Delhi District Court
Sunita vs Commissioner, Deptt Of Revenue Gnct Of … on 7 May, 2026
IN THE COURT OF GAURAV: DISTRICT JUDGE-01
SHAHDARA DISTRICT, KARKARDOOMA COURTS:
DELHI
CNR No. DLSH010007652014
PC (New) No. 61/2016
PC (Old) No. 1A/2015
Memo of parties
In the matter of:-
Smt. Sunita
D/o Late Smt. Chanderwati
R/o, F-2/549, Sunder Nagari,
Nand Nagri, Delhi-110093 ....Petitioner
Versus
1. The State (Department of Revenue)
G.N.C.T. of Delhi (Through its secretary)
2. Sh. Subhash
S/o Late Smt. Chanderwati
R/o F-2/549, Sunder Nagri,
Nand Nagri, Delhi-110093
3. Sh. Ramesh
S/o Late Smt. Chanderwati
R/o F-2/549, Sunder Nagri,
Nand Nagri, Delhi-110093
4. Smt. Natho
D/o Smt. Chanderwati
R/o F-2/534, Sunder Nagri,
Nand Nagri, Delhi-93 ....Respondents
Date of Institution : 18.12.2014
Date of final argument : 30.04.2026
Date of judgment : 07.05.2026
Result : Dismissed
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PETITION FOR GRANT OF PROBATE OF WILL DATED
04.04.2011 UNDER SECTION 218 OF THE SUCCESSION
ACT 1925, EXECUTED BY THE DECEASED SMT.
CHANDERWATI, IN FAVOUR OF HER DAUGHTER, SMT.
SUNITA, THE PETITIONER
JUDGMENT
INTRODUCTION
1. The present petition has been instituted by the petitioner,
Under section 218 of the Indian Succession Act, 1925
(hereinafter referred to as “Act”) seeking grant of probate in
respect of the last Will and testament dated 04.04.2011
(hereinafter referred to as “Will”) allegedly executed by Late
Smt. Chanderwati, W/o Late Sh. Raghbir Dayal, R/o F-2/549,
Sunder Nagri, Nand Nagri, Shahdara, Delhi-110093 (hereinafter
referred to as the “testatrix”) qua immovable property bearing no.
F-2/549, measuring 22.5 Sq. yards, situated in the area of Sunder
Nagri, , Nand Nagri, Shahdara, Delhi-110093 (hereinafter
referred to as “subject property”).
PETITIONER’S CASE IN NUTSHELL
2. It is averred in the petition that the testatrix was the
absolute owner and in possession of the subject property and,
during her lifetime, executed her last Will in a sound disposing
state of mind, voluntarily and without coercion, thereby
appointing the petitioner as the sole executor and bequeathing her
immovable estate i.e. the subject property, exclusively in favour
of the petitioner.
3. It is further averred in the petition that the testatrix expired
on 15.10.2014, leaving behind the petitioner, two sons namely
Sh. Subhash (petitioner no. 2) and Sh. Ramesh (petitioner no. 3),
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and one another daughter namely Smt. Natho (petitioner no. 4) as
her legal heirs, all of whom have been arrayed as respondents
along with the State.
4. It is further averred in the petition that the said Will was
duly executed and attested in accordance with law in the presence
of witnesses and notarized, and that the petitioner, being the
named executor, is entitled to the grant of probate. The estate is
stated to be free from encumbrances and situated within the
territorial jurisdiction of this Court.
5. It is further averred that owing to the misconduct and
improper behaviour of respondent nos. 2 and 3, namely Sh.
Subhash and Sh. Ramesh respectively, during the lifetime of the
testatrix, they had been debarred by the testatrix from her
property through a public notice bearing No. PR 2232A, and
consequently, they have no right, title or interest in the estate of
the deceased.
6. It is further averred in the petition no other petition for
probate or letters of administration in respect of the estate has
been filed or is pending before any court, and there exists no
legal impediment to the grant of probate in favour of the
petitioner.
7. Notices were issued to the respondents. Citation was also
ordered to be published in the newspaper “Vir Arjun”. The same
had been published in the said newspaper dated 12.02.2015.
8. In response to the notice issued to respondents, objections
were filed on behalf of the respondent nos. 2 and 3 qua the
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present petition. No objection/reply was filed on behalf of
respondent no. 4 despite service of notice.
OBJECTION/REPLY FILED ON BEHALF OF RESPONDENT
NOS. 2 AND 3
9. The respondent nos. 2 and 3 have filed their joint
objections/reply contesting the present petition, inter alia, raising
preliminary objections that the petition is not maintainable and is
liable to be dismissed as an abuse of the process of law.
10. It is specifically averred that testatrix never executed the
alleged Will and that the same is a forged and fabricated
document, allegedly obtained by the petitioner by way of fraud
and misrepresentation.
11. It is further averred that the testatrix, in fact, died intestate
on 15.10.2014 and, therefore, the estate is liable to devolve as per
the applicable law of succession. The alleged Will does not fulfil
the mandatory legal requirements, including proper execution
and attestation by two witnesses, and hence, carries no legal
validity. The said respondents have also disputed the ownership
of the deceased over the subject property, contending that the
same was originally allotted by DDA to one Sh. Suresh Chand
and was never converted into freehold nor validly transferred in
favour of the testatrix, thereby questioning her competence to
execute any testamentary disposition.
12. It is further averred that the petitioner has suppressed
material facts, has not approached the Court with clean hands,
and has fabricated supporting documents such as GPA,
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Agreement, Will, possession letter and allied papers, which,
according to the respondents, do not confer any valid title.
13. The respondent nos. 2 and 3 have further denied the
petitioner’s claim of having performed last rites and have refuted
allegations regarding their conduct towards the deceased,
asserting that no valid disinheritance ever took place. While
certain factual aspects such as the relationship between the
parties and jurisdiction of this Court have not been disputed, the
respondents have consistently denied all material averments
regarding execution, validity and genuineness of the Will and the
entitlement of the petitioner to probate, reiterating that no such
Will was ever executed by the deceased and reserving their right
to initiate appropriate legal action on account of alleged forgery.
Accordingly, dismissal of the present petition has been prayed
for.
14. In response to the notice issued to the State, the office of
concerned SDM had furnished the valuation report dated
26.05.2015 with respect to subject property, wherein the net
value of the subject property is assessed as Rs.16,44,300/-. No
objections were filed by anyone in this regard.
FRAMING OF ISSUES
15. After completion of pleadings, the following notional
issues were framed by the Ld. Predecessor of this Court vide
order dated 12.09.2018: –
1. Whether late Smt. Chandrawati had not right to execute
a will in respect of property bearing no. F-2-549, Sunder
Nagri, Nand Nagri, Delhi? OPR
2. Whether late Smt. Chandrawati executed a will in favour
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of petitioner on 04.04.2011? OPP
3. Relief.
PETITIONER’S EVIDENCE
16. After framing of the issues as above, matter was listed for
petitioner’s evidence. In order to prove the case, petitioner
stepped into the witness box and examined herself as PW-1 and
tendered her affidavit as Ex.PW1/1 in which she reiterated the
contents of the petition, which are not repeated herein for the
sake of brevity. She has also relied upon documents which are as
follows: –
S.No. Document(s) Exhibit(s)
1. Original copy of Will dated Ex.PW1/1
04.04.2011
2. Copy of death certificate of Ex.PW1/2
testatrix dated 15.10.2014
3. Copy of Aadhar card (OSR) Ex.PW1/3 A & B
4. Reply of the petitioner to the Ex.PW1/3C (colly)
objections
5. Copy of document determining Ex.PW1/4
the possession of the property
and identity of the petitioner
6. GPA dated 04.04.2011 Ex.PW1/5
7. Agreement to Gift Ex.PW1/6
8. Will deed and possession of Ex.PW1/7
property dated 04.04.2011
9. Affidavit dated 04.04.2011 Ex.PW1/8
10. DDA receipt no. 7080 Ex.PW1/9
11. Transfer documents to second Ex.PW1/10
party
12. Executed transfer documents of Ex.PW 1/11
Sh. Sohan Pandit and Chotu
Pandit in favour of Smt.
Chanderwati
13. Public notice dated 28.03.2011 Ex.PW1/12
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14. Aadhar Card and voter ID card Ex.PW1/13
of petitioner
15. Rejoinder filled by petitioner on Ex.PW1/14
30.01.2016
17. The petitioner has also examined the attesting witness to
the Will, Smt. Afroz Begum as PW-2, who also tendered her
evidence by way of affidavit Ex.PW2/A. She deposed that Late
Smt. Chanderwati, the testatrix, during her lifetime, executed her
last Will dated 04.04.2011 in respect of subject property whereby
she appointed the petitioner as the sole executor and bequeathed
her entire estate in her favour. She further deposed that she was
present at the time of execution of the said Will and that the
testatrix affixed her signature/thumb impression on the Will in
her presence, and that she signed the same as an attesting
witness, thereby affirming due execution of the Will.
18. PW-1 and PW-2 were duly cross examined at length by the
learned counsel for the respondent nos. 2 and 3. No cross
examination was conducted by the remaining respondents despite
opportunity. No other witness was examined on behalf of
petitioner. Thereafter, on the submission of learned counsel for
the petitioner, the petitioner’s evidence was closed vide dated
13.08.2018.
RESPONDENTS’ EVIDENCE
19. In order to demolish the case, as set up by the petitioner,
respondent no. 2 stepped into the witness box and examined
himself as RW-1. He tendered his evidence by way of affidavit,
which has been exhibited as Ex. RW1/A, wherein he reiterated
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the contents of the joint objections/reply, which are not being
reproduced herein for the sake of brevity.
20. Similarly, respondent no. 3 also examined himself as
RW-2 and who also tender his evidence by way of affidavit
which is exhibited as Ex.RW2/A. He relied upon the copy of
settlement deed dated 07.02.2011 marked as Mark-A, executed at
Government Mediation Centre, Nand Nagri, Delhi, bearing his
signature at point-X, signature of petitioner at point-Y and thumb
impression of testatrix at point-Z.
21. RW-1 and RW-2 were duly cross examined at length by
the learned counsel for the petitioner. No other witness was
examined on behalf of respondent nos. 2 and 3. Since, there was
no list of witnesses were filed on behalf of respondent nos. 2 and
3, accordingly, their right to lead further RE was closed vide
order dated 03.11.2025.
ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR
THE PETITIONER
22. Learned counsel for the petitioner contended that the
petitioner has successfully proved the due execution and
attestation of the Will Ex. PW1/1 in accordance with law. The
testimony of PW-1, supported by the attesting witness PW-2,
clearly establishes that the testatrix executed the Will in a sound
disposing state of mind and affixed her thumb impression in the
presence of attesting witnesses, who also signed the same in her
presence.
23. He further contended that PW-2 has categorically
identified her signatures on the Will Ex. PW1/1 and has deposed
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regarding the execution and attestation thereof, thereby,
satisfying the requirements of Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act.
The contesting respondents have failed to shake the credibility of
the attesting witness in cross-examination.
24. He further contended that the contesting respondents have
taken inconsistent and contradictory stands, inasmuch as RW-1,
in his cross-examination, admitted that the suit property was
purchased by his mother and that she was the owner thereof,
thereby demolishing their plea regarding lack of ownership of the
testatrix.
25. He further contended that both RW-1 and RW-2 have
admitted that they have not obtained any expert opinion to
challenge the thumb impression on the Will Ex. PW1/1, nor have
they produced any cogent evidence to prove their allegations of
forgery and fabrication.
26. He further contended that mere bald allegations without
substantive proof cannot dislodge a duly proved Will. The plea of
intestacy set up by the contesting respondents is wholly
untenable in view of the duly executed Will Ex.PW1/1. The
mediation settlement dated 07.02.2011 Mark-A, relied upon by
the contesting respondents, has no bearing on the validity of the
subsequent Will dated 04.04.2011.
27. He further contended that even otherwise, said document
is not proved in accordance with law and cannot override a valid
testamentary disposition.
28. He further contended that the public notice dated
28.03.2011 Ex.PW1/12 clearly shows that the testatrix had
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disowned and debarred respondent nos. 2 and 3 due to their
conduct, which also explains the bequest made exclusively in
favour of the petitioner.
ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR
THE RESPONDENT NOS. 2 AND 3
29. Per contra, learned counsel for the respondent nos. 2 and
3 vehemently opposed the submissions advanced on behalf of the
petitioner and contended that the present suit is not maintainable
either in law or on facts and is liable to be dismissed.
30. He further contended that the alleged Will Ex. W1/1 is a
forged and fabricated document and does not satisfy the
mandatory requirements of execution and attestation.
31. He further contended that PW-2 is an interested witness,
being admittedly known to the petitioner, and her testimony is
unreliable.
32. He further contended that there are material
contradictions in the testimony of PW-1 and PW-2, particularly
regarding the preparation and execution of the Will, which create
serious doubts about its genuineness.
33. He further contended that the testatrix was not the lawful
owner of the suit property, as the same was originally allotted to
one Sh. Suresh Chand and was never converted into freehold, and
therefore, she had no right to execute the alleged Will.
34. He further contended that the documents relied upon by
the petitioner, including GPA Ex.PW1/5, Agreement to Gift Ex.
PW1/6, and other transfer documents Ex.PW1/10 and
Ex.PW1/11, do not confer valid title upon the testatrix and are
themselves doubtful in nature.
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35. He further contended that the alleged debarring through
public notice Ex. PW1/12 is false and has been created at the
instance of the petitioner.
36. He further contended that both RW-1 and RW-2 have
deposed that their relations with the testatrix were cordial and
that no such intention of disinheritance ever existed.
37. He further contended that the petitioner has failed to
prove that the Will was read over and understood by the testatrix,
who was admittedly illiterate, thereby raising further suspicion
on the validity of the Will.
38. He further contended that the petitioner has failed to
dispel the suspicious circumstances surrounding the alleged Will
Ex. PW1/1, including the manner of its execution, the role of the
petitioner in its preparation, and the absence of independent and
reliable witnesses. It is therefore prayed that the present petition
be dismissed as the petitioner has failed to discharge the burden
of proving the Will in accordance with law.
39. I have heard the final argument at length as advanced by
Sh. Vishesh Verma, learned counsel for petitioner and Sh. Sanjay
Kathuria, learned counsel for respondent nos. 2 and 3 and
carefully perused the entire material available on record
including the written arguments.
APPRECIATION OF EVIDENCE ON RECORD
40. Before adverting to the merits of the controversy and
embarking upon an appreciation of the evidence led by the
parties, it would be relevant to discuss the law relating to the
execution and proof of Wills under the Indian Succession Act,
1925 and the Indian Evidence Act, 1872. The expression “Will”
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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 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.”
41. Section 59 of the Indian Succession Act, 1925, 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 it the person “does not know what he is
doing” for any reason (such as intoxiation, illness or any other
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such cause) he is incompetent to make a Will. The focal pre-
requisite, thus, is that at the time of expressing his desire visa-vis
the disposition of the estate after his demise he must know and
understand its purport or import.
42. The execution of an unprivileged Will, 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.”
43. In H. Venkatachala Iyengar v. B.N. Thimmajamma and
Others: AIR 1959 SC 443, the 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 q uestion where the Will
propounded is proved as the last Will or testament of the departed
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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 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.
44. The Hon’ble Supreme Court of India in Jaswant Kaur vs
Amrit Kaur & Ors : AIR 1977 SC 74 has discussed the law related
to proving a will. It has held as under:
“There is a long line of decisions bearing on the nature and
standard of evidence required to prove a will. Those decisions
have been reviewed in an elaborate judgment of this Court in R.
Venkatachala Iyengar v. B.N. Thirnmajamma & Others. (1) The
Court, speaking through Gajendragadkar J., laid down in that
case the following positions:
“1. Stated generally, 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 in such matters. As in the ease
of proof of other documents, so in the case of proof of wills, one
cannot insist on proof with mathematical certainty.
“2. Since section 63 of the Succession Act requires a will to be
attested, it cannot be used as evidence until, as required
by section 63 of the Evidence Act, 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.
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“3. Unlike other documents, the will speaks from the death of
the testator and therefore the maker of the will is never available
for deposing as to the circumstances in which the will came to
be executed.
“This aspect introduces an element of solemnity in the decision
of the question whether the document propounded is proved to
be the last will and testament of the testator. Normally, the onus
which lies on the propounder can be taken to be discharged on
proof of the essential facts which go into the making of the will.
“4. Cases in which the execution of the will is surrounded by
suspicious circumstances stand on a different footing. 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
and such other circumstances raise suspicion about the
execution of the will. That suspicion cannot be removed by the
mere assertion of the propounder that the will bears the
signature of the testator or that the testator was in a sound and
disposing state of mind and memory at the time when the will
was made, or that those like the wife and children of the testator
who would normally receive their due share in his estate were
disinherited because the testator might have had his own
reasons for excluding them. The presence of suspicious
circumstances makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of
the will excite the suspicion of the court, the propounder must
remove all legitimate suspicions before the document can be
accepted as the last will of the testator.
“5. It is in connection with wills, the execution of which is
surrounded by suspicious circumstance that the test of
satisfaction of the judicial conscience has been evolved. That
test emphasises that in determining the question as to whether
an instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question
and by reason of suspicious circumstances the court has to be
satisfied fully that the will has been validly executed by the
testator.
“6. If a caveator alleges fraud, undue influence, coercion etc. 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 raise a
doubt as to whether the testator was acting of his own free will.
And then it is a part of the initial onus of the propounder to
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remove all reasonable doubts in the matter.”
45. In Shashi Kumar Banerjee & Ors vs Subodh Kumar
Banerjee Since deceased through LRs.:AIR 1964 SC 529,
Hon’ble Supreme Court has discussed the law relating to the Will
to be proved. Hon’ble Supreme Court has held as under:
“4. The principles which govern the proving of a will are well
settled; (see H. Venkatachala Iyengar v. B. N. Thimmajamma,
1959 (S1) SCR 426 : 1959 AIR(SC) 443) and Rani Purniama
Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962
AIR(SC) 567). 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 S. 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 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
indication 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 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. It is
in the light of these settled principles that we have to consider
whether the appellants have succeeded in establishing that the
will was duly executed and attested.”
46. Similarly, in Navneet Lal Alias Rangi vs Gokul and Others:
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AIR 1976 SC 794, Hon’ble Supreme Court of India has laid down
the following Principles/Guidelines:
“From the earlier decisions of this Court the following
principles, inter alia, are well established:”
(1) In construing a document whether in English or in
vernacular the fundamental rule is to ascertain the intention
from the words used; the surrounding circumstances are to
be considered; but that is only for the purpose of finding
out the intended meaning of the words which have actually
been employed. [Ram Gopal v. Nand Lal and others(1)].
“(2) In construing the language of the will the court is
entitled to put itself into the testator’s armchair [Venkata
Narasimha v. Parthasarathy(2)] and is bound to bear in
mind also other matters than merely the words used. It must
consider the surrounding circumstances, the position of the
testator, his family relationship, the probability that he
would use words in a particular sense but all this is solely
as an aid to arriving at a right construction of the will, and
to ascertain the meaning of its language when used by that
particular testator in that document. [Venkata Narasimha’s
case supra and Gnanambal Ammal v. T. Raju Ayyar and
Others(1)].
“(3) The true intention of the testator has to be gathered not
by attaching importance to isolated expressions but by
reading the will as a whole with all its provisions and
ignoring none of them as redundant or contradictory [Raj
Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
“(4) The court must accept, if possible, such construction as
would give to every expression some effect rather than that
which would render any of the expression inoperative. The
court will look at the circumstances under which the
testator makes his will, such as the state of his property, of
his family and the like. Where apparently conflicting
dispositions can be reconciled by giving full effect to every
word used in a document, such a construction should be
accepted instead of a construction which would have the
effect of cutting down the clear meaning of the words used
by the testator. Further, where one of the two reasonable
constructions would lead to intestacy, that should be
discarded in favour of a construction which does not create
any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
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“(5) It is one of the cardinal principles of construction of
wills that to the extent that it is legally possible effect
should be given to every disposition contained in the will
unless the law prevents effect being given to it, Of course,
if there are two repugnant provisions conferring successive
interests, if the first interest created is valid the subsequent
interest cannot take effect but a Court of construction will
proceed to the farthest extent to avoid repugnancy, so that
effect could be given as far as possible to every
testamentary intention contained in the will. [Ramachandra
Shenoy and Another v. Mrs. Hilda Brite and Other(4)]”
47. Sections 68 of the Indian Evidence Act, 1872, which relates
to proof of documents required by law to be attested, 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:
Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being a
will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it purports to
have been executed is specifically denied.
48. It is also settled position of law that the jurisdiction of a
probate Court is limited only to consider the genuineness of a
Will. A question of title arising under the act cannot be gone into
the proceedings and construction of a Will relating to the right,
title and interest of any other person is beyond the domain of the
Probate Court. The Hon’ble Supreme Court of India in judgment
titled “Kanwarjit Singh Dhillon Vs. Hardayal Singh Dhillon &
Ors“. Civil Appeal No. 4890/2007 decided on 12.10.2007, while
relying upon the judgments titled as “Chiranjilal Shrilal Goenka
Vs. Jasjit Singh & Ors.” (1993) 2 SCC 507 has held that the
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Court of probate is only concerned with the question as to
whether the document put forward as the last Will and testament
of a deceased person was duly executed and attested in
accordance with law and whether at the time of such execution,
the testator had sound disposing mind. The question whether a
particular bequest is good or bad is not within the purview of the
Probate Court. Therefore, the only issue in probate proceedings
relates to the genuineness and due execution of the Will.
MY ISSUE(S) WISE FINDINGS ARE AS FOLLOWS:-
ISSUE NO. 1: –
Whether late Smt. Chandrawati had not right to execute a will in
respect of property bearing no. F-2-549, Sunder Nagri, Nand
Nagri, Delhi? OPR
49. The onus to prove this issue was upon the respondents.
The respondent nos. 2 and 3 have primarily challenged the
competence of the testatrix to execute the Will on the ground that
she was not the lawful owner of the subject property, contending
that the property was originally allotted to one Sh. Suresh Chand
by DDA and was never converted into freehold, and therefore,
the testatrix had no authority to execute any testamentary
document.
50. At the outset, it is necessary to delineate the scope of
adjudication in probate proceedings. It is a settled proposition of
law that the jurisdiction of the probate court is limited being
confined only to consider the genuineness of the Will and a
question of right, title or interest in the property, cannot be gone
into Probate/LOA proceedings. Reliance can be placed upon the
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judgment titled as Krishna Kumar Birla v. Rajendra Singh
Lodha, (2008) 4 SCC 300.
51. In view of the aforesaid settled legal position, the objection
raised by the respondents regarding the title of the testatrix over
the subject property falls beyond the scope of the present
proceedings and cannot be gone into by this Court.
52. Even otherwise, on appreciation of evidence, it is observed
that the respondents have failed to substantiate their plea that the
testatrix had no right in the subject property. RW-1, in his cross-
examination, has categorically admitted that “the suit property
was purchased by my mother from Sh. Suresh” and further
admitted that “it is correct that the owner of the suit property is
my mother.” Similarly, RW-2 has also deposed that his mother
had purchased the suit property from Sh. Suresh Chand in or
around the year 1986. These admissions on the part of the
respondents themselves lend support to the petitioner’s case that
the testatrix was in possession of and dealing with the property as
its owner.
53. The petitioner has also placed on record certain documents
qua subject property, including Ex. PW1/10 and Ex. PW1/11,
purportedly reflecting transfer in favour of the testatrix, though
the validity or sufficiency of these documents to confer title need
not be examined in the present proceedings for the reasons
already discussed.
54. Thus, even if the objections of the respondents regarding
imperfect title, non-conversion into freehold, or alleged
infirmities in the chain of documents are assumed to be correct
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for the sake of argument, the same would not ipso facto disentitle
the testatrix from executing a Will in respect of the property in
her possession. It is settled that a person in settled possession and
asserting rights over a property can execute a testamentary
disposition, and the question of ultimate title is to be adjudicated,
if at all, in appropriate civil proceedings and not in probate
jurisdiction.
55. Accordingly, in view of the limited scope of probate
proceedings and in light of the admissions made by RW-1 and
RW-2, this Court finds that the respondents have failed to
discharge the onus cast upon them. Resultantly, issue no. 1 is
decided against the respondents and in favour of the petitioner.
ISSUE NO. 2
Whether late Smt. Chandrawati executed a Will in favour of the
petitioner on 04.04.2011? OPP
56. The onus to prove this issue squarely lay upon the
petitioner, being the propounder of the alleged Will Ex. PW1/1.
It is a well-settled principle of testamentary jurisprudence that the
propounder is required not only to prove the due execution and
attestation of the Will in terms of Section 63 of the Indian
Succession Act, 1925, but also to satisfy the requirements of
Section 68 of the Indian Evidence Act, 1872 (Now Section 67 of
the Bharatiya Sakshya Adhiniyam, 2023) by examining at least
one attesting witness. Further, where there exist suspicious
circumstances surrounding the execution of the Will, the burden
on the propounder becomes heavier, and it is incumbent upon her
to dispel such suspicions by leading cogent and convincing
evidence so as to satisfy the judicial conscience of the Court.
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57. In the present case, the petitioner examined herself as
PW-1 and one of the attesting witnesses, namely Smt. Afroz
Begum, as PW-2. PW-1, by way of her affidavit Ex. PW1/1,
reiterated the contents of the petition and relied upon the Will
dated 04.04.2011. In her cross-examination, she deposed that the
Will was prepared by an advocate at Sunder Nagri and that at the
time of execution, the testatrix affixed her thumb impression in
her presence and in the presence of attesting witnesses, namely
Smt. Afroz Begum and one Sirajuddin. She further stated that the
contents of the Will were read over to the testatrix by the
advocate.
58. PW-2, the attesting witness, in her affidavit Ex. PW2/A,
supported the case of the petitioner and deposed that the testatrix
executed the Will in her presence and that she signed the same as
an attesting witness. In her cross-examination, she stated that the
Will was typed in her presence and that both she and the testatrix
affixed their signatures/thumb impressions in the presence of
each other.
59. At a superficial level, the petitioner appears to have
complied with the formal requirement of examining an attesting
witness. However, the matter does not rest merely on formal
compliance. The Court is required to scrutinize the evidence with
greater care, particularly when the Will is surrounded by
suspicious circumstances. Upon a holistic appreciation of the
evidence on record, this Court finds that several such
circumstances exist, which have not been satisfactorily explained
by the petitioner.
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60. Firstly, it is an admitted position that the testatrix was
illiterate. In such cases, it is incumbent upon the propounder to
prove that the contents of the Will were read over and explained
to the testatrix and that she understood the nature and effect of
the disposition. Although PW-1 has deposed in her cross-
examination that the contents were read over by the advocate, the
Will Ex. PW1/1 is conspicuously silent in this regard. There is no
endorsement or certification in the Will that the contents were
read over or explained to the testatrix. This omission assumes
significance, particularly when the testatrix was admittedly
incapable of reading or writing.
61. Secondly, the testimony of PW-2, the attesting witness,
suffers from material inconsistencies and contradictions. At one
stage, she deposed that the testatrix signed the Will, whereas later
she admitted that both she and the testatrix were illiterate and
could not sign, thereby creating ambiguity as to whether
signatures or thumb impressions were affixed. Such
contradictions go to the root of the manner of execution and
create doubt regarding the credibility of the witness.
62. Thirdly, PW-2 has admitted that she was known to the
petitioner and had come to depose at her request. She is not an
independent witness but a person having prior acquaintance with
the petitioner. While this by itself may not be sufficient to discard
her testimony, in the presence of other suspicious circumstances,
her evidence is required to be scrutinized with greater caution.
The absence of any truly independent witness to the execution of
the Will assumes significance in the facts of the present case.
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63. Fourthly, and most importantly, the conduct of the
petitioner in relying upon multiple documents executed on the
same date i.e. 04.04.2011, which are mutually inconsistent in
nature, raises serious doubt regarding the genuineness of the Will
Ex.PW1/1. Apart from the Will Ex. PW1/1, the petitioner has
placed reliance upon an unregistered Agreement to Gift Ex.
PW1/6, a possession letter Ex. PW1/7, and an affidavit Ex.
PW1/8. A perusal of these documents reveals that the testatrix is
purported to have transferred the property to the petitioner during
her lifetime for consideration and even delivered possession
thereof. The language of these documents suggests a transaction
akin to sale or transfer inter-vivos, which stands in stark
contradiction to a testamentary disposition, which is intended to
take effect after the death of the testatrix.
64. What renders this circumstance more suspicious is the
complete absence of any pleadings in the petition explaining or
reconciling these documents with the Will. The petitioner has not
taken a consistent stand as to whether she claims the property by
way of testamentary succession or by way of transfer during the
lifetime of the testatrix. This inconsistency strikes at the very root
of the petitioner’s case and casts a serious doubt on the
authenticity of the Will.
65. Fifthly, the exclusion of the natural heirs, namely
respondent nos. 2, 3 and 4, who are the sons and daughter of the
testatrix, has not been satisfactorily explained. Although the
petitioner has relied upon a public notice Ex. PW1/12 allegedly
debarring the said respondents no. 2 and 3, PW-1 has candidly
admitted in her cross-examination that apart from the newspaper
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publication, there is no other proof of such debarment and that no
declaratory suit or legal proceedings were ever initiated by the
testatrix in this regard. The mere publication of a notice, without
any corroborative evidence or legal action, cannot be treated as
sufficient justification for disinheriting natural heirs. Further, it is
an admitted position that respondent nos. 2 and 3 were residing in
the suit property even during the lifetime of the testatrix. No
plausible explanation has been furnished as to why, despite such
circumstances, the entire property was bequeathed exclusively in
favour of the petitioner. This unexplained exclusion of natural
heirs constitutes a significant suspicious circumstance.
66. Sixthly, the role of the petitioner in the execution of the
Will also assumes importance. PW-1 has admitted that the
attesting witnesses were known to her and that they affixed their
signatures/thumb impressions at her instance. The presence of the
beneficiary at the time of execution and her active involvement in
arranging the witnesses, though not illegal per se, is a relevant
factor which, in conjunction with other suspicious circumstances,
casts doubt on the voluntary nature of the execution.
67. Seventhly, the respondent nos. 2 and 3 have raised a
specific contention regarding the thumb impression on the Will,
alleging that the same is not that of the testatrix and pointing out
that the left thumb impression appears on the document. It has
come on record that an application Under Section 45 of Indian
Evidence Act, 1872 was moved by the respondent nos. 2 and 3
seeking examination by an expert, which was allowed on
15.10.2018 by the learned Predecessor of this Court. However,
due to statutory restrictions under the Aadhaar framework, the
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desired record could not be procured. It is also a matter of record
that no expert evidence has ultimately been led by either side.
While the failure of the respondents to lead expert evidence
weakens their allegation of forgery, it does not absolve the
petitioner of her primary obligation to prove the Will beyond
suspicion.
68. Eighthly, the mediation settlement dated 07.02.2011 Mark-
A, being only a marked document and not formally proved in
accordance with law, cannot by itself be relied upon to determine
testamentary rights. Nevertheless, the document indicates that, at
the relevant point of time, there existed an understanding within
the family regarding enjoyment of different portions of the
property by different heirs. The alleged Will dated 04.04.2011,
executed shortly thereafter, completely departs from this
arrangement by bequeathing the entire property to the petitioner
alone. In the absence of any cogent explanation for such a
substantial departure within a short span of time, the same
constitutes an additional circumstance warranting closer scrutiny
of the genuineness of the alleged Will.
69. Cumulatively considered, the aforesaid circumstances
create a cloud of suspicion around the execution of the Will Ex.
PW1/1. The petitioner has failed to dispel these suspicions by
leading clear, cogent and convincing evidence. The testimony of
PW-1 and PW-2 does not inspire sufficient confidence to
conclusively establish that the testatrix executed the Will
voluntarily, in a sound disposing state of mind, and with full
knowledge and understanding of its contents.
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70. In view of the foregoing discussion, this Court is of the
considered opinion that the petitioner has failed to discharge the
onus cast upon her. Accordingly, issue no. 2 is decided against
the petitioner and in favour of the respondents.
ISSUE NO. 3
RELIEF
71. In view of the findings given hereinabove, particularly on
issue no. 2, this Court is of the considered opinion that the
petitioner has failed to prove the due execution and attestation of
the alleged Will dated 04.04.2011 Ex. PW1/1 in accordance with
the mandatory provisions of law. The petitioner has further failed
to dispel the suspicious circumstances surrounding the said Will,
which are material and go to the root of its genuineness.
72. Although issue no. 1 has been decided in favour of the
petitioner, the failure to establish the validity and genuineness of
the Will Ex.PW1/1 is fatal to the present petition, as the grant of
probate is entirely contingent upon the proof of a valid and duly
executed testamentary instrument.
73. Accordingly, the present petition for grant of probate in
respect of the alleged Will dated 04.04.2011 is hereby dismissed.
No order as to costs.
74. It is, however, clarified that nothing stated herein shall be
construed as an expression on the merits of the title or ownership
of the parties in respect of the subject property, which shall be
open to be adjudicated before a competent court in appropriate
proceedings, in accordance with law.
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75. Decree sheet be prepared accordingly.
76. File be consigned to Record Room after due compliance.
(Typed to the dictation directly, corrected and
pronounced in open court on 07.05.2026.)
(GAURAV)
DISTRICT JUDGE-01
SHAHDARA DISTRICT
KARKARDOOMA COURTS
DELHI
Certified that this judgment contains 28 pages and each page bears
my signature.
(GAURAV)
DISTRICT JUDGE-01
SHAHDARA DISTRICT
KARKARDOOMA COURTS
DELHI
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