Akash Gahlot vs State And Ors
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 21.07.2026
Pronounced on : 15.10.2026
Uploaded on : 17.10.2026
# CNR No. DLHC010279262017
+ FAO 71/2017 & CM APPL. 5420/2017
AKASH GAHLOT .....Appellant
Through: Mr. Sachin Puri and Mr.Sanjeev
Sagar, Senior Advocates with
Mr. Dhananjay Grover,
Advocate
versus
STATE AND ORS .....Respondents
Through: Mr. Karan Veer Tyagi,
Mr.Devvrat Tyagi, and Mr.
Robin Tyagi, Advocates for
LRs of Respondent Nos. 5, 7,
and 8.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. The present appeal filed under Section 299 of the Indian
Succession Act, 1925 (hereinafter referred to as the “Act”) has been
preferred by the appellant, who was the petitioner in Probate Case No.
179/10/03 (renumbered as 15875/16) and had sought grant of probate
of the Will purportedly executed by his grandmother, Late Smt. Shanti
Devi , in his favour.
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2. The appellant assails the judgment and decree dated 08.11.2016
(hereinafter referred to as the “impugned judgment”) passed by the
learned Additional District Judge-02 (West), Tis Hazari Courts, Delhi ,
whereby the probate petition filed under Section 276 of the Act was
dismissed.
3. The probate petition was filed on behalf of the appellant, who
was then a minor, through his father and natural guardian, Sh. Hargian
Singh , who has been arrayed as respondent no. 4 in the present
proceedings, as well as in the proceedings before the Probate Court. It
was averred in the subject petition that Late Smt. Shanti Devi
(hereinafter referred to as the “testatrix”) wife of Late Sh. Mauji Ram ,
passed away on 07.05.2001, leaving behind a Will executed during her
lifetime and was registered on 07.10.1999 (hereinafter referred to as
the “Will”). The testatrix had eight children, out of whom, two sons,
namely Sh. Rajinder and Sh. Ram Kumar , had predeceased her. They
were survived by their respective sons, Sh. Sudhir Kumar (respondent
no. 2) and Sh. Gulshan Kumar (respondent no. 3). The testatrix was
survived by her son, Sh. Hargian Singh (respondent no. 4), and four
daughters, namely Smt. Rampati (respondent no. 5), Smt. Nirmal
(respondent no. 6), Smt. Raj Bala (respondent no. 7) and Smt. Rajpati
@ Rajesh Chaudhary (respondent no. 8).
Sh. Akash Gahlot , son of Sh. Hargian Singh and grandson of the
testatrix, is the appellant herein, who is the beneficiary and propounder
of the Will in question.
th
4. Notably, the testatrix was the co-owner of a l/9 share in the
agricultural land bearing Khasra Nos. 90/2(3-19), 91 (6-18), 92(6-18),
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93(6-18), 94(7-6), 262(7-6), 571(2-15), 573(1-0), 585(3-10), 584(2-9),
586(4-16), 587(7-4), 588(0-5), 589(2-16), 591(4-16), 594(4-16),
627(4-16), 628(4-13), 623(3-13), 630(4-16), 97/648(0-13), 967/654(0-
3), 666/2(0-9), 894(2-8), 896(4-8), situated at Village Nawada , Mazra
Hastsai , Tehsil Mehrauli , New Delhi .
5. By way of the Will in question, the testatrix bequeathed her
entire right/share in movable and immovable properties, as well as her
right/share in the compensation payable, including any enhancement
thereof, in respect of the land measuring 3.11 Bighas , acquired vide
LAC Award No. 159/86-87, in favour of the appellant, who was the
propounder and beneficiary of the Will. The Will was stated to have
been executed and registered on 07.10.1999 in the office of the Sub-
Registrar.
6. Upon filing of the subject petition, notice was issued to the
respondents, and a citation was issued to the general public, inviting
objections. Notice was also issued to the concerned Collector/SDM,
Patel Nagar , to file a valuation report of the property in question.
Respondent nos. 2 and 3, namely, Sh. Sudhir Kumar and Sh. Gulshan
Kumar , filed their objections. Sh. Sudhir Kumar also filed a separate
objection. In the aforesaid objections, the objectors challenged the
authority of the testatrix to execute the Will. It was claimed that the
same was in contravention of Section 48(2) of the Delhi Land Reforms
Act, 1954, as she, being a widow, had no right or title to the property
of her late husband, Sh. Mauji Ram . It was also claimed that Section
50 of the Delhi Land Reforms Act provides that the general order of
succession favours male lineal descendants and, as such, the testatrix,
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being the widow, and the five daughters, could not have succeeded to
the Bhumidhari holdings of Late Sh. Mauji Ram .
7. The objectors also challenged the mutation dated 21.07.1965
passed by the Tehsildar , whereby the Bhumidhari holding of Late
Mauji Ram was mutated in the name of his wife (the testatrix) and her
five daughters. The objectors, along with respondent no. 4, the father
of the beneficiary, namely Sh. Hargian Singh , had challenged the said
mutation by way of a civil suit, which was pending consideration at
the time the objections were filed.
8. It was further pleaded that a family settlement between Sh.
Hargian Singh and the objectors had been reached, under which
certain land holdings had fallen to the share of the objectors, in respect
whereof they had paid a sum of Rs.99,000/- to Sh. Hargian Singh .
9. Additionally, Smt. Rampati , Smt. Nirmal , Smt. Raj Bala , and
Smt. Rajpati @ Rajesh Chaudhary (respondent nos. 5, 6, 7, and 8
respectively) also filed joint objections and claimed that the alleged
Will was forged and fabricated, as the testatrix had died intestate. In
the alternative, it was claimed that the appellant had procured the
alleged Will by fraud, coercion, and importunity. It was alleged that
the testatrix had met with a road accident about 13 years earlier, as a
result of which steel rods were inserted in her legs and she used to
walk with the help of a walker. It was further alleged that, about two
years before her death, she had suffered a fracture, following which
she was confined to bed and her movements were restricted. It was
also claimed that the appellant had not produced any certificate from a
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doctor certifying that the testatrix was of sound disposing mind at the
time of execution of the alleged Will.
10. The Will was also challenged as unnatural on the ground that it
excluded all the other legal heirs. It was further stated that Sh. Sudhir
and Sh. Gulshan , the objectors, along with Sh. Hargian Singh , had also
filed Suit No. 811/2002 challenging the title of the daughters. The said
suit was dismissed, and an appeal bearing RCA No. 29/2005 was
pending. Besides, the objectors Sh. Sudhir and Sh. Gulshan , along with
Sh. Hargian Singh , had also filed a civil suit seeking a direction
restraining the release of the testatrix‟s share of compensation under
the Land Acquisition Award in favour of the daughters. The said suit
was also dismissed.
11. On the basis of the pleadings, the Probate Court framed the
following issues:
“ 1. Whether the Will dated 07.10.1999 executed by late Smt. Shanti
was her last testament, executed genuinely and validly while she
was in a sound disposing state of mind? OPP
2. Whether the petitioner is entitled to the grant of probate as
prayed for? OPP
3. Relief. ”
12. During the course of the probate proceedings, in order to prove
the due execution and registration of the Will, the appellant examined
the attesting witness, namely, Sh. J. B. Malik , Advocate, as PW-3.
Besides examining the attesting witness, the appellant also summoned
and examined a bank witness, namely Sh. Akhileshwar Sahay (PW-1),
Manager, Allahabad Bank ; Sh. Krishan Kumar (PW-2), LDC from the
office of Sub-Registrar-II, Janakpuri , Delhi ; and Sh. P. K. Dabas ,
Value Added Tax Officer from the VAT Department (PW-3A). Smt.
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Alka Gahlot , the mother and attorney of the then-minor appellant, was
examined as PW-4.
13. On behalf of the respondents, objector Sh. Sudhir Kumar was
examined as R2W1, Sh. Gulshan Kumar was examined as RW-3, and
respondent no. 8/ Smt. Rajpati @ Rajesh Chaudhary was examined as
R8W1.
14. The Probate Court , while dismissing the subject petition,
primarily found the Will to have been executed in suspicious
circumstances. In this regard, it noted that while the Will was claimed
to have been executed and registered on 07.10.1999, on page 2 of the
Will the date „15.09.1999‟ appeared which the attesting witness could
not satisfactorily explain. The Probate Court also found it highly
improbable and unnatural that the testatrix would have approached Sh.
J. B. Malik , as there was no prior relationship between the two.
15. Further, the testimony of Sh. P. K. Dabas , the then Sub-
Registrar, was also doubted on the ground that he had been examined
12 years after the registration of the Will. It was also observed that, in
his testimony, the attesting witness, Sh. J. B. Malik , had mentioned the
presence of another person, aged about 35-40 years, at the time of
execution of the Will.
16. Lastly, the fact that the original Will was filed after seven years
was also considered as a suspicious circumstance. The Probate Court
observed that the beneficiary and propounder of the Will, though a
minor at the time of filing the petition, had attained the age of majority
during the pendency of the petition but chose not to enter the witness
box. It was further observed that the father of the appellant had been
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impleaded as a respondent and that only his mother, Smt. Alka Gahlot ,
had been examined as PW-4. In the opinion of the Probate Court , this
was also a suspicious circumstance, as the objectors were deprived of
the opportunity to cross-examine the appellant and propounder of the
Will.
17. Before this Court, learned Senior Counsel appearing for the
appellant contended that the suspicious circumstances which were
taken into account by the Probate Court were not even pleaded by the
o bjectors in their reply. It was submitted that, unless such
circumstances were pleaded, the propounder would have no
opportunity to address them or lead evidence to dispel them. Learned
Senior Counsel submitted that the objections filed by Sh. Sudhir
Kumar and Sh. Gulshan Kumar primarily questioned the authority and
capacity of the testatrix to make a bequest. The other objectors had
alleged that the testatrix had died intestate and the Will sought to be
propounded was forged and fabricated. The only circumstance
concerning the testatrix‟s health raised in the objections was that she
had suffered a road accident about 13 years earlier and a fracture about
2 years before her death, however, no medical documents in support of
these allegations had been produced.
18. In support of the contention that a challenger to a Will must
specifically plead the grounds of challenge, learned Senior Counsel
relied upon the decision of this Court in Budh Singh v. Raghubir
1
Singh . The said decision was relied upon for the proposition that the
1
2015 SCC OnLine Del 14528
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propounder must be made aware, through the pleadings, of the
grounds on which the Will is challenged so as to have an opportunity
to lead evidence to meet them, and that a challenger cannot raise new
grounds for the first time at the stage of arguments.
19. On behalf of appellant, reliance was also placed upon the
decision of the Supreme Court in P. P. K. Gopalan Nambiar v. P. P.
2
K. Balakrishnan Nambiar in support of the contention that although
the propounder is required to prove the Will and dispel suspicious
circumstances, such circumstances must be real, germane and valid,
and not merely the product of a doubting mind. It was further
contended that the Probate Court had erred in observing that both
attesting witnesses were advocates, as only Sh. J. B. Malik was an
advocate, whereas the record did not support the observation that the
second attesting witness, Sh. Rakesh Kapila , was also an advocate.
20. Learned counsel appearing for the LRs of respondent nos. 5, 7,
and 8, on the other hand, defended the impugned decision. It was
submitted that the testatrix was an illiterate lady and that, although the
Will bore her signature, it did not record that its contents had been
explained to her in vernacular. Learned counsel further submitted that
the suspicious circumstances had emerged during cross-examination
and that the Probate Court was, therefore, justified in considering them
while dismissing the subject petition.
21. This Court has heard the arguments advanced on behalf of the
parties as well as perused the evidence placed on record.
2
1995 Supp. (2) SCC 664
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22. A Will occupies a distinct position in the law of succession.
Unlike an ordinary document, it speaks from the death of its maker,
who is no longer available to affirm or explain the circumstances in
which it came to be executed. The Court is, therefore, required to
approach the question of its proof with due care and circumspection,
bearing in mind that the document propounded must represent the
genuine and conscious testamentary disposition of the testator. At the
same time, the solemn nature of a testamentary disposition does not
warrant the rejection of a Will on the basis of conjectures or doubts
which are not borne out by the evidence. The task of the Court is to
examine the evidence as a whole and determine whether the Will was
duly executed and whether any legitimate suspicious circumstances
surrounding its execution have been satisfactorily explained.
23. It is well settled that a Will is a testamentary document that
comes into operation after the death of the testator. Section 59 of the
Act stipulates that every person of sound mind, not being a minor, may
dispose of property by Will. Section 61 provides that a Will or any
part of a Will, the making of which has been caused by fraud or
coercion, or by such importunity as takes away the free agency of the
testator, is void.
24. Section 63 of Act further lays down the requirements for the
execution of unprivileged Wills and reads as under:
“ 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:—
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(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
acknowledgement of his signature or mark, or the signature of such
other person; and each of the witnesses shall sign the Will in the
presence of the 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. ”
A plain reading of Section 63 shows that a Will must be
attested by two or more witnesses.
25. Further, under Section 68 of the Indian Evidence Act, 1872, a
document required by law to be attested cannot be used in evidence
unless at least one attesting witness, if alive and capable of giving
evidence, is called to prove its execution. The relevant portion of
Section 68 reads as under:
“ 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 . ”
26. Now that the statutory requirements governing the execution
and proof of a Will have been noticed hereinabove, it would be
apposite to advert to the principles laid down by the Supreme Court in
3
this regard. In H. Venkatachala Iyengar v. B.N. Thimmajamma , the
3
AIR 1959 SC 443
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three-Judge Bench of the Supreme Court considered in detail the
principles governing the execution and proof of Wills and laid down
the following guiding principles:
“ 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 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. S. 67 and 68, Evidence Act are relevant for this purpose.
Under S. 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 Ss. 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, Ss.
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 S. 63 of the Indian
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Succession Act. As in the case of proof of other documents so in the
case 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.
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
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
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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.
22. It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on wills, no
hard and fast or inflexible rules can be laid down for the
appreciation of the evidence. It may, however, be stated generally
that a propounder of the will has to prove the due and valid
execution of the will and that if there are any suspicious
circumstances surrounding the execution of the will the propounder
must remove the said suspicions from the mind of the Court by
cogent and satisfactory evidence. It is hardly necessary to add that
the result of the application of these two general and broad
principles would always depend upon the facts and circumstances of
each case and on the nature and quality of the evidence adduced by
the parties. It is quite true that, as observed by Lord Du Parcq in
Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 PC 156), "where a
will is charged with suspicion, the rules enjoin a reasonable
scepticism, not an obdurate persistence in disbelief. They do not
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demand from the Judge, even in circumstances of grave suspicion, a
resolute and impenetrable incredulity. He is never required to close
his mind to the truth". It would sound platitudinous to say so, but it
is nevertheless true that in discovering truth even in such cases the
judicial mind must always be open though vigilant, cautious and
circumspect . ”
27. The Supreme Court has further clarified that every circumstance
cannot be characterized as suspicious. It becomes suspicious only
when it is not normal or is not normally expected in a normal situation
or is not expected of a normal person. In this regard, a gainful
reference may be made to the decision in Indu Bala Bose v. Manindra
4
Chandra Bose , wherein the Apex Court held as under:
“ 7. This Court has held that the mode of proving a Will does
not ordinarily differ from that of proving any other document except
to the special requirement of attestation prescribed in the case of a
Will by Section 63 of the Succession Act. The onus of proving the
Will is on the propounder and in the absence of suspicious
circumstances surrounding the execution of the Will, proof of
testamentary capacity and the signature of the testator as required
by law is sufficient to discharge the onus. Where however there are
suspicious circumstances, the onus is on the propounder to explain
them to the satisfaction of the court before the court accepts the Will
as genuine. Even where circumstances give rise to doubts, it is for
the propounder to satisfy the conscience of the court. The suspicious
circumstances may be as to the genuineness of the signatures of the
testator, the condition of the testator's mind, the dispositions made in
the Will being unnatural, improbable or unfair in the light of
relevant circumstances, or there might be other indications in the
Will to show that the testator's mind was not free. In such a case the
court would naturally expect that all legitimate suspicions should be
completely removed before the document is accepted as the last Will
of the testator. If the propounder himself takes a prominent part in
the execution of the Will which confers a substantial benefit on him,
that is also a circumstance to be taken into account, and the
propounder is required to remove the doubts by clear and
satisfactory evidence. If the propounder succeeds in removing the
suspicious circumstances the court would grant probate, even if the
4
(1982) 1 SCC 20
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Will might be unnatural and might cut off wholly or in part near
relations.
8. Needless to say that any and every circumstance is not a
“suspicious” circumstance. A circumstance would be “suspicious”
when it is not normal or is not normally expected in a normal
situation or is not expected of a normal person. ”
(emphasis supplied)
28. More recently, in Shivakumar & Ors. v. Sharanabasppa &
5
Ors. , the Supreme Court, after traversing through the relevant
decisions, has summarised the legal principles governing the
adjudicatory process concerning proof of a Will as follows:
“ 12.1. Ordinarily, a will has to be proved like any other
document; the test to be applied being the usual test of the
satisfaction of the prudent mind. Alike the principles governing the
proof of other documents, in the case of Will too, the proof with
mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a Will is
required to be attested, it cannot be used as evidence until at least
one attesting witness has been called for the purpose of proving its
execution, if there be an attesting witness alive and capable of giving
evidence.
12.3. The unique feature of a Will is that it speaks from the
death of the testator and, therefore, the maker thereof is not
available for deposing about the circumstances in which the same
was executed. This introduces an element of solemnity in the
decision of the question as to whether the document propounded is
the last Will of the testator. The initial onus, naturally, lies on the
propounder but the same can be taken to have been primarily
discharged on proof of the essential facts which go into the making
of a Will.
12.4. The case in which the execution of the Will is
surrounded by suspicious circumstances stands on a different
footing. The presence of suspicious circumstances makes the onus
heavier on the propounder and, therefore, in cases where the
circumstances attendant upon the execution of the document give
rise to suspicion, the propounder must remove all legitimate
suspicions before the document can be accepted as the last Will of
the testator.
5
(2021) 11 SCC 277
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12.5. If a person challenging the Will alleges fabrication or
alleges fraud, undue influence, coercion et cetera in regard to the
execution of the Will, such pleas have to be proved by him, but even
in the absence of such pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as to whether the
Will had indeed been executed by the testator and/or as to whether
the testator was acting of his own free will. In such eventuality, it is
again a part of the initial onus of the propounder to remove all
reasonable doubts in the matter.
12.6. A circumstance is “suspicious” when it is not normal
or is „not normally expected in a normal situation or is not expected
of a normal person‟. As put by this Court, the suspicious features
must be „real, germane and valid‟ and not merely the „fantasy of the
doubting mind.‟
12.7. As to whether any particular feature or a set of features
qualify as “suspicious” would depend on the facts and
circumstances of each case. A shaky or doubtful signature; a feeble
or uncertain mind of the testator; an unfair disposition of property;
an unjust exclusion of the legal heirs and particularly the
dependants; an active or leading part in making of the Will by the
beneficiary thereunder et cetera are some of the circumstances
which may give rise to suspicion. The circumstances above-noted
are only illustrative and by no means exhaustive because there could
be any circumstance or set of circumstances which may give rise to
legitimate suspicion about the execution of the Will. On the other
hand, any of the circumstance qualifying as being suspicious could
be legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of sound
and disposing state of mind of the testator and his signature coupled
with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience comes
into operation when a document propounded as the Will of the
testator is surrounded by suspicious circumstance/s. While applying
such test, the Court would address itself to the solemn questions as
to whether the testator had signed the Will while being aware of its
contents and after understanding the nature and effect of the
dispositions in the Will?
12.9. In the ultimate analysis, where the execution of a Will
is shrouded in suspicion, it is a matter essentially of the judicial
conscience of the Court and the party which sets up the Will has to
offer cogent and convincing explanation of the suspicious
circumstances surrounding the Will. ”
29. The principles noticed hereinabove are to be applied to the
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evidence led in the present case. The Probate Court declined to accept
the Will dated 07.10.1999 principally on account of certain
circumstances which, in its view, cast doubt on its execution. The
appellant submits that the circumstances so relied upon were either not
pleaded by the objectors or, in any event, stood explained by the
evidence on record. The rival submissions must be considered against
the settled position that while the propounder bears the burden of
proving due execution, suspicion must be founded on circumstances
that are real and germane to the question of whether the instrument
represents the free and conscious testamentary disposition of the
testatrix.
30. At the outset, it is necessary to distinguish the objection
concerning the testatrix‟s authority to bequeath the agricultural land
from the objections directed at the genuineness of the Will itself.
Respondent nos. 2 and 3 questioned the devolution of Bhumidhari
rights under the Delhi Land Reforms Act, 1954, and relied upon the
pending dispute concerning mutation and title. The scope of probate
proceedings, however, is confined to determining whether the Will
propounded is genuine and duly executed and they do not constitute
proceedings for adjudication of title to the property purportedly
bequeathed. The question of title must, therefore, be left open to be
agitated in the appropriate proceedings (Ref: Chiranjilal Shrilal
6
Goenka v. Jasjit Singh .
31. As regards the challenge to the genuineness of the Will, the
6
(1993) 2 SCC 507
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evidence of Sh. J. B. Malik , Advocate, one of the attesting witnesses,
assumes significance. He deposed that the Will was prepared on the
instructions of the testatrix, typed in English, and its contents were
explained to her in Hindi . According to him, the testatrix signed and
affixed her thumb impression in the presence of both attesting
witnesses and Sh. Rakesh Kapila signed thereafter, followed by Sh. J.
B. Malik himself. He further stated that the testatrix‟s identity was
checked through her ration card and that, when the Will was presented
before the Sub-Registrar, the parties again signed and affixed their
impressions on the reverse of the first page. He identified the marks
appearing at points „C‟, „D‟, „E‟, and „F‟ as those of the testatrix and
the marks at appearing at points „G‟ and „H‟ as those of the other
attesting witness. He also stated that the testatrix‟s photograph was
affixed to the Will.
32. Sh. J. B. Malik , in his cross-examination, maintained his stand
that that the Will was executed and registered on 07.10.1999,
explaining that the date „15.09.1999‟ appearing on the second page
could be a typing mistake. He denied the suggestions that the testatrix
had not signed the Will in his presence, that she had not appeared
before the Sub-Registrar, or that the signatures and thumb impressions
appearing at different points were those of different persons. His
evidence, therefore, directly addresses the statutory requirements of
execution and attestation and cannot be displaced merely by pointing
to a discrepancy in the date appearing on one page. On being cross-
examined on behalf of respondent no. 8, the witness categorically
denied the suggestion that the Will was forged or fabricated or was
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prepared at the instance of Sh. Hargian Singh . A suggestion was also
put to Sh. Malik with respect to the testatrix having met with an
accident, the same was, however, denied for want of knowledge.
33. The testimony of Sh. P. K. Dabas , who was the Sub-Registrar at
the relevant time, further provides corroboration on the factum of
presentation and registration. He deposed that the Will, which was
exhibited as Ex. PW-1/D-2, was presented and registered, during his
tenure as Sub-Registrar, on 07.10.1999. He denied the suggestions that
the signatures of the testatrix appeared differently on the Will. He
clarified that the signatures of the executant of a document are
obtained on the original Will and on the copy simultaneously. He
further denied the suggestion that the thumb impression and signature
of the testatrix were different on the original Will and in the records
maintained at the office of Sub-Registrar, or that the testatrix had
never appeared before him or had been impersonated. He also denied
the suggestion that the Will had been prepared at the house of the
person who presented it for registration. The fact that Sh. Dabas was
examined years after the registration was a matter to be considered
while assessing his recollection, since the passage of time, without
more, does not render his testimony unreliable, particularly when his
evidence concerns the official act of registration.
34. The discrepancy between the date appearing on the second page
of the Will and the date of its registration was treated by the Probate
Court as a suspicious circumstance. Sh. Malik , however, specifically
stated that the Will was executed and registered on 07.10.1999 and
that the earlier date could be a typing mistake. This explanation has to
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be assessed with the evidence of the Sub-Registrar and the remaining
evidence, rather than by treating the date on the second page in
isolation as proof of fabrication. No material referred to in the
impugned judgment establishes that the Will was in fact executed on
15.09.1999 or that the discrepancy affected the acts of execution and
attestation deposed by Sh. Malik .
35. The Probate Court also considered it improbable that the
testatrix would have approached Sh. Malik when no prior personal
relationship between them had been established. In this regard, Smt.
Alka Gahlot , the mother and attorney of the appellant, deposed that
though she had heard of Sh. Malik , she did not know him personally.
She also stated that she had known Sh. Rakesh Kapila since 7-8 years
prior to the testatrix‟s death. She further deposed that the testatrix had
shown the Will to all the family members after its execution and that,
following her death, it was found in her almirah. A suggestion was
also put to her that both Sh. Malik , Advocate and Sh. Kapila were
friends of her husband, which she denied for want of knowledge. She
also denied the suggestion that her husband, in collusion with the two
attesting witnesses, had forged and fabricated the Will. She also
denied the suggestion that the testatrix was not in good physical
condition or in a position to hear, see, or understand anything. She also
denied the suggestion that the testatrix was not of sound disposing
mind at the time of the execution of the Will.
36. Another circumstance noticed by the Probate Court was the
presence of a person aged about 35 to 40 years who had accompanied
the testatrix. Sh. Malik stated that he did not remember whether Sh.
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Hargian Singh was present and could not recall whether the
accompanying person had disclosed his relationship with the testatrix.
He rather categorically denied that the Will had been drafted at the
instructions of Sh. Hargian Singh . Thus, the witness did not identify
the accompanying person as Sh. Hargian Singh . Even if Sh. Hargian
Singh ‟s presence at the time of execution is assumed, such presence,
without evidence that he procured or dictated the Will or exercised any
influence over the testatrix, would not by itself establish that the
testamentary disposition was not her own. In this regard, reference
may be made to the decision of the Supreme Court in Sridevi v.
7
Jayaraja Shetty , wherein it was held that mere presence at the place
of execution does not, by itself, establish that the person had taken a
prominent part in the execution of the Will.
37. The objectors also questioned the testatrix‟s physical and mental
condition, alleging that she had suffered an accident, required a walker
to walk, and was confined to bed following a fracture. Sh. Malik
denied the suggestion that the testatrix was not of sound disposing
mind, while Smt. Alka Gahlot denied that the testatrix was unable to
see, hear, or understand the contents of the Will or that her thumb
impressions had been obtained at home while she was bedridden. The
allegations concerning her health were not supported by medical
evidence establishing incapacity at the time of execution. Physical
infirmity, even if present, is not synonymous with absence of
testamentary capacity. The test under Section 59 of the Act is whether,
7
(2005) 2 SCC 784
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at the relevant time, the testatrix understood the nature of the act and
the effect of the disposition. On the evidence identified in the
impugned judgment, the allegations of incapacity do not independently
establish that she lacked such understanding.
38. The fact that the Will excludes the other legal heirs was also
relied upon as a circumstance against its genuineness. In Uma Devi
8
Nambiar v. T.C. Sidhan , the Supreme Court, while referring to the
Constitution Bench decision in Shashi Kumar Banerjee v. Subodh
9
Kumar Banerjee , reiterated the principles governing proof of a Will
and explained that exclusion of natural heirs, by itself, does not
constitute a suspicious circumstance. The relevant extract is
reproduced below :
“5. The mode of proving a Will does not ordinarily differ
from that of proving any other document except as to the special
requirement of attestation prescribed in the case of a Will by Section
63 of the Indian Succession Act. The onus of proving the Will is on
the propounder and in the absence of suspicious circumstances
surrounding the execution of the Will, proof of testamentary capacity
and the signature of the testator as required by law is sufficient to
discharge the onus. Where however there are suspicious
circumstances, the onus is on the propounder to explain them to the
satisfaction of the court before the court accepts the Will as genuine.
Where the caveator alleges undue influence, fraud and coercion, the
onus is on him to prove the same. Even where there are no such
pleas but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court. The suspicious
circumstances may be as to the genuineness of the signature of the
testator, the condition of the testator's mind, the dispositions made in
the Will being unnatural, improbable or unfair in the light of
relevant circumstances or there might be other indications in the
Will to show that the testator's mind was not free. In such a case the
court would naturally expect that all legitimate suspicion should be
completely removed before the document is accepted as the last Will
8
(2004) 2 SCC 321
9
AIR 1964 SC 529
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of the testator. If the propounder himself takes part in the execution
of the Will which confers a substantial benefit on him, that is also a
circumstance to be taken into account, and the propounder is
required to remove the doubts by clear and satisfactory evidence. If
the propounder succeeds in removing the suspicious circumstances
the court would grant probate, even if the Will might be unnatural
and might cut off wholly or in part near relations. ”
39. The above principle is material here. A Will is intended to alter
the ordinary course of succession and consequently, exclusion of some
or all natural heirs cannot, without more, lead to a conclusion that the
Will is unnatural or fabricated. The bequest in favour of the appellant,
who was the testatrix‟s grandson, therefore required scrutiny in the
context of the evidence as a whole, but the mere fact that other heirs
were excluded does not supply the missing proof of fraud, coercion or
undue influence.
40. The Probate Court also attached significance to the non-
examination of the appellant and his father, Sh. Hargian Singh . It is an
admitted position as per the facts of the case that the appellant was a
minor when the probate petition was instituted and was not stated to
have been present at the time of execution. His mother, Sh. Alka
Gahlot , was examined as PW-4. In these circumstances, the
appellant‟s non-examination could not, by itself, be treated as proof
that the Will was not genuine. The father‟s non-examination may be
considered in evaluating the overall evidence, particularly in view of
the allegation of his involvement, but it does not relieve the Court of
assessing the direct evidence of the attesting witness and the evidence
concerning registration. A gainful reference in this regard may be
made to the decision passed by the Coordinate Bench of this Court in
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10
Narender Nath Nanda v. State , wherein it was held as under:
“ 9. It is only when the propounder of the Will has proved the
execution of a Will in accordance with law, which includes proof of
attestation, would the Court be required to examine, if at all, the
alleged suspicious circumstances put forth by the objectors. As is
obvious if, the propounder fails to prove the execution of the Will in
accordance with law, then the Court would not have to necessarily
proceed to the next step in the enquiry, which is, examination of the
suspicious circumstances. As regards suspicious circumstances there
may arise myriad situations impugning the genuineness of the Will,
such as: where, the signatures of the testator are in doubt; the
condition of the testator's mind is Unsound either for the reasons of
insanity, intoxication or even illness; the dispositions of property
made, are unnatural, improbable, or unfair when, seen in the light of
relevant facts and circumstances, or that there are indications that the
testator's mind was not free. However, merely because a Will
bequeaths the property of the testator to persons outside the
immediate family, or excludes one or the other members of the family
would not by itself put it in the category of a suspicious circumstance;
as a Will by its very nature is a document which breaks the normal
line of succession. Once suspicious circumstances are present, the
onus is on the propounder of the Will to remove the doubts so created,
on account of suspicious circumstances, and if that is done, the Court
will have to give effect to the Will even if the dispositions of property
provided therein exclude one or all family members or near relations
of the testator. [See Pushpawati v. Chandraraja Kadamba, (1973) 3
SCC 291]
9.1. If, there is any doubt as to the execution of the Will, the
Court should examine the Explanations offered by the propounder of
the Will, by applying the test of a “prudent mind”. By that the Courts
have meant that the requirement is not that the propounder of the Will
is called upon to adduce “mathematical proof. The propounder must,
“remove the suspicion, if any, attaching to the execution of the Will
and if there be any doubt regarding the due execution, he must satisfy
the conscience of the Court that the testator had a sound and
disposing state of mind and memory when he made the Will”.
“Reasonable scepticism, not an obdurate persistence in disbelief nor a
resolute and impenetrable incredulity is demanded of the testamentary
judge. He is never required to close his mind to the truth.” [See Seth
Beni Chand v. Smt Kamla Kunwar, (1976) 4 SCC 554] ”
(emphasis supplied)
10
2010 SCC OnLine Del 2257
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41. The delayed production of the original Will was another
circumstance relied upon by the Probate Court . The record reflects that
an application under Section 151 CPC was moved on 26.03.2010 for
placing the original Will on record, the petition having earlier been
accompanied by a photocopy as the original was stated to be
unavailable. The explanation was that the original had subsequently
been traced. The absence of particulars as to when and where the
original was lost and found was a matter requiring consideration,
however, the record also reflects that the original was compared with
the photocopy already on file and was found to be the same, and that
the application was allowed before evidence commenced. The delay,
therefore, had to be weighed with these circumstances and could not,
without further material indicating substitution or fabrication, be
treated as conclusive proof against the Will.
42. The circumstances noticed hereinabove must ultimately be
assessed in the light of the evidence as a whole and the settled
principles governing proof of a Will. There is a presumption that a
registered document is validly executed. A registered document,
therefore, prima facie would be valid in law. The onus of proof, thus,
would be on a person who leads evidence to rebut the presumption.
11 12
(Ref: Prem Singh v. Birbal ). Likewise, in Dhanpat v. Sheo Ram ,
the Supreme Court reiterated the principles governing proof of a Will
and the necessity of establishing due execution and attestation in
11
(2006) 5 SCC 353
12
(2020) 16 SCC 209
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accordance with the statutory requirements.
43. Applying the aforesaid principles to the present case, Sh. J. B.
Malik (PW-3), the attesting witness, gave a direct account of the
execution of the Will, stating that it was prepared on the instructions of
the testatrix, that its contents were explained to her in Hindi , and that
she signed and affixed her thumb impression in the presence of the
attesting witnesses. He further deposed regarding the subsequent
presentation of the document for registration. His testimony, in this
regard, is supported by the evidence of Sh. P. K. Dabas , who
confirmed that the Will was presented and registered on 07.10.1999.
As regards the discrepancy in the date appearing on the second page,
Sh. Malik attributed the same to a possible typing error. This
explanation has to be considered alongside the evidence concerning
execution and registration, and not in isolation.
44. The respondents have also relied upon Kavita Kanwar v.
13
Pamela Mehta in support of their challenge to the Will. The Supreme
Court emphasised that the nature of each circumstance alleged to be
suspicious, as well as its cumulative effect, must be considered while
determining whether the Will represents the free and conscious
disposition of the testatrix. The said principle requires the Court to
examine the circumstances surrounding the execution of the Will as a
whole, without allowing suspicion unsupported by the evidence to take
the place of proof.
45. Applying this principle to the present case, the discrepancy in
13
(2021) 11 SCC 209
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the date appearing on the second page has been addressed by the
attesting witness, the evidence of the Sub-Registrar supports the
factum of presentation and registration, and the presence of an
unidentified person does not, in itself, establish that the Will was
procured or dictated by Sh. Hargian Singh . Also, the allegations
concerning the physical and mental condition of the testatrix are not
supported by medical evidence establishing incapacity at the time of
execution. The exclusion of the other legal heirs and the non-
examination of the appellant and his father have also been considered
in the context of the evidence already discussed.
46. Upon a cumulative assessment of these circumstances, this
Court finds that they do not outweigh the direct testimony of the
attesting witness establishing execution and attestation, read with the
evidence concerning registration. The evidence, considered in its
entirety, satisfies this Court that the Will has been duly proved in
accordance with law.
47. Before parting, it is necessary to clarify that the present
adjudication remained confined to the question of proof of the Will
and does not extend to the determination of title to the properties
purportedly bequeathed thereunder. As noticed hereinabove, the
objections concerning the devolution of the agricultural land and the
rights of the parties thereto remain open for consideration in the
appropriate proceedings. For the reasons recorded above, this Court
finds that the circumstances relied upon by the Probate Court do not
furnish sufficient ground to reject the Will, particularly in view of the
evidence establishing its due execution and attestation.
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48. In view of the above, the present appeal is allowed and the
impugned judgment is set aside.
49. The appellant shall furnish an Administrative Bond with one
surety to the satisfaction of the Registrar General of this Court. Subject
to the appellant filing the requisite Court fees and complying with the
aforesaid formalities, let probate/letters of administration be issued in
favour of the appellant in respect of the Will dated 07.10.1999
executed by Late Smt. Shanti Devi .
(MANOJ KUMAR OHRI)
JUDGE
OCTOBER 15, 2026
na
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