Jagbir Singh vs Satish Kumar & Ors.
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 03.09.2026
Pronounced on : 04.11.2026
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# CNR No. DLHC011735392007
+ FAO 3/2008
JAGBIR SINGH .....Appellant
Through: Mr. J. K. Jain, Advocate
versus
SATISH KUMAR & ORS. .....Respondents
Through: Mr. Mohit Batra, Advocate for
Respondent Nos. 5 to 11
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. The present appeal under Section 299 of the Indian Succession
Act, 1925 (hereinafter the “ISA”) has been preferred assailing the
judgment dated 20.11.2007 passed by the learned Additional District
Judge, Delhi , in PC No. 231/2006 .
Vide the impugned judgment, the Probate Court dismissed the
petition filed by the appellant under Section 276 of the ISA seeking
probate of a registered Will dated 16.04.2003 (hereinafter the “Will”)
stated to have been executed by late Smt. Chhanno Devi @ Chhan
Kaur (hereinafter the “testatrix”).
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2. For convenience, the respondents are hereinafter referred to by
their status before this Court.
3. The testatrix was the widow of late Sh. Jot Ram , who had
predeceased her on 28.01.1988. The couple had no children. After the
death of her husband, the testatrix was brought on record as his legal
heir in the land acquisition proceedings concerning his lands at Village
Palam and Mirzapur , Delhi . She passed away on 20.12.2004. The
subject matter of the probate petition was the compensation amount of
Rs.7,39,558/- relating to the said lands.
The appellant, son of Sh. Suraj Mal , claims to be the nephew of
the testatrix, being the son of her brother. The respondents were
impleaded before the Probate Court as the legal heirs of the brothers of
late Sh. Jot Ram .
4. The appellant filed the underlying petition on the strength of the
Will, which is registered with the Sub-Registrar-II, West District,
Delhi , and by which the testatrix is stated to have bequeathed all her
properties to the appellant and appointed him as the sole executor. The
Will is typed in English, bears the thumb impressions of the testatrix,
and names Sh. Naresh Kumar and Sh. Vijay Kumar as its attesting
witnesses. The appellant had claimed that he was brought up by the
testatrix and her husband since his childhood. He had looked after the
testatrix till her death, and had performed her last rites.
5. The citation was published in Dainik Jagran , and no objection
was received from the general public. Respondent no. 1 appeared in
person on 13.03.2006 and gave his no objection to the grant of
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probate, as did respondent nos. 12 to 15. Objections were filed by
respondent no. 11/ Sh. Chander Bhan , and separately by respondent
nos. 2 to 10. The objectors alleged that the Will was forged and
fabricated and was the result of a fraud played by the appellant upon
the testatrix. They stated that the testatrix did not know English; that
the contents of the Will were never explained to her; that she was not
of sound disposing mind; that the attesting witnesses did not attest the
Will in her presence; and that some other lady had been produced
before the Sub-Registrar. It was further stated that the testatrix had
died at H. No. WZ-58, Palam Village, New Delhi , where the objectors
had performed her last rites, and that respondent no. 11 had already
filed a suit seeking cancellation of the Will.
6. On 21.09.2006, the Probate Court framed the following issues:
“ 1. Whether the Will dated 16.04.2003, propounded by the
petitioner is the duly executed last and final Will of late Smt.
Chhanno Devi in good health and sound disposing state of
mind? OPP.
2. Relief. ”
7. The appellant examined himself as PW-1; Sh. Niranjan Singh , a
clerk from Syndicate Bank, as PW-2; and Sh. Vijay Kumar , one of the
two attesting witnesses, as PW-3. It is pertinent to note that the order
dated 02.11.2006 passed by the Probate Court records that both the
attesting witnesses were present in Court that day, and the learned
counsel for the appellant sought an adjournment to file their affidavits.
Only the affidavit of Sh. Vijay Kumar was eventually filed, and on
14.02.2007 the appellant closed his evidence without examining Sh.
Naresh Kumar . On behalf of the objectors, respondent no. 11
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examined himself as OW-1 and Sh. Kamal Sharma , a resident of
Palam Village , as OW-2.
8. By way of the impugned judgment, the Probate Court held that
the evidence affidavit of PW-3 (Ex. P-2) carried no evidentiary value
since PW-3 had admitted that it was brought to his residence by the
appellant, that he had not appeared before the Oath Commissioner, and
that he was unaware of its contents. It was further held that PW-3 had
admitted that Sh. Naresh Kumar had not signed the Will in his
presence, and that there was no evidence as to when Sh. Naresh
Kumar had signed it, so the attestation required by Section 63(c) of the
ISA was not proved. The Probate Court also noted that while the
appellant claimed ignorance of the execution of the Will, PW-3
deposed that the appellant had brought the testatrix to Janakpuri and
had brought PW-3 there to sign as a witness on sale purchase
documents. Finding that the appellant had played a dominant role in
the execution of the Will and had not explained the suspicious
circumstances surrounding it, the Probate Court dismissed the petition.
9. Learned counsel for the appellant contends that the Will stands
proved by PW-3, an attesting witness present at the time of its
execution as well as registration, and that the examination of one
attesting witness satisfies Section 68 of the Indian Evidence Act, 1872
(hereinafter the “Evidence Act”). It is contended that a registered Will
carries a presumption of its due execution. He further contends that the
Probate Court ought to have put questions to PW-3 or permitted the
register of the Oath Commissioner to be summoned instead of
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discarding the evidence affidavit of PW-3. Learned counsel also
contends that even if the testatrix had been told that she was executing
a sale purchase document, such a document would equally have
transferred her property to the appellant, which shows that she meant
to pass it to him. Lastly, it is contended that the documents on record
show that the testatrix lived with the appellant and was looked after by
him, which furnished a natural reason for the bequest.
10. Per contra , learned counsel for respondent nos. 5 to 11 submits
that PW-3 disowned his evidence affidavit and admitted that the other
attesting witness had not signed in his presence, while that witness, Sh.
Naresh Kumar , though available, was never examined. He further
submits that the testatrix was illiterate and did not know English, and
that the appellant, who is the sole beneficiary, brought her and PW-3
for the execution of the Will while professing ignorance of it.
11. I have heard the learned counsels for the parties and gone
through the record.
12. Section 63(c) of the ISA requires a Will to be attested by two or
more witnesses, each of whom must have seen the testator sign or affix
his mark to the Will, or received his personal acknowledgment of it,
and each of whom must sign the Will in the presence of the testator.
Section 68 of the Evidence Act permits the propounder to prove such a
document by examining only one attesting witness, if one is alive and
capable of giving evidence. The proviso to Section 68 makes it clear
that, unlike other registered documents, a registered Will is not exempt
from this mode of proof. However, the one witness examined must
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then be able to prove the attestation by both. This was explained by the
1
Supreme Court in Janki Narayan Bhoir Vs. Narayan Namdeo Kadam
in the following terms:
“ 10. … But what is significant and to be noted is that one
attesting witness examined should be in a position to prove the
execution of a will. To put in other words, if one attesting witness
can prove execution of the will in terms of clause (c) of Section 63
viz. attestation by two attesting witnesses in the manner
contemplated therein, the examination of the other attesting witness
can be dispensed with. The one attesting witness examined, in his
evidence has to satisfy the attestation of a will by him and the other
attesting witness in order to prove there was due execution of the
will. If the attesting witness examined besides his attestation does
not, in his evidence, satisfy the requirements of attestation of the will
by the other witness also it falls short of attestation of will at least by
two witnesses for the simple reason that the execution of the will
does not merely mean the signing of it by the testator but it means
fulfilling and proof of all the formalities required under Section 63
of the Succession Act. Where one attesting witness examined to
prove the will under Section 68 of the Evidence Act fails to prove the
due execution of the will then the other available attesting witness
has to be called to supplement his evidence to make it complete in all
respects. Where one attesting witness is examined and he fails to
prove the attestation of the will by the other witness there will be
deficiency in meeting the mandatory requirements of Section 68 of
the Evidence Act.
11. … Aid of Section 71 can be taken only when the attesting
witnesses, who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence. Section 71
has no application to a case where one attesting witness, who alone
had been summoned, has failed to prove the execution of the will and
other attesting witnesses though are available to prove the execution
of the same, for reasons best known, have not been summoned before
the court. … ”
13. The law on proof of a Will, and on the propounder’s burden
where suspicious circumstances exist, was laid down by the Supreme
1
(2003) 2 SCC 91
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2
Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma . The
relevant portion reads as under:
“ 19. However, there is one important feature which
distinguishes wills from other documents. Unlike other documents
the will speaks from the death of the testator, and so, when it is
propounded or produced before a court, the testator who has
already departed the world cannot say whether it is his will or not;
and this aspect naturally introduces an element of solemnity in the
decision of the question as to whether the document propounded is
proved to be the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the court will start on the
same enquiry as in the case of the proof of documents. The
propounder would be called upon to show by satisfactory evidence
that the will was signed by the testator, that the testator at the
relevant time was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions and put his
signature to the document of his own free will. Ordinarily when the
evidence adduced in support of the will is disinterested, satisfactory
and sufficient to prove the sound and disposing state of the testator's
mind and his signature as required by law, courts would be justified
in making a finding in favour of the propounder. In other words, the
onus on the propounder can be taken to be discharged on proof of
the essential facts just indicated.
20. There may, however, be cases in which the execution of
the will may be surrounded by suspicious circumstances. The
alleged signature of the testator may be very shaky and doubtful and
evidence in support of the propounder's case that the signature, in
question is the signature of the testator may not remove the doubt
created by the appearance of the signature; the condition of the
testator's mind may appear to be very feeble and debilitated; and
evidence adduced may not succeed in removing the legitimate doubt
as to the mental capacity of the testator; the dispositions made in the
will may appear to be unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise indicate that the
said dispositions may not be the result of the testator's free will and
mind. In such cases the court would naturally expect that all
legitimate suspicions should be completely removed before the
document is accepted as the last will of the testator. The presence of
such suspicious circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily discharged, courts
2
1958 SCC OnLine SC 31
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would be reluctant to treat the document as the last will of the
testator. It is true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the execution of the
will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would be a part of
the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we
have just referred, in some cases the wills propounded disclose
another infirmity. Propounders themselves take a prominent part in
the execution of the wills which confer on them substantial benefits.
If it is shown that the propounder has taken a prominent part in the
execution of the will and has received substantial benefit under it,
that itself is generally treated as a suspicious circumstance attending
the execution of the will and the propounder is required to remove
the said suspicion by clear and satisfactory evidence. It is in
connection with wills that present such suspicious circumstances
that decisions of English courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage from similar
observations made by ecclesiastical courts in England when they
exercised jurisdiction with reference to wills; but any objection to
the use of the word “conscience” in this context would, in our
opinion, be purely technical and academic, if not pedantic. The test
merely emphasizes that, in determining the question as to whether an
instrument produced before the court is the last will of the testator,
the court is deciding a solemn question and it must be fully satisfied
that it had been validly executed by the testator who is no longer
alive. ”
(emphasis supplied)
Thus, the onus to prove the Will lies on the propounder. Further,
where the propounder has played a prominent part in its execution and
takes a substantial benefit under it, he must remove that suspicion by
clear and satisfactory evidence before the Court can accept the Will.
14. It is in this backdrop that the evidence is to be examined. The
Will names two attesting witnesses, out of whom only one i.e., PW-3
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was examined. In his evidence affidavit (Ex. P-2), PW-3 stated that the
testatrix was known to him, that she put her thumb impression in his
presence, that he thereafter attested the Will, and that the other witness
also signed in his presence. However, in his cross-examination, PW-3
deposed as under:
“ I educated upto 10th Class. It is correct that I cannot understand
the language of English, but I can read only. I am Electrician and
working in a shop. I signed on affidavit in evidence Ex.P2 at my
residence. The affidavit Ex.P2 had been brought at my residence for
my signatures by Shri Jagbir Singh. It is also correct that I did not
appear before any Oath Commissioner, who had attested my said
affidavit Ex.P2. It is also correct that I am not aware as to what has
been written in my said affidavit Ex.P2. Shri Jagbir Singh is my
friend. … I signed at point B and B1 on Ex.PW1/5 at Janakpuri.
When I signed on Ex.PW1/5 there was one Naresh Kumar and one
Shri Jagbir Singh. I did sign on the said Ex.PW1/5 in presence of
Naresh Kumar. It is correct that Shri Naresh Kumar had not signed
in my presence on Ex.PW1/5. I did not know Smt. Channo Devi
personally, but she is Bua of Shri Jagbir Singh. Smt. Channo Devi
also went to Janakpuri. … Smt. Channo Devi was brought by Shri
Jagbir at Janakpuri. It is correct that Smt. Channo Devi had put
thumb impression in my presence on Ex.PW1/5. I am not aware as to
on what document I signed at Janakpuri. It is also correct that I am
not aware what is Ex.PW1/5. Shri Jagbir Singh had brought me at
Janakpuri to sign as witness on sale purchase documents. It is
correct that I was not made to understand the contents of Ex.PW1/5
before and at the time I signed on Ex.PW1/5. … ”
15. The above testimony leaves little of Ex. P-2. PW-3 did not
appear before the Oath Commissioner. He did not even know what the
affidavit contained which was handed over to him for signature by the
appellant himself. Even the statement in the affidavit that the testatrix
was known to him stands belied by his admission that he did not know
her personally. The grievance that no opportunity was given to
summon the register of the Oath Commissioner is of no avail, since the
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appellant never sought to summon it before the Probate Court, nor has
any such request been made before this Court. More importantly, the
register could not have cured the admission of the deponent himself
that he was unaware of what he had signed. I therefore find no
infirmity in the view of the Probate Court that Ex. P-2 could not be
relied upon.
16. Even if the cross-examination is read on its own, it does not
prove attestation in terms of Section 63(c) of the ISA. PW-3 stated that
the testatrix put her thumb impression in his presence, but he did not
state that he signed the Will in her presence. He only said that he
signed in the presence of Sh. Naresh Kumar . As regards the second
attesting witness, PW-3 admitted that Sh. Naresh Kumar did not sign
the Will in his presence. There is not a word in the evidence to show
that Sh. Naresh Kumar saw the testatrix affix her thumb impression or
that he signed in her presence. The attestation by the second witness
thus remains wholly unproved.
17. In such a situation, Janki Narayan Bhoir ( supra ) required the
appellant to call Sh. Naresh Kumar to make the proof complete. Sh.
Naresh Kumar was very much alive and available. He had signed the
declaration of witnesses appended to the probate petition itself, and the
order dated 02.11.2006 records his presence in Court. Yet the
appellant chose to close his evidence without examining him, and no
explanation for this has been offered either before the Probate Court or
before this Court. The appellant, therefore, cannot fall back on Section
71 of the Evidence Act.
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18. The contention that the registration of the Will raises a
presumption of due execution is equally misplaced. As noted above,
the proviso to Section 68 of the Evidence Act does not exempt a
registered Will from proof through an attesting witness. Registration
may lend some assurance that the executant appeared before the Sub-
Registrar, but it does not prove attestation in terms of Section 63(c) of
the ISA. A gainful reference in this regard may be made to the
decision of the Supreme Court in Raj Kumari Vs. Surinder Pal
3
Sharma , where the High Court had treated a registered Will as proved
under Section 71 of the Evidence Act even though none of the
attesting witnesses were examined. Setting that finding aside, the
Supreme Court held as under:
“ 25. … The High Court has accordingly held that the will
being registered was proved in terms of Section 71 of the Evidence
Act. This finding of the High Court is unacceptable, for recourse to
Section 71 of the Evidence Act is impermissible without examination
of Ramesh Kumar. It would not matter if Ramesh Kumar is husband
of Raj Kumari. Section 71 of the Evidence Act would come into
operation, once and if all the attesting witnesses deny or do not
recollect the execution of the document, that is, the will. In that
event, the execution can be proved by other evidence. … ”
In the present case, Sh. Naresh Kumar was available but not
examined. Nobody from the office of the Sub-Registrar was examined
either, and there is no evidence as to what transpired at the time of
registration.
19. The onus to prove the Will lay on the appellant. The power of
the Court under Section 165 of the Evidence Act to put questions to a
3
(2021) 14 SCC 500
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witness is discretionary, and it is not the function of the Court to fill
the gaps in the evidence of the propounder.
20. Quite apart from the failure to prove attestation, the record
discloses suspicious circumstances surrounding the Will which the
appellant has left unexplained. In his cross-examination, the appellant
himself deposed as under:
“ … Smt. Channo Devi was illiterate. It is correct that she did not
know any language She could not write and read any language. She
could only speak Villagers’ language. … It is correct that the Will
Ex.PW1/5 is written in English language and Smt. Channo, the
testatrix could not read, write and understand the English language.
I am not aware about the execution of the Will. I am also not aware
as to whether the witnesses Naresh Kumar and Vijay had signed in
presence of testatrix or that the testatrix had signed in presence of
the witnesses. I am also not aware as to whether the testatrix and
witnesses were made to understand the contents of the Will
Ex.PW1/5. I came to know about Ex.PW1/5 later on while searching
the documents. … ”
21. Thus, as per the appellant’s own evidence, the testatrix could
neither read nor understand the language in which the Will is written.
It is not known who drafted the Will, and no scribe has been
examined. There is no evidence that its contents were ever read over or
explained to the testatrix in a language she understood. The only
th
attesting witness examined, though educated up to the 10 class, could
not himself understand English, was not made to understand the
contents of the document, and believed that he was signing a sale
purchase document.
22. Further, the appellant, in his evidence affidavit, does not state
that he was present when the Will was executed, and in his cross-
examination professes complete ignorance of its execution. However,
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his own witness (PW-3) deposed that the appellant brought the
testatrix to Janakpuri , brought the witness there to sign, and was
present when the witness signed. The appellant is the sole beneficiary
under the Will. His active part in its execution, coupled with his
attempt to distance himself from it, is precisely the kind of suspicious
circumstance contemplated in H. Venkatachala Iyengar ( supra ), and
no evidence has been led to dispel it.
4
23. A similar situation arose in Kavita Kanwar Vs. Pamela Mehta ,
where the beneficiary professed ignorance of the making of the Will
but was contradicted by one of the attesting witnesses. The Supreme
Court observed as under:
“ 29.4. Apart from the above, active participation of the
appellant in making of the will in question cannot be left aside as
one of the minor factors for the reason that the appellant indeed
attempted to project a face of innocence by suggesting that the
testatrix did not discuss the will with her; that she was not aware as
to who drafted the will and where was it typed; and that she came to
know about the will only on 20-5-2003/21-5-2003. The appellant
even stated that she did not call the witnesses and that the testatrix
herself might have called them. The witness, PW 2 has clearly
contradicted the appellant by deposing that on 18-5-2003, it was the
appellant who invited him to her mother’s place. Thus, the appellant,
by her conduct of attempting to avoid the fact that she was aware of
making of will, at least two days before its execution, has only
strengthened the suspicion arising because of her active
participation in execution of the will while keeping the other
children of the testatrix excluded from the process. ”
24. In these circumstances, the observation of the Probate Court that
the thumb impression of the testatrix may have been obtained without
her understanding the nature of the document cannot be faulted. The
4
(2021) 11 SCC 209
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argument that even a sale document would have been in favour of the
appellant does not take his case any further, since what had to be
proved was that the testatrix knowingly executed a Will with her free
will.
25. Learned counsel for the appellant has placed reliance on the
documents showing that the appellant resided with the testatrix and
looked after her. Even respondent no. 11 admitted in his cross-
examination that the testatrix was the Bua (paternal aunt) of the
appellant and that the appellant had resided with her since he was
about 6-7 years old. These circumstances may show that a bequest in
favour of the appellant would not have been unnatural. However, the
naturalness of a disposition cannot take the place of proof of due
execution and attestation. Once the propounder fails to prove the Will
in the manner required by law, the question of the disposition being
natural does not arise.
26. Lastly, it is noticed that some of the respondents gave their no
objection to the grant of probate before the Probate Court. Further,
during the pendency of the present appeal, the legal heirs of late Sh.
Satish Kumar and late Sh. Satbir , who were impleaded vide order
dated 20.09.2023, have also stated that they have no objection to the
grant of probate. This does not dispense with the requirement of proof.
A grant of probate operates as a judgment in rem , and the Court must
itself be satisfied that the Will has been proved. In Kavita Kanwar
( supra ), the Supreme Court held as under:
“ 25.1. … this Court has consistently held that the probate
proceeding is ultimately a matter of conscience of the court; and
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irrespective of whether any plea in opposition is taken or not, a
propounder of will is required to satisfy the conscience of the court
with removal of all the suspicious circumstances. By the very nature
and consequence of this proceeding, filing or non-filing of written
statement or objections by any party pales into insignificance and is
of no effect. The probate proceeding is not merely inter partes
proceeding but leads to judgment in rem and, therefore, even when
no one contests, it does not ipso facto lead to grant of probate. The
probate is granted only on proof of will as also on removal of
suspicious circumstances, if there be any, to the final satisfaction of
the conscience of the court. ”
In any event, the present appeal remains contested.
27. In view of the above, in the considered opinion of this Court, the
appellant has failed to prove the due execution and attestation of the
Will as required under Section 63 of the ISA read with Section 68 of
the Evidence Act, and has also failed to dispel the suspicious
circumstances surrounding it. I find no infirmity in the impugned
judgment.
28. The present appeal is accordingly dismissed.
(MANOJ KUMAR OHRI)
JUDGE
NOVEMBER 04, 2026
nb
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