Delhi District Court
Sushma Luthra vs State Ors on 21 February, 2026
DLST010000272009
IN THE COURT OF SH. ARUL VARMA,
DISTRICT JUDGE-02, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
PC 5862/2016.
Filing No. 434/2009
CNR No. DLST01-0000272009
In the matter of
Smt Sushma Luthra (expired)
W/o Late Sh Jagdish Lal Luthra
R/o 34, Jangpura Extension Market
New Delhi-110014
......Petitioner
VERSUS
State of NCT, Delhi
Smt Bhawna Arora
W/o Sh Vivek Arora
R/o 42-B Regal Shipra Sun City
Indira Puram, Ghaziabad, UP (transposed as petitioner no 2 on
20.02.2026)
Smt Pooja Luthra
R/o 35 Kailash Appartments
Patparganj, New Delhi
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Master Pratham Luthra
C/o Smt Pooja Luthra
R/o 35 Kailash Appartments
Patparganj, New Delhi
.......Respondents
Date of Institution : 12.01.2009
Date of reserving the judgment : 20.02.2026
Date of Pronouncement : 21.02.2026
Decision : Petition Allowed
JUDGMENT/ORDER
Index to the Judgment
I. BRIEF FACTS/CASE OF THE PETITIONER………………………………………..3
II. OBJECTIONS OF RESPONDENT NO 3 AND 4…………………………………..5
III. WRITTEN SUBMISSIONS ON BEHALF OF MS BHAWNA ARORA,
LR OF PETITIONER……………………………………………………………………………….6
IV. ISSUES FRAMED…………………………………………………………………………….7
V. EVIDENCE LED BY PETITIONER…………………………………………………….7
VI. EVIDENCE LED BY RESPONDENTS NO 3 AND 4…………………………..9
VII. ARGUMENTS OF COUNSEL FOR THE PETITIONER……………………..9
VIII. ISSUE WISE ANALYSIS & FINDINGS THERETO………………………..11
i. Issue no 1: Whether WILL of deceased has been validly executed in
favour of petitioner. ?…………………………………………………………………….. 11
IX. OBJECTIONS…………………………………………………………………………………19
X. RELIEF……………………………………………………………………………………………26
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I. BRIEF FACTS/CASE OF THE PETITIONER
1. The facts as asseverated by the Petitioner are hereby
succinctly recapitulated:
(a) It was asserted by the petitioner that Sh Jagdish Lal
Luthra, husband of petitioner Smt Sushma Luthra r/o Flat
no 34 Jungpura Extension Market, New Delhi, died at
New Delhi on 25.05.2008 at his residence, leaving behind
his wife (petitioner herein) and daughter Mrs Bhawna
Arora w/o Sh Vivek Arora, (respondent no 2 herein), and
Ms Pooja Luthra Kapoor, (respondent no 3 herein) the
wife of pre-deceased son of petitioner and her deceased
husband Mr Sonal Luthra, who expired on 29.11.2005.
(b) It was alleged that the deceased at the time of his death
had a fixed place of abode at Flat no 34 Jungpura
Extension Maket, New Delhi 110014, situated within the
territorial jurisdiction of this Court. It was also contended
that the deceased was living in the said place along with
his wife only and that the respondent no 3 who is the
daughter-in-law of the deceased is living separately along
with her child, namely Master Pratham Luthra/respondent
no 4
(c) It was brought to the fore that after the death of the
deceased son namely Late Sh Sonal Luthra, the respondent
no 3 along with her minor son/respondent no 4 left thePC5862/2016 Page. 3 of 27
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matrimonial house and started living separately. It was
also alleged that the deceased Sh Jagdish Lal Luthra
during his life time executed a WILL dated 09.01.2008 in
favour of petitioner duly registered in the office of
Registrar vide registration no 107 in additional Book no 3
Vol no 1601 on pages 122 to 126 on 09.01.2008 and that
by way of the said WILL dated 09.01.2008, the petitioner
exclusively inherited properties including the immovable
properties bearing Shop no 34 and flat no 34 Jungpura
extension, New Delhi-14.
(d) It was further alleged that the WILL dated 09.01.2008 of
the deceased was his last WILL and testament and was
duly executed by him while he was in good and sound
health and that the WILL was signed by the deceased in
the presence of two witnesses whose name and signatures
appear at the foot of the WILL.
(e) It was contended that by virtue of the said WILL, the
deceased Late Sh Jagdish Lal Luthra appointed the
petitioner as the sole beneficiary of the said WILL and
inter alia bequeathed the immovable property bearing
Shop and Flat no 34 Jungpura Extension Market, New
Delhi-14 in favour of Ms Sushma Luthra.
(f) It was brought to the fore that shop no 34 Jangpura
Extension Market, Near Eros Cinema, New Delhi-14
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order no HRO/JNP/EXT/SH-34/3187/F1 issued by the
office of House and Rent Officer, Delhi, vide lease
Agreement Patta Dated 30.11.1962 with the President of
India (Government) duly registered as No 2105 in addl
Book no 1, Volume No 951 on page 66 to 70 on
25.03.1963 which was thereafter transferred to Municipal
Corporation of Delhi, Land and Estate Office Delhi in the
name of Smt Satbhawan.
(g) It was contended that the said shop was bequeathed by
Smt Satbhawan to Late Sh Jagdish Lal Luthra through
WILL dated 29.12.1981. It was further alleged that Sh
Jagdish Lal Luthra expired during the pendency of the
mutation of the said property.
(h) It was stated that the flat appurtenant Shop no 34,
Jungpura Extension Market, Near Eros Cinema, New
Delhi-14 (mutation /freehold stands in the name of Sh
Jagdish Lal Luthra vide Registration no 17161 as Book no
1, Volume no 5562 on pages 170 to 172 on 11.11.2005.
(i) Hence, the petitioner filed the present petition for grant of
probate of the said WILL before this Court.
II. OBJECTIONS OF RESPONDENT NO 3 AND 4
2. In the objections filed on behalf of the respondents no 3 and 4
contended that the petitioner is not entitled to the relief of
probate as the alleged WILL of executant Mr Jagdish Lal
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Luthra is false, forged and fabricated document. It was
contended that the WILL is neither authentic nor a complete
document. In short, the document purported to be alleged
WILL has neither been prsented in original, nor is it the
complete document. It was also alleged that the petition ought
to be dismissed as the alleged WILL was not executed with
free will and was vitiated by importunity, lack of sound and
free disposing mind and also by the fact that the executant did
not have full knowledge of the contents of the WILL. It was
further submitted that the present petition ought to be
dismissed as the document was not properly attested as
provided for in law related to WILL.
III. WRITTEN SUBMISSIONS ON BEHALF OF MS
BHAWNA ARORA, LR OF PETITIONER
3. During the course of trial, written submissions were filed on
behalf of Ms Bhawna Arora, LR of deceased petitioner Smt
Sushma Arora, wherein she contended that her claim is not
limited to her status as legal heir. She asserted an independent
and superior right as the sole and absolute beneficiary under
the registered WILL dated 16.03.2009 executed by Smt
Sushma Luthra whereby the entire movable and immovable
estate of the deceased petitioner stands bequeathed to the
applicant Ms Bhawna Arora. She further contended that any
adjudication regarding validity of the said WILL directly
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impact the rights claimed by Ms Bhawna Arora. She
contended that her interest is therefore direct, substantial and
legally protectable, and clearly adverse to that of the
contesting respondents.
IV. ISSUES FRAMED
4. Vide order dated 30.01.2010 following issues were framed:-
“1. Whether WILL of deceased has been validly
executed in favour of petitioner.
2. Relief.”
5. During the proceedings, the petitioner expired. An
application u/o I rule 10 CPC for transposing of petitioner
was filed by respondent no 2 Ms Bhawna Arora on
23.11.2022 which was allowed by this Court on 20.02.2026.
V. EVIDENCE LED BY PETITIONER
6. In the proceeding only four witnesses were examined by
petitioner succinct testimonies whereof are as follows:
7. PW-1 Sh Vivek Arora He was the attesting witness to the
WILL dated 09.01.2008 of the deceased Late Sh Jagdish Lal
Luthra. He tendered his evidence by way of affidavit as
PW1/A. He relied upon certain documents viz., Copy of
WILL dated 09.01.2008 of deceased Late Sh Jagdish Lal
Luthra as Ex PW1/1. He deposed that the WILL bears the
signature of deceased Late Sh Jagdish Lal Luthra. He was
cross examined by Ld Counsel for respondent no 3 and 4.
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8. PW-2 Sh Deepak Luthra: He was another/2nd attesting
witness to the WILL dated 09.01.2008 of the deceased Late
Sh Jagdish Lal Luthra. He tendered his evidence by way of
affidavit as PW2/A. He relied upon certain documents viz.,
Copy of WILL dated 09.01.2008 of deceased Late Sh Jagdish
Lal Luthra already Ex PW1/1. He deposed that the WILL
bears the signature of deceased Late Sh Jagdish Lal Luthra.
He was cross examined by Ld Counsel for respondent no 3
and 4.
9. PW-3 Smt Sushma Luthra: She tendered her evidence by way
of affidavit as PW3/A. She relied upon certain documents
viz., the original death certificate of Jagdish Lal Luthra as Ex
PW3/1. She was cross examined by Ld Counsel for
respondent no 3 and 4.
10.PW-4 Sh Dheeraj Kumar, Record Keeper, Office of Sub-
Registrar -V Mehrauli: He was the summoned witness. He
had brought the summoned record of the WILL dated
09.01.2008 vide registration no 107, in additional Book no 3,
Volume no 1601, pages 122 to 126. The Will already Ex
PW1/1, is same as the one contained in the register brought
by him. He deposed that the WILL contained in the register
does not contain any annexures. He also deposed that he
could not comment anything regarding the contents of the
WILL. He was cross-examined by Ld Counsel for respondent
no 3 and 4.
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VI. EVIDENCE LED BY RESPONDENTS NO 3 AND 4
11.In the proceeding only two witnesses were examined by
defendant, succinct testimonies whereof are as follows:
12.R3W1: Ms Pooja Kapoor: She tendered her evidence by way
of affidavit as Ex. R3W1/A. She relied upon photocopies of
the medical records of the testator Sh Jagdish Lal Luthra as
Mark D3/X. She was cross examined by Ld Counsel for
petitioner.
13. R3W2 Sh Sachin Kapoor: He tendered his evidence by way
of affidavit as Ex. R3W2. He was also cross-examined by the
Ld Counsel for petitioner.
VII. ARGUMENTS OF COUNSEL FOR THE PETITIONER
14. Ld Counsel for petitioner submitted that he has restricted his
relief of grant of Letters of Administration qua life insurance
policies and deposits and investments as mentioned at para
(B) and para (C) of the WILL. Ld Counsel has specifically
stated that the LR of petitioner does not wish to seek Letters
of Administration qua both the immovable properties under
the heading A: ‘Immovable property’ as mentioned in the
WILL dated 09.01.2008 inasmuch as the above two
immovable properties have been sold pursuant to a family
settlement in CS DJ 9964/2016. Further, LR of the petitioner,
Ms Bhawna Arora, who appeared through VC had also
concurred with her counsel’s submissions.
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15. As far as the objection qua execution of WILL under
suspicious circumstances, inasmuch as the testator executed
the WILL whilst being admitted in hospital, Ld Counsel
submitted that the testator was admitted in hospital only for
hip surgery. It was submitted that the testator was conscious
and in a sound disposing state of mind. It was further
submitted that the testator had executed the WILL voluntarily.
It was also contended that the witness from the Sub-Registrar
Office i.e. Mr Dhiraj Kumar PW-4 had come to the hospital
for the purposes of registration of the WILL in the hospital
itself. Thus, Ld Counsel submitted that the above chain of
events establish that the WILL was executed by the testator
on his own volition and the same was duly registered as per
law, and the genuineness of the WILL stands proved and
therefore the LOA ought to be granted to the petitioner
through her LRs.
16. Ld Counsel submitted that merely because the names of
respondent no 3 and respondent no 4 do not find mention in
the impugned WILL, as beneficiaries, that alone would not
give rise to suspicion qua the execution of WILL. In this
context, Ld Counsel invited the Court’s attention to evidence
by way of affidavit of PW-3 Smt Sushma Luthra, Ex PW3/A
to contend that she had averred in her evidence that upon
demise of Sonal Luthra on 29.11.2005, his wife Ms Pooja
Luthra/respondent no 3 along with her son Mr Pratham
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Luthra/respondent no 4 left her matrimonial home on
31.12.2005 and started living separately. Further, no questions
have been put to petitioners’ witnesses in this regard, by the
respondents, to dispute this fact. Ld Counsel thus contended
that the facts averred, which are not specifically denied, ought
to be deemed to be admitted. Thus, Ld Counsel submitted that
the Letters of Administration be granted in favour of Ms
Bhawna Arora, who has been transposed as the petitioner, and
who is also the LR of deceased petitioner.
VIII. ISSUE WISE ANALYSIS & FINDINGS THERETO
i. Issue no 1: Whether WILL of deceased has been validly
executed in favour of petitioner. ?
17.Before discussing the matter on merits, it would be relevant to
discuss the law relating to the execution and proof of Wills
under the Indian Succession Act and the Evidence Act. The
expression “Will” is defined by Section 2(h) of Indian
Succession Act, 1925 to mean the legal declaration of “the
intention” of a testator with respect to his property “which he
desires to be carried into effect after his death”. Section 59 of
Indian Succession Act, 1925 governs the capability of a
person to make a Will. It reads as under:
“59. Person capable of making Wills — Every person
of sound mind not being a minor may dispose of his
property by Will.
“Explanation1.-A married woman may dispose by Will
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of any property which she could alienate by her own
act during her life.
“Explanation 2.— Persons who are deaf or dumb or
blind are not thereby incapacitated for making a Will if
they are able to know what they do by it.
“Explanation 3.— A person who is ordinarily insane
may make a Will during interval in which he is of
sound mind.
“Explanation 4.— No person can make a Will while
he, is in such a state of mind, whether arising from
intoxication or from illness or from any other cause,
that he does not know what he is doing.”
18. Section 59 thus declares that every person (not being a minor)
“of sound mind” may dispose of his property by Will. The
second explanation appended to the said provision clarifies
that persons who are “deaf or dumb or blind” are not
incapacitated by such condition for making a Will “if they are
able to know what they do by it”. The third explanation makes
the basic principle clear by adding that even a person who is
“ordinarily insane” may make a Will during the interval in
which “he is of sound mind”. The fourth explanation renders
it even more lucent by putting it negatively in words to the
effect that if the person “does not know what he is doing” for
any reason (such as intoxication, illness or any other such
cause) he is incompetent to make a Will. The focal pre-
requisite, thus, is that at the time of expressing his desire vis-
a-vis the disposition of the estate after his demise he must
know and understand its purport or import.
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19. The execution of an unprivileged Will, as the case at hand
relates to, is governed by Section 63 of the Indian Succession
Act, 1925, which 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:
“(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 acknowledgment 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.”
20. As per the mandate of clause (c), a Will is required to be
attested by two or more witnesses each of whom should have
seen the testator sign or put his mark on the Will or should
have seen some other person sign the Will in his presence and
by the direction of the testator or should have received from
the testator a personal acknowledgment of his signature or
mark, or of the signature of such other person. The Will must
be signed by the witness in the presence of the testator, but it
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is not necessary that more than one witness should be present
at the same time. No particular form of attestation is
necessary. Thus, there is no prescription in the statute that the
testator must necessarily sign the Will in the presence of the
attesting witnesses only or that the attesting witnesses must
put their signatures on the Will simultaneously, that is, at the
same time, in the presence of each other and the testator. In
H. Venkatachala Iyengar v. B.N. Thimmajamma and
Others:AIR 1959 SC 443 Hon’ble Supreme Court of India
has held that a Will is produced before the court after the
testator who has departed from the world, cannot say that the
Will is his own or it is not the same. This factum introduces
an element of solemnity to the decision on the question where
the Will propounded is proved as the last Will or testament of
the departed testator. Therefore, the propounder to succeed
and prove the Will is required to prove by satisfactory
evidence that (i) the Will was signed by the testator; (ii) the
testator at the time was in a sound and disposing state of
mind; (iii) the testator understood the nature and effect of the
dispositions; and (iv) that the testator had put his signature on
the document of his own free will. It further held that
ordinarily, when the evidence adduced in support of the Will
is disinterested, satisfactory and sufficient to prove the sound
and disposing state of mind of the testator and his signature as
required by law, courts would be justified in making a finding
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in favour of the propounder. Such evidence would discharge
the onus on the propounder to prove the essential facts. The
Hon’ble Supreme Court further held that it is necessary to
remove suspicious circumstances surrounding the execution
of the Will.
21. Hon’ble Supreme Court of India in Meena Pradhan vs. Kamla
Pradhan in Civil appeal no. 3351/2014 on 21.09.2023 has
held as under:
“9. A Will is an instrument of testamentary disposition of
property. It is a legally acknowledged mode of bequeathing
a testator’s property during his lifetime to be acted upon on
his/her death and carries with it an element of sanctity. It
speaks from the death of the testator. Since the
testator/testatrix, at the time of testing the document for its
validity, would not be available for deposing as to the
circumstances in which the Will came to be executed,
stringent requisites for the proof thereof have been
statutorily enjoined to rule out the possibility of any
manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1959 Supp (1) SCR 426 (3 Judge Bench),
Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3 Judge
Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam,
(2003) 2 SCC 91(2Judge Bench) Yumnam Ongbi Tampha
Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780
(3 Judge Bench) and Shivakumar v. Sharanabasappa, (2021)
11 SCC 277 (3 Judge Bench), we can deduce/infer the
following principles required for proving the validity and
execution of the Will:
i. The court has to consider two aspects: firstly,
that the Will is executed by the testator, and
secondly, that it was the last Will executed by him;
ii. It is not required to be proved with
mathematical accuracy, but the test of satisfaction
of the prudent mind has to be applied.
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iii. A Will is required to fulfill all the formalities
required under Section 63 of the Succession Act,
that is to say:
(a) 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 the said
signature or affixation shall show that it was
intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or
more witnesses, though no particular form of
attestation is necessary;
(c) Each of the attesting witnesses must have 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
acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the
Will in the presence of the testator, however, the
presence of all witnesses at the same time is not
required;
iv. For the purpose of proving the execution of the
Will, at least one of the attesting witnesses, who is
alive, subject to the process of court, and capable
of giving evidence, shall be examined;
v. The attesting witness should speak not only
about the testator’s signatures but also that each of
the witnesses had signed the will in the presence
of the testator; vi. If one attesting witness can
prove the execution of the Will, the examination
of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to
prove the Will fails to prove its due execution,
then the other available attesting witness has to be
called to supplement his evidence;
viii. Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions
before it can be accepted as the testator’s last Will.
In such cases, the initial onus on the propounder
becomes heavier. ix. The test of judicial
conscience has been evolved for dealing with
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those cases where the execution of the Will is
surrounded by suspicious circumstances. It
requires to consider factors such as awareness of
the testator as to the content as well as the
consequences, nature and effect of the dispositions
in the Will; sound, certain and disposing state of
mind and memory of the testator at the time of
execution; testator executed the Will while acting
on his own free Will;
x. One who alleges fraud, fabrication, undue
influence etcetera has to prove the same. However,
even in the absence of such allegations, if there are
circumstances giving rise to doubt, then it
becomes the duty of the propounder to dispel such
suspicious circumstances by giving a cogent and
convincing explanation.
xi. Suspicious circumstances must be ‘real,
germane and valid’ and not merely ‘the fantasy of
the doubting mind’ 1. Whether a particular feature
would qualify as ‘suspicious’ would depend on the
facts and circumstances of each case. Any
circumstance raising suspicion legitimate in nature
would qualify as a suspicious circumstance for
example, a shaky signature, a feeble mind, an
unfair and unjust disposition of property, the
propounder himself taking a leading part in the
making of the Will under which he receives a
substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it
has to be proved that (a) the testator signed the Will out of
his own free Will, (b) at the time of execution he had a
sound state of mind, (c) he was aware of the nature and
effect thereof and (d) the Will was not executed under any
suspicious circumstances.”
22. It is the duty of the propounder of the Will to prove the
legality and validity of the Will. In order to prove the Will
dated 09.01.2008, the petitioner examined total four
witnesses. Petitioner/ Smt Sushma Luthra examined herself as
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PW3. She examined Sh Vivek Arora as PW1 being one of the
attesting witnesses of the Will of Late Sh Jagdish Lal Luthra.
During his evidence, the original Will of Late Sh Jagdish Lal
Luthra. was exhibited as Ex.PW-1/1. She also examined Sh.
Deepak Kumar as PW2 being one of the attesting witnesses of
the Will of Late Sh Jagdish Lal Luthra.
23. Petitioner had also examined the Record Keeper from the
office of Sub-Registrar-V, Mehrauli namely Sh Dheeraj
Kumar as PW-5, who brought on record the WILL dated
09.01.2008, Ex PW1/1, which was duly registered vide
registration no 107, in additional Book no. 3, Volume no.
1601, pages 122 to 126.
24. Further, PW-1 proved the signature of the testator on Will
dated 09.01.2008 Ex. PW-1/1. His testimony also shows that
the testator was in good physical health and sound disposing
state of mind at the time of execution of the Will dated
09.01.2008 Ex. PW-1/1.
25. PW-2 also proved the signatures of the testator on Will dated
09.01.2008 Ex. PW-1/1. His testimony also shows that the
testator was in good physical health and sound disposing state
of mind at the time of execution of the Will dated 09.01.2008
Ex. PW-1/1. As held by Hon’ble Supreme Court of India in
Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee
Since deceased through LRs, AIR 1964 SC 529, the mode of
proving a Will does not differ from that of proving any other
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document except as to the special requirement of attestation
prescribed in a case of a Will under Section 63 of the Indian
Succession Act. The role of the Court in the present petition is
to examine whether the instrument propounded as the last
Will of the testator is the last Will or not of the testator and
whether the same has been executed with free sound
disposing mind.
IX. OBJECTIONS
26.The respondents had objected to the execution of WILL by
citing suspicious circumstances during the execution of
WILL. The objections are basically two fold:
1. The testator did not execute the WILL voluntarily, and
that the executor was not of sound disposing mind.
2. The grandson i.e. respondent no 4 Pratham Luthra,
despite being a natural legal heir, was left out from the
bequest.
27. As far as the first objection is concerned, the execution of the
WILL was proved by two attesting witnesses namely PW-1
Vivek Aora and PW-2 Deepak Luthra. The said witnesses
categorically affirmed that they were attesting witnesses to
the WILL 09.01.2008 of the deceased Late Sh Jagdish Lal
Luthra. Both the witnesses deposed, during their cross-
examination that the signatures were attested by them as
witnesses at Moolchand Hospital. They clarified that the
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testator was in the hospital in connection with a surgical
operation of his hip joint. They both denied the suggestion
that at the time of preparation of the WILL, the testator was
suffering from NV Glaucoma, which rendered him almost
blind. In this regard, PW-2 categorically deposed that the
testator was able to read paper by keeping the same in front of
his eye at a close distance.
28.PW-1 also averred in his cross-examination that the testator
did not suffer from any other major ailment, apart from
suffering from diabetes. Thus, the cross-examination of both
the attesting witnesses did not impeach their credit and the
respondents could not establish that the deceased testator was
not in a sound disposing mind. In this context, it would be apt
to reproduce the relevant extracts of Ashok Baury Vs State
Test Cas 11/2018, wherein it was held as thus:
“8. Soundness of mind, for the purposes of
contracting, is defined in Section 12 of the Indian
Contract Act, 1872 and which in my view would have
application in the matter of soundness of mind
requisite for making of a Will as well. As per the said
provision, (i) a person is said to be of sound mind, if,
at the time of making of the contract, he is capable of
understanding it and of forming a rational judgment as
to its effect upon his interests; (ii) a person who is
usually of unsound mind, but occasionally of sound
mind, may make a contract when he is of sound mind;
and, (iii) a person who is usually of sound mind, but
occasionally of unsound mind, may not make a
contract when he is of unsound mind.
9. As would be obvious from the above, a common
thread is found to run between Section 12 of thePC5862/2016 Page. 20 of 27
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Contract Act and Section 59 of the Indian Succession
Act.
10. Chapter VII titled “Of the Burden of Proof”, of
Part III titled “Production and Effect of Evidence”, of
the Evidence Act deals with the issue with which this
Court is concerned herewith. Per Section 101
thereunder, whosoever desires any Court to give
judgment as to any legal right or liability dependant
on the existence of facts, which he asserts, must prove
that those facts exist. Since the propounder of a Will
as per Section 59 of the Indian Succession Act is
required to prove that the testator at the time of
making of the Will was of sound mind, the burden of
proof would be on the propounder. However that
would be so where none is opposing the Will
propounded and the Will has to be proved for the
satisfaction of the Court. However when a document
propounded as Will is contested, what would be
required to be proved is only that what is in issue and
only if the party disputing the document propounded
as a Will disputes/controverts that the
testator/testatrix, at the time of making the Will was of
sound mind, would soundness of mind be in issue and
required to be proved. However if soundness of mind
is not specifically denied then as per the Rules
aforesaid contained in Order VIII Rule 5 of the CPC,
soundness of mind shall be deemed to have been
admitted. In the event of denial of the soundness of
mind, the question as herein arises, on whom should
the onus be, whether on the propounder or on the
opposite party, arises.
11. Section 114 under the aforesaid Chapter VII of
Part III of the Evidence Act enables the Court to
presume existence of any fact which it thinks likely to
have happened, regard being had to the common
course of natural events, human conduct and public
and private business, in their relation to the facts of
the case.
12. The common course of natural events and human
conduct is of soundness of mind and unsoundness of
mind an aberration. If a testator/testatrix has led a
normal life, performed day to day functions in the
normal course of human conduct, the presumptionPC5862/2016 Page. 21 of 27
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under Section 114 would be of soundness rather than
unsoundness of mind.”
29. The above makes it explicit that the presumption u/s 114 of
the Indian Evidence Act would be of soundness rather than
unsoundness of mind. Further, while proof of soundness of
mind requires bare statement to be made, proof of
unsoundness of mind has to be established. In this regard, in
Ashok Baury (supra), it was held as thus:
“15……… The applicant/Relation No.10 Arun Sood
cannot be permitted to, taking advantage of having the
onus of the issue as to the soundness of mind placed
on the petitioner, steal a walkover by ultimately
arguing that the petitioner has failed to prove
soundness of mind. As observed in the order dated 25
th November, 2019 also, proof of soundness of mind
requires a bare statement to be made. On the contrary
to prove unsoundness of mind, one would be required
to prove consistent conduct to prove unsoundness of
mind, even if medical records of unsoundness of mind
are not available.”
30.As can be seen above, the respondents were not able to
establish unsoundness of mind of the testator. No medical
documents, affecting the mental capacity of the testator have
been proved by the respondents.
31.It was alleged that the testator was not able to read newspaper
or any other written material because of his failed vision.
However, this could not be proven by the respondents, rather
the attesting witnesses debunked this claim. PW-1 Vivek
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Arora and PW-2 Deepak Luthra further denied the suggestion
that WILL was never read out to the testator.
32.In fact, the visit by the official from the office of Sub-
Registrar in the hospital, for the purposes of registration of
WILL lends credence to the case of petitioner. PW-4 Dheeraj
Kumar had brought the summon record of the WILL dated
09.01.2008 and proved its registration vide Registration no
107, in additional Book no 3, Volume no. 1601, pages 122-
126 and averred that the WILL Ex PW1/1 is the same as the
one contained in the Register brought by him. In this context,
it would be apt to reproduce the following extracts of
Rabindra Nath Mukherjee & Anr Vs Panchanan Banerjee
(Dead) BY Lrs & Ors (1995) 4 SCC 459, wherein it was held
as thus:
“6. Insofar as the third circumstance is concerned, we
may first observe that witnesses in such documents
verify whether the same had been executed
voluntarily by the person concerned knowing its
contents. In cases where a will is registered and the
Sub-Registrar certifies that the same had been read
over to the executor who, on doing so, admitted the
contents, the fact that the witnesses to the document
are interested loses significance. The documents at
hand were registered and it is on record that the Sub-
Registrar had explained the contents to the old lady.
So, we do not find the third circumstance as
suspicious on the facts of the present case.”
33. As far as second objection is concerned qua leaving
respondent no 4 Pratham Luthra out of bequest, it is trite law
that idea behind of execution of WILL is to interfere with
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normal law of succession and sometimes natural heirs would
be debarred in such cases. In this context, it would be
apposite to reproduce the relevant extracts of Rabindra Nath
Mukherjee (supra) wherein it was held as thus:
3. A perusal of the two impugned judgments shows that the
following were regarded as suspicious circumstances:
(1) Deprivation of the natural heirs by the
testatrix.
(2) Identification of the testatrix before the
Sub-registrar by an Advocate of Calcutta who
had acted as a lawyer of one of the executors
in some cases.
(3) The witnesses to the documents were
interest in the appellants.
(4) Active part played by one Subodh, a close
relation of Rabindra, one of the executors, in
getting execution of the will. He has been
described as ubiquitous.
4. As to the first circumstance, we would observe that this
should not raise any suspicion, because the whole idea behind
execution of will is to interfere with the normal line of
succession. So natural heirs would be debarred in every case
of will; of course, it may be that in some cases they are fully
debarred and in others only partially. As in the present case,
the two executors are sons of a half-blood brother of Saroj
Bala, whereas the objectors descendants of a full blood sister,
the disinheritence of latter could not have been taken as a
suspicious circumstance, when some of her descendants are
even beneficiaries under the will.
34. Further, it has already come on record that as per the
testimony of PW-3 Smt Sushma Luthra, upon demise of Sh
Sonal Luthra, on 29.11.2005, respondent no 3 Pooja Luthra
and respondent no 4 Pratham Luthra had left her matrimonial
hom on 31.12.2005 and started living separately. The testator
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died on 25.05.2008 i.e. about 3 years later. Therefore, a chasm
had already been created between the testator and the
respondent no3 Ms Pooja Luthra and respondent no 4
Pratham Luthra, and debarring respondent no 4 Pratham
Luthra should not raise eyebrows.
35. The petitioner Smt Sushma Luthra was the beneficiary of the
Will dated 09.01.2008. Despite cross-examination of PW-3,
the testimonies of the witnesses examined by the petitioner
have remained unrebutted. There is no reason to doubt the
testimonies of PW-1 to PW-2. Nothing has come on record
which can show that the Will was executed under suspicious
circumstances or that the Will was not signed in the presence
of the attesting witnesses. Further, there is nothing on record
to show that the testator was not having free sound disposing
mind at the time of execution of the Wills. The petitioner has
also proved the death certificate of the testator Late Sh
Jagdish Lal Luthra. on record which is Ex. PW-3/1. The Will
dated 09.01.2008 as Ex PW1/1 thus stands proved in
accordance with law. In view of the same, this Court held that
the petitioner has proved to the satisfaction of the Court that
the Will dated 09.01.2008 Ex. PW-1/1 of Late Sh Jagdish Lal
Luthra is his last and final Will. It also stands proved that the
Will dated 09.01.2008 Ex. PW-1/1 of Late Sh. Jagdish Lal
Luthra has been duly executed as per law by the testator Sh.
Jagdish Lal Luthra in sound mind. The Court’s conscience is
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also satisfied with testimonies of PW-1, PW-2, PW-3, and
PW-4. There are no suspicious circumstances surrounding the
execution of the Will dated 09.01.2008 Ex. PW-1/1 which
may lead to any contrary inference. The issue no.1 is
accordingly decided in favour of the petitioner.
X. RELIEF.
36. Ergo, in view of the above in extenso discussion, the petition
is allowed. The petitioner is held entitled to grant of letter of
administration in line with the Will dated 09.01.2008 Ex.
PW-1/1, executed by Late Sh Jagdish Lal Luthra. Since the
petitioner expired during the probate proceedings, respondent
no 2 namely Ms Bhawna Arora has been transposed as the
petitioner, Letters of Administration be issued to her. The
Letters of Administration be issued to the Ms Bhawna Arora
to administer the estate left behind by Late Sh Jagdish Lal
Luthra as per Schedule-B (except immovable properties under
heading A) annexed with the petition, on the prescribed form
VII upon furnishing of the proper Court Fee, administration
bond and surety bond by the petitioner. The formalities of
issuance of letters of administration shall be completed by the
petitioner/beneficiary within six months from the date of the
judgment as per Section 290 & 291 of Indian Succession Act.
37. The petitioner, as per Section 317 of the Indian Succession
Act, shall furnish full and true inventory of the properties and
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credits mentioned in the Will and exhibit the same in the
Court within 6 months from the date of grant of letters of
administration in prescribed Form No. 178. The petitioner
shall also file true account of the properties and credits within
1 year in prescribed Form No. 179.
38. It is made clear that the granting of letters of administration
would not tantamount to any declaration of the title of the
deceased to the estate in question. It is further clarified that
till the petitioner does not furnish the requisite Court Fee,
Administration Bond and Surety Bond and does not obtain
the letters of ministration, duly signed and sealed by the Court
as required under Section 290 of the Indian Succession Act,
this judgment shall not be read as proof of the same.
39. Original Will Ex. PW-1/1 shall remain part of judicial file, in
terms of Section 294 of the Indian Succession Act, 1925.
40. File be consigned to record room after necessary compliance.
Digitally signed
Pronounced in the open Court Arul by Arul Varma
Date:
on this 21st February, 2026
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DISTRICT JUDGE-02/SOUTH,
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