2401 (Ex.RW1/4). And PC 42484/16 36 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 soon after the death of her mother on 22.03.2015, they sold the property bearing No. 2401. So, this further confirms that the legal heirs who were specifically excluded by the deceased testator under previous Will dated 02.02.2012 were hell bent upon defeating the disposition made by the deceased testator through Will dated 02.02.2012 and were even successful so far as one of the properties (property bearing No. 2401) is concerned.
63. In view of the aforesaid discussion, this Court holds that (i) that the petitioner on the basis of preponderance and balance of probabilities has been able to prove that Ex. PW3/1 is a correct/ true copy of Will dated 02.02.2012 of Late Sh. Rattan Singh and original of which was never revoked by Sh. Rattan Singh in his lifetime by destroying the same deliberately; (ii) that the propounder of the Will (petitioner) has been able to prove due and valid execution of the Will dated 02.02.2012, Ex.PW3/1 and has further been successful in removing the suspicious circumstances around the Will from the mind of the Court; and (iii) that the subsequent Will dated 23.01.2014 Ex.PW1/R2 is a forged and fabricated document and the same was not executed by the testator with an intent to revoke the earlier Will dated 02.02.2012, Ex.PW3/1.
64. Meaning thereby, the Will dated 02.02.2012 Ex.PW3/1 is the last and final Will validly executed by the deceased testator in his sound disposing mind. Issue No. 2 as such is decided in favour of the petitioner and against the respondent Nos. 2 to 6, and Issue Nos. 1 & 3 are decided against the respondent Nos. 2 to 6 and in favour of the petitioner.
PC 42484/16 37 of 40
Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025
RELIEF
65. Pertinently, the petitioner is only a beneficiary and not the executor appointed under the Will dated 02.02.2012. Yet, a prayer has been made for the grant of a Probate instead of a Letters of Administration.
66. According to Section 222 (1) of the Indian Succession Act, 1925 a probate shall be granted only to an executor appointed by the will.
67. Further, Section 232 of the Indian Succession Act, 1925 provides the remedy available to the legatee if no executor is appointed or the one named in the will expires, becomes incapable or refuses to act. The provisions reads as under:
"232. Grant of administration to universal or residuary legatees.-- When-- (a) the deceased has made a will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or
(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered."
68. The Hon'ble Madras High Court in Madhy V/s Vairamanai and others, CRP (PD) No 3381/2021 decided on 27.10.2022 while deciding the maintainability of a probate petition under Order VII Rule 11 of the Code PC 42484/16 38 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 of Civil Procedure, 1908 on the objection that the same can only be filed by the executor named in the Will and not by a beneficiary observed that even though the legatee had prayed for Probate, considering that the proceedings for Probate and a Letter of Administration serve the same purpose of benefiting the legatee, the court can very well grant a Letter of Administration to the sole legatee instead of a Probate, if he succeeds in proving the validity and the genuineness of the Will.
69. As already noted that besides the petitioner, respondent No. 8 is also a beneficiary under the Will dated 02.02.2012 of Late Sh. Rattan Singh.
70. In light of the finding that the Will dated 02.02.2012 Ex.PW3/1, is the last and final Will of Late Sh. Rattan Singh and that it was executed by Late Sh. Rattan Singh out of his free will and with sound disposition of mind, there is no hindrance in grant of letters of administration in respect of the aforesaid Will by this Court in favour of the petitioner and the respondent No. 8. Petitioner and respondent No. 8 being beneficiaries under the Will dated 02.02.2012, are thus entitled in terms of aforesaid Will, to grant of letters of administration in respect of subject property i.e. C-10, Subhadra Colony, Sarai Rohilla, Delhi-35 (measuring 124 sq. yards), forming part of the estate of deceased testator Late Sh. Rattan Singh. The present petition is thus allowed and it is hereby ordered that the letters of administration in respect of property i.e. C-10, Subhadra Colony, Sarai Rohilla, Delhi-35 (measuring 124 sq. yards), forming part of the estate of deceased testator Late Sh. Rattan Singh, with copy of Will dated 02.02.2012 Ex.PW3/1 (till the original Will is produced) be granted to the petitioner and the respondent No. 8 in Form provided under Schedule VII PC 42484/16 39 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025 of the Indian Succession Act, 1925 under the seal of this Court, subject to their furnishing Administration Bond with Surety/sureties in terms of Section 291 of the Indian Succession Act, 1925 in the form No. 180 of Volume-6A of Delhi High Court Rules and payment of requisite Court fee as per valuation report to be filed by concerned SDM within three months from today. The petitioner and the respondent No. 8 are directed to exhibit the inventory in the Court within six months of the grant and account of the estate within a year of the grant in terms of Section 317 of the Indian Succession Act, 1925 in Form No. 178 & 179 respectively of Volume-6A of the Delhi High Court Rules. The Will dated 02.02.2012 Ex.PW3/1 be filed and preserved as per Rules in terms of Section 294 of the Indian Succession Act, 1925.
71. Before parting with judgment, it is hereby clarified that since this Court is not supposed to go into the issue of title of deceased Sh. Rattan Singh over the subject property, this Court has not examined the issue of ownership of the subject property and accordingly, nothing in the present judgment shall be deemed to have the effect of conferring any title over the subject property to the petitioner and the respondent No. 8.
72. File shall be consigned to the record room after due compliance.
Announced in the open court on this 25th day of March, 2025.
Digitally signedThis Judgment consists of 40 number of signed pages. by ABHISHEK ABHISHEK SRIVASTAVA SRIVASTAVA Date:
2025.03.25 16:59:16 +0530 (Abhishek Srivastava) Distt. Judge-05, Central, THC, Delhi PC 42484/16 40 of 40 Malkeet Singh Vs. State & Ors.
Judgment dated 25.03.2025