Delhi District Court
Sanjay Kumar vs State Of Nct Of Delhi on 8 April, 2026
THE COURT OF MS. SHIVALI SHARMA DISTRICT JUDGE-06,
CENTRAL DISTRICT, TIS HAZARI COURT, DELHI
PC No.42296/16
Digitally
signed by
SHIVALI
IN THE MATTER OF: SHIVALI SHARMA
SHARMA Date:
2026.04.08
Sh. Sanjay Kumar @ Sanjay Singh 16:07:05
+0530
S/o Late Sh. Bhola Kumar,
R/o D-255/256, First floor,
Gandhi Vihar, Delhi-09. ......Petitioner
Versus
1. State of NCT of Delhi.
2. Sh. Sudhir Singh @ Sudhir Kumar
S/o. Late Sh. Bhola Kumar
R/o. Village-Jemara, Post-Tilrath,
P.S. Barauni, Distt.- Begusarai,
Bihar-851122.
3. Smt. Saroj Singh (PRT)
W/o Sh. Subhash Chandra Singh
Kendriya Vidyalya, IOC Haldia,
Purba Midnapore, West Bengal-721607.
4. Smt. Ritu Priya
W/o Anil Singh
Village- Mahender Pur
Hathadah, Mokama, Patna
Bihar-803301.
PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.1/22
Also at :-
Village Jemara, Post-Tilrath,
PS Barauni,
Distt.- Begusarai, Bihar-851122. .....Respondents
Date of institution : 09.09.2014
Date of reserving order/judgment : 24.03.2026
Date of decision : 08.04.2026
JUDGMENT
1. Vide this judgment, I shall decide the present petition under Section 276 of Indian Succession Act for grant of probate in respect of the Will dated 02.07.2004 of Late Sh. Bhola Kumar S/o Late Sh. Lachho Kumar.
2. Brief facts of the present case are that the present petition is filed by the petitioner Sh. Sanjay Kumar @ Sanjay Singh, younger son of late Sh. Bhola Kumar, seeking grant of probate/letter of administration in respect of the unregistered Will dated 02.07.2004 executed by late Sh. Bhola Kumar under Section 276 of the Indian Succession Act, 1925.
3. Late Sh. Bhola Kumar was the father of the petitioner Sh. Sanjay Kumar @ Sanjay Singh. He expired at his native place at Village Jemara, Post-Tilrath, P.S. Barauni, Distt. Begusarai, Bihar on 12.12.2004 after suffering a third heart stroke, having previously suffered two heart attacks/strokes. At the time of his death, the deceased Sh. Bhola Kumar was a retired employee of Indian Oil Corporation (IOC), Barauni, and was beneficiary of post-retirement medical PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.2/22 attendance facility from IOC Ltd. for any ailments and health problems. The deceased mostly used to stay with the petitioner in Delhi post-retirement and at his native place alone.
4. During his lifetime, late Sh. Bhola Kumar was the absolute owner of the immovable property bearing No. D-255/256, D-Block, Gandhi Vihar, Delhi-110009 (first floor with roof rights), measuring about 50 sq. yards. The deceased had purchased the said property during his service with the sole purpose that the petitioner, who had been staying in Delhi since November- December 1994, does not face any problem and enjoys the same. The petitioner, constructed three more floors above the first floor from his hard earned savings in August 2004.
5. The marriage of late Sh. Bhola Kumar was blessed with four children:
Sh. Sudhir Kumar (R-2, elder son), Sh. Sanjay Kumar @ Sanjay Singh (petitioner, younger son), Smt. Saroj Singh (R-3, daughter), and Smt. Ritu Priya (R-4, daughter). All children were married at the time of the testator's death. The deceased was staying at his native place Begusarai with the family of the petitioner before retirement and after retirement started living with the petitioner in Delhi. The deceased was not at all happy with the conduct of his elder son Sh. Sudhir Kumar (R-2), who stayed separately from him and did not listen to him. The deceased never allowed R-2 to stay with him at his residence at IOC township, Barauni since 1993 till his retirement, and had no trust on R-2, Therefore Sh. Bhola Kumar never made him joint account holder in his bank account with UCO Bank at IOC township, Barauni. The petitioner took care of the deceased in every respect including his medication and visits to doctor.
PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.3/22
6. According to the petitioner, during his lifetime, the deceased Sh. Bhola Kumar executed an unregistered Will dated 02.07.2004 at Varanasi, whereby he bequeathed the first floor with roof rights of property bearing No. D-255/256, D-Block, Gandhi Vihar, Delhi-110009, admeasuring about 50 sq. yards in favour of the petitioner Sh. Sanjay Kumar @ Sanjay Singh, his younger son. By virtue of the said Will, after his death, the petitioner became the sole, exclusive and absolute owner in respect of the aforesaid property left behind by deceased Sh. Bhola Kumar. The said Will dated 02.07.2004 is propounded by the petitioner as the last Will and testament of the deceased testator Sh. Bhola Kumar. The deceased executed the said Will after consultation with his old friend and well wisher Sh. Ganga Sagar Singh S/o late Sh. Jagdish Singh R/o Village-Bishunpur, Lohta, Varanasi (U.P), presently residing at Gram Bhatthi (near St. Jones School), Lohta, Varanasi (U.P). The deceased came in contact with Sh. Ganga Sagar Singh when he met him in train while visiting Delhi to meet the petitioner, and in due course they became good friends after the deceased came to know that the daughter of Sh. Ganga Sagar Singh was studying in B.H.U, where his daughter Smt. Saroj Singh was also studying, and he started sharing his thoughts and confided in him. Sh. Bhola Kumar used to take all important decisions after consulting Sh. Ganga Sagar Singh.
7. The Will dated 02.07.2004 was duly attested by two witnesses namely Sh. Ganga Sagar Singh and Sh. Dharmendra Kumar Verma. Both the attesting witnesses signed the said Will in presence of the deceased Sh. Bhola Kumar, as well as in presence of each other. The deceased Sh. Bhola Kumar duly signed the said Will after understanding the contents of the same in vernacular language in presence of the said two attesting witnesses. As per the Will, the deceased PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.4/22 categorically stated that through this Will, the first floor of the property bearing No. D-255/256, D-Block, Gandhi Vihar, Delhi-09, will devolve upon the legatee, to the exclusion of all his legal heirs on the following terms and conditions: (a) That as long as the testator is alive, he will remain absolute owner of the said property and after his death, the same shall devolve upon the legatee;
(b) That the testator has not executed any Will prior to it; (c) That after the death of the testator, the last rituals and rites shall be done by the legatee; (d) That after the death of the testator, the son of the testator, Sh. Sanjay Singh will be the absolute owner of the property mentioned in the Will and the legatee shall have the right to get the mutation of the property stated in the Will on the basis of the Will in the treasury records in his name; (e) That this is the first and last Will of the testator and after his death if anybody, through any document claims his right and proves it, then as per this Will, it shall be treated as null and void and illegal;
(f) That the testator has signed the Will after going through the contents and the same being read over to him, in presence of witnesses in sound mind and senses and without any kind of coercion, undue influence and of his own accord, free and sweet will, so that it is useful in the time of need.
8. It is alleged at the time of making of the Will dated 02.07.2004, the deceased was of sound disposing mind and signed the Will in presence of the two witnesses without any pressure, coercion or undue influence. The deceased signed the Will voluntarily after going through the contents of the said Will. The witnesses also signed and attested the Will at the same time in presence of the deceased testator and each other.
PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.5/22
9. The petitioner Sh. Sanjay Kumar @ Sanjay Singh, being the sole beneficiary of the Will dated 02.07.2004, asserts his entitlement to obtain probate/letter of administration in respect of the said Will. It is alleged that there is no Will except the Will in question executed by the deceased Sh. Bhola Kumar in favour of the petitioner, and the same is the last and final Will of the deceased. The deceased did not die intestate. The petitioner had filed a previous petition bearing No. PC-17/14 for grant of probate before District Judge (Central), Tis Hazari Courts, Delhi which was dismissed as withdrawn on technical grounds with liberty to file fresh petition. The respondents never used to use and enjoy and share all the floors like a joint property whenever they were in Delhi. They were fully aware that the floors above the first floor were exclusively constructed by the petitioner. Respondent no.2 had no respect towards his father late Bhola Kumar and his relation remained strained throughout his life.
10. The details of the property which the deceased Sh. Bhola Kumar bequeathed in favour of the petitioner and are to come to the hands of the petitioner, are given in the petition. The said property comprises of immovable property bearing No. D-255/256, D-Block, Gandhi Vihar, Delhi-110009 (first floor with roof rights) and measuring about 50 sq. yards.
PLEADINGS:
Petition:
11. In the petition for probate, the petitioner Sh. Sanjay Kumar @ Sanjay Singh has pleaded lawful execution of the Will dated 02.07.2004 by late Sh. Bhola Kumar in presence of two attesting witnesses. It is averred that the PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.6/22 deceased was of sound disposing mind at the time of execution of the Will and executed the same voluntarily without any pressure, coercion or undue influence. It is stated that the petitioner is entitled to grant of probate/letter of administration being the sole beneficiary under the said Will.
Objections:
12. Respondent no.2 (Sh. Sudhir Kumar), elder son of late Sh. Bhola Kumar, and respondent no. 4 (Smt. Ritu Priya), daughter of late Sh. Bhola Kumar, filed objections/written statements traversing the averments made in the petition.
13. In his objections, respondent no. 2 averred that the deceased Sh. Bhola Kumar never executed any unregistered Will dated 02.07.2004 in regard to the property bearing No. D-255/256, D-Block, Gandhi Vihar, Delhi-110009. It is stated that the alleged Will is forged and fabricated by the petitioner in collusion and conspiracy with persons who appended their signatures on it as witnesses and some property dealers of the locality of Gandhi Vihar, Delhi to usurp the property in question. It is alleged that the deceased had no connection with Varanasi where the Will has been allegedly stated to be executed. The deceased continued to live with his family comprising of his elder son and his children after retirement. He breathed his last at his native place, and a photocopy of photograph taken just after his death shows only the family members of Respondent No. 2 and not the petitioner. Signature of late Sh. Bhola Kumar must be sent for forensic investigation. Further, after death of late Sh. Bhola Kumar, an affidavit was submitted to his employer Indian Oil Corporation, Barauni for refund of annuity which has no mention of any Will and both the sons have signed it as his legal heirs. It is further alleged that the property in PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.7/22 question was a self-acquired property of late Sh. Bhola Kumar purchased by him by investing his own money with the sole purpose that his family members should not face any difficulty while residing in Delhi and for the same purpose he constructed two more floors on it. All the family members used to use, enjoy and share all the floors like a joint property whenever they were in Delhi. It is denied that the petitioner was ever in exclusive possession of the property in question. The petitioner was served a legal notice dated 16.08.2014 objecting to his stay in the said property and demanding share of rent but he did not give any share. The deceased died after prolonged illness and was fully taken care of by Respondent No. 2. The deceased was a literate and knowledgeable person who got the purchase documents registered but the will was not registered and this points towards the fact that will is a forged and fabricated document. The deceased died intestate and the estate left by him has devolved on all his legal heirs under Hindu Succession Act.
14. In her objections, respondent no.4 averred that the deceased Sh. Bhola Kumar never executed any unregistered Will dated 02.07.2004. In fact, he showered equal love and affection on all his four children and treated them equally. Late Sh. Bhola Kumar died intestate so all his properties will devolve under Hindu Succession Act. The alleged Will is forged and fabricated by the petitioner with malafide intention in collusion and conspiracy with witnesses and property dealers to usurp the property. The deceased had no connection with Varanasi, and breathed his last at his native place with only family members of Respondent No. 2 present. Signatures on will must be sent for forensic investigation. After death, affidavit for IOC annuity refund had no mention of the Will. The property in question was the self-acquired property of the deceased PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.8/22 who constructed two more floors for family use, and all family members used it as joint property. Petitioner was served with a legal notice dated 16.08.2014 demanding share of rent being earned by him for the property in question. The deceased died after prolonged illness and was cared for by his elder son i.e. respondent no.2. The deceased, being educated, registered purchase documents and thus, unregistered Will points towards its falsity. Dismissal of the probate petition is sought on these grounds.
15. Despite service of respondent no.3, she did not appear before the court nor filed any objections. She was proceeded exparte vide order dated 17.11.2015.
Rejoinder on behalf of the Petitioner:
16. In the rejoinder to the written statements of Respondent no. 2 and Respondent no. 4, the petitioner denied the preliminary objections and reaffirmed the maintainability of the petition under Section 276 of Indian Succession Act on the basis of Will dated 02.07.2004. He denied suppression of any facts. On merits, he reaffirmed the contents of the petition, denied that the deceased did not execute the Will or that it was a forged & fabricated document.
He explained that the IOC affidavit was only for shares and there was no requirement to disclose the Will at that time. He denied intestate succession for the Delhi property and, reaffirmed the deceased's connection with Varanasi through witness Sh. Ganga Sagar Singh who had met the testator in train. Petitioner averred that the property was purchased for petitioner's benefit with additional floors built by him. He reaffirmed strained relations of Sh. Bhola Kumar with respondent no.2, who was not allowed to stay at IOC township and PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.9/22 not made a joint account holder, while petitioner was. The deceased stayed with petitioner in Delhi and alone at native place as respondent no.2 did not take care of him. He denied joint use of floors and reiterated exclusive possession of petitioner over Delhi property. The legal notice is alleged to be false and was replied to. He denied prolonged illness of his father & stated that his death was due to third heart stroke. He reaffirmed Will execution only for Delhi property, while rest of the properties devolved under Hindu Succession Act. He denied all allegations of forgery and prayed for rejection of objections.
Publication of Citation:
17. After filing of the petition, by order of this Court, citation was duly published in the approved newspapers. No third party other than the parties impleaded in the present petition came forward to file any objections to the petition.
Demise of Sh. Bhola Kumar:
18. None of the parties to the petition have disputed the demise of Sh. Bhola Kumar on 12.12.2004. The death certificate in this regard is relied upon by the petitioner and is Ex.PW1/4. Thus, the factum of demise of Sh. Bhola Kumar is duly proved on record.
Class I Legal Heirs of Late Sh. Bhola Kumar:
19. It is an admitted fact that late Sh. Bhola Kumar left behind four children as his Class-I legal heirs: Sh. Sudhir Kumar (R-2), Sh. Sanjay Kumar @ Sanjay Singh (petitioner), Smt. Saroj Singh (R-3), and Smt. Ritu Priya (R-4). All the legal heirs of late Sh. Bhola Kumar have been duly impleaded as parties in the present petition.
PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.10/22 ISSUES :
20. Vide order dated 23.08.2015, the following issues were framed:-
1) Whether the deceased late Sh. Bhola Kumar died intestate or the unregistered document dated 02.07.2004 in his last Will and testament executed by him in his sound disposing state of mind as per law? OPP.
2) Whether the petitioner is entitled for probate/letter of administration in respect of afore-said Will as prayed for?
3. Relief.
PETITIONER'S EVIDENCE
21. Petitioner/Sh. Sanjay Kumar @ Sanjay Singh examined himself as PW-1 and stated and reiterated on oath the contents of his evidence affidavit Ex. PW-1/A. He stated and relied upon the following document:-
(a) Election ID card of the petitioner as Ex. PW-1/1 (OSR);
(b) Driving License of the petitioner as Ex. PW-1/2 (OSR);
(c) Original Will dated 02.07.2004 as Ex. PW-1/3;
(d) Death Certificate of late Sh. Bhola Kumar is Ex. PW-1/4;
(e) Complete set of property documents of House No. D-255 & 256, First Floor, Gandhi Vihar, Delhi-09, with roof rights is Ex. PW-1/5 (OSR) (Colly 17 pages);
(f) Provisional certificate of the petitioner as Ex. PW-1/7 (OSR);
(g) Certified copy of order dated 25.07.2014 of Sh. Manish Yadhuvanshi, Ld. ADJ as Ex. PW-1/8;
(h) Photocopy of the post retirement medical attendance facility card of late Sh. Bhola Kumar is marked as Mark A. PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.11/22
22. Smt. Saroj Singh/ respondent no.3 examined herself as PW-2 in support of the case of the petitioner. She deposed by way of her evidence affidavit Ex. PW-2/A. That, she is the elder daughter of Late Sh. Bhola Kumar. During his lifetime her father executed an unregistered will dated 02.07.2004 in favor of her younger brother Sh. Sanjay Kumar @ Sanjay Singh at Varanasi in respect of property bearing no.255/ 256, D Block, Gandhi Vihar, Delhi-09. Sh. Bhola Kumar expired on 12.12.2004 at his native place at Bihar leaving behind his two married sons and two married daughters. Late Sh. Bhola Kumar was not happy at all with the conduct of his elder son Sh. Sudhir Kumar as noted in the will. After retirement, Sh. Bhola Kumar starting living with his son Sanjay Kumar in Delhi. The construction over first floor of the property in question was also made by Sh. Sanjay Kumar from his hard earned money. Sh. Sanjay Kumar/ Petitioner took care of Late Sh. Bhola Kumar in every possible manner including his medication and frequent visits to doctor. Late Sh. Bhola Kumar executed will dated 02.07.2004 in favor of the petitioner after consultation with all the family members and well wishers at Varanasi and also informed her about the execution of the will and its attestation by the witness Sh. Ganga Sagar Singh who was a family friend. The will dated 02.07.2004 is the first and last will of Late Sh. Bhola Kumar.
23. She also deposed that she used to study at Banaras Hindu University at Varanasi and her father Late Sh. Bhola Kumar used to visit her. She also stated that being the daughter of Late Sh. Bhola Kumar she can identify the signatures of her father. After the demise of her father, his last rites were conducted by the petitioner. Late Sh. Bhola Kumar had also informed her about execution of will dated 02.07.2004 by him after understanding the contents thereof and out of his PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.12/22 own free will without any force or coercion thereby bequeathing his Delhi property in favor of the petitioner. She deposed that she has no objection in granting of probate in respect of will dated 02.07.2004 in favor of the petitioner.
24. She relied upon copy of her Adhaar Card Ex. PW-2/1 (OSR).
25. Ms. Ritu Priya/ respondent no.4 examined herself as PW-3. She deposed in consonance with the testimony of PW-2 by way of her evidence affidavit i.e. Ex. PW-3/A. She relied upon copy of her Adhaar card as Ex. PW-3/1 (OSR).
26. All the witnesses examined by the petitioner were duly cross-examined on behalf of respondent no.2.
RESPONDENT'S EVIDENCE:
27. Sh. Sudhir Kumar/ respondent no.2 examined himself as RW-1 and stated and reiterated on oath the contents of his objections in his evidence affidavit Ex. RW-1/1. He rely on the following documents:
(a) Copy of Adhar Card No. 929800860948 is Ex. RW-1/2 (OSR);
(b) Medical Certificate of Shabnam Hospital is marked as RW-1/3;
(c) Copy of legal notice and its reply are marked as Mark RW-1/4 and RW-1/5 respectively.
28. RW-1 was duly cross-examined on behalf of the petitioner. No other witness was examined by respondent no.2.
PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.13/22
29. Since respondent no. 3 and 4 examined themselves as PW-2 and PW-3 deposing in favor of the case of the petitioner, no respondent's evidence was led on their behalf.
30. Final arguments have been heard. Written submissions filed on record are carefully perused.
Proof of Will: Legal Principles
31. The execution of Will has been provided under Section 63 of the Indian Succession Act 1925. It is reproduced herein under for the sake of clarity :-
"63:- Execution of unprivileged Wills- Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged or a mariner at sea, shall execute his Will according to the following rules:-
a) The testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction;
b) The signature or mark of the testator, or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will; and
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 been 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 of the signature of such other person and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary."
32. As per Section 68 of Indian Evidence Act, one of the attesting witnesses to the Will needs to be examined to prove the Will.
33. The law relating to proof of Will and appreciation of suspicious circumstances surrounding the execution of the Will have been discussed by the Apex Court in a recent judgment titled as Gurdial Singh (Dead) through LR v. Jagir Kaur (Dead) through LR Civil Appeal Nos 3509-3510/ 2010, PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.14/22 order dated 17.07.2025. The relevant paragraphs of the judgment are reproduced hereinunder for the sake of clarity:
"A Will has to be proved like any other document subject to the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, that is examination of at least of one of the attesting witnesses. However, unlike other documents, when a Will is propounded, its maker is no longer in the land of living. This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved. Onus lies on the propounder not only to prove due execution but dispel from the mind of the court, all suspicious circumstances which cast doubt on the free disposing mind of the testator. Only when the propounder dispels the suspicious circumstances and satisfies the conscience of the court that the testator had duly executed the Will out of his free volition without coercion or undue influence, would the Will be accepted as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur and others 2, this Court referring to H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors.3 enumerated the principles relating to proof of Will"
10. ***** **** **** **** 2 (1977) 1 SCC 369.
3 1959 Supp (1) SCR 426. "1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which 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, PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.15/22 the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free Will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." The Court further held: "9. In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will."
12. Similarly in Ram Piari vs. Bhagwant & Ors.4 this Court held when suspicious circumstance exists, Courts should not be swayed by due execution of the Will alone:
"3. ...................Unfortunately none of the courts paid any attention to PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.16/22 these probably because they were swayed with due execution even when this Court in Venkatachaliah case [AIR 1959 SC 443 :
1959 Supp 1 SCR 426] had held that, proof of signature raises a presumption about knowledge but the existence of suspicious circumstances rebuts it................"
13. There is no cavil when suspicious circumstances exist and have not been repelled to the satisfaction of the Court, the Court would not be justified in holding that the Will is genuine since the signatures have been duly proved and the Will is registered one5. Parameters to ascertain 'suspicious circumstances' vitiating a Will: 4 (1993) 3 SCC 364.
5 AIR 1962 SC 567, Para 23.
14. This brings us to the next issue i.e. what are the suspicious circumstances which may vitiate the disposition. In Indu Bala Bose & Ors. vs. Manindra Chandra Bose & Anr.6 the Court held any and every circumstance is not a "suspicious" circumstance. "8. Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person." The Court quoted the Privy Council's elucidation in Hames v. Hinkson 7 of suspicious circumstances as follows:
"17...............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 was again reiterated in PPK Gopalan Nambier vs. PPK Balakrishnan Nambiar & Ors.8 that suspected features should not be mere fantasies of a doubting mind.
"5...............It is trite that it is the duty of the propounder of the Will to prove the Will and to remove all the suspected features. But there must be real, germane and valid suspicious features and not fantasy of the doubting mind."
34. It is from this prism that we need to examine the execution of the will dated 02.07.2004 of testator Sh. Bhola Kumar propounded by the petitioner Sh. Sanjay Kumar @ Sanjay Singh.
PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.17/22
35. I shall now give my issue wise findings on the basis of evidence lead by the parties in the light of the legal principles discussed above.
ISSUE WISE FINDINGS ISSUE NO. 1: Whether the deceased late Sh. Bhola Kumar died intestate or the unregistered document dated 02.07.2004 in his last Will and testament executed by him in his sound disposing state of mind as per law? OPP.
36. The onus to prove this issue was on the petitioner as he had propounded the Will dated 02.07.2004 allegedly executed by the testator Sh. Bhola Kumar. As per proviso to Section 68 of Indian Evidence Act 1872, at least one of the attesting witness to a Will is required to be examined to prove the Will. Section 69 of Indian Evidence Act provides an exception where no attesting witness can be found. In such circumstances, the execution of a Will has to be proved by proving that the attestation of one attesting witness at least is in his hand writing and the signature of the person executing the document is in the handwriting of that person.
37. In the present case, the Will (Ex. PW-1/2) is attested by two witnesses namely, Sh. Ganga Sagar Singh and Sh. Dharmender Kumar Verma, however, none of these witnesses has been examined by the petitioner to prove the due execution of the Will (Ex. PW-1/2). The petitioner did not take any steps for summoning of these two attesting witnesses to the Will. Petitioner examined himself as PW-1, however, he did not depose that the witnesses to the Will were not traceable or had expired. In fact, petitioner did not lead any evidence regarding the availability of the attesting witnesses to PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.18/22 depose about the due execution of the Will (Ex. PW-1/2). Perusal of the petition shows that at the time of filing of the same it was duly verified by one of the witness to the Will namely Sh. Ganga Sagar Singh. Accordingly, as per own case of the petitioner the witness Sh. Ganga Sagar Singh was very much alive and available at the time of filing of the petition. In these circumstances, the onus was on the petitioner to produce the said witness for proving the Will in question or to bring on record appropriate circumstances due to which the attesting witnesses were not traceable/available. Petitioner has miserably failed to discharge the said onus. Thus, the Will in question (Ex. PW-1/2) has not been duly proved on record as required by law.
38. It is argued by Ld. Counsel for the petitioner that two daughters of the testator that are respondent no. 3 and respondent no.4 have been examined as PW-2 and PW-3 respectively and they have duly deposed about due execution of the Will in question and have also testified that the testator Sh. Bhola Kumar had informed them about the execution of Will (Ex. PW-1/2). It is submitted that in view of testimony of PW-2 and PW-3 the Will in question stands duly proved on record. Ld. Counsel for the petitioner has relied upon the decision of the Apex Court in "Janaki Narayan Bhoir vs Narayan Namdeo Kadam, AIR 2003 SC 761" to stress upon the point that Section 71 of Indian Evidence Act can be used to prove the due execution of the Will by other evidence. It is submitted that the petitioner herein has proved the Will (Ex.PW1/2) by other evidence i.e. by examining daughters of the deceased testator. Thus, the petitioner is entitled for letter of administration/probate in respect of Will (Ex.PW1/2).
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39. I have heard the submissions made in this regard and carefully perused the citation relied upon by the petitioner. I do not find any merit in this argument of Ld. Counsel for the petitioner. The mode of execution and proof of a Will is governed by Section 63 of Indian Evidence Act and Section 68 and 69 of Indian Evidence Act. It is an admitted case of the petitioner as well as PW-2 and PW-3 that they were not a witness to the execution of the Will (Ex.PW-1/2) nor the same was executed in their presence. In fact, PW-3, who is respondent no. 4 in the present matter, had earlier filed objections to the present probate petition categorically denying the execution of Will (Ex. PW-1/2) and alleging that the Will propounded by the petitioner was a forged and fabricated document and demanding its examination by handwriting expert. Accordingly, PW-3 is not a reliable witness and her testimony cannot be read to the benefit to the petitioner herein. In addition to this, it has duly come on record in the testimonies of PW-2 and PW-3 that since they are four brothers and sisters, all of them have 1/4th share in the property in question. PW-3, in her cross examination conducted on 17.11.2022 (at page no. 4), has categorically stated "I also want my 1/4th share in this property as it has been purchased by my father". These statements of PW-2 and PW-3 categorically points towards the fact that they had agreed to depose in favour of the petitioner due to some extraneous consideration and not genuinely as they believed in the authenticity and due execution of Will (Ex. PW-1/2).
40. Even in Janaki Narayan's case (Supra), the Apex Court has categorically held as under:
"Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.20/22 of the document. This Section has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses were available who could prove the execution if they were called".
41. In the present case, the petitioner had made no efforts for summoning any of the attesting witnesses to the Will nor led any evidence to show that they were not available or traceable to give evidence before the Court. In these circumstance, the provisions as contained in Section 71 Indian Evidence Act is not attracted in the present case and the petitioner cannot be permitted to prove the execution of the Will (Ex.PW1/2) by producing other evidence than that of the attesting witnesses. Even otherwise, as discussed above, the testimonies of PW-2 and PW-3 are not reliable and cannot be trusted as a proof of Will (Ex.PW1/2).
42. In view of the reasons given, I have no hesitation in holding that the petitioner has miserably failed to prove on record due execution of the Will (Ex.PW1/2) as propounded by him. There is no evidence on record to prove that the testator Sh. Bhola Kumar had signed the Will (Ex.PW1/2) out of his own free will, in sound state of mind, being aware of the nature or effect of the document being executed and in the presence of two attesting witnesses. Accordingly, considering the overall evidence on record, the present issue is decided against the petitioner.
ISSUE NO.2: Whether the petitioner is entitled for probate/letter of administration in respect of afore-said Will as prayed for?
43. In view of my issue wise findings on issue no.1 given above, since the petitioner has failed to prove on record due execution of the Will dated PC No.42296/16 Sanjay Kumar @ Sanjay Singh vs State of NCT of Delhi & Anr. Page no.21/22 02.07.2004 (Ex.PW1/2) by testator Sh. Bhola Kumar, he is not entitled to grant of probate/letter of administration in respect of the said Will. This issue is, accordingly, decided against the petitioner.
RELIEF :
44. In view of my issue wise findings given above, the present probate case stands dismissed.
45. No order as to costs.
SHIVALI
46. File be consigned to the Record Room.
SHARMA Digitally signed by SHIVALI SHARMA ANNOUNCED IN THE OPEN COURT Date: 2026.04.08 TODAY i.e. 08th APRIL 2026 16:07:24 +0530 (Shivali Sharma) District Judge-06, Central Tis Hazari Courts, Delhi/08.04.2026.
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