Sarita Jaggi & Anr. vs Bhisham Kumar Gaind & Ors
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
st
Date of decision: 31 AUGUST, 2026
IN THE MATTER OF:
# CNR No.DLHC010847222017
+ CS(OS) 108/2017, I.A. 2823/2017
SARITA JAGGI & ANR. .....Plaintiffs
Through: Mr. Sankalp Goswami, Advocate.
versus
BHISHAM KUMAR GAIND & ORS .....Defendants
Through: Mr. Sanjeev Anand, Senior Advocate
with Mr. Rajneesh Kumar Gaind, Mr.
Himanshu Gupta, Advocates for D-1
& D-2.
Mr. Siddhant Kohli & Mr. Kaustabh
Bhattacharjee, Advocates for the
Applicant.
Mr. Rajnish, Mr. Rajnish Sinha & Mr.
Ashutosh Sharma, Advs for D-6.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The present suit has been instituted by the Plaintiffs seeking partition
and separate possession of the estate of Late Shri Ved Prakash Gaind, who
was the father of Plaintiff No. 1 and the maternal grandfather of Plaintiff
No.2, Plaintiff no. 2 being the son of the deceased daughter of Late Shri Ved
Prakash Gaind. The Defendant no. 1 herein are the Legal Representatives of
the deceased son of Late Shri Ved Prakash Gaind, Bhisham Kumar Gaind.
Defendant no. 2 is the other son of Late Shri Ved Prakash Gaind and
Defendant no. 3 and 4 are the daughters of Late Shri Ved Prakash Gaind.
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2. Shorn of unnecessary details, facts as stated in the Plaint are reiterated
below:
a. That Late Shri Ved Prakash Gaind passed away intestate on
09.06.2007. His wife, Late Smt. Kamla Rani Gaind, had
predeceased him, and passed away in the year 1997.
b. It is stated that after the marriage of all his daughters, Late Shri
Ved Prakash Gaind continued to reside with Defendant Nos. 1
and 2 and during his lifetime, Late Shri Ved Prakash Gaind has,
on several occasions, expressed his intention that all his
children, including his daughters, would inherit his properties
equally.
c. It is stated that after the demise of Late Shri Ved Prakash Gaind
on 9.06.2007, no dispute initially arose regarding succession to
his estate and nearly a decade later, Defendant Nos. 1 and 2
initiated mutation proceedings before the Assistant Collector,
Delhi Development Authority, seeking mutation of property
bearing No. 61/1, Ramjas Road, New Delhi, exclusively in their
name. It is stated that in support of their mutation application,
they relied upon a purported Will dated 31.12.1998 (herein
referred to as the “purported will” ) allegedly executed by Late
Shri Ved Prakash Gaind.
d. It is stated by the Plaintiffs that they first became aware of the
existence of the said Will upon receipt of a notice dated
9.01.2017 in the mutation proceedings, whereupon they filed
their objections before the concerned authority.
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3. Aggrieved by the conduct of the Defendants who are trying to get the
property mutated in their name on the basis of a purported will, the
Plaintiffs have filed the present suit, with the following prayers:
a. Pass a decree of declaration that the plaintiffs are entitled to a 1/6th
share each (or a 1/3rd share jointly together) in the estate of the late
Shri Ved Prakash Gaind.
b. Pass a decree of declaration that the registered Will dated 31.12.1998,
propounded by the brothers as the last Will of the late Shri Ved
Prakash Gaind, is null and void.
c. Pass a decree of partition and possession of their respective 1/6th
shares by metes and bounds in the properties of the deceased. If
partition by metes and bounds is not possible, pass a decree to sell the
suit property and grant a 1/6th share of the total recovery to each of
the plaintiffs.
d. Pass a decree for the cancellation of the purported Will dated
31.12.1998.
e. Pass a decree of permanent injunction restraining Defendants No. 1
and 2 from executing or acting upon the disputed Will dated
31.12.1998.
4. The principal challenge raised by the Learned Counsel for the Plaintiffs
in the present suit concerns the validity/authenticity of the purported will.
The Learned Counsel for the Plaintiffs contend that the purported will is
forged and fabricated and that Plaintiff No. 1, having observed her father
sign documents on numerous occasions, is well acquainted with his
genuine signatures and immediately noticed that the signatures appearing
on the purported will are not that of late Shri Ved Prakash Gaind.
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5. It is further alleged that the signatures appearing on the different
pages of the Will are inconsistent and do not resemble one another.
According to the Plaintiffs, these signatures also materially differ from the
admitted signatures of the deceased appearing on an original House Tax
Property Notice in their possession.
6. The Plaintiffs further rely upon the opinion of a handwriting expert,
who, after comparing the admitted signatures of Late Shri Ved Prakash
Gaind with those appearing on the purported Will, concluded that they were
not authored by the same person. The Plaintiffs have placed on record the
handwriting expert's report, the original House Tax Property Notice
containing the admitted signatures of the deceased, and a certified copy of
the purported will.
7. It is the Plaintiffs’ case that Defendant Nos. 1 and 2 have fabricated
the purported will with the sole intention of depriving the Plaintiffs of their
lawful inheritance after their father’s demise. It is alleged that not only are
the signatures of the testator forged, but that the date of execution mentioned
on the last page of the Will has also been tampered with. It is stated that
there is apprehension that Defendant Nos. 1 and 2 intends to use the
purported will to defeat the rights of the Plaintiffs in the property left by
their father.
8. It is stated that the only immovable property of the deceased presently
known to the Plaintiffs is property bearing No. 61/1, Ramjas Road, New
Delhi, which is currently in the possession of Defendant Nos. 1 and 2.
According to the Plaintiffs, the said property is capable of partition by metes
and bounds, and they are each entitled to one-sixth share therein along with
separate possession. In the alternative, it is pleaded that if physical partition
is not feasible, the property ought to be sold under the directions of the
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Court and the sale proceeds distributed amongst the legal heirs in
accordance with their respective shares.
9. It is the case of the Plaintiffs that the suit property is ancestral in
nature and that even assuming the existence of the purported will, Late Shri
Ved Prakash Gaind could not have bequeathed the property exclusively in
favour of any particular heirs, and the Plaintiffs would nevertheless remain
entitled to their respective shares in the property.
10. Vide Order dated 19.01.2018, this Court, after the perusal of the
record, framed the following issues:
“(i) Whether the plaintiffs are entitled to partition of
the suit property bearing no. 61/1, Ramjas Road, New
Delhi? If partition is to be granted, then, what are the
shares to be granted to the parties to the suit? OPP
(ii) Whether the deceased late Sh. Ved Prakash did not
die intestate but died leaving behind his last Will and
testament dated 13.12.1998? OPD-1 and 2.
(iii) Relief.”
ANALYSIS
11. The Plaintiffs’ challenge to the purported Will is on the ground that
the execution of the same is surrounded by suspicious circumstances and the
purported Will is forged and fabricated by the Defendants.
12. Before this Court proceeds to analyse the merits of the case, it is
apposite to first delineate the parameters this Court would have to be
mindful of while assessing the validity of a will. The Apex Court in Meena
Pradhan v. Kamla Pradhan, (2023) 9 SCC 734 , has elaboratively discussed
this scope.Relevant observations are enumerated hereunder:
“7.1. Section 63 of the Succession Act, 1925:
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“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 of the signature of such
other person; and each of the witnesses shall sign
the will in the presence of the testator, but it shall
not be necessary that more than one witness be
present at the same time, and no particular form
of attestation shall be necessary.”
7.2. Section 68 of the Evidence Act, 1872:
“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.”
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8. Thus, a bare reading of the abovementioned
provisions would show that the requirements enshrined
under Section 63 of the Succession Act have to be
categorially complied with for the execution of the will
to be proven in terms of Section 68 of the Evidence Act.
9. A will is an instrument of testamentary disposition of
property. It is a legally acknowledged mode of
bequeathing a testator's property during his lifetime to
be acted upon on his/her death and carries with it an
element of sanctity. It speaks from the death of the
testator. Since the testator/testatrix, at the time of
testing the document for its validity, would not be
available for deposing as to the circumstances in which
the will came to be executed, stringent requisites for
the proof thereof have been statutorily enjoined to rule
out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp
(1) SCR 426 : AIR 1959 SC 443] (three-Judge Bench),
Bhagwan Kaur v. Kartar Kaur [Bhagwan Kaur v.
Kartar Kaur, (1994) 5 SCC 135] (three-Judge Bench),
Janki Narayan Bhoir v. Narayan Namdeo Kadam
[Janki Narayan Bhoir v. Narayan Namdeo Kadam,
(2003) 2 SCC 91] (two-Judge Bench), Yumnam Ongbi
Tampha Ibema Devi v. Yumnam Joykumar Singh
[Yumnam Ongbi Tampha Ibema Devi v. Yumnam
Joykumar Singh, (2009) 4 SCC 780 : (2009) 2 SCC
(Civ) 348] (three-Judge Bench) and Shivakumar v.
Sharanabasappa [Shivakumar v. Sharanabasappa,
(2021) 11 SCC 277] (three-Judge Bench), we can
deduce/infer the following principles required for
proving the validity and execution of the will:
10.1. The court has to consider two aspects : firstly,
that the will is executed by the testator, and secondly,
that it was the last will executed by him;
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10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent
mind has to be applied.
10.3. A will is required to fulfil all the formalities
required under Section 63 of the Succession Act, that is
to say:
(a) The testator shall sign or affix his mark to the
will or it shall be signed by some other person in his
presence and by his direction and the said signature
or affixation shall show that it was intended to give
effect to the writing as a will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen
the testator sign or affix his mark to the will or has
seen some other person sign the will, in the presence
and by the direction of the testator, or has received
from the testator a personal acknowledgment of such
signatures;
(d) Each of the attesting witnesses shall sign the will
in the presence of the testator, however, the presence
of all witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the
will, at least one of the attesting witnesses, who is
alive, subject to the process of court, and capable of
giving evidence, shall be examined;
10.5. The attesting witness should speak not only about
the testator's signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
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10.6. If one attesting witness can prove the execution of
the will, the examination of other attesting witnesses
can be dispensed with;
10.7. Where one attesting witness examined to prove
the will fails to prove its due execution, then the other
available attesting witness has to be called to
supplement his evidence;
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the
propounder to remove all legitimate suspicions before
it can be accepted as the testator's last will. In such
cases, the initial onus on the propounder becomes
heavier.
10.9. The test of judicial conscience has been evolved
for dealing with those cases where the execution of the
will is surrounded by suspicious circumstances. It
requires to consider factors such as awareness of the
testator as to the content as well as the consequences,
nature and effect of the dispositions in the will; sound,
certain and disposing state of mind and memory of the
testator at the time of execution; testator executed the
will while acting on his own free will;
10.10. One who alleges fraud, fabrication, undue
influence et cetera has to prove the same. However,
even in the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes the
duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.
10.11. Suspicious circumstances must be “real,
germane and valid” and not merely “the fantasy of the
doubting mind [Shivakumar v. Sharanabasappa,
(2021) 11 SCC 277] ”. Whether a particular feature
would qualify as “suspicious” would depend on the
facts and circumstances of each case. Any
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circumstance raising suspicion legitimate in nature
would qualify as a suspicious circumstance, for
example, a shaky signature, a feeble mind, an unfair
and unjust disposition of property, the propounder
himself taking a leading part in the making of the will
under which he receives a substantial benefit, etc.”
13. In view of the aforesaid legal position, the alleged suspicious
circumstances must be real, substantial and supported by cogent material,
and must not be founded upon conjectures, fanciful assumptions or idealistic
notions as to how a testator ought to have conducted his affairs. The Court is
required to undertake a holistic and cumulative assessment of the evidence
surrounding the execution of the will, rather than scrutinising isolated
circumstances in a piecemeal manner, before arriving at a conclusion
regarding its due execution, validity and genuineness.
14. Before proceeding to examine the Plaintiff’s contention that the
execution of the purported will is surrounded by suspicious circumstances,
this Court must first satisfy itself whether the statutory requirements
governing the valid execution and attestation of an unprivileged Will, as
prescribed under Section 63 of the Indian Succession Act, 1925, have been
duly complied with. It is only upon recording such satisfaction regarding the
due execution of the Will that the Court can appropriately consider whether
any alleged suspicious circumstances exist so as to cast doubt upon its
genuineness.
15. DW-2 and DW-3 are the two attesting witnesses to the disputed Will.
This Court has gone through the testimony and according to this Court, the
testimony of both these witnesses is consistent on the material particulars
concerning the execution and attestation of the purported will. Both have
unequivocally deposed that they accompanied the testator to the office of the
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Sub-Registrar, that the testator executed the Will in their presence, and that
they, in turn, affixed their signatures as attesting witnesses in the presence of
the testator as well as in the presence of each other. Their depositions satisfy
the essential requirements of attestation contemplated under Section 63 of
the Indian Succession Act, 1925.
16. With respect to the requirements of Section 63(c) of the Indian
Succession Act, 1925, a perusal of the affidavits by way of evidence as well
as the oral depositions of DW-2 and DW-3 reveals that both witnesses have
unequivocally admitted that they affixed their signatures on the purported
will as attesting witnesses. They have further deposed that they signed the
purported will in the presence of the testator and in the presence of each
other, after witnessing the testator execute the document. Their evidence,
therefore, establishes due attestation of the purported will in accordance with
the mandate of Section 63(c) of the Indian Succession Act, 1925.
17. This Court has perused the evidence/ statements made by DW2 and
DW3, who were the main attesting witnesses to the purported will of the
Testator, and it is opined that there is nothing available to show that the will
was not signed by the concerned testator or there is any contradiction in the
statements made by the attesting witnesses. It is admitted that both witnesses
were present at the Sub-Registrar’s office on 31.12.1998 and saw Late Shri
Ved Prakash Gaind sign the purported will in their presence. In addition to
this, this Court has also perused the testimony of DW1, Kamal Gaind, who
was the son of Late Shri Ved Prakash Gaind. DW1, has produced original
business records, such as Provident Fund challans and letters which he
identifies as bearing his father’s genuine signatures for comparison.
18. It is the case of the Plaintiffs that the signatures appearing on the
purported will are not those of Late Shri Ved Prakash Gaind. In support of
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this contention, the Plaintiffs have placed reliance upon the opinion of a
handwriting expert, who has opined that the disputed signatures do not tally
with the admitted signatures of Late Shri Ved Prakash Gaind. The
Defendants, on the other hand, have produced the report of another
handwriting expert, whose conclusions are diametrically opposed and who
has opined that the signatures on the disputed Will are genuine. The
Plaintiffs have sought to assail the credibility of the Defendants’ expert
report by contending that it is founded upon documents which, according to
them, have not been duly proved in evidence, including certain Provident
Fund challans and other business records.
19. The Apex Court in Dayal Singh & Ors. v. State of Uttaranchal , AIR
2012 SC 3046, while dealing with expert opinion, has made the following
observations :
“40. We really need not reiterate various judgments
which have taken the view that the purpose of an expert
opinion is primarily to assist the court in arriving at a
final conclusion. Such report is not binding upon the
court. The court is expected to analyse the report, read
it in conjunction with the other evidence on record and
then form its final opinion as to whether such report is
worthy of reliance or not. Just to illustrate this point of
view, in a given case, there may be two diametrically
contradictory opinions of handwriting experts and both
the opinions may be well reasoned. In such case, the
court has to critically examine the basis, reasoning,
approach and experience of the expert to come to a
conclusion as to which of the two reports can be safely
relied upon by the court. The assistance and value of
expert opinion is indisputable, but there can be reports
which are, ex facie, incorrect or deliberately so
distorted as to render the entire prosecution case
unbelievable. But if such eyewitnesses and other
prosecution evidence are trustworthy, have credence
and are consistent with the eye-version given by the
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eyewitnesses, the court will be well within its
jurisdiction to discard the expert opinion. An expert
report, duly proved, has its evidentiary value but such
appreciation has to be within the limitations prescribed
and with careful examination by the court. A complete
contradiction or inconsistency between the medical
evidence and the ocular evidence on the one hand and
the statement of the prosecution witnesses between
themselves on the other, may result in seriously denting
the case of the prosecution in its entirety but not
otherwise.”
20. Before the Local Commissioner, handwriting experts of both the
parties were examined by one another. This Court has perused the testimony
of both the handwriting experts. It is true that scope of inquiry done by the
handwriting expert of the Defendant is much wider than the scope of inquiry
done by the handwriting expert of the Plaintiffs. The handwriting expert of
the Plaintiffs has relied on a singular document i.e. the house tax notice
which was issued 23 years ago. Conversely, the handwriting expert of the
Defendant has relied on more contemporary documents, one of which even
dates back to few months prior to the execution of the will. It is pertinent at
this juncture to note that while the testimonies of both the handwriting
experts are conflicting and Court is not bound by such expert opinion,
however, read along with the evidence, both documentary and oral along
with the totality of material on record, and documents relied on by the
handwriting experts, this Court is of the opinion that the testimony of the
handwriting expert of the Defendant has more persuasive value than the
testimony of the handwriting expert of the Plaintiffs. In fact, the handwriting
expert of the Plaintiffs in his testimony has stated that though it is not
mandatory, it is always preferred to have a contemporary period material for
the purpose of comparing signatures. In addition, this Court has perused the
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evidence of the handwriting expert examined by the Plaintiffs. In the
opinion of this Court, the Plaintiffs have not been able to demolish the
creditworthiness of testimony of the handwriting expert produced by the
Defendants.
21. The testimony of Naveen Gandas, DW-4, a Record Lifter from the
Delhi Archives, also assumes relevance. DW-4 produced the official register
maintained in the office of the Sub-Registrar containing the office copy of
the registered Will and deposed that, upon comparing the same with the
original Will available on the judicial record, both documents appeared to be
identical. He further stated that the signatures appearing on the office copy
appeared to be original signatures and not photocopied reproductions. This
lends a measure of corroboration to the Defendants’ case by demonstrating
that the copy preserved in the official records corresponds with the original
document produced before this Court.
22. Apart from that, another question which is of material consideration
for this Court is whether the testator was of sound mind and capable of
understanding the nature and effect of the testamentary disposition as per
Section 59 of the Indian Succession Act. The section is reproduced
hereunder:
“59. Person capable of making Wills.—
Every person of sound mind not being a minor may
dispose of his property by Will.
Explanation 1.—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.
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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.
Illustrations
(i) A can perceive what is going on in his
immediate neighbourhood, and can answer
familiar questions, but has not a competent
understanding as to the nature of his property, or
the persons who are of kindred to him, or in
whose favour it would be proper that he should
make his Will. A cannot make a valid Will.
(ii) A executes an instrument purporting to be his
Will, but he does not understand the nature of the
instrument, nor the effect of its provisions. This
instrument is not a valid Will.
(iii) A, being very feeble and debilitated, but
capable of exercising a judgment as to the proper
mode of disposing of his property makes a Will.
This is a valid Will.”
23. Both DW-2 and DW-3 have categorically deposed in their respective
affidavits by way of evidence that, at the time Late Shri Ved Prakash Gaind
executed the purported will, he was in a sound state of mind, possessed a
clear memory, and was in good health. Their testimony on this material
aspect has remained substantially unchallenged. Neither the Plaintiffs nor
Defendant No. 3 confronted these witnesses with any suggestion in cross-
examination that the testator lacked the requisite mental capacity to
understand the nature and effect of the testamentary disposition. In the
absence of any medical evidence or other cogent material indicating
otherwise, and there being nothing on record to suggest that the testator was
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suffering from any mental infirmity at the relevant time, this Court finds no
reason to doubt his testamentary capacity. Accordingly, this Court is of the
opinion that the testator was of sound disposing mind at the time of
executing the purported will.
24. Another circumstance which merits due consideration is that the
purported will in question is a registered document. Although registration of
a Will is not mandatory under the law, where a testator chooses to have the
Will registered, the procedure prescribed under Section 35 of the
Registration Act, 1908 assumes significance. The said provision requires the
registering authority to satisfy itself regarding the execution of the document
by the executant before admitting it to registration. The relevant provisions
of Section 35 are reproduced hereunder:
“35. Procedure on admission and denial of execution
respectively.
(1) (a) If all the persons executing the document
appear personally before the registering officer and
are personally known to him, or if he be otherwise
satisfied that they are the persons they represent
themselves to be, and if they all admit the execution of
the document, or
(b) if in the case of any person appearing by a
representative, assign or agent, such representative,
assign or agent admits the execution, or
(c) if the person executing the document is dead, and
his representative or assign appears before the
registering officer and admits the execution, the
registering officer shall register the document as
directed in sections 58 to 61, inclusive.
(2) The registering officer may, in order to satisfy
himself that the persons appearing before him are the
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persons they represent themselves to be, or for any
other purpose contemplated by this Act, examine any
one present in his office.
(3)(a) If any person by whom the document purports to
be executed denies its execution, or
(b) if any such person appears to the registering officer
to be a minor, an idiot or a lunatic, or
(c) if any person by whom the document purports to be
executed is dead, and his representative or assign
denies its execution,
the registering officer shall refuse to register the
document as to the person so denying, appearing or
dead:
Provided that, where such officer is a Registrar, he
shall follow the procedure prescribed in Part XII:
[Provide further that the [State Government] [Added
by Act 13 of 1926, Section 2.] may, by notification in
the [Official Gazette] [Substituted by A.O.1937, for
"Local Official Gazette" .], declare that any Sub-
Registrar named in the notification shall, in respect of
documents the execution of which is denied, be deemed
to be a Registrar for the purposes of this sub-section
and of Part XII.]”
25. Though, the mere fact that a will is registered does not, by itself,
dispense with the requirement of proving its due execution in accordance
with law, and neither would it conclusively establish its genuineness,
nevertheless, registration constitutes a relevant circumstance which may, at
the end of the day lend some credibility to the authenticity of a will
particularly where there is no material to indicate any procedural irregularity
in the registration process. In the present case, there is nothing on record to
suggest that the Sub-Registrar failed to follow the statutory procedure or that
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the testator was incapable of admitting the execution of the Will at the time
of its registration. Viewed in conjunction with the evidence of the attesting
witnesses and the absence of any material casting doubt upon the testator's
testamentary capacity, the registration of the purported will lends additional
support to the conclusion that the document was executed by the testator
while he was in a sound and disposing state of mind.
26. Another circumstance alleged by the Plaintiffs to cast suspicion on the
genuineness of the purported will is that the attesting witnesses, namely
DW-2 and DW-3, were close friends of Defendant Nos. 1 and 2. According
to the Plaintiffs, the proximity of the attesting witnesses to the beneficiaries
under the purported will renders their testimony marred with interest and,
consequently, the execution of the purported will itself becomes suspicious.
The Plaintiffs have next contended that the attesting witnesses were closely
associated with Defendant Nos. 1 and 2 and shared longstanding business
and social relations with them. On this basis, it is argued that DW-2 and
DW-3 are interested witnesses whose testimony ought to be viewed with
caution and cannot be accepted at face value.
27. A holistic reading of the aforesaid statements, together with the
depositions of DW-2 and DW-3 in their entirety, indicates that the
relationship between the attesting witnesses and Defendant Nos. 1 and 2 was
primarily of a business or commercial nature. Merely because the witnesses
had professional dealings or were acquainted with the Defendants through
business circles does not, by itself, render them interested witnesses or
justify the rejection of their testimony. Significantly, no material has been
brought on record to demonstrate that the alleged business relationship was
of such a nature as to create a personal stake in the outcome of the present
proceedings or to motivate the witnesses to depose falsely. Equally, there is
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no evidence to substantiate the Plaintiffs’ assertion that the attesting
witnesses were close personal friends of Defendant Nos. 1 and 2 or that any
such friendship influenced their testimony in support of the Defendants’
case. In the absence of any material establishing bias, collusion or ulterior
motive, this Court is unable to infer that the evidence of DW-2 and DW-3 is
unreliable merely on account of their commercial association with the
Defendants. Their testimony must, therefore, be assessed on its own intrinsic
merit and not discarded solely because of their acquaintance with Defendant
Nos. 1 and 2.
28. It is an undisputed position that Defendant Nos. 1 and 2 resided with
Late Shri Ved Prakash Gaind in the suit property and shared cordial relations
with him during his lifetime. The evidence on record further indicates that
Defendant No. 2 was actively involved in assisting Late Shri Ved Prakash
Gaind in the family business, thereby maintaining a close and continuous
association with him. Equally, there is nothing on record to suggest that the
relationship between the testator and his children was strained or
acrimonious during his lifetime, or that any serious discord existed amongst
the siblings prior to the demise of Late Shri Ved Prakash Gaind. The
evidence rather indicates that the deterioration in the relationship between
the parties occurred only after the existence and contents of the Will came to
light. In these circumstances, the close association of Defendant Nos. 1 and
2 with the testator cannot, by itself, be regarded as a suspicious circumstance
surrounding the execution of the Will.
29. The Plaintiffs have further contended that the testimony of the
attesting witnesses does not inspire confidence on account of certain alleged
inconsistencies. It is argued that both DW-2 and DW-3 deposed that, during
meetings held in early 2018, Kamal Gaind i.e. Defendant No. 2 had shown
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them the original Will for the purpose of enabling them to identify their
signatures. According to the Plaintiffs, since the original Will had already
been filed before this Court in a sealed cover in the year 2017, it would have
been impossible for Defendant No. 2 to have produced the original
document before the witnesses in 2018. The Plaintiffs, therefore, submit that
either the witnesses have deposed falsely or that they were shown a
document other than the original Will, thereby casting serious doubt upon
the credibility of their testimony. The Plaintiffs have also pointed out that
the affidavits by way of evidence of DW-2 and DW-3 are substantially
identical, almost word for word. On this basis, it is contended that the
affidavits do not reflect the independent version of the respective witnesses
but were prepared by a third person, allegedly Kamal Gaind, Defendant No.
2, with the object of creating evidence in support of the Defendants’ case.
According to the Plaintiffs, these circumstances collectively constitute
suspicious features surrounding the evidence of the attesting witnesses and
warrant a cautious evaluation of their testimony.
30. A careful reading of the aforesaid depositions reveal that DW-1 and
DW-3 are consistent in stating that the meeting during which the Will was
shown to the attesting witnesses took place sometime around
February/March 2017, i.e., prior to the institution of the present suit and
before the original Will was produced before this Court in a sealed cover. It
is true that DW-2, in the course of his deposition, stated that he was shown
the original Will around February 2018. However, in the considered opinion
of this Court, this isolated inconsistency, viewed in the context of the
evidence as a whole, is not of such a nature as to undermine the genuineness
of the Will or to render its execution suspicious. In fact, merely because an
exact date cannot be recalled cannot be a ground enough to cast a doubt on
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the validity of a Will. The Apex Court in Kavita Kanwar v. Pamela Mehta,
(2021) 11 SCC 209, has made the following observations to this effect:
“ 27 . As noticed, there has not been any question on the
testamentary capacity and soundness of mind of the
testatrix; and her handwriting as also signatures on the
will in question are also beyond controversy. However,
the trial court and the High Court have concurrently
found some such suspicious circumstances which are of
material bearing and which have remained
unexplained. Put in a nutshell, the unexplained
suspicious circumstances so found are:
(a) that appellant, the major beneficiary, played an
active role in execution of the will in question and
attempted to conceal this fact before the court;
(b) that there had not been any plausible reason for
non-inclusion of the only son and other daughter of the
testatrix in the process of execution of the will and for
excluding them from the major part of the estate in
question;
(c) that there was no clarity about the construction
supposed to be carried out by the appellant;
(d) that the manner of writing and execution of the will
with technical and legal words was highly doubtful;
and
(e) that the attesting witnesses were unreliable and
there were contradictions in the statements of the
witnesses.
Because of these major circumstances coupled with
various supplemental factors, the trial court and the
High Court felt dissatisfied on the root question as to
whether the testatrix duly executed the will in question
after understanding its contents.
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28 . There is no doubt that any of the factors taken into
account by the trial court and the High Court, by itself
and standing alone, cannot operate against the validity
of the propounded will. That is to say that, the will in
question cannot be viewed with suspicion only because
the appellant had played an active role in execution
thereof though she is the major beneficiary; or only
because the respondents were not included in the
process of execution of the will; or only because of
unequal distribution of assets; or only because there is
want of clarity about the construction to be carried out
by the appellant; or only because one of the attesting
witnesses being acquaintance of the appellant; or only
because there is no evidence as to who drafted the
printed part of the will and the note for writing the
opening and concluding passages by the testatrix in
her own hand; or only because there is some
discrepancy in the oral evidence led by the appellant;
or only because of any other factor taken into account
by the courts or relied upon by the respondents. The
relevant consideration would be about the quality and
nature of each of these factors and then, the cumulative
effect and impact of all of them upon making of the will
with free agency of the testatrix. In other words, an
individual factor may not be decisive but, if after
taking all the factors together, conscience of the court
is not satisfied that the will in question truly represents
the last wish and propositions of the testator, the will
cannot get the approval of the court; and, other way
round, if on a holistic view of the matter, the court feels
satisfied that the document propounded as will indeed
signifies the last free wish and desire of the testator
and is duly executed in accordance with law, the will
shall not be disapproved merely for one doubtful
circumstance here or another factor there.”
31. Minor discrepancies in the testimony of witnesses, particularly with
respect to the recollection of dates or the timing of events occurring several
years earlier, are not uncommon and, by themselves, cannot be elevated to
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the status of suspicious circumstances unless they strike at the core of the
case. The alleged inconsistency neither relates to the execution or attestation
of the Will nor does it detract from the consistent testimony of the attesting
witnesses regarding the material facts constituting due execution. As
repeatedly emphasised by the settled principles governing proof of Wills, the
evidence must be appreciated in a holistic and cumulative manner, and not
by isolating stray inconsistencies divorced from the overall factual matrix.
Viewed in its entirety, the evidence on record does not persuade this Court to
hold that the aforesaid discrepancy gives rise to any legitimate suspicion
surrounding the execution of the Will.
32. During the course of the proceedings, learned counsel for the
Plaintiffs also contended that there was an unexplained delay on the part of
the Defendants in propounding the Will. According to the Plaintiffs, the Will
remained concealed for nearly nine years after the death of Late Shri Ved
Prakash Gaind and they became aware of its existence only upon receiving a
notice from the DDA in connection with mutation proceedings in the year
2017. It is, therefore, argued that such prolonged non-disclosure constitutes
a suspicious circumstance casting doubt upon the genuineness of the Will.
This contention does not merit acceptance. Delay alone does not create an
irrebuttable presumption that the will is forged or invalid. While delay, in
certain cases may raise reasonable doubts, it cannot be a standalone rule
invalidating the will. The court must evaluate the cumulative effect of all
circumstances and must be satisfied that the will represents the free and
informed testamentary intention of the deceased.
33. In view of the settled principles governing the proving of wills and
upon an overall appreciation of the oral and documentary evidence on
record, this Court is satisfied that the Will dated 31.12.1998 has been duly
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proved in accordance with law. The Defendants have successfully
established its due execution and attestation as contemplated under Section
63 of the Indian Succession Act, 1925, read with the applicable provisions of
the Indian Evidence Act. The various circumstances relied upon by the
Plaintiffs as giving rise to suspicion have either not been satisfactorily
explained or are, in the opinion of this Court, too tenuous to cast any
legitimate doubt upon the genuineness of the testamentary instrument, when
read holistically or in entirety. Consequently, this Court finds no material to
hold that the execution of the Will is vitiated by suspicious circumstances.
The Will dated 31.12.1998 is, therefore, held to be a validly executed and
genuine testamentary document and the devolution of the estate of the
testator must be effected accordingly.
34. In view of the fact that the Defendants have successfully established
that there is a Will in their favour, the present Suit for partition cannot be
sustained and is accordingly dismissed, along with pending applications, if
any.
SUBRAMONIUM PRASAD, J
AUGUST 31, 2026
VG/SZ
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