Delhi District Court
Savitri Devi vs Rameshwar Dayal on 23 February, 2026
IN THE COURT OF VIKAS GARG, DISTRICT
JUDGE-05 (EAST),
KARKARDOOMA COURTS, DELHI.
CS No. 41922/08
CNR No. DLET01-002058-2003
1. Smt. Savitri Devi (Now deceased)
Through S/oLR of the plaintiff
Sh. Purushottam Dayal Chauraisa
S/o Late Madan Mohan Chaurasia
R/o 4567, Ground Floor, Koocha Bibi Gohar,
Charkhewalan, Delhi-110006.
.......Plaintiff
Versus
1. Sh. Rameshwar Dayal Chaurasia
S/o Late. Sh. Madan Mohan Chaurasia
R/o 4567, Ground Floor, Koocha Bibi Gohar, Charkhewalan,
Delhi-110006.
2. Anurag Bansal
S/o Late Sh. Maheshwar Dayal Chaurasia
R/o 20A, Rashmi Nagar, Kamla Nagar (P.O. Dayal Bagh),
Agra (U.P) 282005.
(Vide order dated 14.02.2024, the defendant no. 2 namely Anurag
Bansal is already proceeded exparte)
3. Smt. Raj Rani @ Munni
W/o Sh. Pratap Bhanu Chaurasia
R/o 4/43, Geeta Colony,
Jheel Khuranja, Delhi-110031.
4. Mrs.Saroj Rani @ Manju (Now deceased)
W/o Sh. Anil Kumar
Through her Legal Heirs.
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4A. Sh. Anil Kumr (Husband of the deceased defendant no. 4)
4B. Sh. Prashant (Son of the deceased defendant no. 4)
S/o Sh. Anil Kumar
4C. Sh. Shushant (Son of the deceased defendant no. 4)
S/o Sh. Anil Kumar
RA to 4C All r/o 2252, Gali Badi Pahar Wali,
Chowk Rai Ji Bharmpur, Delhi-110006.
(Vide order dated 03.04.2024, the defendant no. 4 is already
proceeded exparte.)
......Defendants
Date of Institution Suit : 31.05.2003
Date of Final Arguments : 21.02.2026
Date of Decision : 23.02.2026
Final Decision of the suit : Dismissed
SUIT FOR DECLARATION & POSSESSION, RENDITION
OF ACCOUNTS, MESNE PROFIT AND PERMANENT
INJUNCTION
JUDGMENT
1. SCOPE OF THE SUIT:-
The present judgment disposes of a suit instituted for
declaration and possession, rendition of accounts, recovery of mesne
profits, and grant of permanent injunction.
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by VIKAS GARG
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2. CASE OF THE PLAINTIFF AS PER AMENDED
PLAINT PLAINT :-
Briefly, the essential facts and averments required for a fair
adjudication of the present suit, as presented in the plaint, are as
follows:
The plaintiff is a 67-year-old senior citizen, a homemaker, and
educated only up to the 4th standard. After the death of her husband,
she was left with five children — three sons, namely Rameshwar
Dayal Chourasia (defendant), Maheshwar Dayal Chourasia and
Purshottam Dayal Chourasia @ Mukesh, and two daughters, Raj
Hani @ Munni and Saroj Rani @ Manju. At that time two of the
children, Purshottam Dayal Chourasia @ Mukesh and Saroj Rani @
Manju, were unmarried and their marriages were performed by the
plaintiff.
Maheshwar Dayal Chourasia married Smt. Sneh Lata in 1979 and a
son, Anurag Chourasia, was born on 15.06.1980. The marriage was
dissolved by a decree of divorce in 1989. Thereafter Smt. Sneh Lata
married Sh. Brahma Swaroop Bansal, adopted the name Sneh Lata
Bansal and changed the name of the child to Anurag Bansal. Both
have since been residing at 20-A, Rashmi Nagar, Kamla Nagar, P.O.
Dayal Bagh, Agra (U.P.) as wife and son of Sh. Brahma Swaroop
Bansal. Maheshwar Dayal Chourasia later expired on 28.12.1999 at
G.B. Pant Hospital, Delhi, while employed with Hong-Kong &
Shanghai Banking Corporation Ltd. (HSBC), ECE House, 28
Kasturba Gandhi Marg, New Delhi. At the time of his death he was
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account No. 051-211241-006 and in his service records, LIC
policies, group insurance and provident fund.
During his lifetime, on 13.02.1997, the deceased had obtained a
housing loan of Rs. 7,50,000/- from HSBC for purchase of property
bearing No. 4/34, Geeta Colony, Jheel Khuranja, Delhi-110031, a
double-storey building constructed on 62 sq. yards comprising two
rooms, latrine, bath and kitchen on each floor, and the ownership
documents were mortgaged with the bank. The loan installments
were deducted from his salary up to December 1999, i.e., till his
death.
After his death, the defendant, in connivance with his brother-in-law
Partap Bhanu Chourasia (R/o 4/43, Geeta Colony, Delhi) and a bank
employee Sant Kumar, fraudulently manipulated the joint account
No. 052-602356-006, changed the operational instructions from
“Former or Survivor” and singly operated the account, although
withdrawals were to be made by the plaintiff. By such manipulation
the balance loan amount of about Rs. 7,75,000/- was adjusted
without plaintiff’s consent from funds credited due to plaintiff’s
nomination benefits. Upon discovery of the fraud, the plaintiff filed
a criminal case which is pending before the Court of Sh. Satinder
Kumar Gautam, MM.
To further his illegal design, the defendant, in collusion with partap
bhanu chourasia, forged and fabricated a WILL allegedly of late
maheshwar dayal chourasia and, on its basis, got the title documents
released from the bank and mutated the property in his name in the
mcd records after obtaining certain blank signed papers from family
members on the pretext of release of funds and payment of taxes.
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The deceased had never executed any will in favour of the defendant
or anyone else and died intestate. The defendant neither obtained
probate nor no-objection from family members but still secured
mutation solely on the basis of the forged will.
The defendant thereafter let out both floors of the property and
started receiving rent of about Rs. 7,000/- per month along with
heavy security amounts but never paid any share to the plaintiff
despite repeated demands. Being a Class-I legal heir, the plaintiff
claims entitlement to rent, security amounts and future rent and
seeks rendition of accounts. The defendant, along with Partap Bhanu
Chourasia and bank employee Sant Kumar, acted in conspiracy to
deprive the plaintiff of her legitimate rights in the movable and
immovable properties left by her deceased son.
Upon learning about the alleged forged will dated 10.04.2002, the
plaintiff issued legal notice dated 18.01.2003 to the MCD office at
Geeta Colony to restrain further mutation and secure records. The
major part of the housing loan had in fact been cleared from funds
belonging to the plaintiff as nominee and from her account, yet the
bank released documents to the defendant in violation of banking
norms, making him the sole beneficiary. The defendant rapidly
procured mutation within about two months of death and withdrew
approximately Rs. 7,50,000/- from savings bank account within 6-7
months, clearly showing malafide intention to grab the property.
The plaintiff prays for a decree declaring that she, being a Class-I
legal heir of Late Maheshwar Dayal Chourasia, is entitled to all
movable and immovable properties of the deceased; declaring the
alleged will dated 03.11.1998 in favour of the defendant as null andCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 5 of 38
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void ab initio; cancelling the mutation of property bearing No. 4/34,
Geeta Colony, Jheel Khuranja, Delhi effected in favour of the
defendant on the basis of the said will; permanently restraining the
defendant and his associates from selling, transferring or creating
any third-party interest in the said property; directing the defendant
to hand over possession and title documents of the property to the
plaintiff; directing rendition of accounts of rent and security
amounts received from tenants and recovery thereof; and awarding
costs of the suit in favour of the plaintiff.
3. CASE OF THE DEFENDANT No. 1 AS PER HIS
WRITTEN STATEMENT:-
Briefly, the essential facts and averments required for a fair
adjudication of the present suit, as presented in the Written
Statement, are as follows:
Defendant No. 1 has taken preliminary objections that the present
suit is misconceived, not maintainable in law and the plaintiff has no
locus standi to institute the same. It is pleaded that the suit suffers
from non-joinder of a necessary party, as Late Shri Maheshwar
Dayal Chaurasia left behind a son, Anurag, who is a Class-I legal
heir and has not been impleaded. It is further contended that the suit
has not been properly valued for the purposes of court fee and
jurisdiction, as the market value of the property exceeds Rs. 20
lakhs and ad-valorem court fee ought to have been paid. On this
basis, it is also pleaded that the Court lacks pecuniary jurisdiction.
The defendant further submits that the suit is barred by limitation asCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 6 of 38
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the cause of action arose upon the death of Shri Maheshwar Dayal
Chaurasia and a suit for declaration filed beyond three years is time-
barred, and consequently the reliefs claimed are also barred by time.
On merits, the defendant has not disputed the relationship between
the parties as stated in the plaint but has asserted that the plaintiff
was aware of the whereabouts of Anurag and ought to have
impleaded him. It is denied that the deceased had nominated the
plaintiff alone in all his bank accounts, service records, LIC policies,
group insurance and provident fund. According to the defendant,
different nominees were appointed in different accounts — in some
the plaintiff was nominee, in some the defendant was nominee, in
some both were joint nominees and in one LIC policy the
defendant’s daughter was nominee. The defendant admits that the
deceased had taken a loan of Rs. 7,50,000/- for purchase of property
bearing No. 4/34, Gita Colony, Jheel Khuranja, Delhi-31 and that
the instalments were deducted from his salary during his lifetime.
The allegations of fraud, manipulation and connivance with Shri
Pratap Bhanu Chaurasia and bank employee Sant Kumar are denied.
It is stated that the bank was legally empowered to adjust the
outstanding loan from the amounts payable after the demise of the
deceased and the adjustments were lawful. The defendant denies
having operated the account fraudulently or having changed any
operational instructions behind the back of the plaintiff and also
denies that any criminal case was filed or that any summons were
received.
The defendant further denies forging or fabricating any Will and
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asserts that the deceased executed a valid Will in his favour. It is
stated that the plaintiff herself, along with Shri Purushottam Dayal
Chaurasia @ Mukesh, executed a no-objection-cum-affidavit
consenting to transfer and mutation of the property in favour of the
defendant. The property documents were released by the bank after
adjustment of the mortgage amount and mutation was effected on
the basis of the said no objection. The defendant maintains that
probate was not required in Delhi and denies any collusion with the
bank or municipal authorities.
It is further denied that the deceased died intestate or that the
plaintiff is entitled to rent, security or accounts. The defendant states
that the plaintiff was aware of the Will immediately after the death
of the deceased and had acknowledged the same. The alleged rent of
Rs. 7000/- per month is disputed and the defendant denies any
liability to render accounts or pay any amount to the plaintiff.
Allegations of conspiracy, collusion and grabbing of property are
also denied, and it is asserted that any withdrawals made from the
bank account were handed over to the plaintiff.
The defendant denies that any cause of action ever arose in favour of
the plaintiff and reiterates that the Court lacks jurisdiction and the
suit has not been properly valued. The prayer clause of the plaint is
denied and the suit is stated to be false, frivolous and vexatious. It is
prayed that the suit be dismissed with costs, including special costs
under Section 35-A CPC to the tune of Rs. 20,000/-, along with any
other relief deemed fit and proper in favour of the defendant.
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4. CASE OF THE DEFENDANT No. 2 AS PER HIS
WRITTEN STATEMENT:-
Briefly, the essential facts and averments required for a fair
adjudication of the present suit, as presented in the Written
Statement, are as follows:
It is submitted that the plaintiff is not the sole surviving Class-I legal
heir of late Shri Maheshwar Dayal Chaurasia. The answering
Defendant No. 2, being the son of the deceased, is also one of the
surviving Class-I legal heirs and is equally entitled to inherit the
movable and immovable properties left behind by the deceased, in
equal share with the plaintiff.
It is further submitted that the plaintiff alone is not entitled to the
reliefs as prayed for in the suit. The answering Defendant No. 2,
being one of the surviving legal heirs, is equally entitled to claim
and seek such reliefs in proportion to his lawful share in the estate of
the deceased.
Without prejudice to the above, it is submitted that although the
plaintiff has subsequently impleaded the answering defendant as
Defendant No. 2, no consequential amendments have been carried
out in the body of the plaint. The allegations of fraud, cheating, and
misrepresentation are directed against the original sole defendant,
who is now Defendant No. 1. Therefore, wherever the term
“defendant” has been used in the body of the plaint and in the prayer
clause, the same shall be construed to refer only to Defendant No. 1.
The answering Defendant No. 2 specifically denies havingCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 9 of 38
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committed any act of fraud, cheating, misrepresentation, or
misconduct against the plaintiff.
It is also submitted that the plaint does not disclose any cause of
action against the answering defendant, nor has any specific relief
been claimed against him. Accordingly, the suit, insofar as it
pertains to the answering Defendant No. 2, is not maintainable.
However, the answering defendant reiterates that he is equally
entitled to the reliefs claimed by the plaintiff, to the extent of his
lawful share in the estate of the deceased.
5. REPLICATION:-
Replications have been filed by the plaintiff to the written
statements filed by defendant no. 1 and 2 wherein he has denied the
submissions of the defendants as contained in the written statements
and has reaffirmed and reiterated the contents of the plaint.
6. ISSUES:-
Upon completion of pleadings, the following issues were
framed for trial on 14.03.2005.
1. Whether the plaitnfif is entitled to a decree of declaration
whereby to declare that plaintiff being class-I legal heir of
deceased Sh. Maheshwar Dayal Chaurasia as such entitled
to all the movable and immovable property of late Sh.
Maheshwar Dayal Chaurasia?OPP
2. Whether the Will dated 3/11/1998 is a forged and
fabricated document?OPP
3. Whether the mutation done on the basis of Will
3.11.1988 which is forged and fabricated is to be
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cancelled? OPP
4. Whether the plaintiff is entitled to the relief of
permanent injunction as prayed?OPP
5. Whether plaintiff is entitled to the relief of possession of
property bearing no.4/34 Geeta Colony Jheel Khuranja?
OPP
6. Whether plaintiff is entitled to the relief of rendition of
account as prayed for? OPP
7. Relief.
No other issue was raised or pressed for at that time.
7. PLAINTIFF’S EVIDENCE:-
The plaintiff Smt. Savitri Devi examined herself as PW-1 and
tendered her evidence by way of affidavit along with documents Ex.
PW-1/A to PW-1/H, wherein she reaffirmed the contents and
averments made in the plaint.
PW-1, Smt. Savitri Devi, was duly cross-examined by the learned
counsel for defendant No. 1. Despite being afforded an opportunity,
she was not cross-examined by Defendant No. 2.
The plaintiff also examined Sh. Purushottam Dayal (son of the
plaintiff) as PW-2 and he tendered his evidential affidavit as Ex.
PW-2/A, wherein he reaffirmed the contents and averments made in
the plaint with some modification.
PW-2, Sh. Purushottam Dayal was duly cross-examined by the
learned counsel for defendant No. 1.
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The plaintiff further examined Shri Subash Bendre as PW-3. He
deposed that he had brought the summoned record, which was listed
in the list of documents at Serial Nos. 1 to 8. He stated that
document at Serial No. 1 is the seizure memo, which was duly
attested by him as per bank law and exhibited as Ex. PW-3/A,
bearing his signature at point X. Serial No. 2 is the photocopy of the
statement of account dated 23.10.2000 pertaining to Account No.
052-602356-006 in the names of Mrs. Savitri Devi and Mr. R.D.
Chaurasia, duly attested by him as per bank rules, exhibited as Ex.
PW-3/B, bearing his signature at point X. Serial No. 3 is the memo
dated 11.04.2000 issued by the H.R. Manager, Mr. Sanjay Ray, to
the Credit Officer, Mr. Prabhakar, exhibited as Ex. PW-3/C, which
also bears his signature at point X. He further deposed that the
photocopy of the Will dated 03.11.1998 of Maheshwar Dayal
Chaurasia, the original of which he had seen in the case file and
which was already exhibited as Ex. PW-1/D, was exhibited as Ex.
PW-3/D. The photocopy of the letter dated 28.08.2000 addressed to
the Manager by R.D. Chaurasia was exhibited as Ex. PW-3/E, duly
attested by him in accordance with the Bank Act and bearing his
signature at point X. He also brought the photocopy of the loan
agreement executed between HSBC Bank and Mahesh Dayal
Chaurasia, which was marked as Mark A. He clarified that the said
agreement was not attested by him as the original had been handed
over to the police in terms of the seizure memo Ex. PW-3/A;
however, he produced the copy available with the bank. The
agreement comprises four pages. He further proved the letter dated
21.08.2000 as Ex. PW-3/F and the H.R. Manager’s memo addressedCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 12 of 38
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to the Legal Advisor as Ex. PW-3/G.In the cross-examination of PW-3, the only suggestion put to the
witness was that he had no personal knowledge of the case.
The plaintiff further examined Shri B. N. Shrivastava as PW-4, who
tendered his evidentiary affidavit dated 11.10.2007 as Ex. PW-4/A.
In his examination-in-chief, he relied upon report Ex. PW-4/1,
photographs Ex. PW-4/2 to Ex. PW-4/21 and negatives Ex. PW-
4/22 (colly). In his affidavit, he stated that he has been working as a
Handwriting and Fingerprints Expert for over 35 years and had
received training in this field from a Delhi-based expert, late Mr. M.
K. Mehta. He also completed a one-year Certificate Course in
Forensic Science from the University of Delhi. He deposed that he
had rendered opinions and given evidence in approximately 3,500
cases before various courts in the States of Uttar Pradesh, Haryana,
Punjab, and Delhi.
In the present case, he examined the disputed signatures of
Maheshwar Dayal Chaurasia appearing on the Will dated
03.11.1998 and compared them with the admitted signatures of
Maheshwar Dayal Chaurasia appearing on the Sale Deed dated
12.02.1997. The disputed signatures were marked as Q-1 to Q-3 and
the admitted signatures as A-1 to A-17 on their photographic
enlargements.
He opined that the disputed signatures marked Q-1 to Q-3 are
forged. He further stated that the disputed signatures Q-1 and Q-2
had been traced from a common model and that the disputed
signatures were not written by the writer of the admitted signatures.
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The reasons for his opinion were detailed in his report, exhibited as
Ex. PW-4/1, which bears his signature and was stated to be correct.
The photographs were exhibited as Ex. PW-4/2 to Ex. PW-4/21, and
the negatives were collectively exhibited as Ex. PW-4/22. He also
prepared transparencies, which were exhibited as Ex. PW-4/23 to
Ex. PW-4/26. He stated that the markings on the photographs were
made in his own handwriting.
He further deposed that he had prepared his report after examining
the documents in question, and the same was exhibited as Ex. PW-
4/1. With the permission of the Court, he took the photographs and
prepared them, and the said photographs were submitted along with
the record and exhibited as Ex. PW-4/2 to Ex. PW-4/21. The
negatives were collectively marked as Ex. PW-4/22. With the help
of the photographs, he also got transparencies prepared, which were
exhibited as Ex. PW-4/23 to Ex. PW-4/26. He stated that the
markings appearing on the photographs were made in his own hand.
PW-4, Sh. B. N. Shrivastava was cross-examined by the learned
counsel for defendant.
The plaintiff further examined Inspector Surender Kumar as PW-5.
He deposed that he was the part Investigating Officer in the case
titled Savitri Devi vs. Richard Brown and others. He stated that he
had issued a notice under Section 91 Cr.P.C. to H.S.B.C. Ltd. Bank,
Connaught Place, New Delhi, and pursuant thereto, he collected
certain documents from the bank. These included the Mortgage
Agreement for Rs. 8,00,000/- pertaining to property No. 4/34, Gita
Colony, Delhi-31, executed between Mahesh Chaurasia and
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H.S.B.C. Ltd. Bank on 29.01.1997.
At that stage, a sealed envelope was opened in Court, and the
following documents were taken out: a Mortgage Agreement
running into three pages; a Loan Agreement for Rs. 8,00,000/-
between Mahesh Dayal Chourasia and the bank; a forwarding letter
dated 06.05.1997 written by Mahesh Dayal Chourasia; and the
seizure memo prepared by Inspector Surender Kumar. The
Mortgage Agreement (three pages) was exhibited as Ex. PW-5/A.
The Loan Agreement for Rs. 8,00,000/- was exhibited as Ex. PW-
5/B. The forwarding letter of Mahesh Dayal Chourasia was
exhibited as Ex. PW-5/C. The seizure memo was exhibited as Ex.
PW-5/D and bears his signature at point B-1.
PW-5, Inspector Surender Kumar, was duly cross-examined by the
learned counsel for defendant No. 1.
The plaintiff further examined Shri Tej Ram as PW-6. He deposed
that he had brought the complete record pertaining to property
bearing No. 4/34, Gita Colony, Delhi, consisting of photocopies of
15 documents in total, which were collectively exhibited as Ex. PW-
6/A (colly).
PW-6, Sh. Tej Ram, was duly cross-examined by the learned
counsel for defendant No. 1.
8. DEFENDANTS’ EVIDENCE:
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In their defence, Sh. Rameshwar Dayal Cahurasia (defendant
no. 1) examined himself as DW-1 and tendered his evidential
affidavit as Ex. D.W.1/A, reaffirming the contents of his written
statement with certain modifications. In support of his case, he
relied upon the documents as Ex. DW-1/2 to Ex DW-1/10 and
documents as Mark-A to Mark-C.DW-1 was extensively cross-examined by the learned counsel for
the plaintiff.
The defendants further examined Shri Pratap Bhanu Chourasia as
DW-2, who tendered his evidentiary affidavit as Ex. DW-2/A. In his
affidavit, he stated that he was related to late Shri Maheshwar Dayal
Chaurasia, being the brother of his wife, and thus his brother-in-law.
He deposed that Shri Maheshwar Dayal Chaurasia had executed a
Will dated 03.11.1998. According to him, on 03.11.1998, Shri
Maheshwar Dayal Chaurasia brought a typed Will to his residence
and signed the said Will at two places in his presence. At the time of
execution of the Will, another witness, Shri Joginder Kumar, was
also present. He stated that Shri Maheshwar Dayal Chaurasia signed
the Will on 03.11.1998 in his presence as well as in the presence of
Shri Joginder Kumar.
He further deposed that he identified the signatures of Shri
Maheshwar Dayal Chaurasia on the Will at points A and B, his own
signatures at point C, and the signatures of Shri Joginder Kumar at
point D. The said Will was exhibited as Ex. PW-1/D.
He also stated that at the time of execution of the Will, Shri
Maheshwar Dayal Chaurasia was of sound disposing mind andCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 16 of 38
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executed the Will out of his own free will and without any pressure
or coercion from any quarter.
DW-2 was duly cross-examined by the learned counsel for the
plaintiff.
The defendants further examined Shri Jogender Kumar as DW-3,
who tendered his evidentiary affidavit as Ex. DW-3/A. In his
affidavit, he stated that he was a neighbour of Shri P.B. Chaurasia
and that he knew Shri Maheshwar Dayal Chaurasia, who was the
brother-in-law (wife’s brother) of Shri P.B. Chaurasia.
He deposed that on 03.11.1998, he was called by Shri Maheshwar
Dayal Chaurasia to the residence of Shri P.B. Chaurasia. Upon
reaching there, Shri Maheshwar Dayal Chaurasia, who had brought
with him a typed Will dated 03.11.1998, signed the said Will after
admitting its contents to be correct. The signing took place in his
presence and in the presence of Shri P.B. Chaurasia, who was also
present at that time.
He further stated that he identified the signatures of Shri Maheshwar
Dayal Chaurasia on the Will at points A and B. He also identified
the signatures of Shri P.B. Chaurasia at point C and his own
signatures at point D on the Will, which had been exhibited as Ex.
PW-1/D. He deposed that Shri P.B. Chaurasia had appended his
signatures at point C in his presence.
He further stated that at the time of execution of the Will (referred to
as Ex. DW-2/1), Shri Maheshwar Dayal Chaurasia was of sound
disposing mind and had executed the Will of his own free will and
without any pressure or coercion from any person.
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DW-3 was cross-examined by the learned counsel for the plaintiff.
9. ARGUMENTS:-
Plaintiff’s Arguments (Oral and Written):
Ld. counsel for the plaintiff aruged on the lines of his plaint. It is
contended that defendant no. 1 claims ownership solely on the basis
of an unregistered and unprobated WILL dated 03.11.1998, which is
disputed. The burden to prove the will lies upon the propounder, and
reliance was placed upon Ramesh Chand (D) Thr. LRs. vs. Suresh
Chand & Anr., H. Venkatachala Iyengar vs. B.N. Thimmajamma
(AIR 1959 SC 443), Jaswant Kaur vs. Amrit Kaur (1977) 1 SCC
369, Balwant Singh vs. Daulat Singh (1997) 7 SCC 137, Vidhya
Rani vs. Surinder Kaur and Jitendra Singh vs. State of Madhya
Pradesh. It is argued that the alleged will excludes the natural Class-
I heirs — the mother and son of the deceased — and is surrounded
by suspicious circumstances, yet Defendant No. 1 has failed to
discharge the legal burden of proof.
Ld. Counsel further argued that the will is forged and fabricated: the
handwriting expert (PW-4 B.N. Shrivastav) opined that the
signatures were traced and not written by the deceased; the attesting
witnesses were interested witnesses (brother-in-law and neighbour);
no notary public was examine.
With respect to the no-objection for mutation, the affidavit was
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allegedly attested by a notary, B.D. Jain; however, records reveal
that the said notary was not registered under the Notaries Act. Even
Defendant No. 1 admitted in cross-examination that he never sought
probate and never obtained consent from the deceased’s son Anurag.
Defendant No. 2 (Anurag Bansal) in his written statement admitted
equal share but was later proceeded ex-parte.
It is also argued that Savitri Devi subsequently executed a registered
will dated 06.08.2010 in favour of her younger son Purushottam
Dayal, which has been duly probated by the competent court on
25.04.2019, and after her death he was rightly impleaded as
plaintiff. The exclusion of mother and son from the alleged will,
absence of reason for bequeathing property to an elder brother, rapid
mutation within two months of death, and withdrawal of about
Rs.7,50,000/- within 6-7 months clearly demonstrate malafide
intention to grab the property.
Accordingly, Ld. Counsel submitted that Defendant No. 1 has failed
to prove the will as required under Sections 63 of the Indian
Succession Act and 68 of the Evidence Act, whereas the plaintiff
has proved his case through documentary and oral evidence.
Therefore, the suit property continues to belong to the deceased and
thereafter to Savitri Devi and, by virtue of her probated will, to
present plaintiff Purushottam Dayal, and the suit is liable to be
decreed in his favour.
Defendant no. 1’s Arguments:
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Ld. Counsel for the defendant argued in line with the
pleadings contained in the written statement and reiterated its
contents. He submitted that the burden of proof of the issues
primarily lay upon the plaintiff; nevertheless, the defendant has duly
proved the Will in accordance with law by examining the attesting
witnesses, namely Sh. Pratap Bhanu Chaurasia and Sh. Joginder
Kumar. He contended that nothing material could be elicited in their
cross-examination so as to cast any doubt upon the genuineness of
the Will.
He further argued that the sale deed through which the testator, Late
Maheshwar Dayal Chaurasia, had purchased the property — later
bequeathed by the Will — also bears the signatures of the same
witnesses as attesting witnesses, thereby strengthening the
authenticity of the Will. He also pointed out that the deceased had
made nominations in favour of Defendant No. 1 and his daughter in
certain bank accounts and insurance policies, reflecting the testator’s
intention and trust.
It was additionally submitted that the opinion of the handwriting
expert cannot override the clear and reliable testimony of the
attesting witnesses who have proved the Will as per legal
requirements. On these grounds, he prayed for dismissal of the suit.
10. APPRECIATIONS OF ARGUMENTS AND RECORD:-
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I have heard the learned counsel for both parties, carefully
perused the record, and considered the relevant legal precedents and
judicial pronouncements applicable to the present case.
11. ANALYSIS AND ISSUE-WISE FINDINGS:-
All the issues raised in the present matter are intricately
connected and interdependent; hence, they are being addressed
collectively.
According to the plaintiff, Savitri Devi, being the Class-I legal heir
of the deceased Sh. Maheshwar Dayal Chaurasia, she is entitled to
all his movable and immovable properties upon his death.
It is an admitted position that Late Sh. Maheshwar Dayal Chaurasia
had a son namely Anurag, who was subsequently impleaded as
Defendant No. 2 in the present case. In this context, paragraph no. 1
of the plaintiff’s application under Order VI Rule 17 read with
Section 151 CPC is relevant and is reproduced as under:
“1. That after receiving the Written Statement (WS) on behalf of
the defendant the plaintiff revised her memory and found that
her Grand Son ‘Anurag Chourasia’ son of her Late son Sh.
Maheshwar Dayal Chourasia is there and as was told to the
plaintiff by her son in law Pratap Bhanu Chourasia while filling
succession case had told the address of Anurag Chourasia as r/o
20-A, Rashmi Nagar, P.O. Dayal Bagh, Agra-282005, UP and
learned court had Ordered to serve said Sh. Anurag by way of
publication and the publication was made in ‘National Herald
Newspaper, but said Sh. Anurag had not turned up in the court
to take his share in the Provident Fund of his Father which hisCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 21 of 38
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share is still lying unpaid due to his absence.”
It is thus evident that the plaintiff is not the sole Class-I heir under
the Hindu Succession Act, as Anurag Bansal (Defendant No. 2) is
also a Class-I heir of the deceased. Consequently, in the event Late
Maheshwar Dayal Chaurasia had died intestate, both the plaintiff
and Anurag Bansal would be equally entitled to succeed to the
estate. Therefore, it cannot be accepted that the plaintiff alone would
be entitled to the entire movable and immovable properties of Late
Maheshwar Dayal Chaurasia. Mere nomination in certain bank
accounts, provident fund or similar benefits does not confer
ownership over the whole estate.
In the present case, however, defendant no. 1 asserts that late
Maheshwar Dayal Chaurasia did not die intestate but had executed a
WILL in his favour concerning the property situated at Jheel
Khurenja, Geeta Colony, Delhi. The plaintiff has disputed the said
WILL and alleged it to be forged and fabricated. At the stage of
framing of issues, the burden to prove that the WILL was forged and
fabricated was placed upon the plaintiff; however, once allegations
of suspicious circumstances surrounding the execution of the WILL
were raised, the onus shifted to Defendant No. 1, being the
propounder of the WILL, to prove its due execution and dispel such
suspicious circumstances.
The Hon’ble Supreme Court in Meena Pradhan & Ors. vs. Kamla
Pradhan & Ors., 2023 INSC 847 reiterated the settled principles
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governing proof of a Will in the following terms:
“10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1959 Supp (1) SCR 426 (3-Judge Bench),
Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3-Judge
Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam,
(2003) 2 SCC 91(2-Judge Bench) Yumnam Ongbi Tampha
Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3-
Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11
SCC 277 (3-Judge Bench), we can deduce/infer the following
principles required for proving the validity and execution of the
Will:
i. The court has to consider two aspects: firstly, that the
Will is executed by the testator, and secondly, that it was
the last Will executed by him;
ii. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent mind
has to be applied.
iii. A Will is required to fulfil all the formalities required
under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will
or it shall be signed by some other person in his
presence and by his direction and the said signature or
affixation shall show that it was intended to give effect
to the writing as a Will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen the
testator sign or affix his mark to the Will or has seen
some other person sign the Will, in the presence and by
the direction of the testator, or has received from the
testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the Will in
the presence of the testator, however, the presence of allCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 23 of 38
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witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at
least one of the attesting witnesses, who is alive, subject to
the process of court, and capable of giving evidence, shall
be examined;
v. The attesting witness should speak not only about the
testator’s signatures but also that each of the witnesses had
signed the will in the presence of the testator; vi. If one
attesting witness can prove the execution of the Will, the
examination of other attesting witnesses can be dispensed
with;
vii. Where one attesting witness examined to prove the
Will fails to prove its due execution, then the other
available attesting witness has to be called to supplement
his evidence;
viii. Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions before it
can be accepted as the testator’s last Will. In such cases,
the initial onus on the propounder becomes heavier. ix.
The test of judicial conscience has been evolved for
dealing with those cases where the execution of the Will is
surrounded by suspicious circumstances. It requires to
consider factors such as awareness of the testator as to the
content as well as the consequences, nature and effect of
the dispositions in the Will; sound, certain and disposing
state of mind and memory of the testator at the time of
execution; testator executed the Will while acting on his
own free Will;
x. One who alleges fraud, fabrication, undue influence et
cetera has to prove the same. However, even in the
absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation.
xi. Suspicious circumstances must be ‘real, germane and
valid’ and not merely ‘the fantasy of the doubting mind’ 1.
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Whether a particular feature would qualify as ‘suspicious’
would depend on the facts and circumstances of each case.
Any circumstance raising suspicion legitimate in nature
would qualify as a suspicious circumstance for example, a
shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a
leading part in the making of the Will under which he
receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it has to
be proved that
(a) the testator signed the Will out of his own free Will,
(b) at the time of execution he had a sound state of mind,
(c) he was aware of the nature and effect thereof and
(d) the Will was not executed under any suspicious
circumstances. ”
In the present case, Defendant No. 1 has duly proved the WILL by
examining both attesting witnesses thereto, whose testimonies
remained unrebutted and unshaken in material particulars. The
examination-in-chief (as contained in their evidence affidavits) and
the cross-examination of both attesting witnesses, namely DW-2
P.B. Chaurasia and DW-3 Joginder Kumar, are reproduced as
follows:
Contents of the affidavit of DW-2:
“1. I was related to Shri Maheshwar Dayal Chaurasia who
was my brother in law being my wife’s brother. Shri
Maheshwar Dayal Chaurasia had executed a WILL dated
3.11.1998. Shri Maheshwar Dayal Chaurasia brought the
typed Will at my residence on 3.11.98 signed the said will at
two places in my presence. At the time of execution of the
said Will, Shri Joginder Kumar another witness was also
present and the said Shri Maheshwar Deyal Chaurasia signedCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 25 of 38
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the Will on 3.11.98 in my presence and in presence of Sh.
Joginder Kumar. I identify the signatures of Sh. Maheshwar
Dayal Chaurasia on the Will at points A & B and my
signatures at point C and the signatures of Sh. Joginder
Kumar at point D. The Will is Ex. PW-1/D.
2. At the time of execution of Will Shri Maheshwar Dayal
Chaurasia was of sound disposing mind and executed the Will
out of his free will, without any pressure from any quarter.”
Cross-examination of DW-2:
“I am doing customs clearance work, at my house. Sh.
Maheshwar He was expired on Daval Chourasia was my
brother in law (Saala). 28.12.1900, I do not know the exact
age of Sh. Mahender Dayal Courasia at the time of his death.
Sh. M.D. Chourasia was working in Hong Kong Shangai
Bank.
Sh. M.D. Chourasia had executed a Will dated 3.11.1998. Ile
had brought the Will at my residence after getting typed.
Myself and my wife were present when he came to my
residence. The Will was not signed by my wife. Joginder
Kumar is my neighbour. Sh. Joginder Kumar signed the Will
in my presence and I did not ask Sh. Joginder Kumar to sign
the Will. Sh. M.D. Chourasia was well known to Sh. Joginder
Kumar. The Notary attestation of the Will was not done by
Sh. P.K. Khosla in my presence.
As per my knowledge, Sh. M.D. Chourasia had taken loan
from the bank. I do not know whether Sh. M.D. Chourasia the
Sale Deed in his Favour in the bank while taking the loan. I
had gone to the bank for release of the Sale Deed after
discharge of the loan. Sh. M.D. Chourasia signed in my
presence at point A and B on Ex. PWD It is wrong to suggest
that signatures on Ex.P.W. I/D is not of Sh. M.D. Chourasia.
It is wrong to suggest that Will was not present in my
presence and that it is forged and fabricated.”
Contents of the affidavit of DW-3:
“1. I am neighbour of Shri P.B. Chaurasia. I knew Shri
Maheshwar Dayal Chaurasia being brother in law (wife’sCS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 26 of 38
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brother). of Shri P.B. Chaurasia. I was called by Shri
Maheshwar Dayal on 3.11.98 at the houseof Shri P. B.
Chaurasia and on my reaching there, Shri Maheshwar Dayal
Chaurasia who had brought the Will typed alongwith him
dated 3.11.98, signed the Will after admitting the contents of
the same as correct in my presence and in the presence of Shri
P.B. Chaurasia who was also present at the same time. I
identify the signatures of Sh. P.B. Chaurasia on the Will Ex.
PW1/D at point C and my signatures at point D. Shri P.B.
Chaurasia had put his signatures at point C in my presence. At
the time of execution of the Will Ex. DW2/1 Shri Maheshwar
Deyal Chaurasia was of sound disposing mind and executed
the same out of his free will and without any pressure from
any one. I identify the signatures of Sh. Maheshwar Dayal
Charasia on the Will at points A & B.”
Cross-examination of DW-3:
“I am running my restaurent in Pahar Ganj. My restaurent
starts at 5 a.m. and closes at 11 p.m. I used to go to my
restaurent at 3/3.30 p.m. The Will was executed on 3.11.1998.
Sh. M.D. Chourasia came to my home and taken me to Sh.
Bhanu Pratap Chourasia’s house. The Will was already typed.
In the house of Sh. Bhanu Pratap Chourasia, his wife was
present. I had signed the Will at second floor in the house of
Sh. Bhanu Pratap Chourasia. At the tune of signing the same.
Sh. M.D. Chourasia, Sh. B..P. Chourasia and myself were
present. I do not know where it was got attested by Notary.
Sh. M.D. Chourasia was my neighbour and I had visiting
terms with him. Sh. M.D. Chourasia signed in my presence. It
is wrong to suggest that Sh. M.D. Chopu8rasia never signed
the Will Ex.P.W.1/D. It is further wrong to suggest that Will
is forged and fabricated.”
From the testimonies of the attesting witnesses, the execution as
well as attestation of the Will stands duly proved. The physical and
mental condition of the testator, Late Maheshwar Dayal Chaurasia,
at the time of execution of the Will was never challenged during the
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course of the trial. At no stage did the plaintiff plead or suggest that
the testator was not in a sound or fit state of mind when the Will was
executed. Both attesting witnesses specifically deposed in their
examination-in-chief that the testator was in a sound disposing state
of mind at the time of execution, and this assertion remained
unchallenged in cross-examination. No contrary suggestion or plea
was ever put forward by the plaintiff disputing the mental capacity
of the testator.
Accordingly, the evidence of both attesting witnesses remained
unrebutted. The contention based on the handwriting expert’s
opinion — that the signatures on the Will were not those of
Maheshwar Dayal Chaurasia — loses significance in the facts and
circumstances of the present case, particularly in view of the clear
and unshaken testimony of the attesting witnesses. In this regard, it
is relevant to refer to the observations of the Hon’ble Kerala High
Court in R. Saraswathy vs. P. Bhahavathy Ammal & Anr., AIR
1989 Kerala 228:
“3. The question arising for consideration is : is the opinion
of an expert as regards the signature of a testator relevant to
decide the issue, whether a will has validly been executed?
The point involved in the question is not covered by any
direct authority, the learned counsel for the parties say, and
therefore the point has to be decided on principle.
4. The answer to the question depends upon the construction
of Section 63 of the Succession Act as also Sections
45, 68, 69, 70 and 71 of the Evidence Act. Section 63 of the
Succession Act provides that every testator, other than those
who have been exempted from the purview of the section,
shall execute his will in accordance with the following rules :
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(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 of 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.
5. The content of the rules briefly stated is this : On a testator
signing the will or affixing his mark to the will or some other
person signing the will in his presence and under his
direction, it can be said that the testator has completed the
first stage in the execution of the will. The signature or mark
of the testator or the signature of the person signing for him
however, shall be so placed that it shall appear that it was
intended thereby to give effect to the writing as a will. But
this is not enough to opine that the will has validly been
executed. The requirements prescribed under Clause (c) of
the Rules also require to be satisfied. That means the will
must also be duly attested i.e., must be attested in accordance
with the provisions contained in Clause 3. If these three
requirements are satisfied it can be said that the will has
validly been executed. To put it pithily execution in the case
of a will means and includes not only the testator affixing his
signature or mark to the will or some other person signing it
in the presence of and under direction of the testator, but the
whole series of acts or formalities like attestation etc.
stipulated under Section 63, Succession Act.
6. A question immediately would arise : What is the legal
position in the matter of proof of a will? We have already
seen that will is a document which is required by law to be
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attested. Such documents shall not be used as evidence until
at least one attesting witness has been called for proving its
execution, if there be an attesting witness alive and subject to
the process of court and capable of giving evidence,
(See Section 68 of the Evidence Act). The proviso to this
section however relaxes the rigour of this procedure in regard
to proof of execution of the documents required by law to be
attested, not being a will provided the said documents have
been registered in accordance with the provisions of
the Registration Act. It therefore follows that in regard to
those documents other than a will it is not necessary to call an
attesting witness to prove the execution. But it is necessary to
call an attesting witness to prove the execution of even such a
registered document if its execution by the person by whom it
purports to have been executed is specifically denied. It is
thus clear from this section that, so far as a will is concerned,
the same, unlike other documents which require by law to be
attested, cannot be used as evidence unless at least one
attesting witness is called for the purpose of proving its
execution if there be an attesting witness alive and capable of
giving evidence. Where no such attesting witness can be
found, it is not as if, the execution of such documents cannot
be proved at all. A reference in this connection to Section
69 Evidence Act is relevant. This section prescribes the mode
of proof of a document, referred to in Section 68, where no
such attesting witness can be found. The section provides that
if the attesting witness is not found it must be proved that the
attestation of one attesting witness at least, is in his
handwriting, and that the signature of the person executing
the document is in the handwriting of that person. This is a
general statement of law. But in regard to proof of a will the
expression “and that the signature of the person executing the
document is in the handwriting of that person”, in my
judgment, is not available in view of the provisions contained
in Section 63(a) which says that it is not necessary that the
will for its validity, shall contain the signature of the testator.
It therefore follows that in the case of a will, if the attesting
witness cannot be found, the execution can be proved by
examining a witness who can identify the signature of the
attestor. In other words there is no need to establish that the
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signature of the person executing the will (that is, the testator)
is in his handwriting as in the case of other documents
referred to in the section. Identical provision is contained
in Section 70 of the Evidence Act also. This section says that
the admission of a party to an attested document of its
execution by himself shall be sufficient proof of its execution
as against him, though it be a document required by law to be
attested. The admission referred to in this section, is the
admission of a party to the document and therefore when an
executant makes an admission the exception embodied in this
section is applicable. That is why it is said that this section is
an exception to general rule contained in Section 68. Section
70 however, is inapplicable to a will because the executant of
a will, which will become effective only on the death of the
executant, will not be available to admit the execution at the
relevant time. It is therefore clear that by enacting these
sections, namely Sections 68, 69 and 70, the legislature
wanted to treat a will differently from the other documents,
which like a will, are required by law to be attested. A
reference to Section 71 of the Evidence Act also is relevant in
this context. This section speaks of a situation, brought about
by the attesting witness either denying the execution or not
recollecting the execution of the document. In such cases that
is, where the attesting witness either denies or does not
recollect the execution of the document, the execution of the
document required by law to be attested, can be proved by
other evidence. Subject to what is stated above, in my
judgment, a will also requires to be proved like any other
document. Whatever that be, in order to have a will received
in evidence, the propounder must prove that the will has
validly been executed, that is, executed in accordance with
the provisions contained in Section 63 of the Evidence Act.
7. It is in this backdrop the question whether the opinion of
an expert as to the identity of the signature of the testator in
the will is relevant to decide the issue, whether the will in
dispute has validiy been executed. When would the opinion
of an expert be relevant, is stated in Section 45 of the
Evidence Act. It provides that when the Court has to form an
opinion upon a point of foreign law, or of science, or art, or
as to the identity of handwriting or finger-impressions, the
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opinions upon that point, of persons specially skilled in such
foreign law, science or art, or in questions as to identity of
handwriting or finger-impressions are relevant facts. The
expert must necessarily be one who has acquired certain
special knowledge, skill or experience in any science or art or
profession. The opinion of an expert therefore is not relevant
where the subject-matter of enquiry is not one pertaining to
any of the matters enumerated under the sect ion. In other
words an expert witness may not be asked to state his opinion
upon a question of fact which is the very issue that requires
decision on other evidence, the production whereof is
controlled by the other provisions of the Evidence Act. For
instance an expert cannot be allowed to give his opinion upon
the construction of documents because this, being a matter of
law, is a question solely for the court to decide. Concisely
stated :
“It is only where the matter inquired of lies within the
range of the peculiar skill and experience of the witness,
and is one of which the ordinary knowledge and
experience of mankind does not enable them to see, what
inference should be drawn from the facts, that the witness
may supply opinion as a guide”.
Kennedy v. People, 39 NY 245 That means, the opinion of
experts is not admissible in regard to matters upon which the
court can form a judgment from other evidence and
circumstances.
8. In regard to the execution of a will, the Court has to form a
judgment from the evidence, the propounder may let in
following the procedure prescribed under Sections 68. 69 and
71 of the Evidence Act. Even at the risk of repetition I would
in this context refer to Section 63(a), according to which the
first stage in the execution of the will can be accomplished by
signing the will by adopting any one of the three methods
namely, (1) the testator putting his signature, (2) the testator
putting his mark or some other person putting his signature in
the presence of the testator and under his direction. That
means in order to say that a will has validly been executed it
is not necessary that it should contain the signature of the
testator; but on the other hand it is enough if the testator
affixes his mark or some other person signs the document in
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VIKAS byDate:VIKAS GARG
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the presence of the testator and under his direction. And
therefore, in a case where the expert opines that the signature
seen on the will is not that of the testator but at the same time
the execution has validly been proved, can the Court still hold
that the will is not valid relying on the opinion of the expert
in preference to the uncontroverted evidence proving the
execution of the will? My answer is no, because as already
noted, under law to hold that a will is valid, it is the execution
of the will within the meaning of Section 63, Succession Act
that is required to be proved unlike in the case of an ordinary
document where under Section 67, Evidence Act the
signature should be proved. It may in this context be relevant
to note that a propounder can possibly contend that the
signature which is opined to be not that of the testator by the
expert, in fact is not his signature but only a mark put by him
within the meaning of Section 63(a), Succession Act. The
Court therefore has no need to form an opinion on the
question as to identity of the signature of the testator. This
being the position in law, in my judgment, the opinion of the
expert as to the identity of the signature of the testator in a
will is not a relevant fact.
9. The learned counsel for the petitioner however, argues that
the opinion of the expert may be relevant at least, to test the
veracity of the testimony of the attestors. What the attestors
are expected to speak under Section 68, Evidence Act is only
the factum of execution of the will within the meaning of
Section 63, Succession Act. They are not obliged under law
to testify the identity of the signature of the testator. There is
therefore no substance in this argument and hence rejected.
The C.R.P. for the reasons stated above is liable to be
dismissed. Accordingly the same is dismissed. No costs.”
In the present case, the Will cannot be disbelieved merely on the
basis of the opinion of a handwriting expert. It is well settled that
expert opinion is only a piece of corroborative evidence and does
not constitute substantive evidence by itself. In view of the clear,
cogent and unrebutted testimony of the attesting witnesses, the Will
cannot be discarded solely on the strength of the handwriting
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expert’s opinion.
The contention raised on behalf of the plaintiff regarding exclusion
of the mother and other brothers from the Will is also of no
assistance in the facts and circumstances of the present case. Though
the testator had a son, Anurag (Defendant No. 2), it is not disputed
that Anurag had been taken away by his mother after the divorce
and had been residing with her for a considerable period. No
evidence has been brought on record to demonstrate any close
relationship or attachment between the testator and Anurag
thereafter.
It is further an undisputed fact that both the plaintiff (mother) and
Defendant No. 1, Rameshwar Dayal (beneficiary under the Will),
were nominees in certain accounts and service benefits of the
deceased. DW-1, in his examination-in-chief, stated that in some of
the accounts of Late Maheshwar Dayal Chaurasia, both he and the
plaintiff were joint nominees. He further deposed that his daughter
was shown as a nominee in one of the LIC policies of the deceased,
Sh. Maheshwar Dayal Chaurasia. These statements were not
challenged in cross-examination and thus remained unrebutted.
Even during the cross-examination of PW-1 (Savitri Devi) and PW-
2 (Purushottam Dayal), these facts were put to them and were not
denied. PW-2 further admitted that Rameshwar Dayal was the
nominee in the gratuity account of the deceased.
Moreover, PW-3, a bank official examined on behalf of the plaintiff,
produced several documents in evidence, including Ex. PW-3/G
(memo of the HR Manager of the bank), the contents of which are
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relevant for the present discussion and are reproduced as follows:
“The HSBC Group
IRN From NDH G1 no. NDH PER 200007
For From-HRM Date 13Jan2000
Subject Reference Passed for filing
MAHESWA
R DAYAL
CHAURASI
AATTN : P V KRISHNAMURTHY
The above banking assistant expired on 27 Dec 1999.
He had nominated the following for his terminal benefits:
Provident Fund : Wife-Mrs Snehlata
Group Insurance Scheme : Mother-Mrs Savitri Devi
Gratuity : Brother- Mr Rameshwar Dayal
Pension : 50% of pension each to his mother, Mrs Savitri
Devi and brother Mr Maheshwar DayalMaheshwar Dayal had a divorce and his wife had remarried
another person. He also has a son aged 17 years living with
his ex-wife.
We enclose copies of his nomination form for Provident
Fund, Group Insurance Scheme, Gratuity, Pension, death
certificate from hospital and divorce papers. Please advice us
the legal status for the payment his dues.”
From the aforesaid record, it is evident that Rameshwar Dayal was
nominated jointly with the mother for half share in the pension; he
alone was nominated for gratuity; and the mother was nominated
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under the group insurance scheme. These facts clearly demonstrate
the special trust, confidence and reliance reposed by Late
Maheshwar Dayal Chaurasia in Defendant No. 1. In such
circumstances, execution of the Will in favour of Rameshwar Dayal
cannot be said to be unnatural or improbable.
The mere exclusion of the mother and other brothers from the Will
does not, by itself, render the WILL suspicious. In the facts of the
present case, such exclusion cannot be termed surprising,
particularly when the testator had already made specific nominations
in favour of his mother (Plaintiff) or Defendant No. 1 in respect of
his service benefits. It is also a matter of common prudence that,
considering the advanced age and personal circumstances of the
mother, the testator may have considered her sufficiently provided
for or not in need of the property, and therefore her exclusion from
the testamentary disposition would not, by itself, render the Will
suspicious or invalid.
Both sides advanced arguments regarding the grant of no-objection
for mutation in the municipal records. However, the propounder is
required to prove the Will independently in accordance with law,
and in the present case the same has been duly proved through the
attesting witnesses. Accordingly, this Court is not inclined to place
any reliance upon such no-objection for mutation while determining
the validity of the Will.
In the cross-examination of DW-1, suggestions were put to him that
he, along with his brother-in-law, fabricated the Will and paid a sum
of Rs. 2 lakhs to the attesting witness P.B. Chaurasia. Certain
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questions were also raised regarding issuance of a cheque to the said
witness. However, no such suggestion was put directly to P.B.
Chaurasia, nor has any cogent evidence been brought on record to
substantiate the allegation. Mere suggestions in cross-examination
do not discredit a duly proved Will.
It is further noteworthy that the property in question (subject matter
of the WILL) was originally purchased by Late Maheshwar Dayal
Chaurasia through a registered Sale Deed dated 12.02.1997 (Ex.
PW-1/B), which bears the signatures of Pratap Bhanu Chaurasia and
Joginder Kumar — the same persons who later attested the Will in
question. This circumstance lends further assurance to the
genuineness of the execution of the Will and weakens the plaintiff’s
denial.
The argument regarding non-registration of the WILL is without
merit, as registration of a WILL is not mandatory under law. It is
further clarified that probate is not a prerequisite for the validity of a
WILL in the present case.
The principles laid down in the precedents relied upon by the
plaintiff have been duly considered; however, the factual matrix of
those cases is distinguishable from the present case and does not
advance the plaintiff’s claim.
In view of the foregoing discussion, all the issues are decided
against the plaintiffs and in favour of the defendants.
12. RELIEF:-
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VIKAS by VIKAS GARG
Date:
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In view of the foregoing discussion, the suit filed by the
plaintiff is hereby dismissed. There shall be no order as to costs.
13. The decree-sheet be prepared accordingly.
14. The file be consigned to record room after due compliance.
Digitally signed Pronounced in the open court VIKAS by VIKAS GARG Date: on 23rd February, 2026 GARG 2026.02.23 17:38:23 +0400 (Vikas Garg) District Judge-05 /EAST KKD, Delhi-23.02.2026 CS No. 41922/08 Savitri Devi vs. Rameshwar Dayal Chaurasia Page of 38 of 38
