Delhi District Court
Anita And Ors vs State And Ors on 21 March, 2025
Anita & Ors. Vs. State & Ors.
IN THE COURT OF DISTRICT JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Dr. Yadvender Singh
PC No. 3/2018
Filing No. 356/2018
CNR No. DLST01-000845-2018
In the matter of
1. Smt. Anita,
W/o Lalit Kumar,
R/o 3A W/40, NH 3, Faridabad NIT,
Faridabad, Haryana.
2. Smt. Meena,
W/o Chaman Lal,
R/o House no. B 189/2,
Birla Farm Colony no. 3,
Chattarpur, Delhi-110074.
3. Sh. Hemraj (deleted vide order dated 11.03.2022)
R/o 301, Dakshin Puri, Ambedkar Nagar,
Sector 5 Pushpa Bhawan, SO South Delhi
Delhi-110062. ................Petitioners
Versus
1. STATE
Digitally signed
by YADVENDER
YADVENDER SINGH
SINGH Date: 2025.03.21
17:25:10 +0530
PC No. 3/2018
Page 1 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025
Anita & Ors. Vs. State & Ors.
2. Sh. Nandlal
S/o Babu Ram,
R/o 301, Block E,
Dakshin Puri, Ambedkar Nagar,
New Delhi-110062.
3. Smt. Babu Ram (deleted vide order dated 30.07.2018)
D/o Late Bishan Singh
R/o 301, Block E,
Dakshin Puri, Ambedkar Nagar,
New Delhi-110062.
4. Smt. Anuradha,
W/o Sh. Suresh Kumar,
R/o 154, Block A,
Dr. Ambedkar Nagar, Dakshin Puri,
South Delhi-110062.
5. Smt. Komal
W/o Deepak Kumar
R/o 154, Block A,
Dr. Ambedkar Nagar, Dakshin Puri,
South Delhi-110062.
6. Smt. Meenakshi
W/o Late Rakesh Kumar
R/o 154, Block A,
Dr. Ambedkar Nagar, Dakshin Puri,
South Delhi-110062. .............Respondents
Digitally signed by
YADVENDER YADVENDER SINGH
SINGH Date: 2025.03.21
17:25:23 +0530
PC No. 3/2018
Page 2 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025
Anita & Ors. Vs. State & Ors.
Date of Institution : 06.02.2018
Date of reserving the judgment : 15.02.2025
Date of pronouncement : 21.03.2025
Decision : Allowed
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, 1925 FOR GRANT OF PROBATE IN
RESPECT OF THE WILL EXECUTED BY DECEASED
NAMELY SAVITRI DEVI
JUDGMENT
1. The present petition has been filed under Section 276 of the Indian Succession Act, 1925 for grant of probate pertaining to the Will dated 25.09.2017 executed by Smt. Savitri Devi (since deceased).
2. It is contended that the testatrix was mother of petitioner no. 1, petitioner no. 2 and respondent no. 2. She was maternal grandmother of respondents no. 4, 5 & 6. The testatrix died on 07.01.2018 thereby leaving behind a Will dated 25.09.2017 registered with Sub-Registrar, Sub Division-II, Delhi on 25.09.2017.
3. Earlier the petition was filed by petitioners no. 1, 2 & 3, however, during the pendency of proceedings of this case, petitioner no. 3 expired. Testatrix was maternal grandmother of petitioner no. 3. Perusal of court order dated 11.03.2022 shows Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:25:29 +0530 PC No. 3/2018 Page 3 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
that his name was deleted from the array of parties as neither he was married nor he had left behind any class-I legal heirs.
4. Respondent no. 3 was the husband of petitioner and he also expired during pendency of the proceedings of this case. However, as LRs of respondent no. 3 had already been arrayed as petitioners and respondent no. 2, consequently name of respondent no. 3 was deleted from the array of parties at request of Ld. Counsel for petitioners by Ld. Predecessor of this court vide order dated 30.07.2018.
5. It is contended in the petition that respondent no. 3, 4, 5 & 6 had got no right, title or interest in the bequeathed property of the deceased. It was further mentioned that she was in good health and of sound disposing mind at the time of execution of the aforesaid Will and the same was executed and testified in the presence of two competent witnesses in accordance with law. It was further contended that testatrix had been ordinarily residing at Delhi and she also died at Delhi and the properties left behind by her are also in Delhi and are also in the jurisdiction of this court. Accordingly, relief of probate was sought through the present petition. The petition is found to be verified by one of the attesting witness namely Sh. Suresh Kumar.
6. Respondents no. 4, 5 & 6 gave their no objection Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:25:34 +0530 PC No. 3/2018 Page 4 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
statement in favour of petitioners on 16.04.2018 in the court.
7. Original Will dated 25.09.2017 of testatrix of Late Smt. Savitri Devi is found to be filed on record.
8. Vide order dated 06.02.2018, the citation was directed to be published in the newspaper. It was also directed to be issued to the respondents. The citation was published in the newspaper "The Statesman" dated 21.02.2018. The citation was also served upon the private respondents.
9. Written statement was filed on behalf of respondent No.2, whereby the present petition was objected on the ground that the testatrix had not provided her free consent to the Will and the present Will is forged. It was alleged that photograph on the Will was also not pasted in the presence of Sub-Registrar. It was also mentioned in the written statement that testatrix's signatures were not obtained in the presence of Sub-Registrar.
10. Petitioner no. 1 filed replication to the written statement of respondent no. 2 and denied all the allegations put in written statement and repeated contents of the petition.
11. On the basis of the record, following issues were framed vide order dated 12.07.2019:-
1. Whether Smt. Savitri Devi wife of late sh. Babu Ram, legally and validly executed the Will dated 25.9.2017?
OPP Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:25:39 +0530 PC No. 3/2018 Page 5 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
2. Whether the Will has been executed under durous/without free will/consent? Onus on parties
3. Relief.
12. The petitioners examined total five witnesses in the PE. Petitioners examined petitioner no. 1 as PW-4, petitioner no. 2 as PW-5, Sh. Lokesh Gupta as PW-1 and Sh. Suresh Kumar as PW-2 being both the attesting witnesses of the abovesaid Will, Sh. Upender, Record Attendant, office of Sub-Registrar VA, Hauz Khas being summoned witness as PW-3.
13. PW-1/ Sh. Lokesh Gupta tendered his affidavit in evidence as Ex. PW-1/A. He relied upon the Will dated 25.09.2017 Ex. PW-1/1. PW-1 was cross examined at length by the Ld. Counsel for the respondent no. 2 on 24.11.2023.
14. PW-2/ Sh. Lokesh Gupta tendered his affidavit as Ex. PW-2/A and also relied upon the Will Ex. PW-1/1. PW-2 was cross examined at length by the Ld. Counsel for the respondent no.2 on 24.11.2023.
15. Sh. Upender was examined as PW-3 being summoned witness from the office of Sub-Registrar VA, Hauz Khas, Mehrauli, New Delhi. He was not cross-examined by Ld. counsel for respondent no.2 despite opportunity.
16. Petitioner no. 1/ PW-4 tendered her affidavit as Ex. PW- 4/A and relied upon the Will Ex. PW-1/1. Her cross-
Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.03.21 PC No. 3/2018 17:25:44 +0530 Page 6 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
examination could not be conducted. On 06.08.2022 after her examination-in-chief was recorded, her cross was deferred by Ld. Predecessor of this court as Ld. Counsel for respondent no. 2 sought time to go through the affidavit of evidence before cross-examining the witness. Thereafter on 02.03.2023 also, PW-4 was present but she was not cross examined as adjournment was sought on behalf of respondent no. 2. Then again on 25.04.2023, the witness was present, however, again adjournment was sought on behalf of respondent no. 2. Thereafter, PW-4 never appeared for her cross-examination and PE stood closed vide separate statement of Ld. Counsel for petitioners on 24.11.2023. It was also stated by Ld. Counsel for petitioners in the statement that he had instructions on behalf of petitioners to give up PW-4 on the ground of her mental health after death of her husband.
17. Petitioner no. 2/ PW-5 tendered her affidavit as Ex. PW- 5/A and relied upon Will Ex. PW-1/1. She was cross examined at length by the Ld. Counsel for the respondent no. 2 on 02.08.2023. The petitioner did not examine any other witness. PE was closed vide separate statement of Ld. counsel for petitioner on 24.11.2023.
18. Respondent no. 2 examined himself in RE as RW-1 and Sh. Sagar as RW-2. RE was closed vide separate statement of Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.03.21 17:25:50 +0530 PC No. 3/2018 Page 7 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
respondent on 01.05.2024.
19. I have heard the submissions and carefully perused the record including the written arguments filed by the Ld. Counsel for parties. My issue-wise findings are as under. Issues No. 1: Whether Smt. Savitri Devi wife of late sh. Babu Ram, legally and validly executed the Will dated 25.9.2017? OPP Issue no. 2. Whether the Will has been executed under durous/without free will/consent? Onus on parties
20. Issue no. 1 & 2 are taken together as they are interconnected. Before discussing the matter on merits, it would be relevant to discuss the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. The expression "Will" is defined by Section 2(h) of Indian Succession Act, 1925 to mean the legal declaration of "the intention" of a testator with respect to his property "which he desires to be carried into effect after his death". Section 59 of Indian Succession Act, 1925 governs the capability of a person to make a Will. It reads as under:
"59. Person capable of making Wills --- Every person of sound mind not being a minor may dispose of his property by Will.
"Explanation1.-A married woman may dispose by Will of any property which she could alienate by her own act Digitally signed by YADVENDER YADVENDER SINGH SINGH PC No. 3/2018 Date: 2025.03.21 17:25:54 +0530 Page 8 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
during her life.
"Explanation 2.--- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
"Explanation 3.--- A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
"Explanation 4.--- No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."
21. Section 59 thus declares that every person (not being a minor) "of sound mind" may dispose of his property by Will. The second explanation appended to the said provision clarifies that persons who are "deaf or dumb or blind" are not incapacitated by such condition for making a Will "if they are able to know what they do by it". The third explanation makes the basic principle clear by adding that even a person who is "ordinarily insane" may make a Will during the interval in which "he is of sound mind". The fourth explanation renders it even more lucent by putting it negatively in words to the effect that it the person "does not know what he is doing" for any reason (such as intoxiation, illness or any other such cause) he is incompetent to make a Will. The focal pre-requisite, thus, is that at the time of expressing his desire vis-a-vis the disposition of the estate after his demise he must know and understand its Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:26:00 +0530 PC No. 3/2018 Page 9 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
purport or import.
22. The execution of an unprivileged Will, as the case at hand relates to, is governed by Section 63 of the Indian Succession Act, 1925, which reads as under:
"63 Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
"(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
"(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
"(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
23. As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:26:05 +0530 PC No. 3/2018 Page 10 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others:AIR 1959 SC 443 Hon'ble Supreme Court of India has held that a Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that
(i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:26:10 +0530 PC No. 3/2018 Page 11 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
testator understood the nature and effect of the dispositions; and
(iv) that the testator had put his signature on the document of his own free will. It further held that ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. The Hon'ble Supreme Court further held that it is necessary to remove suspicious circumstances surrounding the execution of the Will.
24. Hon'ble Supreme Court of India in Jaswant Kaur vs Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related to proving a will. It has held as under:
"There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
"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 ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:26:16 +0530 PC No. 3/2018 Page 12 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
"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 63 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 surround- ed 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 Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:26:22 +0530 PC No. 3/2018 Page 13 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
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 circumstance 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."
25. In Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since deceased through LRs.:AIR 1964 SC 529, Hon'ble Supreme Court has discussed the law relating to the Will to be proved. Hon'ble Supreme Court has held as under:-
"5. The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR(SC)
443) and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR(SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 PC No. 3/2018 17:26:28 +0530 Page 14 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested."
Digitally signed by YADVENDER YADVENDER SINGH
SINGH Date: 2025.03.21
17:26:34 +0530
PC No. 3/2018
Page 15 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025
Anita & Ors. Vs. State & Ors.
26. Similarly in Navneet Lal Alias Rangi vs Gokul and Others : AIR 1976 SC 794, Hon'ble Supreme Court of India has laid down the following Principles/Guidelines:-
"From the earlier decisions of this Court the following principles, inter alia, are well established:-
"(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. [Ram Gopal v. Nand Lal and others(1)].
"(2) In construing the language of the will the court is entitled to put itself into the testator's armchair [Venkata Narasimha v. Parthasarathy(2)] and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense....but all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. [Venkata Narasimha's case supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)]. "(3) The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)]. "(4) The court must accept, if possible, such construction as would give to every expression some effect rather than Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:26:40 +0530 PC No. 3/2018 Page 16 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
that which would render any of the expression inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
"(5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it, Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. [Ramachandra Shenoy and Another v. Mrs. Hilda Brite and Other(4)]..."
27. Sections 68 of the Evidence Act, which relates to proof of documents required by law to be attested, reads as under:
"68. Proof of execution of document required by law to be attested.--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 Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:26:46 +0530 PC No. 3/2018 Page 17 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
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 the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
28. It is also settled position of law that the jurisdiction of a probate Court is limited only to consider the genuineness of a Will. A question of title arising under the act cannot be gone into the proceedings and construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. Hon'ble Supreme Court of India in judgment titled Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon & Ors. Civil Appeal No. 4890/2007 decided on 12.10.2007, while relying upon the judgments titled as Cheeranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.03.21 17:26:54 +0530 PC No. 3/2018 Page 18 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
issue in probate proceedings relates to the genuineness and due execution of the Will.
29. It is the duty of the propounder of the Will to prove the Will. The petitioners examined total five witnesses. Both the attesting witnesses were examined as PW-1 and PW-2. PW-3 was the summoned witness from Sub-Registrar-VA, Hauz Khas, who brought the original record of registration pertaining to the Will in question. Petitioner no. 2 was examined as PW-5. Petitioner no. 1 was examined as PW-4, however, her cross- examination could not be conducted. On 06.08.2022 after her examination-in-chief was recorded, her cross was deferred by Ld. Predecessor of this court as Ld. Counsel for respondent no. 2 sought time to go through the affidavit of evidence before cross-examining the witness. Thereafter on 02.03.2023 also, PW-4 was present but she was not cross examined as adjournment was sought on behalf of respondent no. 2. Then again on 25.04.2023, the witness was present, however, again adjournment was sought on behalf of respondent no. 2. Thereafter, PW-4 never appeared for her cross-examination and PE stood closed vide separate statement of Ld. Counsel for petitioners on 24.11.2023. It was also stated by Ld. Counsel for petitioners in the statement that he had instructions on behalf of petitioners to give up PW-4 on the ground of her mental health Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:27:00 +0530 PC No. 3/2018 Page 19 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
after death of her husband.
30. PW-1 tendered his evidence through his affidavit Ex. PW-1/A. The Will in question was also exhibited during his examination as Ex. PW-1/1. During his examination-in-chief he identified his signatures at point A & B, his photograph at point C and thumb impression and photograph of testatrix at point D & E respectively on the Will in question. The testatrix was his maternal grandmother. In his affidavit, he deposed that at first the testatrix put her thumb impression in his presence and thereafter another attesting witness Sh. Suresh Kumar signed and after him he also signed the Will as witness. It is further deposed that the testatrix told him about her desire to execute the Will in favour of her children. He also deposed in the affidavit that he appeared before Sub-Registrar for registration of the said Will and Sub-Registrar had put several questions to the testatrix about the contents of the said Will and she gave explanations about the contents of the Will. It is also deposed that testatrix was in good state of mind at the time of execution of the said Will and the Will was executed by testatrix without any pressure, coercion or threat. It is further deposed that will was drafted in Hindi on the instructions of the testatrix and read over to her in his presence. It is also deposed that his computerized photograph was also taken by official of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 17:27:06 +0530 PC No. 3/2018 Page 20 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
Registrar after verifying his identity.
31. During his cross-examination dated 24.11.2023, he answered that he did not know as to when the Will was written. It was voluntarily answered that they had themselves written the Will, only they had called him. He answered that he did not remember the date as to when the Will was registered. He also answered that he did not remember as to his age on the date when the Will was registered. He also answered that he did not remember the time, however, he voluntarily answered that he did not remember as long time has passed. He also answered voluntarily that he had reached in the morning. He also answered that he had not read the Will and they have told him 'thoda bahut' about the Will. He also answered that the persons present there were his Nani Smt. Savitri and witness Sh. Suresh.
32. The second attesting witness namely Sh. Suresh Kumar was examined as PW-2, who tendered his evidence by way of affidavit Ex. PW-2/A and he identified his signatures at point F & G and photograph at point H, thumb impression and photograph of testatrix at point D & E respectively on the Will Ex. PW-1/1. He also deposed on the same lines as of PW-1 through his affidavit Ex. PW-2/A regarding attestation of the Will and sound mind of the testatrix at that time. During his Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 PC No. 3/2018 17:27:52 +0530 Page 21 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
cross-examination dated 24.11.2023, he answered that his wife was the daughter of testatrix's daughter and therefore, testatrix was his naniya saas. He corroborated the version of PW-1 while answering that when he signed the Will then his naniya saas/ testatrix Late Smt. Savitri Devi, government officials and Sh. Ashish @ Lokesh, who was the previous witness were present. He answered that it was wrong to suggest that a fraud had been played by all his mausiya saas and his saas alongwith them, attesting witness, against the respondent no. 2 to illegally grab the property. He answered that before taking the testatrix to the registrar she did not use wheel chair. He answered that it was wrong to suggest that she (testatrix) was using the wheel chair for the last 5-6 months from the date of the Will.
33. The present Will is objected by respondent no. 2 only. Respondent no. 2 is the brother of petitioners no. 1 & 2. The Will is objected by respondent no. 2 mainly on following grounds:
A) The photograph of the testatrix at point E on the Will in question at the time of registration shows that she was in a wheelchair and the Registrar and the witnesses have not mentioned any reason for the same at the time of registration and attestation of the Will and The petitioners have not placed on record any medical opinion of doctor Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.03.21 17:28:02 +0530 PC No. 3/2018 Page 22 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
showing sound mind of testatrix at the time of execution of the Will in question - The allegation that testatrix was sitting on wheelchair in the Registrar's office as appears from photograph of the testatrix at point E on the Will in question and due to this reason the testatrix may be considered to be not in a fit condition to execute the Will can not be relied upon because during his cross- examination dated 24.11.2023, the attesting witness PW- 2 answered that testatrix was on the wheelchair as she was tired. He answered that before taking to the Registrar she did not use the wheelchair. He also answered that it was wrong to suggest that testatrix was using the wheelchair for the last 5-6 months from the date of execution of the Will.
PW-5/ petitioner no. 2 answered during her cross- examination dated 02.08.2023 that her mother had gone to the office of Sub-Registrar's office on the date of registration of the Will herself.
RW-1 answered during his cross-examination dated 21.03.2024 that his mother was not well just before her death and her treatment was going on at Safdarjung hospital, Delhi and he was taking care of her and take her to hospital regularly. Despite opportunity no medical Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.03.21 PC No. 3/2018 17:28:07 +0530 Page 23 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
document was led in evidence by respondent no. 2 to show that testatrix was not in a fit state to execute a Will legally and validly. It is not the case of respondent no. 2 that testatrix was not residing with him, rather as per all the parties of this case the testatrix was residing with respondent no. 2 and as per respondent no. 2 himself he was taking care of her and was taking her to hospital regularly. If such is a case then it was never explained by respondent no. 2 that what was stopping him from producing in evidence the medical documents of the testatrix for showing her such incapacity at the time of execution of the Will. However, RW-1/ respondent no. 2 deposed in para no. 2 of his affidavit of evidence Ex. RW-1/A that husband of Anita (petitioner no. 1) had fraudulently taken away from the home the original papers on the pretext to show to some doctors. Firstly, it is not clear from this deposition that what are these original papers. Secondly, even if these original papers are supposed to be medical documents of the testatrix then no proof to prove this allegation was ever led on behalf of respondent no. 2. No complaint before any forum regarding taking of the original papers fraudulently by the husband of petitioner no. 1 from respondent no.2 Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.03.21 17:28:13 +0530 PC No. 3/2018 Page 24 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
was made by respondent no. 2. Even any appropriate application for production of these documents by petitioner no. 1 before the court was also not filed on behalf of respondent no. 2 in this case.
Accordingly, these allegations cannot be relied upon due to lack of evidence for doubting the validity of the Will in question.
B) The testatrix was suffering from tumor that caused her to be in a state, which made her legally unfit to dispose off property in such a manner - It is alleged on behalf of respondent no. 2 that the testatrix was suffering from tumor and was not in a fit state to dispose off property in such a manner. However, no medical document was ever filed by respondent no. 2 in evidence to show that testatrix was suffering from tumor and was legally unfit to execute a Will despite opportunity and the fact that testatrix was residing with him. Accordingly this allegation also cannot be relied upon for doubting the validity of the Will.
C) It is also argued by Ld. counsel for respondent no. 2 that the testatrix's thumb impression on the Will were not taken before Sub-Registrar and the Will is not genuine. PW-5/ petitioner no. 2 during her cross-examination Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 PC No. 3/2018 17:28:17 +0530 Page 25 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
dated 02.08.2023 answered that her mother (testatrix) was living with Nand Lal (respondent no. 2) at the time of execution of the Will in question. Respondent no. 2 deposed at para no. 11 of his affidavit of evidence Ex. RW-1/A that before the date of impugned Will dated 25.09.2017 petitioner had taken the mother of respondent no.2 for showing her to vaid (traditional doctor) and that day only they had obtained the forged thumb impression of testatrix Savitri Devi on this document. It is not the case of the respondent no. 2 that the testatrix was residing with petitioners at the time of execution of the Will. As per respondent no. 2, the testatrix was residing with him on the date of execution of the Will. Moreover, as per respondent no. 2's deposition itself petitioners had taken the testatrix before 25.09.2017 and that day only they obtained the thumb impressions of the testatrix on the Will. Even if contention of respondent no. 2 is accepted then it further remains unexplained that how the testatrix appeared on 25.09.2017 before the Sub-Registrar for the purpose of registration of the Will. Petitioners examined PW-3 as a summoned witness, who brought the original record of registration pertaining to Will in question from office of Sub-Registrar VA, Hauz Khas, Mehrauli. The Digitally signed YADVENDER by YADVENDER SINGH SINGH Date: 2025.03.21 17:28:22 +0530 PC No. 3/2018 Page 26 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
opportunity for cross-examination was given to the respondents, however, no cross-examination of PW-3 regarding the registration of the Will in question or on any other fact pertaining to the Will was done on behalf of respondents and the cross-examination of PW-3 remained nil despite opportunity given. No other proof on behalf of respondent no. 2 except the abovesaid bald allegation was ever alleged on behalf of respondent no. 2 to prove his allegation that petitioners had took testatrix and had taken her false thumb impressions on Will in question before 25.09.2017. Accordingly, this allegation of respondent no. 2 cannot be relied upon as appears to be baseless due to lack of evidences.
D) Photograph at point F on Will Ex. PW-1/1 was pasted on the Will after its registration because the photograph was pasted on the corner of the page, where the Sub- Registrar's stamp had already been put and the photograph was pasted on it after putting the stamp - Respondent no. 2's allegation that the photograph of testatrix at point F on the Will was not pasted in presence of Registrar because it was pasted after stamp of Sub- Registrar had already been put at that place cannot be relied upon. Judicial notice of the fact that impression of Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 PC No. 3/2018 17:28:28 +0530 Page 27 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
part of the mark of national emblem in the stamp mark also appears to be affixed on the photograph. Moreover, below the pasting of the photograph no impression of stamp appears and the stamp impression on the page is found only at the place where photograph is not affixed and the stamp impression at that place is found to be in perfect symmetry with the photograph. Only part impression of the stamp is on the page and remaining part was supposed to be on the photograph at point F on the Will. However, the natural possibility of ink fading of the stamp mark from this photograph cannot be denied. Moreover, as abovestated neither PW-3, official witness from Sub-Registrar was cross-examined on behalf of respondent no.2 on this point nor any other official witness from Sub-Registrar office was examined by respondent no. 2 to prove this allegation. Accordingly, this allegation does not sustain to doubt on the genuineness of the Will
34. It is also argued by Ld. counsel for respondent no. 2 that Will is not genuine as the Sub-Registrar certified that left hand thumb impression had been taken in his presence, however, the fact is that as per Will itself testatrix's right hand thumb impression has been affixed on the Will. Certification by the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:28:33 +0530 PC No. 3/2018 Page 28 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
Sub-Registrar while mentioning "left hand thumb impression in his presence" in typed form in the circumstances when there is categorical mentioning of right thumb impression at all places where thumb impression were put on the Will cannot be a basis of disputing the genuineness of the Will. At first, it is not clear from this certification that the mentioning of left thumb impression is regarding thumb impression on the Will itself or on some official Register used for registration of the Will. Otherwise also at most it may be an irregularity on behalf of Sub-Registrar while certifying. Any case of fraud on behalf of petitioners on Sub-Registrar on this issue of certification is not made out by any stretch of imagination. Moreover, the witness PW-3 from Sub-Registrar's office was not cross examined on behalf of respondent no. 2 on this point as any discrepancy regarding the same could be best answered by the official from the office of Sub-Registrar and this opportunity was not availed by respondent no. 2. Moreover, the Sub-Registrar or any official witness from Sub-Registrar office can also be examined by respondent no. 2 in RE on this point, however, this opportunity in the RE was also not availed by respondent no. 2. In these circumstances, this objection cannot be considered as a basis to doubt the genuineness of the Will.
35. It was also argued on behalf of respondent no. 2 that a Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:28:38 +0530 PC No. 3/2018 Page 29 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
doctor's certificate showing testatrix mental state at the time of execution of the Will was mandatory and it was not filed by the petitioners and absence of this medical certificate creates suspicious circumstances on the genuineness of the Will. This contention of respondent no. 2 is not sustainable in the eyes of law because Indian Succession Act, 1925 does not mandate a medical certificate for the execution of the Will. Section 59 of Indian Succession Act requires that a person making a Will should be of sound mind, but it does not require doctor's certificate. However, a doctor's certificate may be precautionary measure, which can help preventing a future challenge to the Will's validity. Respondent no. 2 also did not lead any adverse evidence to the sound mind of testatrix despite the fact that she was residing with respondent no. 2 and as per respondent no. 2 her treatment was going on in the hospital and he was taking her to the hospital regularly.
36. It was also argued on behalf of respondent no. 2 that testatrix died within a period of four months of the alleged Will and was bedridden prior to her death as she sustained paralytic stroke and this situation creates suspicious circumstances on the genuineness of the Will. Ld. counsel for respondent no. 2 relied on judgment of Hon'ble Supreme Court in Murthy & Ors. vs. V.C. Saradambal & Ors., (2022) 3 SCC 209 , where it is Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:28:50 +0530 PC No. 3/2018 Page 30 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
observed by Hon'ble Apex Court that testator dying within a short duration of time after executing the Will gives rise to grave suspicion on the genuineness of the Will. This contention of respondent no. 2 cannot be relied upon as no medical document to prove the medical condition of testatrix to show testatrix's incapacity for execution of Will validly and legally at the time of execution of the Will in question, was led in evidence by respondent no. 2 despite opportunity. Moreover, for an old person like testatrix in the present case deterioration of health and death within four months is not a surprise or abnormal. So death of testatrix within four months of execution of the Will in question cannot be said to be such a short duration of time, which can raise suspicion on the genuineness of the Will specially in the circumstances when as per RW-1/ respondent no. 2 himself his mother was not well just before her death and her treatment was going on at Safdarjung Hospital and he was taking care of her and taking her to the hospital regularly. Moreover, he also did not lead any evidence to prove that testatrix was not in fit state of mind at the time of execution of the Will and his abovestated answer in cross-examination shows that testatrix was not well just before her death.
37. It was also argued on behalf of respondent no. 2 that as per the alleged Will the testatrix wanted Nand Lal/ respondent Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 17:28:56 +0530 PC No. 3/2018 Page 31 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
no. 2's exclusive right over her share of the property, however, further condition was imposed that if Nand Lal's wife and their children stay in the property then Nand Lal's share in the property shall be equally shared among the other beneficiaries. It was argued that it is an unfair disposition of property and an unjust exclusion of the LR and dependent of Nand Lal and these contents of Will are enough to raise suspicious circumstances. Ld. counsel for respondent no. 2 relied upon Hon'ble Apex Court's decision in Indu Bala Bose & Ors. vs. Mahindra Chandra Bose (1982 1 SCC 20), where it was observed by Hon'ble Apex Court that suspicious circumstances may be as to the genuineness of disposition made in the Will being unnatural, improbable or unfair in the light of relevant circumstances. It was argued that in the present case it is improbable and unfair to exclude Nand Lal and his family from the property. Perusal of the Will Ex. PW-1/1 shows that at page no. 2 of the Will it has been written that Nand Lal had two marriages. Name of his first wife is Suman, who has five children and name of second wife is Pooja, who has one son. It is also written that in movable and immovable property of the testatrix there shall be no right of first wife of Nand Lal and their five children. As per the Will in question, the third floor of property was bequeathed to respondent no. 2 Sh. Nand Lal. It has also been written in the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 17:29:01 +0530 PC No. 3/2018 Page 32 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
Will that after death of testatrix the beneficiary including Nand Lal shall be competent to transfer their respective shares to any person. Accordingly it cannot be said that Nand Lal was excluded from the property of testatrix through the Will in question. It is also wrongly argued that all the dependent of Nand Lal were excluded through the Will. As per the Will nothing has been said about the second wife of the respondent no. 2 and about their son. Moreover, the transfer right of the Nand Lal's share in the property was given to him through the Will. It may be very natural for a person to exclude some other family member from the benefits of the Will. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing the Will. On exclusion of natural heirs from the benefits of the Will, adverse inference cannot be drawn that the Will was not genuine. Moreover, even after the death of the testatrix the first wife of respondent no. 2 and their children cannot claim any share in the testatrix's property during the lifetime of respondent no. 2. So even if they are excluded from the benefit of the property then it cannot be said that the Will in itself is not genuine because the testatrix bequeathed her property equally to her children and even if this Will was not executed then also the testatrix's property would devolve in exactly the same share. The legality of the condition Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 17:29:07 +0530 PC No. 3/2018 Page 33 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
regarding stay of Nand Lal's first wife and their five children may be challenged reportedly before competent court.
The decisions of the Supreme Court in Uma Devi Nambiar Vs. T.C. Sidhan, (2004) 2 SCC 321, and Pentakota Satyanarayana Vs. Pentakota Seetharatnam, (2005) 8 SCC 67 are authorities on the principle that exclusion of the natural heirs need not or necessarily lead to an inference that the Will was not genuine. One may quote, with advantage, the following observations in Uma Devi Nambiar (supra): "16. A will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his 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 circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664] it is the duty of the propounder 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. It has been held that if the propounder succeeds in removing the suspicious circumstances, the court has to give effect to the will, even if the will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba [(1993)3 SCC 291]. In Rabindra Nath Mukerjee vs. Panchanan Banerjee [(1995) 4 SCC 459] it Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 17:29:16 +0530 PC No. 3/2018 Page 34 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of will. Of course, it may be that in some cases they are fully debarred and in some cases partly." (emphasis supplied). In Hari Singh & Anr Vs. The State & Anr. 2010 (120) DRJ 716, after noting the law declared, inter alia, in Uma Devi Nambiar (supra), observed thus: "31. Courts are not expected to be satisfied that a bequenathal is rational or not; what has to be considered is whether the bequest was so unnatural that the testator could not have made it."
38. It was argued that the testatrix was not the owner of the property, therefore, she did not have the capacity to bequeath the property. It is settled law that probate court only decides the validity or invalidity of execution of the will.
In Naveen Bhatia through LRs, Vs. Raj Kumari Bhatia & Ors., 2017 (165) DRJ 511, the Hon'ble Delhi High Court held as under: "A trial court commits legal error by going into issues of title of the properties because a Probate Court only decides the validity or invalidity of execution of the will. Whether or not the testator did or did not have title to the properties which were subject of bequests under the will or that actually someone else had title or that the testator had title only of some of the properties and not all of the properties or that testator had only part interest and not full interest in the bequeathed properties etc. etc. are all issues which have to be decided by a civil court in a civil suit between the parties whenever and Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 17:29:22 +0530 PC No. 3/2018 Page 35 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
where ever disputes will arise with respect to title of a particular property."
39. It was also argued on behalf of respondent no. 2 that as per PW-5/ petitioner no. 2 the testatrix could read and write a bit Hindi language and if this is a case then as per decision of Hon'ble Supreme Court in Smt. Guro vs. Atma Singh and Ors., (1992) 2 SCC 507, the petitioners need to adduce satisfactory evidence to show why instead of signature, thumb impression of testator was obtained on the Will. Perusal of cross-examination of PW-5 dated 02.08.2023 shows that PW-5 answered that her mother was illiterate. She voluntarily answered that she could read and write a bit Hindi language. The examination does not show any answer of PW-5 while stating that testatrix used to put her signature on the document instead of her thumb impression. Moreover, it is not a case of respondent no. 2 that the thumb impression on the Will are not of the testatrix. It is not a case of respondent no. 2 that the testatrix was literate and she used to sign on the documents. In absence of any evidence regarding literacy of the testatrix or of the fact that testatrix used to make signatures instead of putting her thumb impression, the Will cannot be doubted regarding its genuineness merely on the basis that testatrix put her thumb impression instead of signatures on the Will.
Digitally signed by YADVENDER YADVENDER SINGH SINGH Date: 2025.03.21 17:29:26 +0530 PC No. 3/2018 Page 36 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
40. The testimonies of attesting witnesses PW-1 and PW-2 on the issue of valid attestation and sound mind of the testatrix remained unshakable in the cross-examination and there is no reason to doubt their testimonies. They are common relatives of the parties and not the direct beneficiary of the Will.
41. Accordingly, from the abovestated discussion, settled law and evidences on record, I am of the considered opinion that Will in question is free from all the suspicious circumstances. Hence, the issues no. 1 & 2 are decided in favour of the petitioners.
42. Issue No. 3 - Relief: The petitioners are merely beneficiary of the Will and not the executors of the Will. So the relief of Letters of Administration in respect of Will may only be granted to the petitioners. The petitioner no. 1 was dropped as a witness in PE vide separate statement of Ld. counsel for the petitioners on the ground of her mental capacity and thereafter, no medical document showing her fit state of mind was furnished. So, petitioner no. 1 cannot be made an administrator of the property. Petitioner no. 3 has already expired and deleted from the array of parties. So only petitioner no. 2 may be considered for grant of letters of administration in respect of the Will. Having regard to the testimonies of petitioners' witnesses PW-1, PW-2, PW-3 and PW-5 and the fact that the petitioners Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 PC No. 3/2018 17:29:31 +0530 Page 37 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
have been able to prove the attestation and there are no suspicious circumstances surrounding the execution of the Will Ex. PW-1/1, which may lead to any contrary inference, there appears to be no impediment in grant of letters of administration in respect of the Will. In view of the discussion hereinabove, the petition is allowed. The letters of administration be issued to the petitioner no. 2 in respect of the Will Ex. PW-1/1. The letters of administration be issued in the prescribed form VII along with authenticated copy of the Will Ex. PW1/1 upon furnishing of the proper Court Fee, Administration Bond and Surety Bond by the petitioner. The formalities of issuance of letters of administration shall be completed by the petitioner/beneficiary within six months from the date of the judgment as per Section 290 & 291 of Indian Succession Act.
43. The petitioner, as per Section 317 of the Indian Succession Act, shall furnish full and true inventory of the properties and credits mentioned in the Will and exhibit the same in the Court within 6 months from the date of grant of letters of administration in prescribed Form No. 178. The petitioner shall also file true account of the properties and credits within 1 year in prescribed Form No. 179.
44. It is made clear that the granting of letters of administration would not tantamount to any declaration of the Digitally signed by YADVENDER YADVENDER SINGH SINGH Date:
2025.03.21 PC No. 3/2018 17:29:37 +0530 Page 38 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025 Anita & Ors. Vs. State & Ors.
title of the deceased to the estate in question. It is further clarified that till the petitioner does not furnish the requisite Court Fee, Administration Bond and Surety Bond and does not obtain the letters of ministration, duly signed and sealed by the Court as required under Section 290 of the Indian Succession Act, this judgment shall not be read as proof of the same.
45. The original Will shall remain part of judicial file, in terms of Section 294 of the Indian Succession Act, 1925.
Digitally signed
Pronounced in the open Court YADVENDER by YADVENDER
SINGH
SINGH Date: 2025.03.21
on this 21st day of March 2025. 17:29:42 +0530 (DR. YADVENDER SINGH) DISTRICT JUDGE-02, SOUTH, SAKET COURTS, NEW DELHI.
PC No. 3/2018 Page 39 of 39 Dr. Yadvender Singh/DJ-02/South/Saket/ND/21.03.2025