Harjeet Kaur & Anr vs. State & Ors

Neutral Citation Number : 2023:DHC:2422

* IN THE HIGH COURT OF DELHI AT NEW DELHI
FAO 415/2011

Reserved on : 01.03.2023
Date of Decision : 06.04.2023

IN THE MATTER OF:
HARJEET KAUR & ANR ..... Appellants
Through: Mr. Manish Batra, Advocate

Versus

STATE & ORS ..... Respondents
Through: Mr.Rajat Aneja and Ms.Chandrika
Gupta, Advocates for respondent No.2

CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
MANOJ KUMAR OHRI, J.

1. By way of the present appeal filed under Section 384 of the Indian
Succession Act, 1925 (hereinafter, referred to as the 'Act' ), the appellants
seek setting aside of judgment dated 22.07.2011 passed by the learned
Additional District Judge-II, Rohini Courts, Delhi in Probate Case No.
21/2009, whereby petition of respondent No.2/ S. Baldev Singh was
allowed and letter of administration with respect to Will dated
10.11.1998 granted in his favor.
2. The parties to the present appeal have their common ancestor in
Late S. Harbans Singh who was the perpetual lessee of property bearing
FAO 415/2011 Page 1 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422


plot No. 164 (land area measuring 60 sq. mtrs.), Pocket-22, Sector-24,
MIG Category, Rohini, Delhi (hereinafter, referred to as the ‘subject
property’ ).
3. For the sake of convenience, details of the family members of Late
S. Harbans Singh and his wife /Smt. Harjeet Kaur/ appellant No.1 are
reproduced hereunder:-

4. Late S. Harbans Singh (hereinafter, referred to as the ‘testator’ )
executed a Will on 10.11.1998. The Will was duly registered in the office
of Sub-Registrar-II, Janakpuri, Delhi on 10.11.1998 in the presence of
two attesting witnesses namely, Sardar Hardev Singh and Sh. J.B. Malik ,
Advocate. By way of the said Will, the testator bequeathed the subject
property in favour of S. Baldev Singh (respondent No.2), who
propounded it by way of filing the underlying probate case.
FAO 415/2011 Page 2 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

5. During the pendency of the proceedings before the Trial Court, a
public notice was given by publishing the citation in the newspaper "The
Statesman" on 11.08.2009 and it was also affixed on the notice board of
the Court on 02.07.2009. The appellants, i.e. wife and son of the testator,
were the only objectors, as the other legal heirs (the daughters of the
testator), gave no-objection in favour of respondent No.2. The third son
i.e., S. Harpinder Singh had already predeceased the testator on
24.04.1989, having died issueless, and his widow having remarried.
6. The Trial Court framed the following issues:-
"i. Whether the deceased Sardar Harbans Singh executed a
valid and enforceable Will? OPP
ii. Whether plaintiff is entitled for Will Probate as
claimed? OPP
iii. Relief, if any?
iv. Whether the petition is barred by limitation? OPR”
7. To prove his case, the propounder examined himself (PW-3), one
of the attesting witnesses to the Will namely, S. Hardev Singh (PW-2),
and Sh. Chitranjan, LDC (PW-1) from the Office of Sub-Registrar.
8. In turn, the appellants, besides examining themselves, examined
one Sh. Rahul Massey , the Medical Record Executive from Moolchand
Hospital, Lajpat Nagar, Delhi who produced the medical records of the
testator. Additionally, the appellants examined one Smt. Gurmeet Kaur,
i.e. wife of appellant No.2 (RW-3).
9. Eventually, vide the impugned judgment, a letter of administration
was granted in favour of respondent No.2. Aggrieved with the same, the
appellants preferred the present appeal.
FAO 415/2011 Page 3 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

10. During the pendency of the present appeal, appellant No.1 had
expired. Her legal heirs were already on record, being the remaining
parties. The appeal continued to be contested by appellant No.2
(hereinafter, the ‘appellant’ ).
11. Learned counsel for the appellant contended that the execution of
the alleged Will is surrounded by suspicious circumstances, inasmuch as
the testator was not in a fit state of mind at the time of execution of the
Will. In this regard, reference was made to the testator's past medical
records to submit that he had suffered an accident in the year 1991
because of which he went in coma. In support of the aforesaid
submission, learned counsel further placed reliance on the testimony of
not only Late Smt. Harjeet Kaur, but also of respondent No.2.
Appellant also doubted the testimony of attesting witness- S.
Hardev Singh as, though he claimed to be a close friend of the testator
for more than 40 years, he denied knowledge of the testator having an
accident or being admitted in hospital for 1-2 months. Doubts were also
raised on the testimony of respondent No.2 by contending that in the
cross-examination he had admitted not having any knowledge of the
testator's accident or the testator going into coma.
12. Appellant next contended that the alleged Will neither provided
any reason for the exclusion of the testator's wife and other children from
his estate. It was also contended that the propounder failed to implead
widow of Late S. Harpinder Singh as she also would have vested rights
in the subject property. Lastly, it was contended that although the testator
had expired on 28.09.2001, the probate case came to be filed only in the
year 2009 and as such, it ought to have been dismissed on the ground of
FAO 415/2011 Page 4 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

limitation. Another contention was raised to the effect that the
propounder has sought to get the property mutated in his name and in
those proceedings, he has forged the NOC of the appellants.
13. In support of his submissions, learned counsel for the appellant
placed reliance on the decisions in State of Haryana v. Harnam Singh
(Dead) through Legal Representatives and Others reported as (2022) 2
SCC 238 and Kavita Kanwar v. Pamela Mehta and Others reported as
(2021) 11 SCC 209.
14. Learned counsel for respondent No.2 repelled the contentions by
drawing attention to the testimony of Late Smt. Harjeet Kaur where it
has come that though the testator had suffered an accident in the year
1991, he fully recovered, as he was not only going to the bank for
operating his accounts but also operated the chit fund. It was also
submitted that there are no medical documents on record to show that the
testator was ever treated or admitted in a hospital between the year 1991
and the execution of the Will on 10.11.1998. While answering the
contention regarding the exclusion of the appellant in the Will, learned
counsel referred to the testimony of Late Smt. Harjeet Kaur where it has
been stated that the appellant was already owning a property in Khyala. It
was submitted that the said circumstance alognwith the fact that
respondent No.2 had fallen sick and suffered a paralytic stroke, had
weighed in the mind of testator.
On the aspect of non-impleading the widow of Late S. Harpinder
Singh, reference was again made to the testimony of Late Smt. Harjeet
Kaur to submit that Late S. Harpinder Singh had predeceased the
testator. It was further submitted that his wife got re-married within three
FAO 415/2011 Page 5 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

months of his death and her whereabouts are not known. Further, reliance
was placed on Section 21 of the Hindu Succession Act, which remained
in force till 09.09.2005, to contend that when the succession opened up in
the year 2001 on the death of the Testator, the widow late Late S.
Harpinder Singh, having already re-married was divested of her rights.
15. In support of the submissions, learned counsel for respondent No.2
placed reliance on the decisions in H. Venkatachalan Iyengar v. B.N.
Thimmajamma and Ors. reported as AIR 1959 SC 443 , Shashi Kumar
Banerjee & Ors. v. Subodh Kumar Banerjee Since Deceased & After
Him His Legal Representatives & Ors. reported as AIR 1964 SC 529 ,
K.L. Malhotra v. Sudershan Kumari & Ors. reported as 149 (2008) Delhi
Law Times 783 , Prem Singh & Ors. v. Birbal & Ors. reported as (2006)
5 SCC 353 , Prem Bhatnagar v. Shri Ravi Mohan Bhatnagar & Ors.
reported as AIR 2013 Delhi 20 , Nirmala Handa v. Krishna Kaura
reported as MANU/DE/3040/2014 and Velamuri Venkata Sivaprasad
(D) By Lrs. V. Kothuri Venkateswarlu (D) By Lrs. Ors. reported as
MANU/SC/0740/1999.
16. Having heard learned counsels for the parties and gone through the
material placed on record, I find no merit in the appeal for the reasons
stated hereinafter.
17. Pithily put, while scrutinising execution of a Will, a rational
approach is required to be adopted by the Court. The Court must satisfy
its conscience before passing any order granting probate, as existence of
suspicious circumstances significantly impacts the propounder’s case.
In this regard, the Supreme Court in Anil Kak v. Kumari Sharada Raje
and Others reported as (2008) 7 SCC 695 has opined as under:
FAO 415/2011 Page 6 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

FAO 415/2011 Page 7 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

its execution or registration. This, is the essence of the
repeated pronouncements made by this Court on the subject
including the decisions referred to and relied upon before
us.”

19. Recently, while traversing the law and referring to Bharpur Singh
and Others v. Shamsher Singh reported as (2009) 3 SCC 687 , the
Supreme Court in Murthy and Others v. C. Saradambal and Others
reported as (2022) 3 SCC 209 reiterated a few suspicious circumstances
as being illustrative, but not exhaustive, in the following manner:

FAO 415/2011 Page 8 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

20. Pertinently, the propounder in order to prove his case, examined
one of the attesting witnesses. The relevant statutory provision i.e.,
Section 68 of the Indian Evidence Act, 1972 reads thus:

21. Needless to state, a Will has to be proved like any other document,
subject to the special requirements of attestation provided in Section 63
of the Act. The test to be applied would be the test of satisfaction of a
prudent mind. What is required to be seen is whether the propounder of
the Will has produced satisfactory evidence that the Will was signed by
the testator who, at the relevant time, was in a sound and disposing state
of mind; understood the nature and effect of the disposition and had put
his thumb impression of his own free will.

22. In this regard, the Supreme Court in H. Venkatachala Iyengar v .
B.N. Thimmajamma and Others reported as 1959 Supp (1) SCR 426 ,
held as under:-
" 18. What is the true legal position in the matter of proof of
wills? It is well-known that the proof of wills presents a
recurring topic for decision in courts and there are a large
number of judicial pronouncements on the subject. The party
FAO 415/2011 Page 9 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

propounding a will or otherwise making a claim under a will
is no doubt seeking to prove a document and, in deciding how
it is to be proved, we must inevitably refer to the statutory
provisions which govern the proof of documents. Sections 67
and 68 of the Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be signed by
any person, the signature of the said person must be proved
to be in his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of experts
and of persons acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with the proof
of the execution of the document required by law to be
attested; and it provides that such a document shall not be
used as evidence until one attesting witness at least has been
called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor,
may dispose of his property by will and the three illustrations
to this section indicate what is meant by the expression "a
person of sound mind" in the context. Section 63 requires that
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 that the signature or mark shall be so made
that it shall appear that it was intended thereby to give effect
to the writing as a will. This section also requires that the
will shall be attested by two or more witnesses as prescribed.
Thus the question as to whether the will set up by the
propounder is proved to be the last will of the testator has to
be decided in the light of these provisions. Has the testator
signed the will? Did he understand the nature and effect of
the dispositions in the will? Did he put his signature to the
will knowing what it contained? Stated broadly it is the
decision of these questions which determines the nature of the
finding on the question of the proof of wills. It would prima
facie be true to say that the will has to be proved like any
other document except as to the special requirements of
attestation prescribed by Section 63 of the Indian Succession
Act. As in the case of proof of other documents so in the case
FAO 415/2011 Page 10 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

of proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would be the
usual test of the satisfaction of the prudent mind in such
matters.

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."

23. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Others
reported as (2006) 13 SCC 433, while explaining the mode and manner
in which execution of an unprivileged Will is to be proved, the Supreme
Court held as under:-
" 32. Section 63 of the Succession Act lays down the mode and
manner of execution of an unprivileged will. Section 68 of the
Evidence Act postulates the mode and manner of proof of
execution of document which is required by law to be
attested. It in unequivocal terms states that execution of will
must be proved at least by one attesting witness, if an
FAO 415/2011 Page 11 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

attesting witness is alive subject to the process of the court
and capable of giving evidence. A will is to prove what is
loosely called as primary evidence, except where proof is
permitted by leading secondary evidence. Unlike other
documents, proof of execution of any other document under
the Act would not be sufficient as in terms of Section 68 of the
Evidence Act, execution must be proved at least by one of the
attesting witnesses. While making attestation, there must be
an animus attestandi, on the part of the attesting witness,
meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable.

33. The burden of proof that the will has been validly
executed and is a genuine document is on the propounder.
The propounder is also required to prove that the testator has
signed the will and that he had put his signature out of his
own free will having a sound disposition of mind and
understood the nature and effect thereof. If sufficient
evidence in this behalf is brought on record, the onus of the
propounder may be held to have been discharged. But, the
onus would be on the applicant to remove the suspicion by
leading sufficient and cogent evidence if there exists any. In
the case of proof of will, a signature of a testator alone would
not prove the execution thereof, if his mind may appear to be
very feeble and debilitated. However, if a defence of fraud,
coercion or undue influence is raised, the burden would be
on the caveator. (See Madhukar D. Shende v. Tarabai Aba
Shedage and Sridevi v. Jayaraja Shetty.) Subject to above,
proof of a will does not ordinarily differ from that of proving
any other document."

24. In the present case, the appellant, while drawing attention to the
testimony of Late Smt. Harjeet Kaur has referred to the instance of
testator suffering an accident and going into coma as a suspicious
circumstance. In this regard, suffice it to note that on a plain reading of
the testimony of Late Smt. Harjeet Kaur it appears that though she had
stated that the testator was the owner of the subject property (having
purchased it from his own funds), it was also stated that after the
FAO 415/2011 Page 12 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

accident, the testator was never admitted in any hospital. Although in her
deposition, Late Smt. Harjeet Kaur stated that after the accident, the
testator was not in a fit state of mind, it is also evident from other points
in the deposition that she had stated that after the accident, the testator
was behaving properly and only sometimes he was erratic. She also st-
ated that the testator was operating both the bank accounts on his own
and after the accident one of the family members used to accompany
him.

25. At this stage, it is deemed expedient to refer to the statement of the
appellant where he also admitted the suggestion that his father himself
was operating both his accounts till his death. Even during the hearing,
the Court had put a query to the learned counsel for the appellant if any
medical records were placed on the record which show as to whether the
testator was ever treated or admitted in any hospital after the year 1991.
The answer was in the negative.

26. Notably, on the other hand, all the four daughters of the testator
have filed their affidavits stating that at the time of execution of the Will,
the testator was of sound health and disposing mind. It was further stated
that the Will was executed by the testator without any undue pressure or
coercion by anyone. They gave their no-objection in respect of grant of
probate in favour of respondent No.2 and were not even cross-examined.

27. Besides, the testimony of attesting witness- S. Hardev Singh would
also show that he testified to the fact that the testator had executed the
Will in his presence. He identified his signatures as well as signatures of
the testator on the Will. He deposed that the Will was produced before
FAO 415/2011 Page 13 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

the Sub-Registrar for registration in his presence. The Will was also
signed on the backside by him at point B2 to B2. He also identified his
thumb impression at point B3 to B3 before the Sub-Registrar as well as
those of the second attesting witness- Sh. J.B. Malik .
Pertinently, S. Hardev Singh stated that at the time of the
execution, the testator was in a fit state of mind and walking with
assistance. Although, the appellant has raised a doubt as to the testimony
of attesting witness-S. Hardev Singh by stating that he had shown lack of
knowledge of the testator’s accident/state of coma in the year 1991, in
the opinion of this Court that would not create any dent on the testimony.

28. As such, in the absence of any satisfactory explanation given by
the appellant, or medical documents, and further in light of the above
noted testimonies, the contention that the testator’s accident in the year
1991 implied that he was not in a fit state of mind at the time of
execution of the Will in the year 1998 is farfetched and has no merit in it.

29. Coming to the next contention that the testator had not given any
reason for exclusion of other legal heirs, it is observed that in the
testimony of Late Smt. Harjeet Kaur as well as the appellant, it has come
that the appellant was the owner of another plot in Khyala . Accordingly,
I find merit in the submission of the learned counsel for respondent No.2
that the same would have weighed in mind of the testator while
excluding the appellant from his estate.

30. The contention for non-impleading the wife of Late S. Harpinder
Singh is also of no avail to the appellant. As noted hereinabove, Late S.
Harpinder Singh had predeceased the testator way back on 24.04.1989. It
has come in the testimonies of parties that after Late S. Harpinder Singh
FAO 415/2011 Page 14 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56

Neutral Citation Number : 2023:DHC:2422

had expired, his wife got remarried and her whereabouts were not known
to anyone. Even otherwise, a public notice was issued in furtherance of
the petition of respondent No.2, to which no objection was filed by any
member of the public, besides the appellant and Late Smt. Harjeet Kaur .
The reliance placed by the appellant on the decision in Harnam Singh
(Supra) and Kavita Kanwar (Supra) is also found misplaced. While in
the former, the testimony of scribe of the Will and the two attesting
witnesses was disbelieved and, in the latter, the suspicious circumstances
were opined to be unexplained. The same is not the case in the present
appeal and hence, the appellant’s reliance on the aforesaid decisions is of
no avail to him.

31. Accordingly, for the reasons stated hereinabove, I find that none of
the circumstances pointed out by the learned counsel for the appellant
create any doubt on the genuineness and due execution of the Will. No
ground is made out to entertain the present appeal. The impugned order
is upheld and the appeal stands dismissed.


( MANOJ KUMAR OHRI)
JUDGE
APRIL 06, 2023
na


FAO 415/2011 Page 15 of 15

Digitally Signed
By:NIJAMUDDEEN ANSARI
Signing Date:10.04.2023
17:48:56