Delhi District Court
Smt Sudesh Garg @ Vinita vs State on 25 September, 2025
IN THE COURT OF SH. SHIV KUMAR,
DISTRICT JUDGE-02(WEST DISTRICT),
TIS HAZARI COURTS :DELHI.
Probate Case No.- 56/2022
CNR No. DLWT01-007394-2022
DLWT010073942022
Ms Sudesh Garg @ Vinita Garg
D/o Sh. Parveen Mittal
R/o flat No. 18, Triveni Apartments,
A-6, Paschim Vihar, New Delhi-63
....Petitioner
Versus
1. State
Govt. of N.C.T Delhi
Through The Chief Secretary
Delhi Secretariat,
I.P. Estate, Delhi
2. Sh. Praveen Mittal
S/o Sh. Ram Niwas Mittal
R/o 152A, 1st floor
A-1, Keshav Puram
Delhi-35
......Respondents
PETITION UNDER SECTION 264/273 OF THE INDIAN
SUCCESSION ACT 1925 FOR GRANT OF PROBATE IN
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 1 of 40
RESPECT OF WILL DATED 27.05.2014 QUA THE ESTATE
OF LATE MS KAMLESH MITTAL W/O SH. PRAVEEN
MITTAL
Date of institution of the case : 01.08.2022
Date of for judgment reserved : 25.09.2025
Date of pronouncement of judgment : 25.09.2025
JUDGMENT
1. Vide this judgment, I shall decide the petition filed by the petitioner, under Section 264/273 of the Indian Succession Act 1925 for grant of Probate in respect of Will Dated 27.05.2014 executed by Late Ms Kamlesh Mittal W/o Sh. Praveen Mittal.
CASE OF THE PETITIONER, AS PER HER PETITION:
2. It is averred in the petition that late Ms Kamlesh Mittal W/o Sh. Praveen Mittal was the mother of the petitioner ( hereinafter referred to as 'the deceased') and she died on 06.05.2021. It is further averred that the deceased was the sole and absolute owner of the following assets/properties:-
(a) Flat bearing no. 57, on ground floor, known as Triveni Apartments, situated at Block A-6, Paschim Vihar, New Delhi-110063;
(b) Two shops bearing Pvt. No. 3 & 4, total area measuring 264 Sq. ft ( i.e. 132 Sq. ft. each) on ground floor, part of property bearing No. 25, situated at Motia Khan, Pahar Ganj, New Delhi;
(c) Shop on ground floor ( without roof/terrace rights) super area 441'-4" and carpet area measuring 402, part of property PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 2 of 40 bearing No. 25, situated at Rani Jhansi Road, Motia Khan Dump Scheme, Pahar Ganj, New Delhi;
(d) Amount lying in FD KCC/01/152590013466 ( Rs. 98,925/-) and 530401039262042022974920, ( Rs. 1,21,341) amount lying in account no. 7042694932 ( Rs. 85,392) and goods lying in locker no. 1247 at Union Bank of India, Paschim Vihar (hereinafter referred to as the 'suit properties').
3. It is further averred in the petition that during her life time Smt. Kamlesh Mittal/ deceased had executed a registered Will dated 27.05.2014 qua the above properties, in her sound and disposing mind, in the presence of witnesses whose names and addressed appear at the bottom of the Will.
4. It is further averred in the petition that the petitioner is the beneficiary of the said Will and pray to the court to grant a Probate to the petitioner, in respect of the last Will dated 27.05.2014.
5. On filing of the present petition, citation for general public was published in newspaper " The Statesman" dated 07.09.2022. Notices of the petition were issued to the respondents. Respondent no. 2 has filed his objections.
6. The valuation report in respect of immovable property was called from the concerned SDM/Collectors, accordingly Tehsildar Punjabi Bagh, New Delhi filed valuation report in respect of property bearing flat No. 57, Ground floor, Triveni Apartment, Block-A-6, Paschim Vihar, New Delhi and assessed PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 3 of 40 the value of the same as Rs.60,19,229/- ( Rupees Sixty Lakh Nineteen Thousand Two Hundred Twenty None only) and the concerned SDM ( Karol Bagh) sent the valuation report in respect of shop No. 3 & 4, property bearing no. 25, Motia Khan, Pahar Ganj, New Delhi-110055 and valued the same as Rs. 23,10,781/- ( Rupees Twenty Three Lakh Ten Thousand Seven Hundred Eighty One only).
CASE OF RESPONDENT NO. 2 AS PER HIS REPLY.
7. Respondent no. 2 has filed reply/objections to the present petition and has taken the preliminary objections that the present petition is a grave misuse of law and not maintainable as the Will is not executed by the wife of respondent no. 2 with her free will and the same is executed under undue influence and misrepresentation by the petitioner. It is further contended that the witnesses who are having inimical feeling against the respondent no. 2 and the executant under their undue influence and misrepresentation executed the present will without free will.
8. It is further contended that the wife of respondent herein was a housewife and was not having any source of income, out of which she may have purchase any of the property and all the properties shown in Annexure with the petition were purchased by the respondent out of his income and these were registered in the name of executant, out of love and affection being wife of respondent no. 2.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 4 of 409. It is further contended that the respondent is a hard working man and since the year of 1984 after passing of his 12 th examination, he was involved in various business activities and presently the respondent no. 2 is running a whole sale soft furnishing shop in the name of M/s Sakshhi Fabric from 25 Rani Jhansi Road, New Delhi.
10. It is further contended that in the year 2007, the young son namely Sukhdev Mittal of the respondent expired in a road accident since then the wife of the respondent/deceased became upset and was not in a fit mental condition to execute any will with free consent in favour of petitioner, the daughter of the respondent. It is further contended that the petitioner and witnesses of the Will exploited her mental condition and the petitioner got registered a Will in her favour, the same is executed without free will and under the undue influence of other family members, who are having inimical feeling against the respondent.
11. It is further contended that in the year 2014, the deceased was seriously ill as she was suffering from various other ailments like thyroid and uterus cancer, ultimately her uterus was removed by surgery and these ailments also compounded her mental health condition as she was already in trauma because of untimely death of her young son namely Sukhdev Mittal who was 18 to 19 years of age at the time of his accident.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 5 of 4012. On merit, most of the contents of the petition have been denied and it is specifically denied that the deceased was in sound deposing mind on the date of execution of the Will in question and the medical record of the deceased will clearly prove her mental health at the time of execution of the said Will. It is further contended that witnesses in the Will are the main player of the game and for a long time they were manipulating the various facts in the family and causing major disputes in the family and they ruined the whole life of the respondent by their deceitful and deceptive conduct.
13. It is further contended that the deceased, at the time of her death, left her gold jewelry of about half Kg in weight which is not mentioned in the Annexure and these ornament were generally remained in the custody of the deceased.
14. Petitioner filed reply to the objections of respondent no. 2 and denied all the preliminary objections of the respondent and submitted that deceased has purchased the property in question with the money, she earned and acquired by various sources i.e. gifts by her parents, in laws or relatives on various occasions apart from the money she accumulated or saved out of her daily house hold expenses. It is further contended that the deceased was having a regular rental income.
15. It is further contended that after marriage of deceased in the year 1985, her father in law Sh. Ramnowas Mittal financially PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 6 of 40 helped her in starting her bleaching unit and she was running a business in the name and style of M/s Sunshine Bleaching Works running at 69, Harijan Basti, Nangloi, Delhi. It is further contended that as the above said unit was closed by the government during anti-pollution drive, deceased got an alternative industrial site ad-measuring 150 sq. yards which was sold by her and with the proceed of said sale, she purchased a house bearing no. C-8/116/8, Rohini, Delhi 85, ad-measuring 90 Mtrs and after selling the said house, the deceased purchased flat in Triveni Apartments in 2008.
16. It is further contended in the reply of the petitioner that respondent no. 2 since childhood is a very irresponsible person and never took family responsibility even after his marriage and he has been remained involved with other women. It is further contended that respondent had given the entire jwellery of the deceased to one of his female friend i.e. Smt. Anita Rekhi with whom he had been living in adultery for years. It is further contended that respondent given her a brand new car DL5CH/9289 also. It is further contended that when deceased raised her objection, she was beaten by the respondent no. 2 and deserted by him. It is further contended that respondent no. 2 used to have long and regular chat with Ms Anita Rekhi, on her mobile phone no. 9015385526, from his mobile phone no. 9312283911. Moreover respondent no. 2 had filed a divorce petition on false and fabricated grounds and did not leave any stone unturned in harassing the deceased. It is further contended PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 7 of 40 that now as the said Ms Anita Rekhi has died, the respondent no. 2 has married another woman namely Ms Neeraj.
17. It is further contended that on 04.06.2012, the respondent no. 2 has threatened deceased and other family members that if he is not allowed to bring Ms Anita Rekhi, he would commit suicide and the deceased had lodged a report in the police station in this regard. On merit also, all the contents of the objections have been denied.
ISSUES
18. On the basis of the pleadings, the following issues have been framed vide order dated 17.07.2023:-
1. Whether Ms Kamlesh Mittal, in her life time had in sound disposing mind prepared the Will dated 27.05.2014? OPP
2. Whether the petitioner is entitled to grant of Letter of Probate/Letter of Administration in respect of the aforesaid Will ?
OPP
3. Whether the Will dated 27.05.2014 was got executed by exercising undue influence by the petitioner? OPR-2.
4. Whether the purported testatrix was seriously unwell in the year 2014 which compounded her mental condition resulting from the death of her young son and consequently, the Will in question cannot be said to be a document which has been executed in sound disposing mind? OPR-2
5. Relief
19. Parties were directed to adduce evidence.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 8 of 40EVIDENCE OF PETITIONER
20. In order to prove his case, the petitioner has examined 4 witnesses.
21. Smt Sudesh Garg @ Vinita Garg, the petitioner appeared in the witness box as PW-1 and tendered her evidence by way of affidavit Ex. PW-1/A. She reiterated the contents of her petition in her affidavit and relied upon the following documents:
1. Ex. PW1/1 : Original death certificate of deceased Smt. Kamlesh Mittal.
2. Ex. PW1/2 : Original Will.
3. Ex. PW1/3 : List of legal heirs of Smt. Kamlesh Mittal which mentioned as Annexure C in the affidavit.
4. Ex. PW1/4 : Particular of assets and security in respect of which the probate is sought which mentioned as Annexure D in the affidavit.
22. PW-1 has been duly cross-examined on behalf of respondent no. 2 and she deposed in her cross-examination that her mother has executed a Will in her favour. She had one brother who died in a road accident in the year 2007. He was pursuing the studies and the student of 10 th class. PW-1 further deposed that her mother was initially in shock after the death of her brother but recovered from the same within 5-6 months. PW-1 admitted that her mother had undergone ovarian surgery after the death of her brother, however, she does not remember the exact year of the surgery of her mother.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 9 of 4023. PW-1 further admitted that her mother was a house wife and that all the properties mentioned in the Schedule Ex. PW-1/4 were generated/earned by her father. However, PW-1 voluntarily deposed that her grandfather had also helped in generation of all the properties and initially he was the "karta Dharta" of entire business.
24. PW-1 further deposed that she does not remember the name of any firm run by his grandfather and she cannot tell the detail about any return filed by her grandfather. PW-1 further deposed that the flat No. 57, Trivani Apartment, Paschim Vihar was purchased in the year 2007-08 but she does not remember in which year three shops mentioned at Sl. No. 2 & 3 in Scheduled Ex. PW-1/4 were purchased.
25. PW-1 further deposed that she was married in the year 2009. PW-1 admitted the suggestion that her marriage arrangement were made by her father, however, her grand father was also involved/arranged the same. PW-1 further admitted that her mother had executed Will in her favour after her marriage. PW-1 further deposed that she does not know the date of the Will as matter pertains to 7-8 years back. PW-1 further admitted that it is correct that her mother was living in separation from her father at the time to execution of the Will in question.
26. PW-1 further deposed that at the time of marriage, she alongwith her husband were residing at Shivaji Park, Punjabi PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 10 of 40 Bagh and now she is residing at Trivaini Apartment, Paschim Vihar. PW-1 further deposed that at the time of execution of the Will, she was residing at Shivaji Park. PW-1 further deposed that after her marriage, her mother was being looked after by her uncle namely Sanjay Mittal, aunt Vinita Mittal and her grandfather Sh. Ram Niwas Mittal. PW-1 further deposed that her mother was not having any disease but having only normal Tyroid. PW-1 further deposed that she cannot say the reason why her mother was got conducted ovarian surgery. PW-1 denied all the suggestion put to her that her grandfather was never done any business and he was only assisting in the business of her father or that all the properties mentioned in the Scheduled have been generated/earned by her father or that her mother was generally ill and having mental illness as she was having clavisela infectin in her brain or that because of that reason she was not properly able to understand the things or she was unfit to take free decision. PW-1 further denied the suggestion that the present Will is executed in that mental health condition or that the Will was executed under undue influence and mis-representation of facts by Sanjay Mittal and Vineeta Mittal.
27. Sh. Manish Yadav, Senior Assistant, Record Keeper, SR-II A, Punjabi Bagh, Nangloi, Delhi appeared in the witness box as PW-2 and deposed that he has brought the summoned record i.e. certified copy of Will which was registered in our office vide registration No.649 in Book No. 3, volume No. 409, on page 04 PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 11 of 40 to 07 dated 28.05.2014. PW-2 further deposed that he has also brought the original record with him and compared the same with the Will Ex. PW-1/2 placed on record and found it correct. The certified copy of the Will brought by him is Ex. PW-2/1.
28. Sh. Sanjay Mittal, one of the attesting witnesses to the Will dated 27.05.2024 executed by late Smt. Kamlesh Mittal appeared in the witness box as PW-3 and tendered his evidence by way of affidavit Ex. PW-3 PW-3 identified the signatures of testatrix Smt. Kamlesh Mittal at point A on each page of the Will, his signature at point B and signature of other attesting witness Smt. Vineeta Mittal, his wife at point C. PW-3 further deposed that the Will is also annexed the photograph of the testatrix at point D. PW-3 further deposed that the testatrix, he and the other attesting witness signed the Will at the same time in the presence of one another.
29. PW-3 has been duly cross-examined on behalf of respondent no. 2 and deposed that the son of testatrix namely, Sh. Sukhdev Mittal expired in a road accident in the year 2007. PW-3 further deposed that in his family most of the ladies are house wife including deceased Kamlesh Mittal, however he voluntarily deposed that Kamlesh Mittal was having side income.
30. In response to a specific question, whether the testatrix used to file ITR, the witness deposed that the deceased used to file ITR. However, PW-3 deposed that he cannot produce the PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 12 of 40 ITR of the deceased. PW-3 further deposed that he does not remember when the deceased was operated or that he does not know whether any surgery of the deceased was done. PW-3 denied the suggestion that deceased was patient of Clapsila and her mental condition was not good.
31. PW-3 further deposed that his wife also used to file ITR. PW-3 deposed that he has no talking terms with his brother Sh. Praveen Mittal/R-2 and same is his answer in respect of his wife as per his knowledge. PW-3 denied the suggestion that since he have enemical relations with respondent no. 2 and that is why they endued the deceased to execute the Will in question. PW-3 further denied the suggestion that all the properties mentioned in the Will were purchased by Sh. Praveen Mittal from his own sources and funds and he purchased them in the name of his wife out of love and affection.
32. Smt. Vinita Mittal, another attesting witness to the Will dated 27.05.2024 executed by late Smt. Kamlesh Mittal appeared as PW-4 and tender her evidence by way of affidavit Ex. PW-4/A. PW-4 identified the signatures of testatrix Smt. Kamlesh Mittal at point A on each page, her signature at point C and signature of other attesting witness Sh. Sanjay Mittal, her husband at point B on the Will Ex. PW-1/2. PW-4 further deposed that the will is also annexed the photograph of the testatrix at point D. PW-4 further deposed that the testatrix, she and the other attesting witness signed the Will at the same time in the presence of one another.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 13 of 4033. PW-4 has been duly cross-examined on behalf of respondent no. 2 deposed that he is a house wife. PW-4 further deposed that her sister in law, Smt. Kamlesh Mittal was also a house wife. PW-4 admitted the suggestion that she herself and deceased Kamlesh Mittal are not actively involved in any business, however, they both used to file ITRs. She cannot tell what is her income recorded in last financial year in ITR. PW-4 admitted that her ITR is filed through her husband, however, she voluntarily deposed that she signed her ITR after going through the contents of the same. PW-4 further deposed that she used to read her ITR but now she does not remember the details of the same. PW-4 denied the suggestion that ITRs of the ladies is being filed by the family just to manage the income of the husband or that there is no income of the ladies in the family. PW-4 further denied that the deceased Smt. Kamlelsh Mittal was also a house wife and she was not earning any penny.
34. In response to a specific question, whether the testatrix used to file ITR, the PW-4 deposed that the deceased used to file ITR. However, PW-4 deposed that he cannot produce the ITR of the deceased. PW-4 further deposed that he does not remember when the deceased was operated. PW-4 further deposed that she does not know whether any surgery of the deceased was done. PW-4 denied the suggestion that deceased was patient of Clapsila and her mental condition was not good.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 14 of 4035. PW-4 further deposed that she used to file ITR. PW-4 deposed that she has no talking terms with her brother Sh. Praveen Mittal/R-2. PW-4 denied the suggestion that since she has enemical relations with respondent no. 2 and that is why they endued the deceased to execute the Will in question. PW-4 further denied the suggestion that all the properties mentioned in the Will were purchased by Sh. Praveen Mittal from his own sources and funds and he purchased them in the name of his wife out of love and affection.
36. On 13.05.2025, vide separate statement of ld. counsel for the petitioner, evidence on behalf of the petitioner stands closed.
EVIDENCE ON BEHALF OF RESPONDENT NO. 2.
37. On behalf of respondent no. 2, respondent no. 2 himself appeared in the witness box as RW-1 and tendered his evidence by way of affidavit Ex. RW-1/A. Respondent no. 2 has reiterated the contents of his reply, in his affidavit Ex. RW-1/A.
38. RW-1 has been duly cross-examined on behalf of petitioner and he deposed that he can explain undue influence and misconception of facts. RW-1 further deposed that his wife was fit and fine, thereof his brother, his sister in law and his father put pressure on his wife and thrown him out of house. RW-1 further deposed that he had fight and dispute with his brother and his sister in law. He further deposed that no complaint or case was PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 15 of 40 ever registered qua his fight and dispute with his brother and his sister in law. However, RW-1 voluntarily deposed that dispute or fight does not mean that they had court cases or complaints, the issue was that his brother gave his son to him in adoption but took back from him.
39. RW-1 further admitted that it is correct that he has not filed any document in support of para no. 2, 3, 4, 5 & 6 of his affidavit Ex. DW-1/A. RW-1 denied the suggestion that his wife executed the Will in question, in her sound disposing mind and possess good mental health or there was no undue pressure upon her.
40. RW-1 further admitted that he had filed a divorce petition against his wife in the year 2012. RW-1 further admitted that his wife had filed the written statement in abovesaid divorce petition. RW-1 denied the suggestion that in her reply, she had stated that respondent no. 2 was living in adultery with one lady, Smt. Anita Rekhi. RW-1 further deposed that during the life, he never filed any case regarding declaration of his ownership or cancellation of ownership of his wife qua the property mentioned in the Will in question.
41. RW-1 further admitted that it is correct that till the death of his wife, she was the owner of all the properties mentioned by her, in her Will. RW-1 denied all the further suggestions put to him.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 16 of 4042. Vide separate statement of ld. counsel for respondent no. 2, evidence on behalf of respondent no. 2 stands closed on 14.07.2025.
FINAL ARGUMENTS
43. I have heard final arguments from both ld. counsels of parties and have perused the case file.
CONTENTION OF THE PETITIONER
44. Ld. counsel for the petitioner has argued that the petitioner has duly proved the Will in question by examining both attesting witnesses of Will i.e. PW-3/Sh. Sanjay Mittal and PW-4/Smt. Vinita Mittal.
45. Ld. counsel for the petitioner has further argued that both attesting witnesses have duly proved that the Will in question was executed by the deceased, voluntarily, in sound disposing state of mind, in their presence and both attesting witnesses have identified the signatures of the deceased and of each other on the Will Ex. PW-1/2.
46. Ld. counsel for petitioner has further argued that the deceased had strained relations with her husband and was living separately from him at the time of execution of Will.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 17 of 4047. Ld. counsel for petitioner has further argued that the properties mentioned in the Will are in the name of deceased and the deceased was the owner of said properties and had legal right to bequeath the said properties to the petitioner.
48. Ld. counsel for the petitioner has further argued that the petitioner is the sole legatee in the Will in question, so petitioner is entitled for grant of letters of administration.
CONTENTIONS ON BEHALF OF RESPONDENT NO. 249. Ld. counsel for respondent no. 2 has argued that the deceased was not in sound mind, at the time of execution of Will. He further argued that the deceased's son Sh. Sukhdev Mittal was expired in a road accident, due to which, the deceased used to remain disturbed and not in a fit mental state and she also undergone overign surgery after the death of her son.
50. Ld. counsel for respondent no. 2 has further argued that properties mentioned in the Will were purchased by respondent no. 2 in the name of the deceased, so the deceased had no right to bequeath the said properties to the petitioner by executing the Will in question.
51. Ld. counsel for respondent no. 2 has further argued that PW-3 & PW-4 who are attesting witnesses of Will are interested witnesses and have strained relations with the respondent no. 2.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 18 of 40Ld. counsel further argued that the deceased was looked after by PW-3 & PW-4 and they induced and misrepresented the deceased and got executed the Will in question.
52. Ld. Counsel for respondent no. 2 has further argued that PW-3 & PW-4 have made wrong statement in court, so they are not credible witnesses. Ld. counsel for respondent no. 2 further argued that PW-3 & PW-4 have strained relations with respondent no. 2, therefore, they got executed the Will in question from the deceased and exclude the respondent no. 2 from obtaining the assets of the deceased.
53. Ld. Counsel for respondent no. 2 has further argued that PW-3 & PW-4 have deposed during cross-examination that they do not remember when the deceased was operated and they do not know whether any surgery of the deceased was done. Ld. counsel for respondent no. 2 further argued that both witnesses have deposed falsely in this regard.
54. Ld. counsel for respondent no. 2 has further argued that petitioner has not filed any medical document of the deceased for proving that the deceased was in fit state of mind, at the time of execution of Will.
ISSUE -WISE FINDING My issue wise findings are as under:-
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 19 of 40 FINDING ON ISSUE NO. 1, 3 & 41. Whether Ms Kamlesh Mittal, in her life time had in sound disposing mind prepared the Will dated 27.05.2014? OPP
3. Whether the Will dated 27.05.2014 was got executed by exercising undue influence by the petitioner? OPR-2.
4. Whether the purported testatrix was seriously unwell in the year 2014 which compounded her mental condition resulting from the death of her young son and consequently, the Will in question cannot be said to be a document which has been executed in sound disposing mind? OPR-2
55. The issue no. 1, 3 & 4 are taken together as they are inter- connected and have mutual bearing. The onus to prove issue no. 1 is upon the petitioner and in order to prove this issue, the petitioner has examined four witnesses and the onus to prove issue no. 3 & 4 is upon the respondent and in order to prove these issues, the respondent no. 2 has examined only one witness i.e. respondent no. 2 himself as RW-1.
56. Before adjudicating the above said issues, I would like to discuss the relevant statutory provisions of law which are all applicable in the present case:
57. 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 PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 20 of 40 desires to be carried into effect after his death".
58. Section 59 of Indian Succession Act declares that every person(not being a minor) "of sound mind" may dispose of his property by Will.
59. 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 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".
60. The provisions contained in Section 68 of the Indian Evidence Act, 1872 are also to be kept in mind in such type of matters.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 21 of 40"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.
61. The principles for proving the Will have been well settled, in catena of judgments by Hon'ble Supreme Court of India as well as by Hon'ble High Court of Delhi. Some of the judgments have been mentioned below to appreciate the law, applicable on the facts of the present case.
62. 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 PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 22 of 40 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 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 PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 23 of 40 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."
63. 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; -
i. This court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him:
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
iii.A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary:PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 24 of 40
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of testator;
vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence:
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicious before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will;PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 25 of 40
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
xi. Suspicious circumstances must be 'real' germane and valid' and not merely 'the fantasy of the doubting mind'. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstances raising suspicion legitimate in nature would quality as a suspicious circumstances for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
64. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon'ble High Court made reference to FAO No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal burden of proof when a Will is propounded and also spelt as to what would constitute suspicious circumstances and what form of affirmative proof should be sought by the court to satisfy the judicial conscience that the document propounded is the last, legal and valid custom 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 PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 26 of 40 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 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.PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 27 of 40
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.
65. In a case titled Inder Bala Bose vs Maninder Chandra Bose AIR 1982 SC 133, the Hon'ble Supreme Court has held that "any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally in a normal situation or is not expected of a normal person."
66. The Hon'ble Apex Court in a case titled Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008 has held as follows:
"The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will."PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 28 of 40
"A question of title arising under the Act cannot be gone into the proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court."
67. 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:
16. A Will is executed to alter the ordinary mode of succession and by bound to result in earlier reducing or depriving the share of natural heirs. If a person intends his the very nature of things it is property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance specially in a case where the bequest has been made in favour of an offspring.
As held in P.P.Κ. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar and Ors.: [1995] 2 SCR 585, it is the duty of the propunder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind.
68. In the light of Legal principles as carved out in catena of Judgments by the Hon'ble Superior Courts and some of them as discussed above, it is obligatory for the petitioner to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the testatrix:
(ii) That the testatrix while executing the Will in question was in sound disposing state of mind:PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 29 of 40
(iii) That the testatrix had executed the Will of her own free will, meaning thereby that she was a free agent when she executed the Will:
(iv) The petitioner has to prove that the Will in question is the last Will of the testatrix:
(v) The petitioner has also to remove all the suspicious circumstances, surrounding the execution of the Will:
(vi) For proving the Will, one attesting witness of the Will, atleast, if alive, must be examined in the Court as per section 68 of the Indian Evidence Act.
69. It is settled law that the initial burden is always upon the propounder of the Will i.e. petitioner to prove the due execution of Will by the deceased, Voluntarily and in sound disposing state of mind and to dispell all the suspicious circumstances, if any, by giving a cogent and convincing explanation. It is also settled law that being a probate court this court has only to decide whether the document put before it is a legal and vaid Will of the deceased or not. The questions relating to the title of the deceased in the properties bequeathed by way of execution of Will are alien to the Probate jurisdiction.
70. PW-3 has deposed in his examination in chief by way of affidavit Ex. PW-3/A that during her life time, the deceased executed her last Will and testimony dated 27.04.2024 duly registered with SRIIA, Punjabi Bagh, New Delhi, vide registration no. 649, Addl. Book No. 3, Vol. 409, at page 4-7 dated 28.05.2014. PW-3 further deposed that deceased was in PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 30 of 40 sound and disposing mind on the date of execution of the above mentioned Will already exhibited as Ex. PW-1/2.
71. PW-3 further deposed in his examination in chief in his affidavit that the said Will was executed by the deceased in the presence of the two witnesses and PW-3 is one of them and other witness is Smt. Vinita Mittal. PW-3 further deposed that their names and addresses appear at the bottom of the Will and his signatures are at point B and signatures of Ms Vinita Mittal are at point C. PW-3 further identified the signatures of late Ms Kamlesh Mittal ( the deceased) at point A on each page of Ex. PW-1/2 and deposed that they all put their signatures in present of each other.
72. PW-4 has deposed in his examination in chief by way of affidavit Ex. PW-4/A that during her life time, the deceased executed her last Will and testimony dated 27.04.2024 duly registered with SRIIA, Punjabi Bagh, New Delhi, vide registration no. 649, Addl. Book No. 3, Vol. 409, at page 4-7 dated 28.05.2014. PW-4 further deposed that deceased was in sound and disposing mind on the date of execution of the above mentioned Will already exhibited as Ex. PW-1/2.
73. PW-4 further deposed in his examination in chief in his affidavit that the said Will was executed by the deceased in the presence of the two witnesses and PW-4 is one of them and other witness is Sh. Sanjay Mittal. PW-4 further deposed that their PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 31 of 40 names and addresses appear at the bottom of the Will and her signatures are at point C and signature of Sanjay Mittal are at point B. PW-4 further identified the signatures of late Ms Kamlesh Mittal ( the deceased) at point A on each page of Ex. PW-1/2 and deposed that they all put their signatures in present of each other.
74. The deceased was Bhabhi and sister-in-law of PW-3 & PW-4. It has also come on record that at the time of execution of Will in question, PW-3 & PW-4 were taking care of the deceased. Respondent no. 2 is the brother of PW-3. PW-3 & PW-4 are the most natural witnesses being family members of the deceased and they were taking care of the deceased, so there is nothing unusual, if the deceased made PW-3 & PW-4 as witness in her Will Ex. PW-1/2. The mere fact that PW-3 & PW-4 are family members and were taking care of deceased, the witnesses PW-3 & PW-4 do not become interested witnesses. Moreover, no share in the properties has been bequeathed by the deceased to PW-3 & PW-4, in the Will Ex. PW-1/2.
75. During cross-examination, RW-1 further deposed that "it is correct that he had filed a divorce petition against his wife in the year 2012". He further deposed that " it is correct that till the death of his wife, she was the owner of all the properties mentioned by her in her Will. He further deposed that during the life time of wife, he never filed any case regarding declaration of his ownership or cancellation of ownership of his wife qua the property mentioned in the Will in question.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 32 of 4076. The Will in question is a registered Will. The Hon'ble High Court of Delhi in a case titled Smt. Veena Khanna Vs State & Anr.(Supra) has held as follows regarding presumption of genuineness attached with the registered Will and the relevant para of the said judgments is reproduced as under:
"61.The Will dated 05.06.1979 Ex. PW1/2 was duly registered by the office of the Sub-Registrar- District I-Delhi on 05.06.1979. The facum of registration of the Will in the present case creates a presumption that a registered document is validly executed as held in the case of Prem Singh & Ors. Vs Birbal & Ors., 2006 (5)) SCC
253. However, in the case of Rani Purnima Debi and Anr. Vs Kumar Khagendra Narayan Deb and Anr., AIR 1962 SC 567, the Apex Court observed that mere registration in itself is not sufficient to dispel all suspicion which exist without submitting the evidence to a close examination, though the factum of registration is an important circumstances in favour of the Will being genuine if cogent evidence is led in this regard to its registration".
77. In the judgment tilted Metpalli Lasum Bai Since Dead And Ors vs Metpalli Muthaiah(D) By Lrs on 21 July, 2025, the Hon'ble Supreme Court of India has held as under:
9. The Will is a registered document. The defendant-Muthaiah in his evidence, admitted the signatures as appearing on the said Will (Ext.-A1) to be that of his father, i.e., M. Rajanna. The Will distributed the properties in defined proportions between the plaintiff-Lasum Bai, defendant-
Muthaiah and Rajamma (widowed daughter of M. Rajanna). There is ample material on record to establish that M. Rajanna anticipated that the relations between plaintiff-Lasum Bai and defendant- Muthaiah were not congenial and that is why, in order to avoid future conflicts, he divided his properties by way of a family settlement and bequeathed a share thereof to plaintiff-Lasum Bai, while leaving the major share to his son i.e., the defendant-Muthaiah. The PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 33 of 40 distribution of the C.A. No(s). 5921 of 2015 with C.A. No(s). 5922 of 2015 properties, as per the family settlement (regarding which oral evidence was led), and the registered Will is almost in the same proportions.
The Will, is a registered document and thus there is a presumption regarding genuineness thereof. The trial Court accepted the execution of the Will based on the evidence led before it. As the Will is a registered document, the burden would lie on the party who disputed its existence thereof, who would be defendant-Muthaiah in this case, to establish that it was not executed in the manner as alleged or that there were suspicious circumstances which made the same doubtful. However, the defendant-Muthaiah in his evidence, admitted the signatures as appearing on the registered Will to be those of his father, M. Rajanna. He also admitted the fact that the plaintiff- Lasum Bai was in possession of 6 acres and 16 guntas of land, which fell into her share as per the Will. In this background, the trial Court was right in holding that M. Rajanna made a fair distribution of his tangible assets amongst his legal heirs by executing the Will dated 24th July, 1974 and so also the oral family settlement. We are of the view that the evidence available on record fortifies the existence C.A. No(s). 5921 of 2015 with C.A. No(s). 5922 of 2015 and persuasive nature of the oral family settlement which is countenanced by the factum of the possession of the suit schedule properties including the disputed property, which was admittedly with the plaintiff-Lasum Bai and subsequently the purchaser i.e., Janardhan Reddy.
78. In the present case, the Will in question Ex. PW-1/2 is a registered Will. Hence, in view of the above said judgments, the fact of registration of Will is also an important circumstances regarding genuineness of the Will in question.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 34 of 4079. Ld. counsel for the respondent no. 2 has argued that the petitioner has not filed any medical document of the deceased on record. So, petitioner has failed to prove that the deceased was having sound disposing mind at the time of execution of the Will in question. ld. counsel for respondent no. 2 has further argued that due to the death of her younger son, the deceased used to remain mentally disturbed and was not able to think and understand properly and moreover she was also operated for ovarian surgery after the death of her younger son.
80. There is no evidence on record except the bald statement of RW2/RW1 that the deceased was not in sound disposing state of mind at the time of execution of Will in question. The Will in question is a registered Will and presumption of genuineness is also attached to the Will. There is no legal requirement of obtaining certificate from the Doctor regarding mental fitness of the testatrix before execution of Will. The younger son of the testatrix was died in a road accident in the year 2007. The Will in question has been executed in the year 2014. PW-1 deposed that her mother was initially in shock after the death of his brother but she recovered from the same within 5-6 months. It is quite natural for the deceased to recover within 5-6 months from the shock of the death of her younger son. The respondent no. 2 has not led any evidence to prove that the deceased remained mentally disturbed from the year 2007 to year 2014, after the death of her younger son.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 35 of 4081. The fact that the younger son of the deceased was expired in a road accident or that the deceased got operated for ovarian surgery after his death, do not prove that the deceased had become of unsound mind and was not capable to take rational decisions. There is no medical evidence on record that due to above said facts, the deceased was mentally disturbed to such an extent that she had become of unsound mind. No witness or relative has been examined by respondent no. 2 to prove the mental condition of the deceased rather there are two attesting witnesses on record, who deposed that the deceased was in sound disposing state of mind on the date of execution of Will in question. There is no evidence on record regarding unsound mind of deceased except the bald and uncorroborated statement of respondent no. 2, which is not acceptable, in the light of the convincing and corroborating testimonies of PW-3 & PW-4, who deposed that the deceased was sound disposing state of mind, on the date of execution of the Will. There is no material contradictions in the statements of PW-3 & PW-4 and both have corroborated each other on material facts regarding execution of Will in question by the deceased, Voluntarily, in their presence.
82. Respondent no. 2 has not examined any witness to prove that the petitioner or PW-3 & PW-4 got executed the Will in question from the deceased by putting undue influence upon the deceased or the deceased was of unsound mind at the time of execution of Will or Will in question was not executed by the deceased with her free consent. Hence it is held that respondent PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 36 of 40 no. 2 has failed to prove that the deceased was of unsound mind at the time of execution of will in question or deceased was put under undue influence by the petitioner or by PW-3 & PW-4, at the time of execution of Will in question and the deceased had not executed the Will in question with her free consent.
83. The petitioner is the daughter of the deceased. It has also come on record that the relations of the deceased with respondent no. 2 were strained and both were living separately and the respondent no. 2 had also filed divorce petition against the deceased in the year 2012. So, there was valid reason with the deceased for not bequeathing her properties to the respondent no.
2.
84. The next contention of respondent no. 2 is that the properties were purchased by him in the name of deceased. So, the deceased had no right to bequeath the said properties, by way of Will in question. During cross-examination, RW-1 has admitted that till the death of his wife, she was the owner of all the properties mentioned by her in her Will. Respondent no. 2 has further admitted that during the life time of deceased, he never filed any case for declaration of his ownership or cancellation of his wife qua the properties mentioned in the Will. From the above said facts, it is proved that at the time of execution of Will in question, the properties mentioned in the Will were in the name of the deceased and the same have been bequeathed by her by execution of Will in question. So, she had PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 37 of 40 the right to bequeath the properties in favour of her daughter by executing the Will in question. Moreover, it is also settled law that being a probate court, this court has only to decide whether the document put before it is a legal and valid Will of the deceased or not. The questions relating to the title of the deceased in the properties bequeathed by her by way of execution of Will or right of the deceased to bequeath the said properties are alien to the Probate jurisdiction. Reliance is placed on the judgment given by the Hon'ble Supreme Court of India given in a case titled Krishna Kumar Birla Vs Rajindra Singh Lodha & Ors ( Supra). Therefore the above said contention of respondent no. 2 is not valid and stands rejected.
85. The petitioner has discharged the burden by proving that the Will in question was duly executed by the deceased, voluntarily, in her sound disposing state of mind, by examining two attesting witnesses i.e. PW-3 and PW-4 and there is no suspicious circumstances surrounded the execution of Will in question. No other Will of the deceased has been brought on record by any of the parties. So, it is held that the Will in question is the last Will of the deceased.
86. Therefore, in view of above said facts and foregoing discussions, I hold that the Will Ex. PW1/2 is a legal, valid and last Will of the deceased and it has been validly executed by the deceased, voluntarily, in her sound disposing state of mind. Hence, issue no. 1, 3 & 4 are decided in favour of petitioner and against respondent no. 2.
PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 38 of 40 Findings on Issue No. 22. Whether the petitioner is entitled to grant of letter of Probate/ Letter of Administration in respect of the aforesaid Will? OPP
87. The petitioner has prayed for grant of Probate. However, perusal of the Will Ex.PW-1/2 reveals that petitioner has not been named as Executor therein. As such, probate cannot be granted in terms of Section-222 of Indian Succession Act, which provides that probate shall be granted only to an Executor appointed under the Will. The petitioner is the sole beneficiary under the Will in question. Hence, the petitioner is entitled to receive letters of administration instead of probate of the Will in question u/s 232 of Indian Succession Act. Accordingly, issue no. 2 is decided in favour of the petitioner and against the respondent no. 2.
Relief
88. In view of above said discussions and findings on issue no. 1 to 4, the present petition stands allowed and it is ordered that letters of administration of the properties mentioned in Will dated 27.05.2014, Ex. PW-1/2 be issued to the petitioner under the seal of this court in the form set forth in Schedule VII of Indian Succession Act, 1925, subject to following conditions:
(i) furnishing of requisite court fees on the value of movable and immovable properties of the deceased coming into the hands of the petitioner, as per Will Ex. PW-1/2.PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 39 of 40
(ii) and further subject to furnishing of administration-cum-surety bond to the amount of the value of movable and immovable properties of the deceased coming into the hands of the petitioner, as per Will Ex. PW-1/2.
89. Further, the petitioner is also directed to file the inventory of immovable property within six months and final statement of account within one year from the date of receipt of formal letters of administration. The formalities of issuance of letters of administration be completed within six months from the date of the judgment, as per Section 317 of Indian Succession Act.
90. File be consigned to record room after due compliance.
Digitally signed SHIV by SHIV KUMAR KUMAR Date: 2025.09.25 15:32:06 +0530 Announced in the open court (Shiv Kumar ) on 25th September, 2025 District Judge-02 (West) Tis Hazari Courts Delhi. PC No. 56-2022 Sudesh Garg Vs State & Ors. Page 40 of 40