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Smt. Amarjeet Kaur vs Pc No. 16069/16 Amarjeet Kaur Vs … on 10 August, 2018

IN THE COURT OF SH. SANJAY KUMAR : ADDL. DISTRICT JUDGE
(WEST)-02, TIS HAZARI COURTS:DELHI

Old P.C No. 03/10
New P.C. No. 616131/16

Smt. Amarjeet Kaur
W/o. Late Sh. Surender Gandhi
R/o. H-74, Kirti Nagar
New Delhi – 110015. … Petitioner

Vs.
1 State

2 Bhupinder Batra
W/o. Late Sh. Dashrath Lal Batra
R/o. C-1/16, Mianwali Nagar
New Delhi – 110087.

3 Sh. Ram Saran Batra (since deceased)
through L.Rs

3(i) Shanti Devi Batra
W/o. Late Sh. Ram Saran Batra
R/o. House No. 11, Road No.4
East Punjabi Bagh
New Delhi – 110026.

3(ii) Krishan Lal Batra
S/o. Late Sh. Ram Saran Batra
R/o. House No. 11, Road No.4
East Punjabi Bagh
New Delhi – 110026.

3(iii) Suman Mendiratta
R/o. WZ 70A, Meenakshi Garden
New Delhi – 110018.

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 1 of pages 45
3(iv) Kusum Juneja
R/o. 1663B/15, Gali No. 15

3(v) Govindpuri, Kalkaji
Delhi – 110019.
Rakhi Mutreja
R/o. D-44, Ground Floor, Saket
Delhi – 110016.

3(vi) Vipul Dua
R/o. House No.8, Road No. 46A
West Punjabi Bagh
New Delhi – 110026.
… Respondents

Date of original institution of the case : 14.01.2010
Date of reservation of order : 28.07.2018
Date of pronouncement of judgment : 10.08.2018

JUDGMENT:

1. A petition under Section 276 of Indian Succession Act 1925 for
grant of Letter of Administration in favour of petitioner enabling her
to administer the estate of her deceased father in respect of the Will
dated 07.05.1986 left by deceased Shri Sant Singh filed. In brief,
the facts are that the deceased is Shri Sant Singh, S/o. Late Shri
Mansa Singh, r/o. House No. 11, Road No.4, East Punjabi Bagh, New
Delhi (hereinafter referred as the deceased).

2. The deceased was living within the local jurisdiction of this
court. The deceased died on 15.05.1986 and original death
certificate filed on record. The deceased was owning immovable
property bearing House N o. 11, Road No.4, East Punjabi Bagh, New
Delhi (herein referred as the property in question).

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 2 of pages 45

3. It is stated that the deceased had executed a Will dated
07.05.1986 bearing No. 3854 whereby the deceased bequeathed his
estate and effects thereof in totality to his wife Smt. Karmo Devi as
a Testator. The said original Will has been filed on record. The said
Will was executed by the deceased Testatrix in the presence of the
witnesses namely Surinder Kumar and Darshan Mahajan. The wife
of the deceased Smt. Karmo Devi i.e. mother of petitioner who was
the sole legatee of the deceased died on 09.06.1991 intestate and
without initiating any proceeding under
Section 276 of the Act for
obtaining the Letter of Administration in respect of property in
question of her deceased husband. The deceased Smt. Karmo Devi
who was the sole legatee of Late Sh. Sant Singh as per his Will is
survived by three daughters including the petitioner. The petitioner
is a Class I legal heir under the
Hindu Succession Act of the
deceased Smt. Karmo Devi and the description of other two
daughters are as under :-

(a) Smt. Shanti Devi, w/o. Sh. Ram Saran Batra, r/o. House
No. 21, Road No. 32, East Punjabi Bagh, New Delhi – 110026.

(b) Smt. Bhupinder Batra, w/o. Late Sh. Dasrath Lal Batra,
r/o. C-16, Mianwali Nagar, New Delhi – 110087.

4. It is stated that Smt. Shanti Devi who is the eldest daughter of
the deceased was duly adopted by Late Sh.Gopal Singh, who was
the elder brother of the deceased during the lifetime of deceased
thereby serving all her ties with the family of the deceased.

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 3 of pages 45

5. The petitioner being the Class I legal heir of her deceased
father Sh. Sant Singh and deceased mother Smt. Karmo Devi is
seeking grant of Letter of Administration with the Will dated
07.05.1986 in order to administer the estate of her deceased father
Sh. Sant Singh and deceased mother Smt. Karmo Devi.

6. Upon filing the present petition, notice of the same was
issued to all respondents/LRs of the deceased. Citation for general
public was published in the daily newspaper “Statesman” dated
11.02.2010. And notice was also served to the concerned
Collector/SDM, however no valuation report received.

7. The respondent no.2 Ms Amarjeet Kaur filed Objections
against the petition and taken preliminary objections that petition is
liable to be dismissed as the same has not been verified in
accordance with Order VI Rule 15 CPC. It is stated that deceased
late Sh. Sant Singh died intestate and there exist no will as alleged.
The document purported to be the will is a false and fabricated
document.

8.  It is further stated that son of the petitioner, namely, Sh.
Gagan Gandhi in his greed for money has filed the present false
case and misleading the court. It is further stated that material facts
have been concealed that petitioner has also filed a petition under
Section 376 of the Indian Succession Act for grant of succession
certificate in respect of debts and securities of Late Sh. Sant Singh
and the same is pending disposal in the court of Sh. Vipin Kumar

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 4 of pages 45
Rai, Ld. ACJ. In the court of Ld. ACJ claim 1/3rd share in respect of
debts and securities of late Sant Singh. There is no mention of
alleged will which has first time surfaced after 24 years.

9. It is further stated that petition is liable to be dismissed as
property no. 11, Road No. 4, East Punjabi Bagh, New Delhi -26 was
never owned by the deceased late Sant Singh.

10. On merit all the averments of the petition are denied
and the facts averred in the preliminary objections are reiterated. It
is stated that no will executed by the deceased and there was no
question of late Smt. Karmo Bai for filing any petition under
Section
276 of the Indian Succession Act. It is stated that the petitioner,
answering respondent and Smt. Shanti Devi are real sisters and LRs
of late Sh. Sant Singh and late Smt. Karmo Bai and are entitled to
1/3rd share each in respect of the estate, debts and securities of
their parents. The adoption of Shanti Devi of late Gopal Singh is
denied. It is stated that petition is liable to be dismissed.

11. Petitioner filed rejoinder to the objections. It is stated
that no suspicious circumstances surrounding the will. The tenor of
the will is obvious and natural late Sh. Sant Singh, after mentioning
that his daughters are married and well settled, bequeathed all his
movable and immovable properties to his wife Smt. Karmo Bail. The
petitioner is not beneficiary in the will. Smt. Karmo Bai who is sole
legatee in the will and died intestate. Petitioner being class-I legal
heir (daughter) of late Shri Sant Singh and late Karmo Bai are
entitled to the same share.

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 5 of pages 45

12. It is further stated that unequivocally clear that the
existence or non-existence of above mentioned will has no effect
whatsoever on the share of the petitioner in her parents property.
The existence of will neither advantageous for the petitioner nor it is
detrimental to the respondent no. 2 in manner whatsoever. The
petitioner is an educated lady and is completely cognizant of the
present proceedings which has been initiated by her to claim her
rightful share in the property of her father late Sant Singh.

13. It is stated that an impish, unwarranted and defamatory
allegations made against Shri Gagan Gandhi who her son and not a
party to the present proceedings. It is stated that true facts are that
petitioner was supposed to apply for the succession certificate in
respect of the debts and securities of late Smt. Karmo Bai, her
mother. But due to inadvertence, succession certificate was applied
for the debts and securities of both her parents and on realization of
the mistake the petitioner immediately filed an amendment
application thereby correcting the mistake and informing the court
of the existence of the last will of Late Shri Sant Singh. The
succession certificate can only be granted in respect of debt and
securities of a person who died intestate. The petitioner had
withdrawn the succession certificate petition before the ld. ACJ, Sh.
Vipin Kumar Rai, after informing that there exist a Will of late Sant
Singh. The respondent no. 2 3 never raised any objection before
ld. ACJ’s court about the Will of late Sant Singh which was filed
alongwith amended application.

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 6 of pages 45

14. It is further stated that judgment of Hon’ble Delhi High
Court where Shanti Devi was a party, which clearly states that Smt.
Shanti Devi claims to be adopted daughter of late Shri Gopal Singh.
In the court of ld. ACJ also Shanti Devi refused to file a reply to
oppose the application that she was adopted by Shri Gopal Singh,
elder brother of Shri Sant Singh. It is stated that objections are
liable to be rejected and petition may be allowed.

15. Objection also filed by respondent no. 3 Sh. Ram Saran
Batra in which preliminary objections taken that respondent no. 3 is
the real son in law of deceased Sant Singh and his wife late Karmo
Bai. He is married to Shanti, real daughter. The present petition
filed by the petitioner is false, frivolous and concealed the material
facts and made false averments.

16. It is stated that petitioner has filed false and fabricated
documents, which she claims to be duly registered last will of late
Sant Singh. It is further stated that the claim in the petition that late
Sant Singh was the owner of immovable property No. 11, Road No.
4, East Punjabi Bagh, New Delhi and the goods kept therein i.e,
household furniture and appliances and a heavy iron safe. The
goods and the immovable property never owned by late Sant Singh.

17. It is stated that respondent no. 3 purchased the said
property vide sale deed dated 26.02.1969 from one Sh. Ratan and
the sale deed was duly registered with Sub-Registrar on 27.02.1969.
It is further stated that respondent no. 3 had purchased the

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 7 of pages 45
property prior to the death of late Sant Singh and still in the
possession. The son Sh. Kishan Lal Batra and Smt. Shanti Devi have
been residing in the said property for the last many years. He
stated that petition is liable to be dismissed.

18. On merit all the averments made in the petition are
denied and contents of preliminary objections reiterated. It is
reiterated that respondent no. 3 is the owner of the subject matter
of immovable property bearing no. 11, Road No. 4, East Punjabi
Bagh, New Delhi-110026. It is stated that late Smt. Karmo Bai was
mother of the petitioner and died intestate on 09.06.1991. It is
stated that late Sh. Sant Singh also died intestate and no will was
ever executed during his lifetime.

19. It is stated that though Shanti Devi was adopted by late
Gopal Singh but her adoption was not valid adoption as per
provision of Hindu Adoption and
Maintenance Act. It is stated that
petitioner also filed a suit for succession certificate in respect of
debts and securities of late Sant Singh and late Karmo Bai which
was pending before Ld. ACJ court. It is stated that petition is liable
to be dismissed.

20. Petitioner also filed replication to the objection filed on
behalf of respondent no. 3 and denied all the objections and
reiterated the averment mentioned in the petition. It is stated that
respondent no. 3 claim that the property bequeathed by testator in
the said will did not belong to the testator but is owned by

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respondent no. 3. However, no doubt or shadow of doubt on the
genuineness of the said will. The respondent no. 3 is objecting to
the capacity of late Sant Singh but concealed the fact that late Sant
Singh got the said property constructed according to his on
specifications and lived exclusively in the capacity of owner for
more than 17 years till his death in the year 1986 and thereafter it
was remained under sole and exclusive possession of his wife late
Smt. Karmo Bai, till her death in the year 1991.

21. It is further stated that respondent no. 3 concealed the
fact that after the death of Smt. Karmo Bai, respondent no. 3
himself participated in the meeting where partition of the said
property amongst legal heir of late Sant Singh and late Karmo Bai
was discussed. Respondent no. 3 being eldest son-in-law of
deceased testator Sant Singh was very much aware of execution of
the will and never objected or question the capacity. It is further
stated that the question of title cannot be decide by Probate court
but respondent no. 3 impleaded in the present proceedings on the
basis of his claim that he is owner of the property. It is stated that
objections are liable to be dismissed.

22. As per record initially the petition was impleading only
two respondents i.e respondent no. 1 is state and respondent no. 2
is Sh. Bhupinder Batra. On 23.04.2010 two applications filed under
order 1 rule 10 CPC to implead Smt. Shanti and Sh. Ram Saran as
respondents. Vide order dated 10.4.2012 my ld. Predecessor
observed that the petition under Section 276 of Indian Succession

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 9 of pages 45
Act was dismissed for non-prosecution, therefore applications
become infructuous. However, petitioner filed application for
restoration of the petition. The petition was restored vide order
dated 26.10.2012 and consequently two applications under order 1
Rule 10 read with Section 151 CPC moved on behalf of Smt. Shanti
and Sh. Ram Saran Batra also stand restored.

23. My Ld. Predecessor vide detailed order dated
09.05.2014 dismissed the application under order 1 rule 10 CPC of
Smt. Shanti and allowed the application of Sh. Ram Saran Gupta
and impleaded him as respondent no. 3.

24. As per order dated 07.11.2015 original will filed by the
petitioner and after completion of the pleasings following issues
were framed:

1. Whether the deceased late Shri Sant Singh
executed a valid and enforceable Will dated
07.05.1986 as claimed by the petitioner? OPP

2. Whether the petitioner is entitled for
Probate/Letter of Administration on the basis of
the aforesaid Will, as claimed? OPP

3. Whether the petition is liable to be
dismissed for the objections raised by the
respondent/objector no. 2 3 in their
objections/replies.

4. Relief

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 10 of pages 45

25. Petitioner examined herself as PW-1 being propounder
of the Will. PW-2 Sh. Darshan Lal Majajan is the attesting witness,
PW-3 Sh. K.L. Hans, Advocate, who drafted the will, PW-4 Sh. Ram
Bhushan, tenant of late Sant Singh and PW-5 Sh. Sevajit, Record
Attendant proved the registration of the Will Ex. PW-2/1 and also
placed on record the registration record of the Will Ex. PW-5/1. Vide
separate statement of counsel for the petitioner, evidence on behalf
of petitioner was closed on 14.02.2017.

26. The L.R of respondent no. 3 examined Sh. Syed Faiusal
Huda as R4W1, Handwriting Expert and vide separate statement of
ld. Counsel for L.Rs of respondent no. 3, evidence on behalf of
respondent no. 3 was closed. However, respondent no. 2 and
remaining LRs of respondent no. 3 Sh. Ram Saran Batra did not
examined any witness despite opportunities given and evidence of
respondents was closed on 26.08.2017.

27. I have heard Ms Heena Mongia, counsel for the
petitioner and also gone through the written arguments and
judgments relied by her. I have also heard Sh. Bhavuk Chauhan
counsel for Sh. Krishan Lal, L.R No. 3 (ii) of respondent no. 3, Sh.
Ram Saran Batra and perused the written arguments and judgments
relied by him.

28. Ld. Counsel for the petitioner relied on the judgment of
Ishwardeo Narain Singh Vs Kamta Devi and Ors. AIR 1954 SC
280, Chiranjilal Shrilal Goenka ( Deceased) Through LRs Vs

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 11 of pages 45
Jasjit Singh and Ors 1993 (2)ALT 13 (SC) and Kanwarjit Singh
Dhillon Vs Hardyal Singh Dhillon Ors, AIR 2008 SC 306. Ld.
Counsel for the petitioner further relied on the judgment of Charan
Singh and another Vs Balwant Singh and others, AIR 1975
High Court of P H 179, Niranjan Umeshchandra Joshi Vs.
Mrudula Jyoti Rao and Ors. AIR, 2007, SC 614, Smt. Kamla
Kunwar Vs Ratan Lal and Ors. AIR 1971 All 304, Judgment of
Anil Malhotra Vs Chander Malhotra and Ors, AIR 2015 P H
196, and Sumitra Devi and Anr. Vs Upendra Nath Pandey
and Ors. 1997 (2) PLJR 117.

29. Petitioner further filed supplementary arguments
alongwith the short note on judgments and further relied on
Judgment in Judah Vs Isolyne Shrojbashini Bose and Anr. AIR
1945 PC 174, Prem Nath Chopra Vs Arun Chopra and Ors.
209 (2014) DLT 144.

30. Ld. Counsel for respondent no. 4 also filed written
Synopsis and relied on the judgment titled as “Balathandayutham
Anr. Vs Ezhilarasan” (2010) 5 SCC 770, Om Prakash Ors
Vs Shiv Kumar Ors. (2006) 12 SCC 369, Sudershan Lal
Maini Vs Virender Kumar Maini Ors. RFA (OS) No. 28/2005
decided on 10th February, 2012 and Ravir Vs State Anr.
FAO No. 219/2009 decided on 19.11.2010.

31. In order to decide the present petition, let us peruse the
provisions and principles of law laid down by the Apex Court.

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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 thus:-

“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 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.

19. 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 pellucid 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

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putting it negatively in words to the effect that it the person “does not
know what he is doing” for any reason ( such an 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
purport or import.

20. The execution of an unprivileged Will, as the case at hand relates
to, is governed by
Section 63 of the Indian Succession Act, 1925,
which reads thus:-

“63 Execution of unprivileged Wills — Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at sea, shall execute his
Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the
Will, or it shall be signed by some other person in his
presence and by his directions.

(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so
placed that it shall appear that it was intended thereby
to give effect to the writing as a Will.

(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign or
affix his mark to the Will or has seen some other person
sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal
acknowledgment of his signature or mark, or the
signature of such other person; and each of the
witnesses shall sign the Will in the presence of the

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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. The plain words used in above quoted clause make it
abundantly clear that the executant of a Will need not put his
signatures and that affixing his mark is sufficient mode of
authentication. As shall also be noted with reference to rule of
evidence that while the law requires attestation by minimum two
witnesses, it is not mandatory that both must have been present at
the time when the testator executed the document, the presence of
the testator being more important when the witnesses attest and
further that, for proof of such execution and attestation, the
testimony of only one of such witnesses is enough, that also only if
such witness is alive and available.

33. The provisions contained in Section 67 and 68 of the
Indian Evidence Act, 1872, also being germane to the discussion
here, may be quoted:-

“67. Proof of signature and handwriting of person
alleged to have signed or written document
produced.—If a document is alleged to be signed or to
have been written wholly or in part by any person, the
signature or the handwriting of so much of the
document as is alleged to be in that person’s
handwriting must be proved to be in his handwriting.

68. Proof of execution of document required by
law to be attested.— If a document is required by law

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to be attested, it shall not be used as evidence until
one attesting witness at least has been called for the
purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of
the Court and capable of giving evidence:

Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered
in accordance with the provision 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.”

34. Apex court in H. Venkatachala Iyengar Vs B.N.
Thimmajamma Others, 1959 AIR 443 decided on 13th November
1958 in which the Apex court laid down the following prepositions
on the nature and standard of evidence required to prove a Will:-

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

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death of the testator and therefore the maker of the
will is never available for deposing as to the
circumstances in which the will came to be
executed. This aspect introduces an element of
solemnity in the decision of the question whether
the document propounded is proved to be the last
will and testament of the testator. Normally, the
onus which lies on the propounder can be taken to
be discharged on proof of the essential facts which
go into the making of the will.

4. Cases in which the execution of the will is
surrounded by suspicious circumstances stand on a
different footing. A shaky signature, a feeble mind,
an unfair and unjust disposition of property, the
propounder himself taking a leading part in the
making of the will under which he receives a
substantial benefit and such other circumstances
raise suspicion about the execution of the will. That
suspicion cannot be removed by the mere assertion
of the propounder that the will bears the signature
of the testator or that the testator was in a sound
and disposing state of mind and memory at the
time when the will was made, or that those like the
wife and children of the testator who would
normally receive their due share in his estate were
disinherited because the testator might have had
his own reasons for excluding them. The presence
of suspicious circumstances makes the initial onus
heavier and therefore, in cases where the
circumstances attendant upon the execution of the
will excite the suspicion of the court, the
propounder must remove all legitimate suspicions
before the document can be accepted as the last
will of the testator.

5. It is in connection with wills, the execution of
which is surrounded by suspicious circumstances
that the test of satisfaction of the judicial
conscience has been evolved. That test emphasises

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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
surrounded 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. ”

35. In Shashi Kumar Banerjee vs. Subodh Kumar
Banerjee, AIR 1964, SC 529, a Constitution Bench of the
Supreme Court had the occasion to rule on the principles governing
mode of proof of a Will before a probate court. Referring, inter alia,
to the earlier decision of H. Venkatachala Iyengar ( supra), the court
held:-

“4…. The mode of proving a will does not ordinarily differ
from that of proving any other document except as to
the special 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 signatures of the testator as required by law is
sufficient to discharge the onus. Where however there
are suspicious circumstances, the onus is on the

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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 indications 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 suspicious
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 susbtantial 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…”

( emphasis supplied)

36. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1 SCC 369,
after analyzing the ratio in H. Venkatachala Iyangar ( supra),
the Supreme Court culled out the following propositions:-

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“(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 prsoved to be the last will and
testament of the testator. Normally , the onus which
lies on the propounder can be taken to be discharged
on proof of the essential facts which go into the
making of the will.

(4) Cases in which the execution of the will is
surrounded by suspicious circumstances stand on a
different footing. A shaky signature, a feeble mind,
an unfair and unjust disposition of property, the
propounder himself taking a leading part in the

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making of the will under which he receives a
susbtantial 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
circusmtances 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 ligitimate suspicions before the document can be
accepted as the last will of the testator.

(5) It is 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,

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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.”

( emphasis supplied)

37. 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 active participation of the
propounder or beneficiary in the execution of the Will or 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

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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 v. Panchanan Banerjee [(1995) 4 SCC 459] it
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)

38. Following the above rulings, the Supreme Court in
Mahesh Kumar (dead) by LRs Vs. Vinod Kumar Ors.,
(2012) 4 SCC 387, held, in the facts and circumstances of the said
case that the evidence unmistakably showing that the objectors had
separated from the family, taking their respective shares, not
bothering to look after the parents in their old age, there was

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“nothing unatural or unusual” in the decision of the testator ( the
father) to give his share in the joint family property to the son who,
along with his wife and children, had taken care of the parents,
adding that “(A)ny person of ordinary prudence would have
adopted the same course and would not have given anything to the
ungrateful children from his/her share in the property.”

39. In Hari Singh Anr Vs. The State Anr. 2010
( 120) DRJ 716, a division bench of this Court, 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 mae it. … There is
nothing in law that prescribes that the testatmentary
document has to be made and executed on the same
day. Law does not mandate that each of the witnesses
must be aware of the contents of the Will and the
nature of the bequests. The rigours of attestation
endeavour to eradicate manipulation and fabrication of
such a testament by mandating that the testator as
well as the witnesses should be simultaneously present
at the time of its execution; nothing more and nothing
less. Though there is no categorical evidence coming
forth on the record, we do not find this fact to be legally
anomalous or suspicious as to impeach the entire case
of the appellant/petitioner.”

(emphasis supplied)

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40. In the recent judgment of Apex court in Jagdish Chand
Sharma vs. Narain Singh Saini, (2015) 8 SCC 615 the principle
of law laid down are reiterated as under.

“19. The contentious pleadings and the
assertions thereupon in the backdrop of the evidence
as a whole have been analyzed. The pleading
perspective notwithstanding, the purport and play of
Section 63 of Indian Succession Act (hereinafter
referred to as ‘the Act’) read with
Section 68 and 71
of Indian Evidence Act, 1872 (hereinafter referred to
as ‘1872 Act’), it would thus be apt, nay, imperative
to refer to these legal provisions before embarking on
the appreciation of evidence to the extent
indispensable.

20. Section 63 of the Act and Sections 68 and 71 of the 1872 Act
are thus extracted hereunder for ready reference:

20.1 Section 63 of the Act:

63. Execution of unprivileged wills – Every testatrix,
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 testatrix 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 testatrix, 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.

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(c) The will shall be attested by two or more
witnesses, each of whom has seen the testatrix sign
or affix his mark to the will or has seen some other
person sign or will, in the presence and by the
direction of the testatrix, or has received from the
testatrix 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 testatrix, 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.

20.2 Section 68 71 of the 1872 Act:

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 alive, and subject to the process of
the Court and capable of giving evidence:

71. Proof when attesting witness denies the
execution – If the attesting witness denies or does not
recollect the execution of the document, its execution
may be proved by other evidence.

21. As would be evident from the contents of
Section 63 of the Act that to execute the will as
contemplated therein, the testatrix would have to sign
or affix his mark to it or the same has to be signed by

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some other person in his presence and on his direction.
Further, the signature or mark of the testatrix or the
signature of the person signing for him has to be so
placed that it would appear that it was intended thereby
to give effect to the writing as will. The section further
mandates that the will shall have to be attested by two
or more witnesses each of whom has seen the testatrix
sign or affix his mark to it or has seen some other
persons sign it, in the presence and on the direction of
the testatrix, or has received from the testatrix,
personal acknowledgment of a signature or mark, or the
signature of such other persons and that each of the
witnesses has signed the will in the presence of the
testatrix. It is, however, clarified that it would not be
necessary that more than one witness be present at the
same time and that no particular form of attestation
would be necessary.

22. It cannot be gainsaid that the above
legislatively prescribed essentials of a valid execution
and attestation of a will under the Act are mandatory in
nature, so much so that any failure or deficiency in
adherence thereto would be at the pain of invalidation
of such document/instrument of disposition of property.
22.1 In the evidentiary context
Section 68 of
the 1872 Act enjoins that if a document is required by
law to be attested, it would not be used as evidence
unless one attesting witness, at least, if alive, and is
subject to the process of the court and capable of giving
evidence proves its execution. The proviso attached to

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this section relaxes this requirement in case of a
document, not being a will, but has been registered in
accordance with the provisions of the
Registration Act,
1908 unless its execution by the person by whom it
purports to have been executed, is specifically denied.
22.2 These statutory provisions, thus, make it
incumbent for a document required by law to be
attested to have its execution proved by at least one of
the attesting witnesses, if alive, and is subject to the
process of the court conducting the proceedings
involved and is capable of giving evidence. This rigour
is, however, eased in case of a document also required
to be attested but not a will, if the same has been
registered in accordance with the provisions of the
Registration Act, 1908 unless the execution of this
document by the person said to have executed it denies
the same. In any view of the matter, however, the
relaxation extended by the proviso is of no avail qua a
will. The proof of a will to be admissible in evidence with
probative potential, being a document required by law
to be attested by two witnesses, would necessarily need
proof of its execution through at least one of the
attesting witnesses, if alive, and subject to the process
of the court concerned and is capable of giving
evidence.

22.3 Section 71 provides, however, that if the
attesting witness denies or does not recollect the
execution of the document, its execution may be proved
by the other evidence. The interplay of the above

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statutory provisions and the underlying legislative
objective would be of formidable relevance in
evaluating the materials on record and recording the
penultimate conclusions. With this backdrop, expedient
would be, to scrutinize the evidence adduced by the
parties.”

41. Findings on issue No. 1, 2 3

The issue no. 1, 2, 3 are taken together being
interconnected. The onus of issue no. 1 2 is on the petitioner and
onus of issue no. 3 is on the respondents. My findings on issues are
as under:

42. Capacity of deceased/testator late Sant Singh to
execute the Will dated 07.05.1986 Ex. PW-2/1

I have gone through the contents of the Will Ex. PW-2/1
which is typed on one single page. Accordingly to contents of the
Will Ex. PW2/1 deceased testator Sant Singh bequeathed all rights,
title and interest in the movable and immovable properties
including property no. 11, Road No. 4, Punjabi Bagh East, New Delhi,
shares and bank deposits etc. in favour of his wife Smt. Karmo Bai.
However, deceased testator has not prescribed the fact that
whether he is owner and how he has acquired the rights in the
property in question.

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43. It is pertinent to mention here that initially Sh. Ram Saran
Batra was impleaded as respondent no. 3 by allowing the
application under order 1 Rule 10 dated 09.05.2014 and in his
written objections he has taken specific plea that he has purchased
the property in question vide registered sale deed dated 26.2.1969
from one Ratan Lal which was registered on 27.02.1969. In the
detailed rejoinder filed by petitioner she did not dispute or denied
the ownership of respondent no. 3 in respect of the property in
question. There is no challenge to the Sale Deed in the entire
pleadings of the petitioner. The certified copy filed on record by Sh.
Ram Saran Batra.

44. I have gone through the certified copy of the Sale Deed
which is registered and seller is Sh. Ratan Lal. Sh. Ratan Lal was
the original allottee of the property in question being member of
Refugees Co-operative Housing Society Limited, therefore,
Respondent no. 3 established on record that he was the owner of
the property in question. In my considered opinion deceased Sant
Singh was not having capacity to bequeath the property of Sh. Ram
Saran Batra by way of Will Ex. PW-2/1 dated 07.05.1986.

45. Legal and Valid Execution and Registration of Will
Ex. PW-2/1.

Petitioner examined attesting witness Sh. Darshan Lal
Mahajan. He proved the Will Ex. PW-2/1 and identified his
signatures, signatures of other attesting witness Sh. Surinder Kumar
Gandhi and Sh. K.L. Hans, drafter of the Will as well as signature of
deceased testator.

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46. In the detailed cross-examination he explained that he
knew three son-in-laws of deceased Sant Singh as he knew Sh. Sant
Singh since 1968. He admitted that he is friend of Sh. Surinder
Gandhi since birth. He was not having knowledge about the
diseases from which Sant Singh was suffering including whether he
was heart patient. He admitted that all the three sons-in law were
present at the time of execution of the Will. He was called by Sh.
Surinder Gandhi. Apart from sons-in law, daughters of deceased
and tenant were also present. One Advocate and one Registrar was
also there. He admitted that over leaf page of the will Ex. PW-2/1
does not mention his name. He denied all the suggestion put to
him that his signatures on the document Ex. PW-2/1 are ante dated
and therefore particulars of his parentage and residence are not
mentioned therein. He denied the suggestion that he was not
witness of the Will. He denied that he deposed falsely in collusion
with petitioner being child hood friend of Surinder Gandhi. He
admitted that Sh. Surinder Gandhi was present at the time of
execution of the Will.

47. The testimony of PW-2 deposed that he is well known of
Surinder Kumar Gandhi being friend since birth and only knew sons
in law and not the daughters of deceased Sant Singh. The
testimony of PW-2 Sh. Darshan Lal Mahajan raises suspicious
circumstances when he was present alongwith other attesting
witnesses, family members and Sh. K.L. Hans, Advocate then why
Registrar did not enter his name and signatures on the over leave
( back page) of the Will Ex. PW-2/1. The presence of Sh. Darshan

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Lal Mahajan is suspicious and doubtful. No reason explained by Sh.
Darshan Lal Mahajhan why his full particulars are not given under
his signatures as attesting witness.

48. It is pertinent to mention here that the particulars of other
attesting witnesses Sh. Surinder Kumar bears his father’s name and
address whereas Darshan Lal’s father’s and address is not
mentioned. It also raises doubt that how in case he was to be
summoned in absence of his full particulars, he cannot be called in
court. It established that he had admittedly no relations or
acquittance with deceased Sant Singh. He is childhood friend of Sh.
Surinder Gandhi who is husband of petitioner, therefore he signed
the Will Ex. PW-2/1. There are suspicious circumstances established
on record about his presence and signing as second attesting
witness.

49. In view of above peculiar circumstances, the petitioner
and PW-2 Sh. Darshan Lal Mahajan failed to remove the suspicious
circumstances about his presence and become attesting witness.

50. PW-3 Sh. K.L. Hans, Advocate, the drafter of the Will
appeared in witness box and proved his affidavit Ex. PW-3/A. He
deposed the facts with regard to the signing and execution and
registration of the will in question. He has taken a specific para that
late Sant Singh did not object to the signing of the Will by late Sant
Singh. He also reiterated that at the time of signing of the will Sh.
Ram Saran Batra, Darshan Batra, Shanti Devi, Bhupinder and

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Amarjeet Kaur were also present in the house alongwith other
family members.

51. In the detailed cross-examination he deposed that he was
conducting the cases of late Sh. Sant Singh who was doing the
business in the name and style of M/s Hindustan lever. Late Sant
Singh was an educated person. He deposed that contents of the
Will were dictated by him and he has not taken any document
before the drafting of the will. The drafting of the will was on oral
instructions. He admitted that he did not ask for title documents of
the subject matter, property of the Will to see whether he was
competent or not. He admitted that he did not ask for doctor
certificate with regard to the sound state of mind of late Sant Singh.
He categorically deposed that he had prepared the will in his
Chamber at Tis Hazari and not taken any authority letter or
Vakalatnama.

52. He further deposed that he is not aware of what is
“Codicil”. He neither admit or deny that late Sant Singh suffering
from any medical ailment in May, 1986. He further deposed that
late Sant Singh was mobile and he used to visit his Chamber, Tis
Hazari in his vehicle. He deposed that since Sant Singh was fragile
and weak he did not go for registration before Sub- Registrar.

53. In further cross-examination he deposed that he met
Amarjeet Kaur, petition, for the first time, on the day of execution of

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the Will and also her husband. He admitted that he had
represented Amarjeet Kaur, petitioner in Succession case in the
year 2009 and filed a petition on her behalf but he did not admit or
deny whether he was representing Smt. Amarjeet Kaur in
Succession certificate case even till 14.09.2009. He deposed that
he does not recollect, whether any other Will executed by late Sant
Singh during his life time. He further deposed in cross-examination
that he had drafted the succession petition, application and affidavit
of succession certificate petition which was filed in the year 2009 by
petitioner.

54. The testimony of PW-3 Sh. K.L. Hans established that he
had drafted the will and at the same time he witnesses the signing,
execution and registration of the Will. He admitted that he did not
see the documents of the late Sant Singh with regard to the title of
the subject matter of the will. However, in his affidavit Ex. PW-3/A,
he has not explained where he had drafted the will but in cross-
examination he deposed that the will was drafted at Tis Hazari
Court.

55. It is surprising that the counsel/advocate has no
knowledge of “Codicil’. On the contrary he further deposed that
Sant Singh was mobile and used to his chamber, Tis Hazari Court in
his vehicle so it established that late Sant Singh might had visited
the Chamber of Sh. K.L. Hans for preparation of Will because there
is no specific deposition about the place of preparation of the Will
contrary to his chamber.

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56. Now the question arises when according to PW-3 Sh. K.L.
Hans, late Sh. Sant Singh was not suffering from any medical
ailment he was mobile then why the Sub-Registrar was called at the
house. It is pertinent to mention here that he has been
representing the late Sant Singh in several litigations as he knew
him since 1976 then he must have the full knowledge about his
estate as well. Further more he admitted that petitioner, Amarjeet
Kaur in the year 2009 filed a succession certificate petition in which
he was the advocate. He had drafted the affidavit, petition,
application on behalf of Amarjeet Kaur. However, his answer to a
question that he did not admit or deny that Smt. Amarjeet Kaur
deposed in the succession certificate court with regard to non-
execution of will by Sant Singh during life time is correct or not. It is
un-believable that an advocate who has been filing and contesting
succession certificate case has no knowledge of deposition of
petitioner. In my opinion, the testimony of Sh. K.L. Hans is full of
contradictions and raise grave suspicion about the preparation and
drafting of the will by him at his Chamber on the instruction of late
Sant Singh.

57. I have gone through the record available of the succession
certificate petition as in this court appeal is pending having no. RCA
No. 14/14 having new No. 60994/16 titled Shanti Devi Vs. State
Ors. As per judicial record of appeal and in trial court Amarjeet Kaur,
petitioner had filed petition for succession certificate on 30.07.2009
in which she has not disclosed the factum of any will of late Sant
Singh. The affidavit is also filed by her to support the petition. Sh.
K.L. Hans filed Vakalatname dated 27.07.2009 on behalf of

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Amarjeet Kaur, petitioner. Smt. Amarjeet Kaur, petition also
appeared in witness box and filed the affidavit duly certified by Sh.
K.L. Hans, advocate on 04.09.2009. She under gone the detailed
cross-examination as well. She also appeared in witness box in
additional statement on 20.05.2010 and cross-examined on
27.09.2010. The evidence continued in this case on behalf of both
the parties till February, 2010.

58. The present probate petition filed on 14.01.2010 had
established that there was no will in existence till the period present
petition filed in January, 2010. The proceedings before the
succession court till 16.08.2010 established that petitioner did not
disclose to the court about the will in question. It is pertinent to
mention here that Sh. K.L. Hans, PW-3 drafted the Will in question in
1986 the knowledge that late Sant Singh had executed the Will but
he never disclosed this fact to the succession certificate court.

59. At this juncture it is important to peruse the testimony of
PW-1 Smt. Amarjeet Kaur on this aspect. In her affidavit Ex. PW-1/A
she deposed that late Sh. Ram Saran Batra, late Shri Darshrath Lal
Batra, Smt. Shanti Devi Batra and Smt. Bhupinder Batra and other
family members werfe present at the time of signing of the Will. PW-
2 Sh. Darshan Lal Mahajan, the attesting witness is silent about the
presence of family members. However, PW-3 Sh. K.L. Hans
admitted that petitioner herself was present in the house at the
time of execution of the will. It established that the petitioner had
the knowledge of the will from the date of execution of the will,

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however, in the detailed cross-examination PW-1 Smt. Amarjeet
Kaur deposed that the will mentioned in Para 2 of her affidavit was
gave by her mother but she does not recollect the date, month or
even the year.

60. She admitted that she had filed the petition seeking
succession certificate in respect of estate of late Sant Singh, father
and mother Smt. Karmo Bai. She admitted that her statement was
recorded in the said petition and Sh. K.L. Hans, was her advocate.
She admitted that she had stated in her statement before the
succession certificate court that her parents did not execute any
will. So it established on record that Sh. K.L. Hans has given false
statement with regard to drafting of the Will and its execution,
especially in the presence of petitioner Smt. Amarjeet Kaur. The
testimony of PW-3 Sh. K.L. Hans and PW-1 established on record
that petitioner, Smt. Amarjeet Kaur had filed a succession certificate
petition through Sh. K.L. Hans advocate and specifically mentioned
that late Sant Singh did not leave any will. In the petition she
deposed that her parents did not execute any will. It creates
gravest suspicion with regard to existence of the will on 07.05.1986.
There is no explanation brought on record with respect of discovery
and existence of the will on which basis in January, 2010, the
present petition filed by petitioner, Smt. Amarjeet Kaur.

61. The judicial record of succession certificate, the testimony
of PW-3 Sh. K.L. Hans and testimony of PW-1 Amarjeet Kaur
established that there are grave suspicious circumstances

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 37 of pages 45
surrounded the existence of the Will on the alleged dated of
07.05.1986 and all the suspicious remained there and petitioner
failed to dispel.

62. Petitioner further examined PW-4 Sh. Ram Bhushan,
tenant who also filed his affidavit Ex. PW-4/A and become the
witness for execution of the Will. PW-1 Amarjeet Kaur in her affidavit
Ex. PW-1/A is silent about the presence of tenant Sh. Ram Bhushan.
PW-2 Sh. Darshan Lal Mahajan is also not named in his affidavit Ex.
PW-2/A. PW-3 Sh. K.L. Hans, advocate is also not naming PW-4
tenant Sh. Ram Bhushan. The presence of PW-4 Sh. Ram Bhushan
become doubtful as none of the other witnesses naming him even
in their respective examination in chief. During the cross-
examination he admitted that no rent agreement was written with
late Sh. Sant Singh. He has also not specified the period of his
tenancy in his affidavit Ex. PW-4/A. He only stated that since 1986
he was tenant in the garage. He failed to explain why and who
called him to be present at the time of execution of the will. No
prudent family member would call a tenant when already all family
members near relatives are present including daughters and son-in-
law, a tenant become a witness to the execution of the Will. In my
considered opinion the presence of PW-4 Sh. Ram Bhushan is again
under suspicious, doubtful and unbelievable.

63. The respondents only examined Sh. Syed Faisal Huda,
handwriting expert who proved his opinion/report Ex. R4W1/A. He

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 38 of pages 45
further proved the photographs taken by him of admitted and
disputed signatures of late Sant Singh. He deposed that the
admitted signatures are taken from the petition under
Section 34 of
the Indian Trust Act-1882, dated 31.05.1978 and another signatures
from of similar petition dated 27.02.1981. The disputed signatures
were taken from Will Ex. PW-2/1 dated 07.05.1986. The final
opinion given that the disputed signatures Mark D1 to D5 are forged
and impersonated signatures and have not been written/signed by
the same or one person Sh. Sant Singh who has written the
admitted signatures Mark A-1 to A-6. The disputed signatures D1 to
D5 also written by not one writer but more than one writer.

64. In the detailed cross-examination he admitted that
respondent no. 4 had approached him for examination of disputed
and comparative signatures of deceased Sant Singh. The fees of
Rs.5,500/- also given by respondent no. 4 for examination and
opinion. The disputed signatures and admitted signatures having
gap of around 5 to 9 years. He admitted that the handwriting
science is not 100% science.

65. He admitted that he cannot write Urdu language but read
little bit. The disputed signatures are in Urdu language. In my
considered opinion, if the handwriting expert R4W1 Sh. Syed Faisal
Huda admitted that he is not acquitanted with the Urdu language
and he does not know Urdu language, therefore, the examination of
Urdu Alphabets and giving opinion cannot be relied. He further
admitted that there is a gap of about 5 to 9 between the admitted

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 39 of pages 45
and disputed signatures. In my considered opinion the expert’s
report and opinion is not based on the well settled principle and
procedure of handwriting science. It is not safe to rely the opinion
of handwriting expert Sh. Syed Faisal Huda. In my considered
opinion there is no conclusive proof of the experts opinion to
corroborate his report, therefore, it cannot be relied.

66. Now coming to the judgments relied by counsel for the
petitioner. Ld. Counsel for the petitioner relied on judgment of
Chiranjilal Shrilal Goenka ( Supra). In this judgment it is held
that the Probate court has been confer with the exclusive
jurisdiction to grant probate of the will of the deceased annexed to
the petition on grant or refusal, it preserve the original will
produced before it. The Arbitrator has no jurisdiction to decide the
issues pertaining to the Will. In this case there is no preposition
with regard to the jurisdiction of the Probate case. This court is
going to decide with regard to the last will which duly executed and
attested in accordance with law or not.

67. Another judgment relied by petitioner is of Kanwarjit
Singh Dhillon ( Supra). In this judgment it is held that Probate
court not competent to determine the question of title of the suit
property. This court is not going to decide the title of the subject
property as no issue has been framed, therefore, court is following
the well settled principle in the present facts and circumstances of
the case.

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 40 of pages 45

68. Ld. Counsel for the petitioner further relied on the
judgment of Charan Singh another ( Supra). In this judgment
the testator was around 80 years and held that he had
testamentary capacity to execute the will. However, in the present
facts and circumstances of the case, grave suspicious have been
surrounded with execution and registration of the will, firstly,
because the petitioner herself was present at the time of execution
and registration of the Will, secondly, she earlier filed a suit for
succession certificate and never disclosed to the succession court
about the existence of the will and lastly, Sh. K.L. Hans, Advocate,
whose conduct and contribution has been discussed hereinabove,
therefore, this judgment is distinguishable in the present facts and
circumstances of the case.

69. Petitioner further relied on the judgment of Niranjan
Umeshchandra Joshi ( Supra). In this judgment the las has been
reiterated that one witness must be examined to prove the
attestation of the will. The petitioner has examined PW-2 Sh.
Darshan Lal Mahajan, PW-3 Sh. K.L. Hans and even introduce one
another witness, tenant as PW-4. Their detailed testimony has been
discussed hereinabove. In this judgment the principles laid down in
Venkatachala Iyengar( Supra) are also relied in respect of the
suspicious circumstances. Same principle has been applied in the
present facts and circumstances as well, however, petitioner being
propounder of the Will failed to dispel the suspicious circumstances
as discussed hereinabove in detail.

70. Further ld. Counsel for the petitioner relied on the
judgment of Smt. Kamla Kunwar (Supra). This judgment laid

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 41 of pages 45
down that the expert opinion is not a conclusive proof. This court in
the present case also reiterated this principle and held that report of
handwriting expert, R4W1 Sh. Syed Faizal Huda is not the conclusive
proof.

71. Ld. Counsel for the petitioner further relied on judgment
of Anil Malhotra ( Supra). In this judgment also the evidential
value of expert witness has been discussed. It has already held
that respondents have not able to establish the fact of
forged and fabrication of will in question.

72. Ld. Counsel for the petitioner relied judgment of
Sumitra Devi and Anr. ( Supra). In this judgment the Genuinity
of the registered will has been discussed, however, in the present
facts and circumstances of the case, is distinguishable. The
detailed testimony of attesting witnesses and another eye-witness
PW-2 Sh. Darshan Lal Mahajan, PW-3 Sh. K.L. Hans, Advocate and
PW-4 Sh. Ram Bhushan already discussed. All the findings with
regard to suspicious circumstances discussed hereinabove.
Therefore, this judgment is not of much help to the petitioner.

73. Ld. Counsel for the petitioner further relied on the
judgment of the Privy Council in Judah ( Supra). I have gone
through this judgment, the principle of law about suspicious
circumstances discussed such as the attestation made herein in
natural, unfair, unprobable in the light of relevant circumstances
unless satisfactory dispel. The propounder is required to remove all
the suspicious circumstances satisfactorily.

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 42 of pages 45

74. Applying the same principle in the present facts and
circumstances in view of the detailed discussion of evidence of all
the witnesses of the petitioner, the present execution and
registration of the will is found to be surrounded by grave suspicious
circumstances which are not dispel, mandated by propounder of the
will, therefore, this judgment is not much help to the petitioner.

75. Ld. Counsel for respondent no. 4 relied on the judgment
of Balathandayutham Anr. (Supra). The suspicious
circumstances have already been discussed hereinabove in detailed
which are not completely removed by the petitioner. Ld. Counsel for
respondent no. 4 also relied on the judgment of Om Prkash Ors.
(Supra) in which again reiterated the same principle. The
judgment of Sundershan Lal Maini (Supra) relied by respondents
also discussed in detail in Para 28 about the suspicious
circumstances. In this case also applying the fundamental principle
laid down in Venkatachala Iyengar( Supra) have been discussed
and the present case, especially which has already been discussed
that the real owner of the subject matter of the will in question is
Sh. Ram Saran Batra, therefore this fact itself is suspicious
circumstances which is not dispel by the petitioner.

76. Lastly, it is pertinent to mention here that there no issue
has been framed in respect of application of
article 137 of the
Limitation Act which barred the petition suffered from limitation.
However, in the written synopsis, ld. Counsel for respondent no. 4
has submitted that deceased Sant Singh died on 15.05.1986 and

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 43 of pages 45
the Will is dated 07.05.1986, therefore, the Will in question was
executed just about eight days prior to his death. In my opinion, it
itself also a suspicious circumstances. His wife who was the
beneficiary Smt. Karmo Bai died on 09.06.1991 after five years. She
did not invoke her right for grant of Letter of Administration or
probate being beneficiary. The petitioner, one of the daughter of
late Sant Singh and late Karmo Bai filed the present petition on
06.01.2010 after about 25 years. No plausible reason, justification
or circumstances explained why after 25 years the present petition
filed on the basis of the Will dated 07.05.1986, especially, in the
circumstances where petitioner herself did not disclose about any
Will of late Sant Singh when she had filed the petition before the
Succession court in the year 2009. In my opinion, applying the well
settled principle held by Hon’ble Supreme Court in KRISHAN
KUMAR SHARMA VS. RAJESH KUMAR SHARMA (2009) 11 SCC
537 and in “KUNVARJEET SINGH KHANDPUR VS. KIRANDEEP
KUAR”, (2008) 8 SCC, 463, the present petition is also suffering
form latches and delay. It is well settled principle that more is time
gap for approaching of a beneficiary to the court of law more grave
will be the suspicious which is aptly applicable in the present facts
and circumstances of the case.

77. It is pertinent to mention here that as per Will Ex. PW-
2/1 the deceased Sant Singh had bequeathed the property in
question in favour of his wife Smt. Karmo Bai on 07.05.1986. Smt.
Karmo Bai died on 09.06.1991. As per the petitioner’s own
admission, Smt. Karmo Bai did intestate. It is pertinent to mention

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 44 of pages 45
here that during the life time Smt. Karmo Bai never approached the
court of law to seek either Letter of Administration or Probate on the
basis of will Ex. PW-2/1. There is no document proved on record
that during the life time Smt. Karmo Bai approached any authority
including the Municipal Corporation for mutation of property in her
name on the basis of the Will Ex. PW-2/1. The facts and
circumstances of the case give rise to another legal matrix that how
petitioner is competent to file the present petition to seek Letter of
Administration on the basis of the Will Ex. PW-2/1. In the peculiar
circumstance, where neither petitioner is the beneficiary nor
authorised by Smt. Karmo Bai since Karmo Bai has died, therefore,
Letter of Administration on the basis of the Will Ex. PW-2/1 in favour
of petitioner is not permissible as per law.

78. In view of the above observation and discussions, the
issues no. 1, 2 are decided against the petitioner and in favour of
the respondents and issue no. 3 is decided in favour of respondents
and against the petitioner. Petitioner is not entitled to any relief.
The petitioner filed by the petitioner is accordingly dismissed. No
order as to cost. File be consigned to record room.

Announced in the open (SANJAY KUMAR)
Court on 10th August, 2018 ADJ-02 ( West)
Delhi

PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 45 of pages 45
PC No. 16069/16                               Amarjeet Kaur Vs State  Ors.                                page no. 46 of pages 45

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