Probate Refused Where Hostile Attestation and Unexplained Delay in Propounding Will Create Grave Suspicious Circumstances

The Petitioner, Lipika Sud, sought probate of a Will dated 08.08.2012 purportedly executed by her mother-in-law, Late Smt. Suraksha Sud ("testatrix"), who passed away on 25.08.2012.

The Petitioner claimed she discovered the original Will in May 2018—nearly six years after the testatrix’s death—inside a leather bag containing daily use items while she was vacating her residence at Greater Kailash-II.

Respondent No. 2 (the testatrix's adopted son and the Petitioner's husband) contested the Will as forged.

Notably, between 2012 and 2018, the Petitioner had initiated multiple legal proceedings against Respondent No. 2 regarding the same property but never mentioned the existence of this Will.

One attesting witness was deceased, and the surviving witness, Mr. Shamsher Kalra (PW-7), was examined during the trial.

Section 63 of the Indian Succession Act, 1925, which mandates that a Will must be signed by the testator and attested by at least two witnesses, each of whom must see the testator sign.

Section 68 of the Indian Evidence Act, 1872, requiring at least one attesting witness to be called to prove execution.

The Court relied on the "doctrine of suspicious circumstances" established in H. Venkatachala Iyengar v. B.N. Thimmajamma.

Meena Pradhan v. Kamla Pradhan, which dictates that the propounder must remove all legitimate suspicions regarding the Will's genuineness to satisfy the "judicial conscience".

The principle from Janki Narayan Bhoir v. Narayan Namdeo Kadam regarding the substantive nature of attestation.

The Will was purportedly executed just 17 days before the testatrix's death while she was suffering from a terminal illness; no medical evidence established her testamentary capacity at that time.

The Petitioner failed to mention the Will for six years across five different judicial proceedings and an FIR, even when those litigations directly concerned the property in question.

The Court found the "discovery" narrative—finding a Will in an unlocked bag of daily items six years later—to be "inherently improbable" and inconsistent with prudent human conduct.

The sole surviving attesting witness (PW-7) turned hostile, categorically denying that he ever met the testatrix or witnessed her signing the Will, thereby failing to satisfy the mandatory requirements of Section 63(c) of the Indian Succession Act.

The Court noted the forensic expert's (DW-2) report, which opined that the testatrix's signatures were forged and the witness's signature was traced from a passport.

The Court answered the issues against the Petitioner and dismissed the probate petition.

No order as to costs was made.