Delhi HC Upholds Father’s Will Leaving Son Out, Rejects Son’s Competing Will

The appellant, the testator’s son, challenged the Probate Court’s grant of letters of administration to the testator’s wife in respect of a Will dated 22.04.2003.

The appellant disputed that Will and propounded a later Will dated 11.09.2003, under which the testator allegedly bequeathed a shop to him.

He challenged, among other matters, the signatures and preparation of the 22.04.2003 Will, the attesting witnesses’ evidence, the testator’s medical condition, and the rejection of the later Will.

His application to introduce additional medical and other documents on appeal was dismissed because he did not establish due diligence or necessity for their production at that stage.

Section 299 of the Indian Succession Act, 1925, provides for an appeal from an order of a District Judge in probate proceedings.

Section 63 of that Act requires an unprivileged Will to be attested by two or more witnesses in the prescribed manner, while Section 68 of the Indian Evidence Act, 1872, requires at least one available and competent attesting witness to be called to prove a document required by law to be attested.

Under H. Venkatachala Iyengar v. B.N. Thimmajamma, the propounder must prove due execution and dispel legitimate suspicious circumstances; under Indu Bala Bose v. Manindra Chandra Bose, a circumstance is suspicious when it is abnormal or not reasonably expected in the circumstances.

Additional evidence at the appellate stage requires a satisfactory basis, including that it could not, despite due diligence, have been produced earlier or is necessary for the appellate court to pronounce judgment.

Both attesting witnesses to the 22.04.2003 Will testified that the testator signed it in their presence, that they attested it in his presence and each other’s, and that he was of sound disposing mind.

The court held that the alleged dissimilarity in signatures, handwritten witness particulars, overwriting, differences in recollection of surrounding details, the absence of the scribe, and the variation in the testator’s recorded age did not, individually or cumulatively, displace that evidence; the age objection had not been raised before the Probate Court or put to any witness.

The testator’s prior tumour operation likewise did not undermine the attesting witnesses’ evidence of his capacity at execution.

By contrast, the Probate Court had identified concerns regarding the placement of signatures, absence of identifying particulars, and reliability of the witnesses supporting the 11.09.2003 Will; the High Court found no basis to interfere with that assessment.

The additional-documents application failed because the appellant did not show that the material could not, with due diligence, have been produced earlier or that it was necessary to decide the appeal.