Testimony of a Single Attesting Witness and Recitals of Care Justify Exclusion of Natural Heirs in Probate

The testator, Late Sh. Nand Lal Dhingra, expired on 12.12.2000, leaving behind a son (Respondent No. 1) and a daughter (the Appellant).

The Respondent sought probate of a Will dated 22.06.1997, which bequeathed the property at 4-D/10, Old Rajinder Nagar, New Delhi, exclusively to him.

The Appellant challenged the Will on grounds of forgery, citing suspicious signatures ("Nand Lall" instead of "Nand Lal"), the presence of three witnesses when the document mentioned two, the testator’s advanced age (86), and alleged lack of testamentary capacity due to head injuries.

The Trial Court granted probate on 21.08.2010, leading to the present appeal under Section 299 of the Indian Succession Act.

1. Whether the Will dated 22.06.1997 was duly executed and attested in accordance with the statutory requirements of the Indian Succession Act.

2. Whether the testator was in a sound disposing state of mind at the time of the execution of the Will.

3. Whether the presence of a third attesting witness and variations in the testator’s signature constitute suspicious circumstances invalidating the Will.

Section 63(c) of the Indian Succession Act, 1925, which mandates attestation by at least two witnesses.

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

Surendra Pal v. Dr. (Mrs.) Saraswati Arora, establishing that the propounder must prove the testator’s sound mind and free volition, especially when suspicious circumstances are alleged.

Raj Kumari v. Surinder Pal Sharma regarding the flexibility of the form of attestation.

Pentakota Satyanarayana v. Pentakota Seetharatnam, noting that old age or illness alone does not disqualify testamentary capacity if free volition is proven.

Principle that expert handwriting opinion is advisory and cannot override reliable direct evidence.

The Court found that PW-1 (an attesting witness and retired judicial officer) satisfactorily proved the due execution of the Will, noting that the statutory minimum of two witnesses was met regardless of a third signatory.

The Court dismissed the signature discrepancy as "Nand Lall" was found on other admitted documents (CDA Pension correspondence), and the handwriting expert admitted the signatures appeared identical to the naked eye.

Regarding mental capacity, the Court observed that the Appellant's medical evidence consisted of non-original photocopies and pertained to a period three months after the Will's execution.

Conversely, RW-2 (a doctor) testified the testator was mentally sound in late 1997.

The Court held that excluding a natural heir is not a suspicious circumstance per se, as the Will provided cogent reasons: the Respondent cared for the testator in his old age, and the Appellant had received marriage expenses.

The Court found no merit in the allegations of forgery or incapacity and concluded that the findings of the Trial Court did not suffer from perversity or irregularity. The appeal was dismissed.