Delhi District Court
Dr. Vijay Kumar vs Sh Kanwal Kumar on 15 April, 2026
IN THE COURT OF NAVEEN GUPTA, DISTRICT JUDGE - 09
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-008117-2021
CS DJ No. 781/2021
In the matter of :-
Dr. Vijay Kumar
S/o Late Siri Ram,
R/o B-1/254, First Floor,
Janakpuri, New Delhi-110058.
..... Plaintiff
VERSUS
Kanwal Kumar
S/o Late Siri Ram,
R/o 17/149, Ground Floor,
Subhash Nagar,
New Delhi-110027.
.... Defendant
Date of institution : 29.10.2021
Reserved for judgment : 01.04.2026
Judgment pronounced on : 15.04.2026
SUIT FOR POSSESSION,
DECREE OF DAMAGES AND MESNE PROFITS
JUDGMENT
1. This is a suit for possession and decree of damages and mesne
profits. Succinctly put, the case of plaintiff, as per plaint, is that late
Ralla Ram was allotted House No. 17/149, Subhash Nagar, New Delhi,
consisting of one room and kitchen on the ground floor on a plot of land
measuring 100 sq. yards. A lease deed dated 28.10.1961 was executed
in his favour. At that time, his son namely Siri Ram (father of the
CS DJ 781/2021 Page no. 1/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:21:53
+0530
parties herein) was the only earning member of the family of late Ralla
Ram, consisting of two sons, one daughter and his wife. Thereafter, late
Siri Ram raised additional construction on the ground floor and
constructed first floor and second floor. Late Ralla Ram died on
18.01.1962. He left behind a Will dated 19.01.1961 in favour of late
Siri Ram, bequeathing the entire property to him. After the death of
Ralla Ram, the property was transferred in the name of late Siri Ram
and a conveyance deed dated 24.04.1997 was executed in his favour.
2. It has been further averred that the plaintiff after marriage shifted
to the upper floors, while late Siri Ram alongwith his wife and other
children had been residing at the ground floor. The plaintiff, later on,
became a doctor and got married with a doctor. He started working
initially in India and abroad. He earned sufficient money. His children
also became doctor. He is running pathological lab in different parts of
Delhi and is residing at his own house at Janakpuri, New Delhi.
3. It has been further stated that late Siri Ram had executed a gift
deed dated 23.06.2010 in favour of plaintiff in respect of first floor and
second floor of the abovesaid property, where the plaintiff was residing
till November, 2018. Thereafter, he rented out both the floors and was
collecting rent from the tenants to the knowledge of defendant and late
Siri Ram.
4. The plaintiff has further averred that late Siri Ram became
seriously ill while residing with defendant, as he was neglected by him
(defendant) and his family. On his (late Siri Ram) request and
considering his ailing condition, the plaintiff brought him to his
residence and got him treated at Ganga Ram Hospital and Manipal
CS DJ 781/2021 Page no. 2/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:21:59
+0530
Hospital at Dwarka, where he died on 15.12.2020. He left behind a Will
dated 27.11.2020. He was aged about 90 years.
5. It has been submitted that by virtue of the said Will dated
27.11.2020, late Siri Ram bequeathed his all movable and immovable
assets in favour of plaintiff. Accordingly, the plaintiff became owner of
ground floor of property bearing no. 17/149, Subhash Nagar, New
Delhi (hereinafter referred as ‘suit property’). The plaintiff, on request
of the defendant, allowed him to live on the ground floor for a period of
six months as he (defendant) proposed to shift to an alternate
accommodation after 6 months. But, after expiry of six months, he did
not vacate the property. Rather, on vacation of second floor by a tenant
Jagjeet Singh on 21.09.2021, he attempted to lock the second floor and
also locked the staircase at the backside, which were removed only on
the intervention of the police. Therefore, the plaintiff sent a notice dated
22.09.2021, whereby license of the defendant to live in the suit property
was revoked. Subsequently, a reply dated 01.10.2021 was sent by the
defendant, calling upon to supply the documents i.e. gift deed and Will
etc. The said documents were supplied on behalf of the plaintiff vide a
reply dated 08.10.2021. The defendant thereafter again sent reply dated
21.10.2021 containing false allegations. In these circumstances, the
same was responded vide reply dated 22.10.2021. Thus, the plaintiff
has filed the present suit praying for decree of possession of the suit
property and decree of damages and mesne profits with pendente lite
and future interest @ 12% per annum.
6. In his written statement, the defendant has raised preliminary
objections that the documents relied upon by the plaintiff i.e. gift deed
CS DJ 781/2021 Page no. 3/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:22:08
+0530
dated 23.06.2010 and Will dated 27.11.2020 are forged and fabricated
documents. The same had been carried out by using force, coercion and
undue influence. He had come to know about the existence of the said
documents only upon receipt of legal notice dated 08.10.2021 of the
plaintiff. Further, the suit property was an ancestral property and not a
self-acquired property. His father had acquired the same through
testamentary succession. Thus, the same cannot be partitioned without
following the provisions of Hindu Succession Act.
7. On merits, the defendant has replied that he and his father late
Siri Ram had invested all their time and earning on the education of the
plaintiff, which resulted that he (defendant) could not educate himself
beyond 8th standard. Further, the plaintiff is a doctor. Trusting his skills,
the entire family of defendant decided to hand over the task of taking
care of the health of late Siri Ram to the plaintiff. But, the plaintiff
taking undue benefit of the circumstances, got the said Will registered
in his favour. Further, the ground floor of the property i.e. suit property
was always in the possession of defendant and his family. First floor
and second floor of the property were handed over to the plaintiff by
late Siri Ram. When he shifted from the said portions of the property to
another place, he inducted tenants there and started earning rent from
them. However, the defendant was entitled to share from the rented
amount, as the partition of the property had never taken place between
the parties.
8. The defendant has further averred that late Siri Ram happily
lived with the family of defendant and at the age of 92, on 30.10.2020,
plaintiff took him away and he was in tears at that time. The execution
of alleged Will dated 27.11.2020, just 18 days prior to his death, is
CS DJ 781/2021 Page no. 4/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:22:25
+0530
evident enough to prove the existence of force and undue influence
over him. While late Siri Ram used to reside with the family of
defendant, it is surprising that none of the family members of the
defendant was made a party to the execution of the alleged gift deed
and Will. Accordingly, the gift deed dated 23.06.2010 and the Will
dated 27.11.2020 were sham and fabricated documents. Lastly, the
defendant has requested for dismissal of the present suit.
9. In his replication, the plaintiff has denied all the allegations
leveled by the defendant in his written statement. He has submitted that
the defendant has not mentioned any ground to allege that gift deed
dated 23.06.2010 and Will dated 27.11.2020 were forged and fabricated
documents. He had not given any particulars of any force, coercion or
undue influence at the time of execution of above documents.
10. From the pleadings of the parties, following issues were framed
on 17.05.2023:-
1. Whether Late Siri Ram validly executed a Gift Deed
dated 23.06.2010 in favour of plaintiff in respect of first
and second floor of property no. 17/149, Subhash Nagar,
New Delhi? OPP
2. Whether the aforesaid Gift Deed dated 23.06.2010 is
forged and fabricated? OPD
3. Whether Late Siri Ram validly executed a Will dated
27.11.2020 in favour of plaintiff, if so, its effect? OPP
4. Whether the aforesaid Will dated 27.11.2020 is forged and
fabricated? OPDCS DJ 781/2021 Page no. 5/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:22:52
+0530
5. Whether the plaintiff is entitled to a decree of possession
in respect of ground floor of property no. 17/149, Subhash
Nagar, New Delhi, as prayed for? OPP
6. Whether the plaintiff is entitled to a decree of mesne
profit and damages, as prayed for? OPP
7. Whether the plaintiff is entitled to any interest? If yes, at
what rate and for what period? OPP.
8. Relief.
11. Vide order dated 01.04.2026, the Court observed that since the
Gift deed dated 23.06.2010 in favour of the plaintiff was in respect of
first and second floor of the property and the present suit has been filed
by the plaintiff seeking decree of possession of the ground floor of the
property, thus, the issues no. 1 and 2 regarding validity of the gift deed
are not related to the dispute between the parties in the present suit.
Accordingly, the issues no. 1 and 2 were deleted.
12. Now, to prove his case, the plaintiff examined six witnesses. Out
of which, three were examined before the Court and remaining three
witnesses were examined through Local Commissioner. To prove his
defence, the defendant examined one witness i.e. the defendant himself,
who was also examined through Local Commissioner.
13. PW-1 is Rakesh Sharma, Superintendent, Land & Development
Office, Nirman Bhawan, New Delhi. He tendered the summoned record
pertaining to the property bearing no. 17/149, Subhash Nagar, New
Delhi in respect of Lease Deed dated 28.10.1961 executed in favour of
Sh. Ralla Ram S/o Sh. Das Mall, as Ex.PW-1/1.
CS DJ 781/2021 Page no. 6/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:22:57
+0530
14. PW-2 is Chaman Lal, Public Relation Executive, Sub
Registrar-11B, Janakpuri, Delhi. He tendered the summoned record i.e.
Will registered on 27.11.2020 as, Ex.PW-2/1.
15. PW-3 is Devender Kumar, Junior Assistant, Revenue
Department, Rajouri Garden, Delhi. He tendered the summoned record
i.e. Registered Gift Deed dated 23.06.2010, as Ex.PW-3/1.
16. PW-4 is the plaintiff himself. He tendered his evidence affidavit
as PW-4/A. He submitted on the similar lines as stated by him in his
plaint. He has relied upon the documents admitted during course of
admission/denial marked as Ex.P-1 to Ex.P-6 and Ex.P-9 to Ex.P-14.
He has further relied upon the documents Ex.PW-1/1 (Lease deed dated
28.10.1961), Ex.PW-2/1 (Will dated 27.11.2020) and Ex.PW-3/1 (Gift
deed dated 23.06.2010). He was cross-examined on behalf of the
defendant.
17. PW-5 is Som Nath Dhall, one of the attesting witnesses to the
Will dated 27.11.2020. He tendered his evidence affidavit as
Ex.PW-5/A. He submitted that he signed the gift deed dated 23.06.2010
and the Will dated 27.11.2020 as an attesting witness. The witnesses,
executor/donor of the above documents had signed the same in his
presence in fully sound disposing mind and the same were registered
before the Registrar. Late Siri Ram was completely hale and hearty at
the time of execution of Ex.PW-2/1 and Ex.PW-3/1 and had signed the
same voluntarily, without any pressure or coercion. He was cross-
examined on behalf of the defendant.
CS DJ 781/2021 Page no. 7/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:23:03
+0530
18. PW-6 is Dr. Akant Arora. He has deposed that he started working
with Manipal Hospital in September/October, 2020 and worked till
November, 2020. The death summary Ex.PW-6/1 had been prepared by
him after examination of the patient [late Siri Ram]. He was cross-
examined on behalf of the defendant.
19. In his defence, the defendant examined himself as DW-1. He
tendered his evidence affidavit as DW-1/A. He deposed on the similar
lines as stated by him in his written statement. He was cross-examined
on behalf of the plaintiff.
20. I have heard respective Ld. Counsels for the parties. I have
carefully perused the material available on record as well as written
submissions filed on behalf of both the parties. Ld. Counsel for the
plaintiff has argued that the plaintiff has duly proved the Will dated
27.11.2020 of late Siri Ram. He has examined one of the attesting
witnesses to the Will as PW-5. He (PW-5) has categorically deposed
that the Will had been signed by the parties in each other’s presence in
full sound disposing mind. During cross-examination of PW-5, the
defendant could not bring anything on record to create doubt on the
execution of the said Will. Moreover, the defendant has nowhere
disputed the signatures of father of the parties on the said Will. So far as
other attesting witness namely Piyush Tandon is concerned, he could
not be examined due to his non-availability. Further, the plaintiff has
also filed the death summary and death report of late Siri Ram as
PW-6/1, which shows that his death was natural and caused due to
cardiac arrest. Even otherwise, as mandated by Order VI Rule 4 of the
Code of Civil Procedure, the defendant has not provided any details of
the allegations as to in what manner the said Will had been got executed
CS DJ 781/2021 Page no. 8/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:23:19
+0530
through force, coercion and undue influence. Further, during his cross-
examination, DW-1 has voluntarily stated that he had asked the plaintiff
to take their father to the doctor for check-up. He admitted that the
medical expenses were borne by the plaintiff. He deposed that after the
year 2020, he had never tried to contact his father nor he had any
conversation with him. Further, admittedly, he had been told by his
children that the said Will was got executed by the plaintiff from his
father forcefully.
21. Ld. Counsel has further argued that the defendant has failed to
establish that the father of parties was not of sound disposing mind or
had executed the impugned Will by force, coercion or undue influence.
Thus, the defendant has failed to prove any suspicious circumstance
against the execution of the said Will. Further, late Siri Ram had earlier
executed a Will in the year 2010 too. The said Will was also in English
and late Siri Ram had signed the same in English. The witness Som
Nath Dhall was a witness to the said Will too. Accordingly, it cannot be
said that Som Nath Dhall was an interested witness. Ld. Counsel has
argued that in the correspondence done between the parties by way of
legal notice and subsequent reply, the defendant did not plead that his
father was of unsound mind. Only plea against the execution of the Will
was that it was executed 18 days prior to the death of late Siri Ram.
This itself cannot be a suspicious circumstance.
22. Ld. Counsel for plaintiff has further argued that accordingly, by
virtue of the Will dated 27.11.2020, the plaintiff has become owner of
the suit property. He allowed the defendant to stay in the suit property
on the license basis. He revoked the said license through legal notice
dated 22.09.2021, Ex.P-10. Thus, the plaintiff is entitled to decree of
CS DJ 781/2021 Page no. 9/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:23:26
+0530
possession of the suit property. He is further entitled to a decree of
mesne profits and damages @ Rs.7,500/- per month from 10.10.2021
till filing of the present suit and further damages @ Rs.15,000/- per
month, alongwith pendente-lite and future interest @ 12% per annum.
23. Ld. Counsel for the defendant has argued that late Siri Ram had
earlier executed a Will dated 23.06.2010, Ex.PW-4/D-1, whereby he
bequeathed the suit property in favour of his wife and after her death,
the suit property was to be devolved upon the defendant. The plaintiff
did not supply the copy of the said Will dated 23.06.2010, alongwith
notice dated 08.10.2021 (Ex.P-12). Further, the suit property was
always in the possession of defendant and his family. Late Siri Ram had
lived with the family of defendant with a lot of love and affection. At
the age of 92, on 30.10.2020, the plaintiff took him away. It is not the
case of plaintiff that the relation between late Siri Ram and the
defendant was bitter. Ld. Counsel has argued that during cross-
examination of the plaintiff/PW-4, he deposed that his father was
suffering from knee problem. He also admitted about his hearing
problem. But, he did not file any document with regard to the treatment
given to his father, despite suggestions having been put to him in this
regard during his cross-examination. PW-4 did not tell about the
education qualification of his father. The testimony of PW-4 leads to
infer that late Siri Ram was got admitted in Ganga Ram Hospital on
first Sunday of December, 2020 i.e. on 06.12.2020, just after one week
of the execution of the said Will. After four days of discharge from
Ganga Ram Hospital, he was got admitted in Manipal Hospital and he
expired on 15.12.2020. When on 30.10.2020, the plaintiff took his
father from the residence of defendant, he (late Siri Ram) was seriously
CS DJ 781/2021 Page no. 10/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:23:32
+0530
ill. His subsequent admissions in the hospitals show that he was not in
sound disposing mind on the day of execution of the impugned Will
dated 27.11.2020. Further, the plaintiff being a doctor, has a strong
influence in the doctors’ community.
24. Ld. Counsel has further argued that even otherwise, both the
attesting witnesses of the impugned Will dated 27.11.2020 are
interested witnesses. Admittedly, Som Nath Dhall is a friend of
plaintiff, while other attesting witness namely Piyush Tandon is the son-
in-law of sister of the parties. It has come on record that second floor of
the property had been rented out by the plaintiff to the sister of Piyush
Tandon. Ld. Counsel has argued that the plaintiff could not remove the
surrounding suspicions against the execution of the impugned Will.
Thus, he has failed to prove the validity of the said Will. Accordingly,
the present case shall be dismissed. Ld. Counsel has relied upon
following precedents laid down by the Hon’ble Supreme Court in
support of his arguments i.e. Gurdial Singh (dead) through LR v. Jagir
Kaur (dead), Civil Appeal No. 3509-3510/2010 decided on 17.07.2025,
Meena Pradhan v. Kamla Pradhan, Civil Appeal No. 3351/2014 decided
on 21.09.2023, Dhani Ram (died) through LRs v. Shiv Singh, Civil
Appeal No. 8172/2009 decided on 06.10.2023 and Chinu Rani Ghosh v.
Subhash Ghosh, Civil Appeal arising out of SLP(C) No. 23721/2022
decided on 11.12.2024.
25. Issue-wise findings:
Issue no. 3
Whether Late Siri Ram validly executed a Will dated 27.11.2020 in
favour of plaintiff, if so, its effect? OPPCS DJ 781/2021 Page no. 11/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:23:47
+0530
The onus to prove this issue was upon the plaintiff. Firstly, the Court
proceeds to analyze the testimonies of witnesses of plaintiff and
defendant. During his cross-examination, PW-4/plaintiff has deposed
that his father was aged about 92 years at the time of his demise. He
admitted that on 30.10.2020, he took his father from the residence of
his brother. He voluntarily stated that he was sitting outside the
residence of his brother alongwith his luggage and requested him
(PW-4) to take him at his residence. He admitted that he had knowledge
qua the Will dated 23.06.2010 in favour of his mother. The original Will
dated 23.06.2010 was in his possession.
26. PW-4 has further deposed that after four days of discharge of his
father from Ganga Ram Hospital, he got him admitted in Manipal
Hospital as his health deteriorated. He admitted that his father was
suffering from knee problem and was getting treatment done from Sant
Parmanand Hospital. He admitted that there was hearing problem till he
passed away and was having hearing aid machine. The treatment of the
same continued with doctor Ravinder Prakash. He was also his friend
being a doctor. Most of the doctors were his friends being in same
profession. He admitted that his father was also having weak eyesight.
He voluntarily stated that his father had the cataract operation in both
eyes, after which, he used to see clearly with the help of spectacles. He
got his father admitted in Ganga Ram Hospital on first Sunday of
December, 2020. He did not remember the exact day on which he got
his father admitted in Manipal Hospital.
27. To the question put to him that who used to pay the property tax
of 17/149, Subhash Nagar, New Delhi, PW-4 answered that sometimes
CS DJ 781/2021 Page no. 12/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:23:52
+0530
his father used to pay and sometimes he used to get it paid from the
daughter of defendant. After demise of his father, he (PW-4) was paying
house tax till date. To the question put to him that he (PW-4) being
qualified doctor used to manage all affair regarding finance and any
kind of documentation in regard to the property, he answered in
negative. He deposed that his father used to do the same on his own and
sometimes, used to take help of the daughter of defendant.
28. PW-4 has deposed that Som Nath Dhall was their family friend.
Piyush Tandon was son-in-law of his sister. The second floor of
property no. 17/149, Subhash Nagar, New Delhi had been rented out
recently to the sister of Piyush Tandon. He denied the suggestion that
she was living without paying rent. He has deposed that he did not
know where the impugned Will was drafted and prepared. He did not
have knowledge of the impugned Will, prior to the death of his father.
He found the said Will from the luggage/belonging of his father after he
expired.
29. PW-4 has deposed that he did not remember qualification of his
father, however, he believed from his day to day dealings that he was at
least matric pass. His father used to read and write Hindi and also used
to speak in Punjabi, Hindi and English. His father used to read and
write slightly in English and Urdu.
30. One of the attesting witnesses, PW-5 has deposed that he knew
late Siri Ram from his childhood, as being father of plaintiff, who was
his classmate. Late Siri Ram was well aware of Hindi and Punjabi. He
(PW-5) had not seen late Siri Ram reading or writing in English. The
Will was typed on the same day of execution. He was called by late Siri
CS DJ 781/2021 Page no. 13/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:23:58
+0530
Ram stating that he had some work to get the document signed. He
reached to the deed writer office at 02:00 PM. It might had taken
around 15 to 20 minutes to draft the Will as the same was already in
preparation, when he reached. Late Siri Ram called him from someone
else phone. PW-5 has deposed that from the office of deed writer, late
Siri Ram asked him to accompany to Registrar office. When he
alongwith late Siri Ram went to Registrar office, there were two other
persons who accompanied them. He did not know the name of those
two other persons. He deposed that after reaching Registrar office, the
Registrar asked late Siri Ram whether the Will was executed without
any pressure and in sound mind. To which, he replied that he was
completely fine and healthy and executing the Will with his own will.
Nothing happened in his (PW-5) presence after the said incident as
stated above. Thereafter, he went to his house. He did not receive the
copy of Will from Registrar office.
31. In his cross-examination, DW-1 deposed that his father used to
pay the property tax of property bearing no. 17/149, Subhash Nagar,
New Delhi from 1982 to 2010 (for all floors). He had not made any
payment qua the property tax of any portion of the property. He
admitted that the floors above ground floor had been put on rent by the
plaintiff. He did not remember since when the abovesaid floors were on
rent. He admitted that he was residing in the suit property since his
birth. His father was 5th class passed. His father used to reside with him
at ground floor till 2020. Age of his father was 92 in the year 2020. He
(late Siri ram) was not doing any work. He voluntarily stated that as he
was not well. His father was suffering from weak eye sight, weak
hearing capacity as well as knee problem. His father used to sleep all
day. The plaintiff used to take his father to the doctor for checkup. He
CS DJ 781/2021 Page no. 14/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:02
+0530
again stated that he (DW-1) as well as plaintiff used to take to doctor.
He never went to meet his father when he was residing with plaintiff.
He voluntarily stated that they used to call him, sometimes he used to
pick the call. The expenses incurred for the treatment of his father was
borne by the plaintiff from 2020, when the plaintiff took their father to
the hospital. He did not remember who used to bear his medical
expenses prior to the year 2020. He did not know the cause of death of
his father. His father did not use to read newspaper. He (DW-1)
voluntarily stated that he was having weak eyes. He had never seen his
father writing and signing. He had been told by his children that the
impugned Will was got executed by the plaintiff from his father
forcefully.
32. At this stage, the Court is conscious of the precedent laid down
by the Hon’ble Supreme Court in Kavita Kanwar v. Pamela Mehta,
(2021) 11 SCC 209, wherein the Court has discussed the principles to
be followed while deciding the authenticity of a Will. The excerpts of
the observations of the Court are:
24. We may now take note of the relevant principles settled by the
consistent decisions in regard to the process of examination of a will
when propounded before a court of law.
24.1. In H. Venkatachala Iyengar, a three-Judge Bench of this Court
traversed through the vistas of the issues related with execution and
proof of will and enunciated a few fundamental guiding principles that
have consistently been followed and applied in almost all the cases
involving such issues. The synthesis and exposition by this Court in
paras 18 to 22 of the said decision could be usefully reproduced as
under: (AIR pp. 451-52)
“18. What is the true legal position in the matter of proof of wills? It is
well known that the proof of wills presents a recurring topic for
decision in courts and there are a large number of judicial
pronouncements on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt seeking to prove aCS DJ 781/2021 Page no. 15/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:07
+0530
document and, in deciding how it is to be proved, we must inevitably
refer to the statutory provisions which govern the proof of documents.
Sections 67 and 68, Evidence Act are relevant for this purpose. Under
Section 67, if a document is alleged to be signed by any person, the
signature of the said person must be proved to be in his handwriting,
and for proving such a handwriting under Sections 45 and 47 of the
Act the opinions of experts and of persons acquainted with the
handwriting of the person concerned are made relevant. Section 68
deals with the proof of the execution of the document required by law
to be attested; and it provides that such a document shall not be used as
evidence until one attesting witness at least has been called for the
purpose of proving its execution. These provisions prescribe the
requirements and the nature of proof which must be satisfied by the
party who relies on a document in a court of law. Similarly, Sections
59 and 63 of the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor, may
dispose of his property by will and the three illustrations to this section
indicate what is meant by the expression “a person of sound mind” in
the context. Section 63 requires that 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 that the signature or mark shall be so
made that it shall appear that it was intended thereby to give effect to
the writing as a will. This section also requires that the will shall be
attested by two or more witnesses as prescribed. Thus the question as
to whether the will set up by the propounder is proved to be the last
will of the testator has to be decided in the light of these provisions.
Has the testator signed the will? Did he understand the nature and
effect of the dispositions in the will? Did he put his signature to the
will knowing what it contained? Stated broadly it is the decision of
these questions which determines the nature of the finding on the
question of the proof of wills. It would prima facie be true to say that
the will has to be proved like any other document except as to the
special requirements of attestation prescribed by Section 63 of the
Indian Succession Act. As in the case of proof of other documents so
in the case of proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would be the usual test
of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills
from other documents. Unlike other documents the will speaks from
the death of the testator, and so, when it is propounded or produced
before a Court, the testator who has already departed the world cannot
say whether it is his will or not; and this aspect naturally introduces an
element of solemnity in the decision of the question as to whether the
document propounded is proved to be the last will and testament of the
departed testator. Even so, in dealing with the proof of wills the Court
CS DJ 781/2021 Page no. 16/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:13
+0530
will start on the same enquiry as in the case of the proof of documents.
The propounder would be called upon to show by satisfactory
evidence that the will was signed by the testator, that the testator at the
relevant time was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions and put his
signature to the document of his own free will. Ordinarily when the
evidence adduced in support of the will is disinterested, satisfactory
and sufficient to prove the sound and disposing state of the testator’s
mind and his signature as required by law, Courts would be justified in
making a finding in favour of the propounder. In other words, the onus
on the propounder can be taken to be discharged on proof of the
essential facts just indicated.
20. There may, however, be cases in which the execution of the will
may be surrounded by suspicious circumstances. The alleged signature
of the testator may be very shaky and doubtful and evidence in support
of the propounder’s case that the signature in question is the signature
of the testator may not remove the doubt created by the appearance of
the signature; the condition of the testator’s mind may appear to be
very feeble and debilitated; and evidence adduced may not succeed in
removing the legitimate doubt as to the mental capacity of the testator;
the dispositions made in the will may appear to be unnatural,
improbable or unfair in the light of relevant circumstances; or, the will
may otherwise indicate that the said dispositions may not be the result
of the testator’s free will and mind. In such cases the Court would
naturally expect that all legitimate suspicions should be completely
removed before the document is accepted as the last will of the
testator. The presence of such suspicious circumstances naturally tends
to make the initial onus very heavy; and, unless it is satisfactorily
discharged, Courts would be reluctant to treat the document as the last
will of the testator. It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may have to be proved
by the caveators; but, even without such pleas circumstances may raise
a doubt as to whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would be a part of the
initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just
referred in some cases the wills propounded disclose another
infirmity. Propounders themselves take a prominent part in the
execution of the wills which confer on them substantial benefits. If it is
shown that the propounder has taken a prominent part in the execution
of the will and has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the execution
of the will and the propounder is required to remove the said suspicion
CS DJ 781/2021 Page no. 17/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:20
+0530
by clear and satisfactory evidence. It is in connection with wills that
present such suspicious circumstances that decisions of English Courts
often mention the test of the satisfaction of judicial conscience. It may
be that the reference to judicial conscience in this connection is a
heritage from similar observations made by ecclesiastical Courts in
England when they exercised jurisdiction with reference to wills; but
any objection to the use of the word “conscience” in this context
would, in our opinion, be purely technical and academic, if not
pedantic. The test merely 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 deciding a solemn question and it must be
fully satisfied that it had been validly executed by the testator who is
no longer alive.
22. It is obvious that for deciding material questions of fact which
arise in applications for probate or in actions on wills, no hard-and-fast
or inflexible rules can be laid down for the appreciation of the
evidence. It may, however, be stated generally that a propounder of the
will has to prove the due and valid execution of the will and that if
there are any suspicious circumstances surrounding the execution of
the will the propounder must remove the said suspicions from the
mind of the Court by cogent and satisfactory evidence . It is hardly
necessary to add that the result of the application of these two general
and broad principles would always depend upon the facts and
circumstances of each case and on the nature and quality of the
evidence adduced by the parties. It is quite true that, as observed by
Lord Du Parcq in Harmes v. Hinkson, “where a will is charged with
suspicion, the rules enjoin a reasonable scepticism, not an obdurate
persistence in disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to the truth”. It
would sound platitudinous to say so, but it is nevertheless true that in
discovering truth even in such cases the judicial mind must always be
open though vigilant, cautious and circumspect.”
(emphasis supplied)
xxx
24.8. We need not multiply the references to all and other decisions
cited at the Bar, which essentially proceed on the aforesaid principles
while applying the same in the given set of facts and circumstances.
Suffice would be to point out that in a recent decision
in Shivakumar v. Sharanabasappa, this Court, after traversing through
the relevant decisions, has summarised the principles governing the
adjudicatory process concerning proof of a will as follows : (SCC pp.
309-10, para 12)
CS DJ 781/2021 Page no. 18/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:26
+0530
“12. … 12.1. Ordinarily, 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. Alike the principles governing the proof of other
documents, in the case of will too, the proof with mathematical
accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a will is required
to be attested, it cannot be used as evidence until at least one attesting
witness has been called for the purpose of proving its execution, if
there be an attesting witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it speaks from the death of the
testator and, therefore, the maker thereof is not available for deposing
about the circumstances in which the same was executed. This
introduces an element of solemnity in the decision of the question as to
whether the document propounded is the last will of the testator. The
initial onus, naturally, lies on the propounder but the same can be taken
to have been primarily discharged on proof of the essential facts which
go into the making of a will.
12.4. The case in which the execution of the will is surrounded by
suspicious circumstances stands on a different footing. The presence of
suspicious circumstances makes the onus heavier on the propounder
and, therefore, in cases where the circumstances attendant upon the
execution of the document give rise to suspicion, the propounder must
remove all legitimate suspicions before the document can be accepted
as the last will of the testator.
12.5. If a person challenging the will alleges fabrication or alleges
fraud, undue influence, coercion et cetera 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 give rise to the doubt or as to whether the will had indeed
been executed by the testator and/or as to whether the testator was
acting of his own free will. In such eventuality, it is again a part of the
initial onus of the propounder to remove all reasonable doubts in the
matter.
12.6. A circumstance is “suspicious” when it is not normal or is ‘not
normally expected in a normal situation or is not expected of a normal
person’. As put by this Court, the suspicious features must be “real,
germane and valid” and not merely the “fantasy of the doubting mind”.
12.7. As to whether any particular feature or a set of features qualify as
“suspicious” would depend on the facts and circumstances of each
case. A shaky or doubtful signature; a feeble or uncertain mind of the
testator; an unfair disposition of property; an unjust exclusion of theCS DJ 781/2021 Page no. 19/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:32
+0530
legal heirs and particularly the dependants; an active or leading part in
making of the will by the beneficiary thereunder et cetera are some of
the circumstances which may give rise to suspicion. The circumstances
abovenoted are only illustrative and by no means exhaustive because
there could be any circumstance or set of circumstances which may
give rise to legitimate suspicion about the execution of the will. On the
other hand, any of the circumstances qualifying as being suspicious
could be legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of sound and
disposing state of mind of the testator and his signature coupled with
the proof of attestation.
12.8. The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the will of the testator is
surrounded by suspicious circumstance(s). While applying such test,
the court would address itself to the solemn questions as to whether the
testator had signed the will while being aware of its contents and after
understanding the nature and effect of the dispositions in the will?
12.9. In the ultimate analysis, where the execution of a will is
shrouded in suspicion, it is a matter essentially of the judicial
conscience of the court and the party which sets up the will has to offer
cogent and convincing explanation of the suspicious circumstances
surrounding the will.”
xxx
27. As noticed, there has not been any question on the testamentary
capacity and soundness of mind of the testatrix; and her handwriting as
also signatures on the will in question are also beyond controversy.
However, the trial court and the High Court have concurrently found
some such suspicious circumstances which are of material bearing and
which have remained unexplained. Put in a nutshell, the unexplained
suspicious circumstances so found are:
(a) that appellant, the major beneficiary, played an active role in
execution of the will in question and attempted to conceal this fact
before the court;
(b) that there had not been any plausible reason for non-inclusion of
the only son and other daughter of the testatrix in the process of
execution of the will and for excluding them from the major part of the
estate in question;
(c) that there was no clarity about the construction supposed to be
carried out by the appellant;
CS DJ 781/2021 Page no. 20/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:41
+0530
(d) that the manner of writing and execution of the will with technical
and legal words was highly doubtful; and
(e) that the attesting witnesses were unreliable and there were
contradictions in the statements of the witnesses.
Because of these major circumstances coupled with various
supplemental factors, the trial court and the High Court felt dissatisfied
on the root question as to whether the testatrix duly executed the will
in question after understanding its contents.
28. There is no doubt that any of the factors taken into account by the
trial court and the High Court, by itself and standing alone, cannot
operate against the validity of the propounded will. That is to say that,
the will in question cannot be viewed with suspicion only because the
appellant had played an active role in execution thereof though she is
the major beneficiary; or only because the respondents were not
included in the process of execution of the will; or only because of
unequal distribution of assets; or only because there is want of clarity
about the construction to be carried out by the appellant; or only
because one of the attesting witnesses being acquaintance of the
appellant; or only because there is no evidence as to who drafted the
printed part of the will and the note for writing the opening and
concluding passages by the testatrix in her own hand; or only because
there is some discrepancy in the oral evidence led by the appellant; or
only because of any other factor taken into account by the courts or
relied upon by the respondents. The relevant consideration would be
about the quality and nature of each of these factors and then, the
cumulative effect and impact of all of them upon making of the will
with free agency of the testatrix. In other words, an individual factor
may not be decisive but, if after taking all the factors together,
conscience of the court is not satisfied that the will in question truly
represents the last wish and propositions of the testator, the will cannot
get the approval of the court; and, other way round, if on a holistic
view of the matter, the court feels satisfied that the document
propounded as will indeed signifies the last free wish and desire of the
testator and is duly executed in accordance with law, the will shall not
be disapproved merely for one doubtful circumstance here or another
factor there.
xxx
29.5.2. Thus, practically, it was a case of the testatrix merely copying,
on the dotted lines, the text already given to her. The sanctity attached
to a bequeath in the handwriting of the testator presupposes a co-
ordinated work of a free hand and a free mind, that is, the hand writes
what comes out of and given by the mind. In the present case, it is
CS DJ 781/2021 Page no. 21/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:48
+0530
difficult to be satisfied that what is found written in hand by the
testatrix had been dictated by her own mind so as to make it an
expression of her own free will.
29.5.3. Moreover, the handwritten portions carry such formal and legal
expressions like “testament” and “set and subscribed my hand”, which
are the tools of the language employed by a person who is conversant
with legal format and requirements for execution of such a document;
and, ordinarily, a layperson like the testatrix is not expected to be
conversant with them. The printed portion also carries the expressions
like “codicil”, “give, devise and bequeath”, which are not the
expressions of a layperson. In the given circumstances, the want of
evidence as to who drafted the printed portion and the said note (for
copying on the dotted lines) becomes an added factor towards
suspicion as to whether the contents of the document in question are,
in fact, expressive of the actual desire of the testatrix towards
succession of her property.
33. Coming back to the facts of the present case, the Will dated
23.06.2010, Ex.PW-4/D-1 shows that late Siri Ram had bequeathed the
suit property i.e. the ground floor of property bearing no. 17/149,
Subash Nagar, New Delhi in favour of his wife and after her death, the
said property would have gone to his younger son i.e. defendant. In the
said Will, the testator had categorically mentioned that his daughter was
well settled in her family and he did not want to give anything out of
the said property to his daughter. It is pertinent to note that as per the
case of plaintiff, late Siri Ram had executed a gift deed on the same day
i.e. 23.06.2010, Ex.PW-3/1, in his (plaintiff) favour, in respect of first
floor and second floor of the property no. 17/149, Subhash Nagar, New
Delhi. If both the above documents are reconciled, late Siri Ram had
eventually bequeathed ground floor of the property to the defendant,
while he gifted first floor and second floor of the property to the
plaintiff. But, surprisingly, vide the impugned Will dated 27.11.2020,
late Siri Ram bequeathed the ground floor of the above property, as
CS DJ 781/2021 Page no. 22/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:53
+0530
well, to the plaintiff. No reason at all has been mentioned in the Will for
cancellation of his earlier Will dated 23.06.2010 and also about
exclusion of the defendant from the fruits of the ground floor of the
property. It becomes more suspicious, in the circumstances when first
floor and second floor of the property had already been gifted to the
plaintiff and prior to 30.10.2020, late Siri Ram was residing with the
family of defendant at the suit property itself. Furthermore, no specific
allegation has been leveled by the plaintiff or in the form of any
complaint filed by late Siri Ram during his lifetime, against ill
treatment, if any, given by the defendant or his family members to late
Siri Ram, which could have led to the exclusion of defendant from the
beneficiaries of impugned Will, more so to the extent of canceling his
previous Will bequeathing the ground floor in favour of the defendant.
It is worth noting that PW-4 himself has deposed about the assistance
provided by the daughter of defendant to late Siri Ram in payment of
property tax of the said property and to manage all affairs regarding
finance and any kind of documentation in regard to the property. This
shows that there had been cordial relations between late Siri Ram and
the family members of defendant.
34. Though PW-5, one of the attesting witnesses of the impugned
Will, in his evidence affidavit Ex.PW-5/A has submitted that late Siri
Ram was completely hale and hearty at the time of execution of the
Will, Ex.PW-2/1. However, it is pertinent to note that PW-1/plaintiff
has indicated about hearing and eye sight problem to late Siri Ram. He
did not produce any medical document to corroborate his version that
late Siri Ram had no hearing or eye sight issues after using hearing aid
device or with assistance of spectacles. Even otherwise, it is the case of
parties that the plaintiff had taken late Siri Ram from the residence ofCS DJ 781/2021 Page no. 23/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:24:58
+0530
defendant to his (plaintiff) house on 30.10.2020. It has been claimed by
the defendant that he asked the plaintiff to take their father to the doctor
as he was not well. The plaintiff took their father to doctor and his all
medical records were with him (plaintiff). Further, the plaintiff/PW-1
has also deposed that he admitted his father in Ganga Ram Hospital on
first Sunday of December, 2020. Ld. Counsel for defendant has
submitted that thereby, late Siri Ram was admitted in Ganga Ram
Hospital on 06.12.2020. PW-4 has further deposed that after four days
of discharge from Ganga Ram Hospital, he got his father admitted in
Manipal Hospital as his health deteriorated. Late Siri Ram expired on
15.12.2020. The plaintiff has examined PW-6, who has filed the death
summary and death report Ex.PW-6/1 of late Siri Ram. But, from the
said summary and report, it is not clear as to for what medical issue,
late Siri Ram had been got admitted in Ganga Ram Hospital on
06.12.2020. It remained unexplained as to what was the exact period of
his hospitalization in Ganga Ram Hospital. In what condition, he was
discharged from Ganga Ram Hospital. During final arguments, Ld.
Counsel for the plaintiff has not been able to answer the query as to for
what exact period late Siri Ram remained hospitalized in Manipal
Hospital. All the above aspects are relevant due to the fact that the
impugned Will had been executed on 27.11.2020 and late Siri Ram
expired on 15.12.2020 i.e. just 18 days after the execution of Will.
Moreover, it is reiterated that as per claim of defendant, the plaintiff had
brought late Siri Ram to his residence for his medical care. In these
circumstances, the plaintiff should have filed above medical documents
of late Siri Ram to establish that he was of sound disposing mind on the
day of execution of the impugned Will. But, the plaintiff has preferred
not to do so for the reasons best known to him.
CS DJ 781/2021 Page no. 24/ 31
Digitally signed
by NAVEEN
NAVEEN GUPTA
Date:
GUPTA 2026.04.15
17:25:02
+0530
35. In the present case, the plaintiff has propounded the impugned
Will. During his cross-examination, he has deposed that he found the
Will from luggage of his father after he expired. Surprisingly, the
plaintiff has nowhere explained as to when did he get the said Will from
luggage of his father. The case of plaintiff is silent as to whether prior to
sending the legal notice dated 22.09.2021, Ex.P-10 to the defendant, he
(plaintiff) had informed him about the impugned Will. Furthermore, the
previous Will dated 23.06.2010, Ex.PW-4/D-1 of late Siri Ram was also
produced by the plaintiff himself. The defendant who could have been
beneficiary of the said Will was not even aware of the execution of the
said Will. Above all, the fact remains that the impugned Will was in the
possession of the propounder of the Will i.e. the plaintiff.
36. It is worth noting that the impugned Will is in English and
consisting of four pages. The plaintiff has submitted that he did not
remember qualification of his father, while the defendant has claimed
that his father was 5th standard passed. Further, PW-5 has deposed that
he had not seen late Siri Ram reading or writing in English. Nowhere,
he (PW-5) has clarified that the contents of the impugned Will had been
read over to late Siri Ram in the language understood by him. Rather,
he has deposed that when he reached the office of the deed writer, the
Will was already in preparation. Ld. Counsel for the plaintiff has
pointed out that at page no. 3 of the Will, it has been mentioned that
contents of the Will had been read over to the testator in Hindi. The
Court is of the view that such recital in the Will, which also is written in
English, does not remove the suspicious circumstance that whether late
Siri Ram, who did not know English language, was fully aware of the
contents of the Will and consequences thereof.
CS DJ 781/2021 Page no. 25/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:25:10
+0530
37. PW-5 has stated that he had been called by late Siri Ram for
signing a document. It is unusual that a person aged 92 years and facing
medical issues, would call the attesting witness on his own i.e. without
assistance of any other person, specially the plaintiff or his family
member, while he (late Siri ram) had been brought by the plaintiff from
the residence of defendant on 30.10.2020 for providing some treatment.
Moreover, PW-5 has submitted that late Siri Ram called him from
someone else phone. Meaning thereby, late Siri Ram was not even
maintaining any mobile phone of his own. A suspicion is created as to
whether the plaintiff, who is a renowned doctor and a flourishing
practice, would have allowed his father having medical issues and of 92
years of age, to go on his own to the deed writer and then to the office
of Registrar for execution and registration of the Will. It is also
surprising to note that PW-5, who is stated to be friend of plaintiff, did
not tell about the execution of Will by late Siri Ram to the plaintiff, as
the plaintiff has claimed that he did not have any knowledge of the Will
prior to death of his father. Surprisingly, PW-5 has deposed that he did
not know the names of two other persons who accompanied them to the
Registrar office. It is worth noting that in his evidence affidavit,
Ex.PW-5/A, PW-5 had stated the name of other attesting witness i.e.
Piyush Tandon. But, during his cross-examination, he deposed that he
did not know the name of other two persons. This creates doubt on the
examination-in-chief of PW-5 itself. Moreover, PW-5 did not clarify
about the identity of fourth person present at the time of registration of
the impugned Will, besides himself, other attesting witness and late Siri
Ram.
CS DJ 781/2021 Page no. 26/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:25:16
+0530
38. It is pertinent to note that the attesting witness, PW-5 is friend of
the plaintiff. Ld. Counsel for the plaintiff has argued that the said
witness had earlier been a witness to the previous Will dated
23.06.2010 as well as the gift deed dated 23.06.2010 too, thus, he
cannot be said to be an interested witness. At this stage, it is worth
noting that the gift deed, Ex.PW-3/1 is in favour of plaintiff himself. So
far as the Will dated 23.06.2010 is concerned, the same has also been
produced from the possession of plaintiff himself. The defendant was
not even aware of the said Will. So far as other attesting witness namely
Piyush Tandon is concerned. It has come on record that the plaintiff has
rented out the second floor of the property to the sister of Piyush
Tandon. Though in his written submissions, the plaintiff has stated that
due to non-availability of Piyush Tandon, he could not be examined.
But, Piyush Tandon was very much present on the day of advancing
final arguments and his presence was recorded on the said date. Though
after examination of one of the attesting witnesses, it was not
mandatory for the plaintiff to examine other attesting witness to the
impugned Will, however, considering the observations made in the
preceding paragraphs regarding the testimony of PW-5, the plaintiff
should have examined Piyush Tandon, other attesting witness to the
Will to remove the legitimate suspicious circumstances. Further, any
relative of the parties could attend the proceedings of the case, but
presence of Piyush Tandon during the proceedings of the present case
indicates his affiliation towards the plaintiff. These circumstances
associated with the attesting witnesses also raise suspicion against the
impugned Will.
CS DJ 781/2021 Page no. 27/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:25:21
+0530
39. Following the principles laid down in the case of Kavita Kanwar
(supra), this Court is of the view that though plaintiff, who has
propounded the impugned Will, has examined one of the attesting
witnesses of the Will in accordance with the applicable provisions of
the law, but merely examining one of the attesting witnesses is not
sufficient to prove the validity of a Will. The execution of impugned
Will is surrounded by various suspicious circumstances i.e. no plausible
reason given for excluding other legal heirs, particularly the defendant
in whose favour previous Will existed, from any share in the suit
property; association of both attesting witnesses of the Will with the
plaintiff; the Will in English language and no substantial evidence about
explaining its contents to the testator; no substantial evidence about the
physical and mental health of the testator indicating he being of sound
and disposing state of mind on the day of execution of the Will; and
furthermore, the plaintiff, the sole beneficiary, has tried to conceal his
active role in execution of the Will. The plaintiff has not been able to
explain these suspicious circumstances. Even if the Court considers the
argument of Ld. Counsel for the plaintiff that the defendant has not
explained the manner in which force, coercion and undue influence was
caused to late Siri Ram at the time of execution of Will. It is trite law
that initial onus is upon the propounder to remove all reasonable doubts
and presence of unexplained suspicious circumstances would invalidate
the Will. After taking all the factors together, conscience of the Court is
not satisfied that the impugned Will truly represents the last wish and
propositions of the testator late Siri Ram, thus, the Will cannot get the
approval of the Court. Accordingly, it is held that the plaintiff has failed
to prove the validity of the impugned Will dated 27.11.2020 of late Siri
Ram.
CS DJ 781/2021 Page no. 28/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:25:28
+0530
40. Further, it is trite law that mere registration of the Will is not a
sufficient proof of its validity. The Court is conscious of the precedent
laid down by Hon’ble Supreme Court in Leela v. Muruganantham,
(2025) 4 SCC 289, wherein it has been held that:
22. There can be no doubt with respect to the manner in which
execution of a will is to be proved. In the light of plethora of
decisions including the decisions in Moturu Nalini Kanth v. Gainedi
Kaliprasad and in Derek A.C. Lobo case this position is well settled
that mere registration of a will would not attach to it a stamp of
validity and it must still be proved in terms of the legal mandates
under the provisions of Section 63 of the Succession Act and
Section 68 of the Evidence Act. It is not the case of the appellant
that the will dated 6-4-1990 is a registered one.
25. The trial court rightly held that the propounder of the will has to
establish by satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a sound
disposing state of mind and that he understood the nature and effect
of the dispositions and put his signature out of his own free will.
41. In view of above observations, the issue no. 3 is decided against
the plaintiff.
42. Issue no. 4:
Whether the aforesaid Will dated 27.11.2020 is forged and fabricated?
OPD
The onus to prove this issue was upon the defendant. The defendant has
not led any evidence to show that the impugned Will was forged and
fabricated. Rather, from the suggestions put to PW-5 during his cross-
examination conducted on behalf of the defendant, it is made out that it
is not the claim of defendant that the impugned Will does not bear the
signatures of his father late Siri Ram. It was suggested to PW-5 that the
impugned Will was not signed on his [late Siri Ram] own free willCS DJ 781/2021 Page no. 29/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:25:34
+0530
because the eye sight of his father was too weak. Further suggestion
was put to him that the Will dated 27.11.2020 was false and fabricated
document and the execution had been carried out by using force,
coercion and undue influence. Furthermore, the defendant did not lead
any evidence to show that the impugned Will did not bear the signatures
of his father. In other words, signatures claimed to be of his father on
the impugned Will are not of his father. Accordingly, the issue no. 4 is
decided against the defendant.
43. Issues no. 5, 6 and 7:
5. Whether the plaintiff is entitled to a decree of possession in respect
of ground floor of property no. 17/149, Subhash Nagar, New Delhi, as
prayed for? OPP
6. Whether the plaintiff is entitled to a decree of mesne profit and
damages, as prayed for? OPP
7. Whether the plaintiff is entitled to any interest? If yes, at what rate
and for what period? OPP.
The onus to prove these issues was upon the plaintiff. The plaintiff has
claimed the possession of suit property on the basis of the impugned
Will of his father bequeathing rights over the suit property in his favour.
But, he has failed to prove the validity of the said Will. Accordingly, he
is not entitled to claim possession over the entire ground floor of the
property no. 17/149, Subhash Nagar, New Delhi. Thus, issue no. 5 is
decided against the plaintiff. In the same manner, the plaintiff is not
entitled to claim mesne profits and damages and interest thereof.
Accordingly, issues no. 6 and 7 are also decided against the plaintiff.
CS DJ 781/2021 Page no. 30/ 31
Digitally
signed by
NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.04.15
17:25:40
+0530
Relief
44. In view of the findings on above issues, the plaintiff is not
entitled to the reliefs claimed in the plaint. This suit is dismissed.
Decree-sheet be prepared accordingly. The parties shall bear their own
costs.
File be consigned to record room after due compliance.
Digitally signed by NAVEEN Announced in the open Court NAVEEN GUPTA on the 15th day of April, 2026 GUPTA Date: 2026.04.15 17:25:46 +0530 (Naveen Gupta) District Judge-09, West District, Tis Hazari Courts, Delhi. CS DJ 781/2021 Page no. 31/ 31
