Anil Prashar vs State & Ors.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on : 23.07.2026
Pronounced on : 18.09.2026
Uploaded on : 18.09.2026

+ FAO 148/2009 and CM APPL. 6208/2009

ANIL PRASHAR .....Appellant
Through: Mr. M.K. Sharma, Mr. Abhinav,
Mr. Dronh Bhardwaj, Ms.
Anjali, Mr. Aishwarya, and Mr.
Sunil, Advocates
versus

STATE & ORS. .....Respondent
Through: Mr. Prashant Mehra, Advocate
for Respondent Nos. 2 and 3

CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

JUDGMENT
1. The present appeal has been instituted under Section 299 of the
Indian Succession Act, 1925 (hereinafter the “Succession Act”) by the
objector/appellant assailing the judgment dated 02.09.2008 passed in
Probate Case No. 71/2006 (Old Case No. 342/2004).
Vide the impugned judgment, the learned ADJ allowed the
petition filed by the propounders/present respondent nos. 2 & 3 under
Section 276 of the Succession Act seeking grant of probate in respect
of a Will dated 09.11.1984 executed by late Sh. Manohar Lal Sharma
(hereinafter the “testator”).
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2. Briefly stated, the testator, who passed away on 20.12.1984, was
the absolute owner of a property measuring 280 sq. yards and bearing
no. CB-17, Hari Nagar, Clock Tower, New Delhi – 110064 . He was
survived by five legal heirs, namely, his widow Smt. Kamla Devi ; three
sons, namely, Sh. Satish Kumar Sharma , Sh. Anoop Kumar Sharma ,
and Sh. Anil Kumar Parashar ; and a daughter, Smt. Pushplata Sharma .
The widow, Smt. Kamla Devi , subsequently expired on 29.02.2004.

3. Present respondent nos. 2 & 3, namely, Sh. Satish Kumar
Sharma and Sh. Anoop Kumar Sharma , preferred the underlying
petition seeking probate of the last Will and Testament dated
09.11.1984 of their late father. Under the said Will, the testator
bequeathed certain portions of the aforementioned property to his 3
sons. Specifically, the ground floor portion marked green in the plan
attached to the Will was bequeathed to Sh. Satish Kumar Sharma for
life and thereafter to his children; the first floor was bequeathed to Sh.
Anoop Kumar Sharma for life and thereafter to his children; and a 50
sq. yard portion on the ground floor marked brown in the attached plan
was bequeathed to Sh. Anil Kumar Parashar with liberty to raise
construction up to any height. All three sons were also appointed as
executors of the Will.
4. The underlying probate petition was contested solely by the
present appellant, Sh. Anil Kumar Parashar , who denied execution of
the Will, asserted that the testator had died intestate, alleged that the
signatures of the testator and the attesting witness Smt. Kamla Devi
were forged, and contended that the testator was neither mentally
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sound nor physically fit at the relevant time. Notably, the testator’s
daughter, Smt. Pushplata Sharma , furnished a No Objection Certificate
and did not contest the petition.
5. During probate proceedings, the propounders had examined
three witnesses, including PW-1/ Sh. Jagdish Lal , UDC from the House
Tax Department, MCD; PW-2/ Sh. Satish Kumar Sharma himself; and
PW-3/Capt. Uma Rani Kaushik , the surviving attesting witness who
was posted as a military nurse at the Army Hospital, Delhi Cantt. ,
where the testator was admitted at the time of execution of the Will.
The present appellant, Sh. Anil Kumar Parashar , examined
himself as RW-1.
6. Vide the impugned judgment, the Probate Court held that the
petitioners had successfully proved the due execution of the Will,
established that the testator was of sound disposing mind and repelled
the objections raised by the appellant.
7. Before this Court, learned counsel for the appellant, while
assailing the impugned judgment, contends that the unregistered Will
dated 09.11.1984 is a false and fabricated document. He contends that
the underlying probate petition was filed after an inordinate delay of
about 20 years, which casts suspicion over the genuineness of the Will.
It is contended that the signatures of the testator and Smt. Kamla Devi
were forged, that the testator was suffering from asthmatic ailments
and was not of sound disposing mind at the relevant time as evidenced
inter alia by no medical fitness certificate being obtained, that the
execution did not comply with Section 63 of the Succession Act, and
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that the manner in which the property was distributed under the Will
was disproportionate and therefore suspicious, particularly in view of
the exclusion of the mother and daughter from any bequest. It is further
contended that the explanation furnished by the contesting respondents
for the delay, namely, that all the children of the testator had
unanimously agreed not to seek probate of the Will during the lifetime
of their mother, as the sons might not look after her after obtaining
probate, is untenable, particularly as the mother herself was aware of
the Will and its contents, having been one of its two attesting
witnesses. Learned counsel also argued that the third paragraph of the
Will, setting out detailed architectural measurements, is a suspicious
circumstance given that the testator was hospitalized at the relevant
time. Learned counsel further placed reliance upon Renu Jain & Ors.
1
Vs. Kamla Vati Jain & Ors. in support of the challenge to the manner
of execution of the Will.
With reference to the captioned application filed on behalf of the
appellant for producing additional evidence, it is further contended that
the Probate Court gravely erred by closing the appellant’s evidence and
denying him the opportunity to examine a handwriting expert by
summoning old pension records from the Delhi Fire Service, MCD ,
and obtaining the original sale deed dated 03.12.1964 and the relevant
bank records of Smt. Kamla Devi from State Bank of India, Hari
Nagar Branch .
8. Per contra , learned counsel for respondent nos. 2 & 3 supports

1
2019:DHC:2574
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the impugned judgment, submitting that the Will dated 09.11.1984 is a
genuine document duly proved through the testimony of the surviving
attesting witness, Capt. Uma Rani /PW-3. It is submitted that the delay
in filing the probate petition was fully explained by the fact that the
testator’s widow, Smt. Kamla Devi , was alive until 29.02.2004, and out
of reverence and a family consensus not to disturb her or compel
probate during her lifetime, filing of the petition was deferred,
especially since all brothers were already in peaceful possession of
their respective demarcated portions in terms of the Will. It is further
submitted that the appellant had himself admitted the existence and
validity of the Will in contemporaneous mutation proceedings before
the MCD in August 2003, as well as in a family settlement, thereby
rendering his subsequent contradictory stances completely untenable.
With regard to the application for producing additional evidence,
learned counsel submits that the appellant had been afforded repeated
opportunities by the Probate Court to produce the material sought to be
relied upon, but failed to take the requisite steps, and that the
application was ultimately rejected vide order dated 04.08.2008, which
was never challenged.
9. I have heard the learned counsels for the parties and carefully
examined the record.

10. Learned counsel for the appellant has contended that the
requirements of Section 63 of the Succession Act were not satisfied
since the surviving attesting witness/PW-3 deposed that it was the
advocate, and not the testator, who asked her to sign the Will.
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11. The record shows that, at the relevant time, the testator was
admitted to the officers’ medical ward of the Army Hospital, Delhi
Cantt. and that PW-3/Capt. Uma Rani was on duty in the said ward.
She has deposed as PW-3 that an advocate had prepared the Will and
read it over to the testator in the presence of PW-3. According to her,
the testator then signed the Will, followed by Smt. Kamla Devi , and
then by PW-3 herself. She has identified the signatures of all three on
the Will.
Significantly, the Will was also attested by Notary Public Sh. H.
R. Mahindra , who had been brought to the hospital for the said
purpose.
12. A perusal of Section 63(c) of the Succession Act reveals that
each attesting witness is required to sign the Will in the presence of the
testator. PW-3’s testimony establishes that the testator first signed the
Will in her presence, followed by Smt. Kamla Devi and the witness
signing it thereafter. Learned counsel for the appellant has placed
reliance on Renu Jain ( supra ) but the said decision does not come to
the appellant’s aid in the present facts. In the said case, the attesting
witness had not seen the testator sign the Will in his presence, nor had
he seen the other attesting witness append his signatures thereto. On
the other hand, in the present case, as noted above, PW-3 has
categorically deposed that the testator first signed the Will in her
presence, followed by Smt. Kamla Devi and thereafter by PW-3
herself. The fact that PW-3 stated that she was asked to sign the Will
by the advocate, rather than by the testator, does not take away from
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the fact that she signed the Will in the presence of the testator.
Accordingly, PW-3, being the surviving attesting witness, was
competent to prove the execution of the Will in terms of Section 68 of
the Evidence Act.
13. Another challenge sought to be raised by the appellant is centred
on alleged suspicious circumstances, most significantly the delay
between the execution of the Will in 1984 and the filing of the
underlying probate petition.
14. It has come on record that the testator’s widow, Smt. Kamla
Devi , survived until 29.02.2004. Since the Will did not allocate a
specific share to her, the family unanimously agreed that no formal
probate proceedings would be initiated during her lifetime so as not to
cause her any anxiety or insecurity regarding her residence. It is
material to note that the respondents have never contended, either
before the Probate Court or before this Court, that Smt. Kamla Devi
was unaware of the Will. Their case has consistently been that, despite
her being aware of the Will and having attested it, the family had
agreed not to initiate formal probate proceedings during her lifetime.
Crucially, all three brothers had already taken exclusive possession of
their respective demarcated portions of the property concerned, in
conformity with bequests made under the Will during the testator’s
lifetime and thereafter. The fact that the Will did not make a bequest in
favour of the testator’s widow or daughter, in the facts of the present
case, does not by itself render the distribution under the Will
suspicious. Moreover, it is well-settled that there is no fixed period of
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limitation prescribed under the law for filing a petition for grant of
probate.
15. Furthermore, the bona fides of the appellant’s contest are
severely undermined by his conduct during the probate proceedings. In
his cross-examination, the appellant engaged in blanket denials of
virtually every document placed on record, going to the extent of
denying his own signatures on his written statement, his vakalatnama ,
and his affidavits filed in Court. More importantly, municipal records
produced by PW-1 from the MCD House Tax Department
demonstrated that separate applications for mutation had been made by
the 3 brothers in respect of the property concerned, which the Probate
Court treated as a circumstance corroborating the respondents’ case.
Furthermore, a family settlement dated 29.11.2002 written and signed
by the brothers acknowledged the Will, alongside a No Objection
Certificate furnished by the sister, Smt. Pushplata Sharma . The
appellant’s attempt in Court to disown these filings, family settlements,
and his own signatures was rightly rejected by the Probate Court as
untenable.
16. Learned counsel for the appellant has also challenged the
genuineness of the signatures appearing on the Will (signed in the style
“ Manohar Lal Sharma ”), contending that the same do not correspond
with the signatures of the testator appearing on other documents. In
this regard, learned counsel has firstly referred to the letter dated
15.12.1984 (Ex. RW1/D1). The testator’s signature appearing thereon
is in the style “ M L Sharma ”. When the appellant was confronted with
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the said letter during his cross-examination as RW-1, he admitted the
same insofar as the handwriting and signature of the testator are
concerned. A perusal of the said letter shows that it was written only 5
days prior to the testator’s death, and the testator’s signature appearing
thereon has been affixed in a very tight space.
Secondly, learned counsel referred to the sale deed dated
03.12.1964, written in Urdu , wherein the testator has signed in the
style “ Manohar Lal ”. It is pertinent to note that the said sale deed was
not even exhibited before the Probate Court. Even otherwise, there is a
gap of more than 20 years between the execution of the two
documents.
Similarly, the appellant challenged the signature of Smt. Kamla
Devi by comparing it with her name inscribed on a No Objection
Affidavit dated 01.08.2003 qua the mutation process. However, only
one document has been placed on record, and it has not been brought
on record that she was habitually signing in Hindi over a period of
time. This, therefore, does not establish that she always used to sign in
this manner. In this Court’s opinion, these are not sufficient to displace
the testimony of the attesting witness/PW-3 that inspires confidence.
17. On the contrary, the contemporaneous documents on record,
especially the letter dated 15.12.1984, demonstrate that the testator
possessed a clear and sound disposing mind even after his discharge
from the hospital, belying the appellant’s plea of mental unsoundness.
The fact that the testator was suffering from asthmatic ailments or was
physically weak, does not by itself establish that he lacked
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testamentary capacity. No material has been brought on record to
demonstrate that such ailment impaired his understanding or mental
soundness to execute the Will. When asked about the issuance of a
fitness certificate qua the testator, PW-3 deposed that she had not
asked any doctor to issue a fitness certificate for the testator before
“identifying” his Will. However, she volunteered that the concerned
doctor had observed during the morning rounds that the testator was
stable. Even otherwise, this Court is of the opinion that, in the present
facts, the absence of a medical fitness certificate, in itself, is not
sufficient to displace the positive testimony of PW-3 regarding the
execution of the Will and the testator’s condition at the relevant time.
18. The appellant has also raised grievances regarding the closure of
his evidence and the dismissal of his applications seeking comparison
of signatures through a handwriting expert. A perusal of the Probate
Court’s proceedings reveals that on 08.11.2005, the Court framed
issues and granted parties time to file complete documents.
Subsequently, on 28.01.2008, the Probate Court allowed an application
under Section 151 CPC filed by the appellant for summoning admitted
signatures for handwriting comparison, granting a single effective
opportunity to summon records from 1983-1985 (specifically noting
applications for production of original sale deeds and Fire
Department/pension records), explicitly noting that the appellant had
already consumed over a year without pressing his application.
Thereafter, on 11.03.2008, the Probate Court recorded that no steps
had been taken by the appellant to comply with the order dated
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28.01.2008, noting that counsel was erroneously seeking to bypass the
rule requiring admitted documents to be brought officially on Court
record before an expert could examine them. A cost of Rs.2,000/- was
imposed upon the appellant, and a last and final opportunity was
granted. On 22.04.2008, the Probate Court observed that the
appellant’s real intention was to delay the proceedings and, ultimately,
on 04.08.2008, the Probate Court considered a fresh application under
Section 151 CPC wherein the appellant sought to summon the 1964
Urdu Sale Deed and bank records from State Bank of India, Hari
Nagar Branch , in the name of Smt. Kamla Devi . The Probate Court
dismissed the application vide a detailed order dated 04.08.2008,
holding that it was moved solely to protract the proceedings at their fag
end.
19. Crucially, the order dated 04.08.2008 passed by the Probate
Court rejecting the handwriting expert application was never
challenged, and thus attained finality. At the appellate stage, the
appellant has sought to urge similar grounds through an application
under Order XLI Rule 27 CPC for leading additional evidence, seeking
to introduce the 1964 Sale Deed and SBI bank account records.
20. Under Order XLI Rule 27 CPC, additional evidence may be
permitted only in the circumstances contemplated by sub-rule (1),
namely, where the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted; where,
notwithstanding the exercise of due diligence, the evidence was not
within the knowledge of the party or could not have been produced at
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the relevant stage; or where the appellate Court requires such evidence
to enable it to pronounce judgment or for any other substantial cause.
21. In the present case, the record discloses that the appellant was
afforded repeated opportunities before the Probate Court to produce
the proposed material, but failed to take the requisite steps, culminating
in the order dated 04.08.2008 rejecting his application. The appellant
has not demonstrated either the requisite due diligence or that the
proposed additional evidence is necessary for this Court to pronounce
judgment. Accordingly, the appellant’s application for producing
additional evidence is devoid of merit and stands dismissed.
22. Considering all the aforesaid, this Court finds no infirmity in the
impugned judgment passed by the Probate Court and the same is
upheld. The present appeal is accordingly dismissed.
23. The present appeal, along with the pending application, is
disposed of in the above terms.

(MANOJ KUMAR OHRI)
JUDGE
SEPTEMBER 18, 2026
nb
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