Delhi District Court
Sh Prabhjeet Singh vs The State And Ors on 23 May, 2026
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE
(WEST)-02, DELHI.
P.C. No. 19/2023
CNR No. DLWT01-002464-2023
DLWT010024642023
1. Sh. Prabhjeet Singh
S/o Late Sh. Harbans Singh
R/o WZ-25 E, Krishna Park
Gali No. 11, Tilak Nagar,
New Delhi-110018
. . . Petitioner
Versus
1. The State,
Government of N.C.T of Delhi
New Secretariat, I.P. Estate,
New Delhi
( through its Chief Secretary)
2. Sh. Harvinder Singh,
Son of late Sh. Harbans Singh,
R/o B-52/1, Ganesh Nagar,
New Delhi-110018
3. Smt. Manmohan Kaur,
Wife of Sh. Harmohinder Singh ,
D/o late Sh. Harbans Singh
R/o WZ-18, Ram Nagar Extention
New Delhi-110018
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 1/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
4. Smt. Harjit Kaur
Wife Sh. Bhupinder Pal Singh
D/o late Sh. Harbans Singh
R/o Plot No. 136, First Floor,
Pratap Nagar, Hari Nagar,
New Delhi-110064
5. Smt, Surinder Kaur
Widow of late Sh. Gurcharan Singh
R/o S-II/28, Old Mahavir Nagar,
Tilak Nagar, Delhi-110018
6. Ms Daman Preet Kaur
D/o late Gurcharan Singh
R/o S-II/28, Old Mahavir Nagar,
Tilak Nagar, Delhi-110018
7. Sh. Sukhwinder Singh
S/o late Sh. Gurcharan Singh
R/o S-II/28, Old Mahavir Nagar,
Tilak Nagar, Delhi-110018
...........Respondents
PETITION UNDER SECTION 276 OF THE INDIAN
SUCCESSION ACT, FOR GRANT OF THE PROBATE OF
WILL DATED 24.02.1998, EXECUTED BY THE DECEASED
SHRI HARBANS SINGH SON OF LATE S. TARA SINGH.
Date of institution of the case : 18.03.2023
Date on which reserved for judgment : 15.05.2026
Date of pronouncement of Judgment : 23.05.2026
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 2/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
Civ DJ no. 1128/2022
DLWT010118582022
CNR No. DLWT01-011858-2022
Harvinder Singh
S/o Late Sh. Harbans Singh
R/o B-52/1, Ganesh Nagar,
New Delhi-110018
. . . Plaintiff
Versus
1. Sh. Prabhjeet Singh
S/o late Sh. Harbans Singh
R/o WZ-25 E, Krishna Park
Gali No. 11, Tilak Nagar,
New Delhi-110018
Also at:
4-B/52, Guru Nanak Auto Works
Old Rajinder Nagar
New Delhi-110060
2. Sh. Gurcharan Singh ( Since deceased)
Through his L.Rs
i. Smt, Surinder Kaur ( Wife )
W/o late Sh. Gurcharan Singh
ii. Sh. Sukhwinder Singh ( Son)
S/o late Sh. Gurcharan Singh
Both R/o S-2/28,
Old Mahavir Nagar,
Tilak Nagar, Delhi-110018
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 3/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
iii. Smt. Daman Preet Kaur ( Daughter)
D/o late Sh. Gurcharan Singh
R/o J-7/128, Rajouri Garden
New Delhi-110027
3. Smt. Manmohan Kaur
W/o Sh. Harmohinder Singh
D/o late Sh. Harbans Singh
R/o WZ-18, Ram Nagar Extn.
New Delhi-110018
4. Smt. Harjit Kaur
W/o Sh. Bhupinder Pal Singh
D/o late Sh. Harbans Singh
R/o Plot No. 136 F/F,
Pratap Nagar, Hari Nagar,
New Delhi-110064
. . . . Defendants.
Date of institution of the case : 14.12.2022
Date on which reserved for judgment : 15.05.2026
Date of pronouncement of Judgment: : 23.05.2026.
JUDGMENT
1. By way of this common judgment, I shall decide two
cases namely (1) P.C. No. 19/23 titled Prabhjeet Singh Vs State &
Others and a civil DJ No. 1128/22 titled as Harvinder Singh Vs
Prabhjeet Singh & Others.
2. It is pertinent to mention here that on 16.05.2025, both ld.
counsels for the parties submitted that Will in question is in issue
in both above said cases and have mutual bearing on the decision
of probate case as well as civil suit for partition. Both ld. counsels
for the parties further submitted that the both cases may be
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 4/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
consolidated and tried together. Ld. counsel for the plaintiff
further submitted that the evidence given by the plaintiff in the
civil suit may be read as evidence in the connected probate
petition and he does not want to lead any further evidence in the
connected probate petition.
3. Ld. counsel for the defendant no. 1 submitted that the
evidence given by defendant no. 1 as petitioner in the probate
petition may be read as evidence in the connected present partition
suit and he does not want to lead any further evidence in the above
said connected civil suit.
4. In view of the above said submissions of the ld. counsel
for the parties, vide order dated 16.05.2025, the both above said
civil suit and probate petition were consolidated and tried together
in order to save the time of court and cost of the parties and
inconvenience to the witnesses to come again for deposition. In
the said order, it was also held by the court that the both cases will
be disposed off by passing a common judgment.
5. As the both cases have been consolidated for the purpose
of trial, the evidence led by both the parties in both cases, will be
read together in both the cases.
PLEADINGS AND EVIDENCE OF THE PARTIES IN
PROBATE CASE BEARING PC NO. 19/23
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 5/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
CASE OF THE PETITIONER AS PER HIS
PETITION
6. It is averred in the petition that Shri Harbans Singh son of
Late S. Tara Singh R/o WZ-25E, Krishna Park, Gali No. 11, Tilak
Nagar, New Delhi, admeasuring about 150 sq. yards ( hereinafter
referred to as ‘the suit property’) was the owner of said property
and the said property was also assessed to the property tax in the
name of Shri Harbans Singh ( hereinafter referred to as ‘the
deceased’) in the records of MCD and other concerned authorities
and the electricity and water connections were also in his name.
7. It is further averred in the petition that the deceased during
his life time had executed a Will dated 24.02.1998 in respect of an
area ad-measuring about 80 sq. yards, forming part of the suit
property and the said Will was duly registered with the office of
concerned Sub-Registrar, Delhi vide document No. 11048 in Book
No. 3, Volume No. 4191 on pages 146 to 148 dated 24.02.1998.
8. It is further averred in the petition that the entire property
admeasuring about 150 sq. yards is in actual and physical
possession of the petitioner for the last more than 55 years and the
petitioner has been maintaining and looking after the said
property.
9. It is further averred that Shri Harbans Singh died, leaving
behind the under mentioned legal heirs:
a) Shri Prabhjeet Singh - Son b) Shri Harvinder Singh- Son
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 6/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
c) Shri Gurcharan Singh - Son d) Smt. Manmohan Kaur- Daughter e) Smt. Harjit Kaur- Daughter
10. It is further averred in the petition, that on the basis of the
Will executed by the deceased, he had bequeathed 80 sq. Yrds of
the suit property in favour of the petitioner and the deceased had
further bequeathed the remaining 70 sq. yards of the suit property
to the petitioner, on the ground that the petitioner is in possession
of the suit property since the last more than 55 years and he had
been managing and controlling the affairs of the said property and
no one shall be competent to claim any right or share in the said
property and thus, the petitioner is the owner of the entire property.
It is further averred that during his lie time, the deceased had
already debarred his son Shri Gurcharan Singh, by virtue of a
public notice.
11. It is further averred that Sh. Harvinder Singh has filed a
suit for partition in respect of the suit property and the said suit is
pending in this court and the petitioner has already filed the written
statement and raised preliminary objections that the other legal
heirs of the deceased have got no right, title or interest of
whatsoever nature in respect of the suit property and the petitioner
is the absolute owner in possession of the suit property.
12. It is further averred that on the basis of the Will and the
possession for the last 55 years, the petitioner has become the
absolute owner of the suit property. It is further averred that the
deceased died about 14 years back and no action was taken by any
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 7/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
of the legal heirs claiming any share or right in any of the
properties left behind by the deceased.
13. It is further averred that the Will in question is the last Will
and testament of the deceased which was duly attested by two
witnesses and both the attesting witnesses to the Will are not
traceable and either they are dead or their whereabouts are not
known to the petitioner, in spite of the best efforts of the petitioner,
however, one Shri Virender Kalra, son of Sh. Jagdish Chander
Kalra, was also present at the time when the Will was executed by
the deceased and he had also seen the executant while signing and
executing the said Will and also seen the witnesses, who are the
attesting witnesses to the said Will and had signed the said Will as
an attesting witness in presence of the deceased as well as in
presence of each other. The petitioner’s son Shri Gurvinder Pal
Singh was also present, who had taken the deceased to the office
of the Sub-Registrar, Delhi. It is further averred that at the time of
making of the Will, the deceased was of sound disposing mind and
he signed the Will in the presence of two witnesses without any
pressure.
CASE OF RESPONDENT NO. 2 TO 7 AS PER THEIR
WRITTEN STATEMENT.
14. Respondent no. 2 to 7 filed joint written statement and
have taken preliminary objections that the present petition filed by
the petitioner is absolutely, false, frivolous, mischievous and same
has been filed with dishonest intentions mere just to usurp the
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 8/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
rights of the other legal heirs i.e. respondent no. 2 to 7, who are
the lawful legal heirs of the deceased. It is further contended that
the alleged Will, on the basis of which the present petition has
been filed by the petitioner, is forged and fabricated. It is further
contended that the alleged Will was never executed or bequeathed
in favour of the petitioner. It is further contended that the deceased
was very loyal to their all the sons and daughters. It is further
contended that the deceased, on numerous occasions, had told to
all his children that after his demise, the property in question
would be the property of all of his sons and daughter in equal
proportionate.
15. It is further contended that the petitioner has not
approached this court with clean hands rather approach of the
petitioner is completely dishonest and against the lawful right and
interest of the respondents. It is further contended that the late Sh.
Harbans Singh has died on 09.11.2008 and had not executed the
alleged Will. It is further contended that mother of the parties
during her lifetime told that the property left by the deceased
would be exclusive property of all the sons and daughters and
every daughter and sons have 1/5 share each in the said property.
16. It is further contended that petitioner concealed true
material facts while filing the instant petition and has not
mentioned in the petition that all the sons and daughters of the
deceased had been residing in the suit property in a joint family till
they are married or started residing separate. It is further
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 9/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
contended that respondent no. 2 had been residing in the suit
property, however, his family grew, he shifted to B-52/1 Ganesh
Nagar, Tilak Nagar, New Delhi and put his lock on the door of the
room in the suit property and all the belongings of the respondent
no. 2 are lying inside the room under his keys and lock. However,
all the other sisters and brothers have requested the petitioner to
partition the property in equal shares but unfortunately, the
petitioner with dishonest intention refused to partition the property
among the legal heirs of the deceased.
17. It is further contended that petitioner has also concealed
the fact that deceased was not feeling well before his death since
he was suffering from various old age ailments. It is further
contended that the deceased was not having normal state of mind,
due to which sometime he was not even able to recognize his own
family members. It is further contended that in fact the deceased
had slipped and fell down at his home around the last week of
January, 1998 and due to which he suffered internal head injury.
18. It is further contended that the respondent no. 2 and other
respondents had been taking care of the deceased during his ill
health. It is further contended that respondents had been
frequently used to meet their father and mother till they alive but
the parents have never disclosed any such fact of execution of any
such Will as alleged by the petitioner.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 10/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
19. It is further contended that the alleged Will apparently
appears to be forged and fabricated since in the entire Will date of
execution of Will is not mentioned. Moreover, the alleged
attesting witnesses on the Will are also fictitious persons and not
brought to the record by the petitioner being allegedly dead or
untraceable, as such neither the Will was executed by the deceased
nor he was in any sound state of mind to execute any Will. It is
further contended that the alleged said Will is barred by time as
the same was not probated within the period of limitation
prescribed by law. It is further contended that present petition is
not legally maintainable in view of the judgment passed by the
Hon’ble Apex Court in case titled Ram Kishore Lal Vs State.
20. On merit most of the contents of the petition have been
denied and it is submitted that after the death of late Sh. Harbans
Singh, the respondents never wanted feel hurt by their mother Smt.
Manjeet Kaur to divide or partition the suit property into five equal
shares as such for the respect, regard and feelings of their mother,
the respondents no. 2 to 7 have not raised the issue of partition but
his does not mean that the respondents have left their claim on the
property in question. Even otherwise, no law permits the
petitioner to grab the property of other legal heirs in the garb of
exclusive possession and he was not asked to partition the property
during the lifetime of late Smt. Manjeet Kaur i.e. mother of all the
parties.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 11/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
21. Valuation report of the property i.e. WZ-25E, Krishna Park
Gali No. 11, Tilak Nagar, New Delhi has been filed on behalf of
Teshildar, Patel Nagar, New Delhi. As per valuation report, the
value of the said property is Rs. 1,74,12,013/- ( One Crore Seventy
Four Lakh Twelve Twelve Thousand Thirteen only).
ISSUES IN PROBATE CASE
22. On 06.10.2023, after considering the pleadings of the
parties, following issues have been framed, in the probate case;
1. Whether the Will dated 24.02.1998
executed by late Sh. Harbans Singh S/o late S.
Tara Singh is his last, legal and valid Will and
duly executed by him in his sound disposing
mind? OPP
2. Whether the petitioner is entitled for
Probate/Letter of Administration on the basis of
the aforesaid Will, as claimed? OPP
3. Whether the petitioner has concealed the
material facts and not approached the court with
clean hands, if so then its effects? OPR 2 to 7
4. Whether the Will dated 24.02.1998 is a
forged and frivolous document? OPR 2 to 7.
5. Relief
EVIDENCE OF THE PETITIONER IN PROBATE CASE
23. The petitioner in order to prove his case has examined
three witnesses.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 12/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
24. Sh. Gurvinder Pal Singh, son of erstwhile petitioner
appeared in the witness box as PW-1 and he tendered his evidence
by way of affidavit Ex. PW-1/A. PW-1 has reiterated the
averments mentioned in the petition and relying upon the
following documents:
i) Ex. PW-1/1: GPA dated 18.07.2024.
ii) Ex. PW-1/2: Will dated 24.02.1998.
iii) Ex. PW-1/3: Death certificate of Late Sh. Harbans
Singh.
iv) Mark A : Copy of Aadhar Card of Sh. Parabhjeet Singh
( Ex. PW-1/4 is de-exhibited being photocopy and now
Mark A).
v) Ex. PW-1/5 : Copy of his aadhar Card.
25. PW-1 has been duly cross-examined on behalf of ld.
counsel for respondent no. 2 to 7.
26. Ms Nutan Sharma @ Kumari N Sharma, one of the
attesting witness to the Will in question appeared as PW-2 in this
case and has tendered her evidence by way of affidavit Ex.
PW-2/A. She deposed that she is the attesting witness in the Will
dated 24.02.1998 executed by Sh. Harbans Singh. PW-2 identified
her signatures on the Will already exhibited as Ex. PW-1/2. PW-2
has been duly cross-examined by ld. counsel for respondent no. 2
to 7.
27. Sh. Virender Kalra appeared in the witness box as PW-3
and tendered his evidence by way of affidavit Ex. PW-3/A. PW-3
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 13/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
deposed in his affidavit that he know the deceased Shri Harbans
Singh as he was the close friend of his father. PW-3 further
deposed that on 24.02.1998 Sh. Harbans Singh approached him to
accompany him to the office of concerned Sub-Registrar, Delhi as
he wanted to execute his last Will, consequently, on the request of
Shri Harbans Singh, he accompanied him to the office of
concerned Sub-Registrar, Delhi and at that time, his grand son Sh.
Gurvinder Pal Singh had also accompanied him.
28. PW-3 further deposed in his affidavit that after reaching
the office of the concerned Sub-Registrar, Delhi, Shri Harbans
Singh contacted one Ms Nutan Sharma, who was working in the
office of the concerned Sub Registrar, Janakpuri, New Delhi and
requested her to get his Will registered before the office of
concerned Sub-Registrar, Delhi. On the request of the deceased,
the said Ms Nutan Sharma, got executed the said Will before the
office of concerned Sub-Registrar, Delhi and also signed the said
Will as one of the attesting witness in his presence.
29. PW-3 further deposed that one another witness namely
Shri Bal Kishan Jindal, also accompanied the said Sh. Harbans
Singh at the office of the concerned Sub Registrar, Delhi and after
the said Shri Harbans Singh put his hands and signatures on the
said Will and after the said Will was signed by the said Ms Nutan
Sharma, Advocate as an attesting witness, the said Shri Bal Kishan
Jindal also signed the said Will in his presence and each of them
had signed the said Will in the presence of each other. PW-3
further deposed that at the time of execution of the said Will, the
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 14/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
said Shri Harbans Singh was of sound disposing mind and was not
suffering from any disease and signed the said Will after fully
understanding the contents of the same in vernacular language,
without any pressure, force, coercion, threat and any undue
influence. PW-3 has been duly cross-examined by ld. counsels for
the respondents.
PLEADINGS AND EVIDENCE OF THE PARTIES IN CIVIL
SUIT BEARING NO. CIV DJ NO. 1128/2022
CASE OF THE PLAINTIFFS AS PER PLAINT
30. The present suit has been filed by the plaintiff for partition,
possession and permanent injunction.
31. It is averred in the plaint that plaintiff and defendants are
real brothers and sisters and all are the sons and daughters and
legal heirs of late S. Harbans Singh S/o late Sh. Tara Singh.
32. It is further averred in the plaint that late S. Harbans Singh
( hereinafter referred to as ‘the deceased’) was the absolute and
lawful owner of the entire property bearing no. 28, land ad-
measuring area 150 sq. yards, out of Khasra No. 2, situated at
Krishna Park, Gali No. 11, Tilak Nagar, New Delhi-110018,
addressed at WZ-25 E, Krishna Park, Gali No. 11, Tilak Nagar,
New Delhi-110018 (herein after referred to as ‘the suit property’).
It is further averred that the deceased had purchased the suit
property from its erstwhile owner by virtue of registered sale deed
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 15/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
dated 26.04.1966 and thereafter he constructed the same up to first
floor with terrace. It is further averred that the parties to the suit
have been living in the suit property alongwith their parents till
they are married or started residing separately.
33. It is further averred in the plaint that late S. Harbans Singh,
died intestate on 09.11.2008 and left behind his wife Smt. Manjit
Kaur, three sons and two daughters. However, unfortunately, Smt.
Manjit Kaur, wife of late Harbans Singh also died on 31.07.2022,
leaving her aforesaid sons and daughters. The defendant no. 3 &
4 are married daughters and have been residing in their respective
matrimonial homes with their in laws. It is further averred that
plaintiff, defendant no. 1 & 2 are respectively residing at the
addresses mentioned in the memo of parties.
34. It is further averred in the plaint that the deceased was not
feeling well before his death since he was suffering from various
old age ailments as well as, he was not having normal state of
mind, due to which sometimes, the deceased was not even able to
recognize his own family members. It is further averred that in
fact, the deceased was slipped and fell down at his home around
the last week of January, 1998 and due to which he suffered
internal head injury, so because of head injury, he was not keeping
normal state of mind and good health. The plaintiff had been
taking care of his father alongwith other brothers and sisters.
35. It is further averred in the plaint that the plaintiff had been
residing in the above said suit property under partition, however,
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 16/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
as his family grew, he shifted at the above mentioned address and
put his lock on the door of the room in the suit property and all the
belongings of the plaintiff are still lying inside the room under the
keys and lock of the plaintiff.
36. It is further averred in the plaint that when the mother of
the parties died on31.07.2022, all the parties had performed the
last rites and ritual and after completion of last rites and ritual of
their mother on 31.08.2022, the plaintiff asked to his brothers and
sisters to come at the house of father to discuss the issue for the
partition of suit property. On this all the parties have reached there
and have discussed regarding the partition of the suit property
upon all of them and had given consent either to partition the
property in equal proportion or to sell the property and disburse
the sale proceed into the five equal proportionate amongst all the
legal heirs of the deceased.
37. It is further averred that defendant no. 1 had raised an
objection by saying that he has spent amounts on the renovation of
the property and arrears of Rs. 1 lakh of house tax are pending, so
until the amount of renovation and Rs. 1 lakh are paid by the
parties, defendant no. 1 would not permit to partition or to sell the
suit property. Thereupon the plaintiff became agree and said that
all the parties shall pay the house tax according to their respective
shares. However, the plaintiff objected that no renovation work
was carried out by the defendant no. 1, so the defendant no. 1
cannot demand any amount on account of renovation work. The
defendant no. 1 became annoyed and started shouting upon the
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 17/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
plaintiff and defendant no. 2 to 4 by causing threats that he will
not permit them to partition the property and would see that who
will come forward to partition the same.
38. It is further averred that the defendant no. 1 had also
threatened the plaintiff and other parties that if anybody would
visit on the suit property, the defendant no. 1 would get him
implicate in false case of molestation or in any other false case and
then the defendant no.1 alongwith his son threatened the plaintiff
and his sisters to go out from the suit property and pushed all the
parties and their families out of the suit property, even through
they are senior citizens and respectable daughters of late S.
Harbans Singh and have equal rights in the suit property.
39. It is further averred in the plaint that plaintiff on several
occasions, requested the defendant no. 1 to partition the aforesaid
property in equal proportionate by metes and bounds, but the
defendant no. 1 is not willing to partition the same and defendant
no. 1 is causing threats that the plaintiff has no right, title or
interest in the suit property and flatly refused to partition the
aforesaid property by metes and bounds.
40. It is further averred in the plaint that plaintiff and all the
defendants are entitled to get 1/5th share in the suit property by
metes and bounds, but the defendant no. 1 continuously refusing
to partition the suit property and threatened to dispose of the same
to any third party, if the plaintiff and his sisters would initiate any
process to partition the suit property. It is further averred that if
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 18/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
the partition of the suit property is not possible, in such situation
suit property would be required to sale and further the sale proceed
would be disburse in equal 1/5th share between the plaintiff and
all the defendant no. 1 to 4. It is further averred that defendant no.
1 has no right, title or interest alone in the suit property.
41. It is further averred in the plaint that plaintiff has also got
issued a legal notice dated 28.09.2022 through his counsel but
despite the service of the legal notice, the defendant no. 1 neither
given the consent to partition the suit property nor partition the
same. But on the other hand, the defendant no. 1 got issued a false
and baseless reply dated 06.10.2022 to the legal notice dated
28.09.2022.
CASE OF DEFENDANT NO.1 AS PER HIS WRITTEN
STATEMENT
42. The defendant no. 1 has filed written statement and has
taken the preliminary objection that the present suit for partition is
hopelessly barred by time because the father of the answering
defendant as well as the plaintiff died on 09.11.2008 and the
present suit has been filed for partition on 07.12.2022 i.e. after the
expiry of more than 14 years.
43. It is further contended that the plaintiff has no locus standi
to file the present suit because the deceased Shri Harbans Singh
had executed a registered Will whereby he bequeathed 80 sq. yards
of land in favour of defendant no. 1 and consequently, on the basis
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 19/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
of the said Will, the defendant no. 1 became the owner of 80 sq.
yards and the remaining 70 sq. yards was given by the father of
defendant no. 1 to the defendant no. 1 as the defendant no. 1 is in
possession of the entire property and is residing therein alongwith
his family members.
44. It is further contended that the deceased was very much
attached with the defendant no. 1 and defendant no. 1 was looking
after him in his old age and neither the plaintiff nor any other
defendant had ever looked after their father in his old age and all
the medical facilities were also provided by defendant no. 1. It is
further contended that after the death of of father and mother of
defendant no. 1, plaintiff filed the present suit for partition
knowing well that the entire property is in possession of defendant
no. 1 and the defendant no. 1 had also constructed the first floor
over the said property and had spend more than Rs. 20 lacs over
the renovation, construction and repair of the said property.
45. It is further contended that the suit has not been properly
valued for the purpose of court fees and jurisdiction and proper
court fee has not been paid in accordance with the law because the
value of the property is more than Rs. 2 crores. On merit most of
the contents of the plaint have been denied as wrong.
46. Plaintiff has filed replication to the written statement of
defendant no. 1 and denied most of the contents of the objections
raised by defendant no. 1 in his written statement and reiterated
the averments made in his plaint.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 20/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
CASE OF L.Rs OF DEFENDANT NO. 2, AS PER THIER
WRITTEN STATEMENT
47. It is pertinent to mention here that after being served in this
case, the defendant no.2 expired during the pendency of this case
and vide order dated 01.02.2024, the application under order 22
rule 4 CPC was allowed and L.Rs of deceased/defendant no. 2
were taken on record. A joint written statement has been filed on
behalf of L.Rs of deceased/defendant no. 2.
48. In the written statement, it is submitted that defendant no.
2 Sh. Gurcharan Singh was the real son of late Sh. Harbans
Singh/deceased. It is further contended that the deceased was the
exclusive lawful owner of the property bearing no. 28, ad-
measuring 150 Sq. yards, out of Khasra no. 2, WZ-25-E, Krishna
Park, Gali No. 11, Tilak Nagar, New Delhi-110018.
49. It is further submitted that they have no objection if the
above mentioned suit property is partitioned into equal five shares
amongst the legal heirs of late Sh. Harbans Singh by metes and
bounds, otherwise the aforesaid suit property may be disposed off
and the sale consideration may be divided in equal proportionate
amongst the legal heirs of late Harbans Singh. The contents of the
plaint have not been denied by the defendants. It is prayed that
this Hon’ble Court may kindly be pleased to partition the suit
property into equal five shares amongst the legal heirs of late Sh.
Harbans Singh by metes and bounds, otherwise the aforesaid suit
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 21/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
property may be disposed off and the sale consideration may be
divided in equal proportionate amongst the legal heirs of the
deceased.
CASE OF DEFENDANT NO.3 & 4 AS PER THEIR WRITTEN
STATEMENT
50. The defendant no. 3 & 4 has filed joint written statement
and submitted that they are the real daughters of late Sh. Harbans
Singh s/o late Sh. Tara Singh. It is contended that late Sh. Harbans
Singh/deceased was the exclusive lawful owner of the property
bearing no. 28, ad-measuring 150 Sq. yards, out of Khasra no. 2,
WZ-25-E, Krishna Park, Gali No. 11, Tilak Nagar, New
Delhi-110018. It is further averred that the deceased had
unfortunately died on 09.11.2008 and mother of the defendants
had also expired on 31.07.2022 leaving her legal heirs i.e. plaintiff
and defendants no. 1 to 4.
51. It is further submitted that they have no objection if the
above mentioned suit property is partitioned into equal five shares
amongst the legal heirs of late Sh. Harbans Singh by metes and
bounds, otherwise the aforesaid suit property may be disposed off
and the sale consideration may be divided in equal proportionate
amongst the legal heirs of late Harbans Singh. The contents of the
plaint have not been denied by the defendants. It is prayed that
this Hon’ble Court may kindly be pleased to partition the suit
property into equal five shares amongst the legal heirs of late Sh.
Harbans Singh by metes and bounds, otherwise the aforesaid suit
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 22/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
property may be disposed off and the sale consideration may be
divided in equal proportionate amongst the legal heirs of the
deceased.
52. It is pertinent to mention that defendant no. 2, defendant
no. 4 and L.Rs of defendant no. 2 are supported the case of
plaintiff.
ISSUES IN CIVIL SUIT
53. From the pleadings of the parties following issues have
been framed on 06.06.2023.
1. Whether the plaintiff is entitled to 1/5th share in the suit
property and consequently, whether he is entitled to a decree of
partition by metes and bounds to the extent of his share? OPP
2. Whether the plaintiff is entitled to decree of permanent
injunction restraining the defendants from selling or alienating the
suit property to any third party? OPP
3. Whether defendant no. 1 is the exclusive owner of the suit
property by virtue of a registered Will and on the basis of the
assertion that suit property was given to D-1 by his father? OPD1
4. Relief.
EVIDENCE OF PLAINTIFF IN CIVIL SUIT
54. Sh. Harvinder Singh, plaintiff has appeared in the witness
box as PW-1 and tendered his evidence by way of affidavit Ex.
PW-1/1 and he reiterated the contents of his plaint. PW-1 relied
upon the following documents:
i). Ex.PW1/1: Site Plan of the property in question.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 23/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
ii). Ex.PW1/2: Copy of certified copy of Sale Deed dated
26.04.1966 (OSR).
iii). Ex.PW1/3: Copy of the English translation of the
certified copy of the sale deed dated 26.04.1966
( OSR).
iv). Ex.PW1/4: Digital copy of the death certificate of late
Harbans Singh .
v). Ex.PW1/5: Legal notice dated 28.09.2022.
vi). Ex.PW1/6: Postal receipts of sending the legal notice.
vii). Ex.PW1/7: Digital copy of death certificate of late
Smt. Manjeet Kaur.
viii). Ex.PW1/8(OSR): Copy of my Aadhar Card.
ix). Mark A ( Colly) : Eight Digital photographs.
55. PW-1 has been thoroughly cross-examined by ld.
counsel for the defendant no.1.
56. Son of the plaintiff appeared in the witness box as
PW-2 and tendered his evidence by way of affidavit Ex. PW-2/A
and reiterated the contents of the plaint in his affidavit in evidence.
57. PW-2 has been thoroughly cross-examined by ld.
counsel for defendant no. 1.
58. Sh. Sevajit, Record Attendant, from the office of Delhi
Archives, has appeared as PW-3 and brought the registration
record of document registered in his office vide registration no.
2896, Addl Book No. 1, Vol. No. 482, pages 171 to 173 on
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 24/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
26.04.1996. He has seen the certified copy of the above said
document which is in Urdu language and compared the same with
the record brought by him and found it correct, which is already
exhibited as Ex. PW-1/2( OSR).
59. Vide separate statement of ld. counsel for the plaintiff,
the evidence on behalf of plaintiff stands closed on 24.02.2025.
FINAL ARGUMENTS IN CIVIL SUIT AS WELL AS IN
COUNTER CLAIM
60. I have heard final arguments in civil suit as well as in
counter claim from both sides & perused both the case files
including pleadings and testimonies of the witnesses examined in
the court. I have also gone through the written submissions filed
on behalf of both sides.
ARGUMENTS ON BEHALF OF PETITIONER/DEFENDANT
NO. 1
61. Ld. counsel for the petitioner has argued that the Will in
question is a legal and valid Will as per section 63 of Indian
Succession Act. He further argued that late Sh. Harbans Singh had
executed the Will in question, voluntarily, without any force or
undue influence. He further argued that the attesting witness PW-2
as well as the other witness PW-3 has duly proved the execution of
the Will by late Sh. Harbans Singh by way of his free will.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 25/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
62. Ld. counsel for the petitioner has further argued that as per
section 68 of Indian Evidence Act, petitioner is not required to
examine both attesting witnesses of the Will and only one attesting
witness is sufficient for proving the Will.
63. Ld. counsel for the petitioner has further argued that as per
settled law, there is no need to examine the person who drafted the
Will. He further argued that in the law, it is not required that the
attesting witness must be familiar with the testator. He further
argued that it is quite natural for a person, who wants to execute a
Will, to visit the office of Sub-Registrar for the purpose of
preparing his Will and engage the service of the person who are
well versed in preparation of the Will. He further argued that
when the said person has no attesting witness or has only one
attesting witnes then he can ask any advocate to become witness in
the Will.
64. Ld. counsel for the petitioner has further argued that there
is no material contradictions in the testimonies of PW-2 & PW-3
and slight variations in their statement regarding time of reaching
sub-Registrar office are quite natural.
65. Ld. counsel for the petitioner has further argued that late
Sh. Harbans Singh had debarred his son/defendant no. 1 during his
life time, from inheriting his estate by issuing publication notice in
newspaper on 29.01.1998.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 26/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
66. Ld. counsel for the petitioner has further argued that late
Sh. Harbans Singh had given only limited interest in the suit
property to his wife/ Smt. Manjeet Kaur in Will dated 24.02.1998.
He further argued that in the Will, no express authority has been
given to late Smt. Manjeet Kaur regarding her right to sell or
dispose off the property. He further argued that after the death of
late Smt. Manjeet Kaur, the petitioner has become the owner of the
suit property as ownership in the suit property has been bequeathed
upon the petitioner in the Will dated 24.02.1998.
67. Ld. counsel for the petitioner has further argued that late
Sh. Harbans Singh never intended to bequeath his property upon
Late Sh. Gurcharan Singh ( erstwhile defendant no. 2). He further
argued that the real intention of the testator was to bequeath
property to the petitioner and for ascerting the real intention of the
testator, the Will should be read as a whole and other circumstance
regarding debarring the defendant no. 1 be also taken into
consideration.
68. Ld. counsel for the petitioner has relied upon judgment of
the Hon’ble Supreme Court passed in a case titled Navneet Lal @
Rangi Vs Gokul & Ors (1976) 1 Supreme Court Cases, 630.
69. Ld. counsel for the petitioner has further argued that the
deceased had only suffered head injury but that does not make him
person of unsound mind. He further argued that the burden is upon
the respondents to prove that late Sh. Harbans Singh was not in
sound disposing state of mind at the time of execution of the Will,
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 27/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
and the respondents have not led any evidence to prove the said
fact. He further argued that there is medical certificate Ex.
PW-1/11, which proves that late Sh. Harbans Singh was physically
and mentally fit on 5.11.1998 and no cross-examination of PW-1,
on said medical certificate has been done on behalf of the
respondents.
ARGUMENTS ON BEHALF OF PLAINTIFF/RESPONDENT
No. 2 TO 7.
70. Ld. counsel for the plaintiff has argued that late Sh.
Harbans Singh, father of the plaintiff was the lawful owner of the
suit property by way of registered sale deed dated 26.04.1966. He
further argued that Sh. Harbans Singh has expired on 9.11.2008
without leaving any Will. He further argued that mother of the
plaintiff has also expired on 31.07.2022. He further argued that
the plaintiffs are entitled to inherit the property of late Sh. Harbans
Singh on the basis of intestate succession.
71. Ld. counsel for the plaintiff further argued that L.Rs of
defendant no. 2 as well as D-3 & 4 are supporting the case of the
plaintiff and they have filed their written statement for partition the
suit property into equal five shares among all the sons and
daughters of late Sh. Harbans Singh and late Smt. Manjeet Kaur.
72. Ld. counsel for the plaintiff further argued that only
defendant no. 1 is contesting the civil suit and has also filed probate
petition on the basis of Will dated 24.2.1998 alleged to be executed
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 28/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
by late Sh. Harbans Singh.
73. Ld. counsel for the plaintiff further argued that defendant
no. 1/Sh. Prabhjeet Singh has not appeared in the witness box
rather his son being SPA holder has appeared in the witness box in
probate petition.
74. Ld. counsel for the plaintiff further argued that late Sh.
Harbans Singh has never executed Will dated 24.02.1998 and the
said Will is forged and fabricated Will and there is also no date
mentioned on the above said Will. Ld. counsel for the plaintiff
further argued that late Sh. Harbans Singh was not in a fit state of
mind at the time of execution of Will dated 24.02.1998. Ld.
counsel for the plaintiff further argued that the name of the person
who drafted the Will, is also not mentioned in the Will. Ld.
counsel for the plaintiff further argued that in the Will two
attesting witnesses have been shown but the petitioner has
examined only one witness namely, Ms Nutan Sharma. He further
argued that the other attesting witness has not been produced by
the witness and no explanation has been given by the petitioner for
not examining the second attesting witness.
75. Ld. counsel for the plaintiff further argued that witness
Sh. Virender Kalwa/PW-3 is a planted witness. He further argued
that PW-2/Ms Nutan Sharma is an advocate by profession and she
was not known to the testator. He further argued that PW-2 has no
knowledge about the family background of the testator. He further
argued that the attesting witnesses should have been the persons
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 29/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
who were well acquainted with the testator.
76. Ld. counsel for the plaintiff further argued that no official
from the office of Sub-Registrar alongwith record of Will dated
24.02.1998 has been summoned and examined in the court by the
petitioner. He further argued that petitioner has not proved that the
above said Will has been registered in the office of Sub-Registrar.
77. Ld. counsel for the plaintiff further argued that there are
various contradictions in the testimony of PW-2 and PW-3
regarding the time of reaching at the office of Sub-Registrar. He
further argued that the Will has not been proved in accordance
with the law.
78. Ld. counsel for the plaintiff further argued that even if the
Will is presumed to be executed by the deceased, the Will does not
bequeath any property to the petitioner. He further argued that the
Will in question is a contigent Will. He He further argued that
from the bear reading of the contents of the Will, it is apparently
clear that late Sh. Harbans Singh had given complete and absolute
right in the suit property to his Wife/late Smt. Manjeet Kaur. He
further argued that as per terms of the Will in question, the
petitioner entitled to receive share in the property, only if, wife of
the deceased expired before the deceased but late Sh. Harbans
Singh has expired on 09.11.2008 and his wife/late Smt. Manjeet
Kaur has expired on 31.07.2022. So, by way of the Will in
question, the petitioner is not entitled to receive any share in the
property in question.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 30/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
79. Ld. counsel for the plaintiff has further argued that
absolute ownership over the property in question has been confer
to late Smt. Manjeet Kaur and after death of her husband, she
became the absolute owner of the suit property. He further argued
that late Smt. Manjeet Kaur has died intestate without leaving any
Will so, after his death the plaintiff and defendants are entitled to
receive 1/5th share in the suit property.
80. Ld. counsel for the plaintiff has relied upon the judgment
passed by the Hon’ble High Court of Delhi in a case titled Sunil
Madan Mandhan Vs State GNCT of Delhi & Anr., FAO(OS)
113/2023 decided on 27.11.2025.
MY ISSUEWISE FINDINGS
FINDINGS ON ISSUE NO. 1 & 4 IN P.C. NO. 19/2023
Issues no. 1. Whether the Will dated 24.02.1998
executed by Late Sh. Harbans Singh S/o late S.
Tara Singh is his last, legal and valid Will and
duly executed by him in his sound disposing
mind ? OPP.
&
Issues no. 4. Whether the Will dated 24.02.1998
is a forged and frivolous document? OPR 2 to 7
81. Issue no. 1 & 4 are interconnected and having mutual
bearing, therefore, issue no. 1 & 4 are being taken together.
82. The onus to prove issue no. 1 is upon the petitioners and
onus to prove issued no. 4 is upon the respondent no. 2 to 7. In
order to prove the issue no. 1 the petitioner has examined three
witnesses i.e.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 31/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
1. PW-1/Sh. Gurvinder Pal Singh, son and SPA of petitioner,
2. PW-2 Ms Nutan Sharma @ Kumari N Sharma, one of the
attesting witness to the Will in question
3. PW-3 Sh. Virender Kalra, who was present at the office of
Sub-Registrar at the time of execution of the Will.
83. In order to prove issue no. 4, the respondent no. 2, who is
plaintiff in civil suit bearing no. 1128/22, has examined three
witnesses in civil sit and their details are as under:
1. Sh. Harvinder Singh ( Respondent no. 2/plaintiff)
2. Sh. Kuljeet Singh ( Son of respondent no. 2/plaintiff)
3. Sh. Sevajit, Record Attandant, from the department of
Delhi Archives.
84. Before adjudicating the issues, I would like to discuss
various relevant statutory provisions involved in the present case.
85. The expression “Will” is defined by Section 2(h) of Indian
Succession Act, 1925 to mean the legal declaration of “the
intention” of a testator with respect to his property “which he
desires to be carried into effect after his death”.
86. Section 59 of Indian Succession Act declares that every
person(not being a minor) “of sound mind” may dispose of his
property by Will.
87. Section 61 of Indian Succession Act states that Will
obtained by fraud, coercion or importunity- A Will or any part of
a Will, the making of which has been caused by fraud or coercion,
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 32/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
or by such importunity as takes away the free agency of the
testator, is void.
88. The execution of an unprivileged Will, as the case at hand
relates to, is governed by Section 63 of the Indian Succession Act,
1925, which reads thus:-
“63 Execution of unprivileged Wills —
Every testator, not being a soldier
employed in an expedition or engaged in
actual warfare, or an airman so employed
or engaged, or a mariner at sea, shall execute
his Will according to the following rules:-
(a) The testator shall sign or shall affix his
mark to the Will, or it shall be signed by
some other person in his presence and by his
directions.
(b) The signature or mark of the testator, or
the signature of the person signing for him,
shall be so placed that it shall appear that it
was intended thereby to give effect to the
writing as a Will.
(c) The Will shall be attested by two or
more witnesses, each of whom has seen the
testator sign or affix his mark to the Will or
has seen some other person sign the Will,
in the presence and by the direction of the
testator, or has received from the testator a
personal acknowledgment of his signature
or mark, or the signature of such other
person; and each of the witnesses shall sign
the Will in the presence of the testator, but it
shall not be necessary that more than one
witness be present at the same time, and no
particular form of attestation shall be
necessary”.
89. Section 124 of the Indian Succession Act, 1925 states as
under:
124. Bequest contigent upon specified
uncertain event, no time being mentioned for
its occurrence- Where a legacy is given if a
specified uncertain event shall happen and noCiv Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 33/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
time is mentioned in the will for the
occurrence of that event, the legacy cannot
take effect, unless such event happens before
the period when the fund bequeathed is
payable or distributable. Illustration (I) of the
said section is also reproduced as under:
(I) A legacy is bequeathed to A, and, in
case of his death, to B. If A survives the
testator, the legacy to B does not take effect.
90. The provisions contained in Section 68 of the Indian
Evidence Act, 1872 are also to be kept in mind in such type of
matters. Section 68 of Indian Evidence Act states as under:
“if a document is required by law to be
attested, it shall not be used as evidence until
one attesting witness at least has been called
for the purpose of proving its execution, if
there be an attesting witness alive and
subject to the process of the Court and
capable of giving evidence.
Provided that it shall not be
necessary to call an attesting witness in
proof of the execution of any document,
not being a will, which has been registered
in accordance with the provisions of Indian
Registration Act 1908 unless its execution
by the person by whom it purported to have
been executed is specifically denied.”
91. The principles for proving the Will have been well settled,
in catena of Judgments by the Hon’ble Supreme Court of India as
well as Hon’ble High Court of Delhi. Some of the judgments have
been mentioned below to appreciate the law, applicable on the
facts of the present case.
92. In a case titled as H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma,
AIR 1959 SC 443, Hon’ble Apex Court has laid down the
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 34/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
following propositions:
(1) Stated generally, a will has to be proved like
any other document, the test to be applied being
the usual test of the satisfaction of the prudent
mind in such matters. As in the case of proof
of other documents, so in the case of proof of
wills, one cannot insist on proof with
mathematical certainty.
(2) Since Section 63 of the Succession Act
requires a will to be attested, it cannot be used
as evidence until, as required by Section 68 of
the Evidence Act, one attesting witness at least
has been called for the purpose of proving its
execution, if there be an attesting witness alive,
and subject to the process of the court and
capable of giving evidence.
(3) Unlike other documents, the will speaks
from the death of the testator and therefore the
maker of the will is never available for deposing
as to the circumstances in which the will came
to be executed. This aspect introduces an
element of solemnity in the decision of the
question whether the document propounded is
proved to be the last will and testament of the
testator. Normally, the onus which lies on the
propounder can be taken to be discharged on
proof of the essential facts which go into the
making of the will.
(4) Cases in which the execution of the will is
surrounded by suspicious circumstances stand
on a different footing. A shaky signature, a
feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a
leading part in the making of the will under
which he receives a substantial benefit and such
other circumstances raise suspicion about the
execution of the will. That suspicion cannot be
removed by the mere assertion of the
propounder that the will bears the signature of
the testator or that the testator was in a sound
and disposing state of mind and memory at the
time when the will was made, or that those like
the wife and children of the testator who would
normally receive their due share in his estate
were disinherited because the testator might
have had his own reasons for excluding them.
The presence of suspicious circumstances
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 35/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon
the execution of the will excite the suspicion of
the court, the propounder must remove all
legitimate suspicions before the document can
be accepted as the last will of the testator.
(5) It is in connection with wills, the execution
of which is surrounded by suspicious
circumstances that the test of satisfaction of the
judicial conscience has been evolved. That test
emphasises that in determining the question as
to whether an instrument produced before the
court is the last will of the testator, the court is
called upon to decide a solemn question and by
reason of suspicious circumstances the court has
to be satisfied fully that the will has been validly
executed by the testator.
(6) If a caveator alleges fraud, undue
influence, coercion, etc. in regard to the
execution of the will, such pleas have to be
proved by him, but even in the absence of such
pleas, the very circumstances surrounding the
execution of the will may raise a doubt as to
whether the testator was acting of his own free
will. And then it is a part of the initial onus of
the propounder to remove all reasonable
doubts in the matter.”
93. In a case titled as Meena Pradhan & Ors. vs Kamla
Pradhan & Anr. In Civil Appeal No. 3351 of 2014, decided on 21
September 2023, the Hon’ble Apex Court has deduced the
principles in order to prove the Will and the same are as under; –
i. This 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 fulfill all the formalities
required under Section 63 of the Succession Act,Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 36/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
that is to say:
(a) The testator shall sign or affix his mark to the
Will or it shall be signed by some other person in
his presence and by his direction and the said
signature or affixation shall show that it was
intended to give effect to the writing as a Will:
(b) It is mandatory to get it attested by two or
more witnesses, though no particular form of
attestation is necessary:
(c) Each of the attesting witnesses must have
seen the testator sign or affix his mark to the Will
or has seen some other person sign the Will, in
the presence and by the direction of the testator,
or has received from the testator a personal
acknowledgment of such signatures:
(d) Each of the attesting witnesses shall sign the
Will in the presence of the testator, however, the
presence of all witnesses at the same time is not
required;
iv. For the purpose of proving the execution of
the Will, at least one of the attesting witnesses,
who is alive, subject to the process of court, and
capable of giving evidence, shall be examined;
v. The attesting witness should speak not only
about the testator’s signatures but also that each
of the witnesses had signed the will in the
presence of 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
suspicious 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 theCiv Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 37/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
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’. Whether a particular
feature would qualify as ‘suspicious’ would
depend on the facts and circumstances of each
case. Any circumstances raising suspicion
legitimate in nature would quality as a
suspicious circumstances 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.
94. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee,
AIR 1964, SC 529, a Constitution Bench of the Hon’ble Supreme
Court of India had the occasion to rule on the principles governing
mode of proof of a Will before a probate court. Referring, inter
alia, to its earlier decision of case titled H. Venkatachala Iyengar
Vs. B.N. Thimmajamma & Ors (Supra) the Hon’ble Supreme
court has held as follows:-
4…. The mode of proving a will does not
ordinarily differ from that of proving any other
document except as to the special requirement of
attestation prescribed in the case of a will byCiv Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 38/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
S.63 of the Indian Succession Act. The onus of
proving the will is on the propounder and in the
absence of suspicious circumstances
surrounding the execution of the will, proof of
testamentary capacity and the signatures of the
testator as required by law is sufficient to
discharge the onus. Where however there are
suspicious circumstances, the onus is on the
propounder to explain them to the satisfaction of
the Court before the Court accepts the will as
genuine. Where the caveator alleges undue
influence, fraud and coercion, the onus is on him
to prove the same. Even where there are no such
pleas but the circumstances give rise to doubts, it
is for the propounder to satisfy the conscience of
the Court. The suspicious circumstances may be
as to genuineness of the signature of the testator,
the condition of the testator’s mind, the
dispositions made in the will being unnatural
improbable or unfair in the light of relevant
circumstances or there might be other
indications in the will to show that the testator’s
mind was not free. In such a case the Court
would naturally expect that all legitimate
suspicious should be completely removed
before the document is accepted as the last will
of the testator. If the propounder himself takes
part in the execution of the will which confers a
susbtantial benefit on him, that is also a
circumstance to be taken into account and the
propounder is required to remove the doubts by
clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious
circumstances the Court would grant probate,
even if the will might be unnatural and might cut
off wholly or in part near relations…”
( emphasis supplied)
95. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199
(DB), the Hon’ble High Court of Delhi made reference to FAO
No. 874/2003 dated 21.11.2007 titled Jagdish Lal Bhatia vs
Madan Lal Bhatia which dealt with the legal burden of proof when
a Will is propounded and also spelt as to what would constitute
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 39/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
suspicious circumstances and what form of affirmative proof
should be sought by the court to satisfy the judicial conscience that
the document propounded is the last, legal and valid testament of
the testator. These are as under:
I. The legal burden to prove due execution
always lies upon the person propounding a will.
The propounder must satisfy the judicial
conscience of the court that the instrument so
propounded is last will of a free and capable
testator.
II. The onus is discharged by the propounder
adducing prima facie evidence proving the
competence of the testator and execution of the
will in the manner contemplated by the law. The
contestant opposing the will may bring material
on record meeting such prima facie in which
event the onus would shift back on the
propounder to satisfy the Court affirmatively
that the testator did know well the contents of the
will and in sound disposing capacity executed
the same. (see the decision of the Supreme Court
in Madhukar D. Shende v Tarabai Aba Shedge,
AIR 2002 SC 637).
III. No specific standard of proof can be
enunciated which must be applicable to all the
cases. Every case depends upon its
circumstances. Apart from other proof, conduct
of parties is very material and has considerable
bearing on evidence as to the genuineness of will
which is propounded. Courts have to be vigilant
and zealous in examining evidence. Rules
relating to proof of wills are not rules of laws but
are rules of prudence.
IV. Expanding on the care and caution to be
adopted by the courts, and presumptions to be
raised, in the decision reported as (1864) 3 Sw&
Tr. 431 In The Goods of Geale, it was opined
that where a person is illiterate or semi literate or
the will is in a language not spoken or
understood by the executor, the court would
require evidence to affirmatively establish that
the testator understood and approved all the
contents of the will.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 40/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
V. One form of affirmative proof is to establish
that the will was read over by, or to, the testator
when he executed it. If a testator merely casts his
eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining
to the circumstances under which the will was
prepared. If a will is prepared and executed
under circumstances which raise a well
grounded suspicion that the executor did not
express his mind under the will, probate would
not be granted unless that suspicion is removed.
VII. A word of caution. Circumstances can only
raise a suspicion if they are circumstance
attending, or at least relevant to the preparation
and execution of the will itself.
VIII. Another point that has to be considered is
about the improbability in the manner in which
the instrument is scripted. Instance of suspicious
circumstances would be alleged signatures of
testator being shaky and doubtful, condition of
the testator’s mind being feeble and debilitated,
bequest being unnatural, improbable and unfair.
IX. Suspicious circumstances are a presumption
to hold against the will. Greater is the suspicion
more heavy would be the onus to be discharged
by he who propounds the will.
X. A will is normally executed by a person
where he intends to alter the rule of succession
or where he desires a particular form of
inheritance and to that extent, nature of bequest
is not of much substance to invalidate a will, but
consistent view taken by the courts is that this
could be treated as a suspicious circumstance.
What weightage has to be attached to this
suspicion would depend upon case to case.
XI. Suspicion being a presumptive evidence, is a
weak evidence and can be dispelled.
96. In a case titled Kavita Kanwar Vs Mrs Pamela Mehta
decided on 19.05.2020 passed by Hon’ble Supreme Court of India
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 41/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
has held as follows:
16. A Will is executed to alter the ordinary
mode of succession and by bound to result in
earlier reducing or depriving the share of
natural heirs. If a person intends his the very
nature of things it is property to pass to his
natural heirs, there is no necessity at all of
executing a Will. It is true that a propounder
of the Will has to remove all suspicious
circumstances. Suspicion means doubt,
conjecture or mistrust. But the fact that natural
heirs have either been excluded or a lesser share
has been given to them, by itself without
anything more, cannot be held to be a
suspicious circumstance specially in a case
where the bequest has been made in favour of
an offspring. As held in P.P.Κ. Gopalan
Nambiar v. P.P.K. Balakrishnan Nambiar and
Ors.: [1995] 2 SCR 585, it is the duty of the
propunder of the Will to remove all the
suspected features, but there must be real,
germane and valid suspicious features and not
fantasy of the doubting mind.
97. In the light of Legal principles as carved out in catena of
Judgments by the Hon’ble Superior Courts and some of them as
discussed above, it is obligatory for the petitioner to prove the
following essentials:
(i) That the Will in question is a legal declaration of the
intention of the testator:
(ii)That the testator while executing the Will was in the
sound and disposing state of mind:
(iii) That the testator had executed the Will by his own free
will, meaning thereby that he was a free agent when he
executed the Will:
(iv) The petitioner has to prove that the Will in question is
the last Will of the testator :
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 42/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
(v) The petitioner has also to remove all the suspicious
circumstances, surrounding the execution of the Will:
(vi) For proving the Will, one attesting witness of the Will,
at least, if alive, must be examined in the Court as per
section 68 of the Indian Evidence Act.
98. In the present case, the following facts are admitted by the
parties:
1. It is admitted by the parties that late Sh. Harbans Singh
was the absolute owner of the suit property as he purchased the
suit property by way of sale deed dated 26.04.1966.
2. It is also admitted by the parties that Sh. Harbans Singh
has expired on 09.11.2008.
3. It is also admitted by the parties that the wife of late Sh.
Harbans Singh has expired on 09.11.2008 and she has not
executed any Will and has died intestate.
99. As per the case of petitioner, late Sh. Harbans Singh has
died by leaving Will dated 24.02.1998 and the said Will was
executed by late Sh. Harbans Singh voluntarily, without any force
or undue influence and the said Will is last & valid Will of late Sh.
Harbans Singh.
100. As per the case of the respondents, late Sh. Harbans Singh
has not executed above said Will 24.02.1998 and the said Will is
forged and fabricated Will. The respondents have further
contended that late Harbans Singh was not mentally well at the
time of execution of the Will dated 24.02.1998.
101. PW-2/Ms Nutan Sharma @ Kumari N. Sharma, one of the
attesting witness has deposed in her examination by way of
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 43/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
affidavit that one Shri Harbans Singh, son of late S. Tara Singh
resident of WZ-25E, Krishna Park, Gali No. 11, Tilak Nagar, New
Delhi, approached her on 24.02.1998 and requested her to get his
Will registered with the office of the concerned Sub-Registrar,
Delhi, which he was carrying alongwith with him and accordingly,
at the request of said Shri Harbans Singh, she got registered the
said Will dated 24.02.1998 with the office of the concerned Sub-
Registrar-II, Janakpuri, New Delhi, so brought by Shri Harbans
Singh alongwith him.
102. PW-2 further deposed that in her presence as well as in the
presence of the witness namely Shri Bal Krishan Jindal, son of late
Shri Madan Lal, who also accompanied Shri Harbans Singh, Shri
Harbans Singh signed the said Will and after he signed the said
Will, the witness namely Shri Bal Krishan Jindal also signed the
said Will in her presence. Thereafter, Shri Harbans Singh also
requested her to become one of the attesting witnesses to the said
Will as he had brought alongwith him only one witness and
consequently, at the request of Shri Harbans Singh, she also signed
the said Will in presence of Shri Harbans Singh and Shri Bal
Krishan Jindal as another attesting witness to the said Will and all
of them signed the said Will in presence of each other.
103. PW-2 further deposed that the said Will has been
exhibited as Ex. PW-1/2 and she identify her signatures on the said
Will at point C, the signatures of Shri Harbans Singh at point A
and the signatures of attesting witness namely Shri Bal Krishan
Jindal at point B.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 44/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
104. PW-2 further deposed by way of affidavit in evidence that
at the time of execution and registration of the said Will, late Shri
Harbans Singh was of sound health and senses and he had singed
the said Will of his own accord without any pressure, force,
coercion, threat, and/or any undue influence whatsoever. PW-2
further deposed that the testator came to the office of the
concerned Sub-Registrar-II, Janakpuri, Delhi alongwith 2-3
persons including his grand son to whom, she cannot remember
because the said Will was executed more than 26 years ago.
105. During cross-examination, PW-2 deposed that first of all,
Sh. Harbans Singh made his signature on the Will and one another
attesting witness Sh. Bal Kishan had signed and after that she
signed on the said Will. PW-2 further deposed that she does not
know where the said Will was drafted in the Sub-Registrar office.
She again said that so far as she remember, the said Will was
drafted one by Sh. C.P. Wig, Advocate. She further deposed that
she did not know Sh. Harbans Singh and he came at her seat on
his own since her seat is situated in the front row in the office of
Sub-Registrar, Janakpuri.
106. During cross-examination PW-2 further deposed that she
inquired from Sh. Harbans Singh about his identity and also
confirmed whether he is in proper sense to execute the Will. PW-2
further deposed that at that time, Sh. Harbans Singh was 70 years
old and he was looking fit as he was standing without strick.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 45/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
107. PW-2 has been given following suggestions on behalf of
respondents”
“It is incorrect to say that at that time, Sh. Harbans Singh
was not in a proper state of mind. It is further wrong to
suggest that he was brought by his son and grand son by
force or that he was not aware of what documents he has
signed. It is further wrong to suggest that Sh. Harbans
Singh was not even aware of the execution of the said
Will. It is further wrong to suggest that I become the
false attesting witness on the asking of Sh. Prabhjeet
Singh and his son”.
108. By way of above said suggestions, the respondents have
admitted the visit of late Sh. Harbans Singh at the office of Sub-
Registrar on 24.02.1998 as well as regarding signing the Will in
question by late Sh. Harbans Singh.
109. PW-3/Sh. Virender Kalra has deposed that in his
examination in chief by way of affidavit that late Sh. Harbans
Singh approached him on 24.02.1998 and requested him to
accompany him to the office of Sub-Registrar, Delhi as he wanted
to executed his last Will. He further deposed that on his request,
he accompanied him to the office of concerned Sub-Registrar and
at that time, his grand son Sh. Gurvinder Pal Singh also
accompanied with late Sh. Harbans Singh.
110. PW-3 further deposed in his examination in chief by way
of affidavit that after reaching the office of the concerned Sub-
Registrar, Delh the late Shri Harbans Singh contacted one Ms
Nutan Sharma, Advocate, who was working in the office of the
concerned Sub-Registrar, Janakpuri. New Delhi and requested her
to get his Will registered before the office of the concerned Sub-
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 46/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
Registrar, Delhi and on the request being made by the late Shri
Harbans Singh, the Ms Nutan Sharma, Advocate, got executed the
said Will before the office of the concerned Sub-Registrar, Delhi
and also signed the said Will as one of the attesting witness in his
presence.
111. PW-3 further deposed that one another witness namely
Shri Bal Kishan Jintal, also accompanied the late Shri Harbans
Singh at the office of the concerned Sub-Registrar, Delhi and after
late Shri Harbans Singh put his hands and signatures on the said
Will and after the said Will was signed by the said Ms Nutan
Sharma, Advocate as an attesting witness, the said Shri Bal Kishan
Jindal also signed the said Will in his presence and each of them
had signed the said Will in presence of each other.
112. PW-3 further deposed that at the time of execution of the
said Will, the said Shri Harbans Singh was of sound disposing
mind and was not suffering from any disease and signed the said
Will after fully understanding the contents of the same in
vernacular language, without any pressure, force, coercion, threat
and any undue influence from any quarter whatsoever, out of his
own free Will and accord.
113. During cross-examination, PW-3 deposed that he knew Sh.
Harbans Singh as he was close friend of his father and they were
having visiting terms to each other’s house. He further deposed
that his house is situated just 3-4 house away from the shop where
late Sh. Harbans Singh was used to work. He further deposed that
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 47/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
he does not remember the exact date, however, it was in February,
1998 Sh. Harbans Singh asked his father to send PW-3 with him
for registration of the Will in the office of Sub-Registrar, Janak
Puri.
114. PW-3 further deposed that first of all, Sh. Harbans Singh
signed the Will and thereafter the male witness signed the Will. He
further deposed that Sh. Harbans Singh was in proper health and
has come riding a two wheeler and left riding with the same two
wheeler.
115. PW-3 has been given following suggestions on behalf of
respondents”
” It is incorrect to suggest that Sh. Harbans Singh
at that time was not maintaining health and proper
state of mind. It is further wrong to suggest that I
am not aware about the said Will or that I am
deposing at the instance of petitioner since I am
having friendship with him”.
116. PW-2, one of the attesting witness of the Will has duly
proved that the Will in question was voluntarily executed by late
Sh. Harbans Singh and the said Will was got registered with Sub-
Registrar on the request of late Sh. Harbans Singh. PW-2 has also
proved that late Sh. Harbans Singh had signed the Will in her
presence and thereafter witness Sh. Bal Krishan Jindal had signed
the Will and thereafter PW-2 had signed the Will. PW-2 had also
proved that she became witness in the Will on the request of late
Sh. Harbans Singh. PW-2 has also proved that they all signed the
Will in presence of one another. PW-2 has also proved that late
Sh. Harbans Singh was in sound health and in sense at the time of
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 48/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
execution and registration of the said Will.
117. Ld. counsel for the respondents has argued that the other
attesting witness has not been examined by the petitioner and no
explanation has been given by the petitioner for not examining the
said witness.
118. As per section 68 of Indian Evidence Act, petitioner is
required to examine only one attesting witness in order to prove
the Will in question. The petitioner is neither rquired to examine
second attesting witness nor required to file any explanation for not
examining the second attesting witness.
119. Ld. counsel for the respondents has argued that PW-2 was
not familiar with the deceased so PW-2 is not a competent person
to become attesting witness in the Will. There is no requirement
in the law that the attesting witness should be familiar/acquainted
with the testator at the time of execution of the Will. PW-2 has
deposed that she became attesting witness in the Will on the request
of late Sh. Harbans Singh. She further deposed that late Sh.
Harbans Singh came to her seat on his own since her seat is situated
in the front row in the office of Sub-Registrar, Janakpuri. It was
the sweet will of the testator, to whom he wanted to make attesting
witness in his Will. Nothing has come in the cross-examination of
PW-2 that she had not become witness in the will at the request of
late Sh. Harbans Singh.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 49/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
120. Ld. counsel for the respondent has argued that PW-3 is a
planted witness so, testimony of PW-3 cannot be relied upon.
PW-3 has deposed about the facts and manner in which the Will in
question was executed by late Sh. Harbans Singh. PW-3 is the
son of close friend of late Sh. Harbans Singh. PW-3 has also
corroborated the testimony of PW-2 regarding signing of Will in
question by the deceased as well as by both the attesting witnesses.
Nothing has come in the cross-examination of PW-3 that he is a
planted witness and even suggestion has not been put to him that
he is a planted witness.
121. Ld. counsel for the respondents has argued that there is
material contradictions regarding the time of reaching of late Sh.
Harbans Singh and other witnesses at Sub-Registrar office on
24.02.1998.
122. PW-2 has deposed that on the date of registration of the
Will, at about 11-12 Noon, S. Harbans Singh alongwith one
attesting witness and two-three persons were present. PW-3 has
deposed that he reached at Sub-Registrar office at 10 A.M and
thereafter in 10 to 15 minutes one male and one female alongwith
grand son of Sh. Harbans Singh, namely, Sh. Gurvinder Pal @
Rinku reached there.
123. The will in question has been executed on 24.02.1998.
PW-2 & PW-3 have given their evidence in the court on
16.05.2025. About 27 years passed since the execution of Will in
question so the above said variations in the testimony of PW-2 &
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 50/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
PW-3 are quite natural and these variations are not material. PW-2
& PW-3 have corroborated each other in material aspect regarding
execution of the Will in question by the deceased. The above said
slight variations in the testimony of PW-2 & PW-3 do not create
any doubt upon their testimony.
124. Ld. counsel for the respondents has argued that no date is
mentioned on the Will in question so the Will in question is not a
valid Will. The Will in question has been registered in the Sub-
Registrar office on 24.02.1998. There is also stamp of Sub-
Registrar office mentioning date of registration of Will as
24.02.1998. PW-2 and PW-3 have deposed in the court the Will in
question was executed and registered on 24.02.1998. The mere
fact that no date is mentioned on the Will, the Will in question does
not become invalid Will.
125. Ld. counsel for the respondents has further argued that the
petitioner has not stepped into the witness box for giving evidence
and his son/PW-1 cannot depose on behalf of the petitioner. In the
Probate case, the material witnesses are attesting witnesses. PW-2
who is one of the attesting witnesses has been examined in the
court and she has duly proved the execution of the Will in question
by late Sh. Harbans Singh. The petitioner has executed GPA Ex.
PW-1/1 in favour of his son. It is admitted that the petitioner was
of 75 years old at the time of giving evidence by PW-1. It is settled
law that the attorney can depose about the facts which are in his
personal knowledge and to that extent his testimony is reliable. In
the present case, PW-2 & PW-3 have duly proved that Will in
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 51/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
question was executed by late Sh. Harbans Singh voluntarily and
in sound disposing state of mind, so non- examination of petitioner
in the present case does not create any adverse effect on the case
of the petitioner.
126. Ld. cousnel for the respondents has argued that the present
petition is time barred. It is settled law that limitation for filing the
probate petition starts from the date, when Will is disputed by
anyone and from the date of dispute of the Will, the propounder
has the right to file probate petition within three years. The
respondent no. 2 had filed partition suit in respect of property of
the deceased mentioned in the Will, on 14.12.2022 and the present
petition has been filed on 18.03.2023. The petitioner/Defendant
no. 1 has filed writtten statement in the said suit on 07.03.2023 and
in the said written statement, the petitioner/defendant no. 1 has
alleged execution of Will in question. The respondent no. 2 filed
replication in the said suit by denying the execution of the Will in
question by late Sh. Harbans Singh. The replication has been filed
by respondent no. 2 on 06.06.2023. So, the respondent no.
2/plaintiff has denied the execution of the Will in question in the
said replication filed on 06.06.2023.
127. No evidence has been led by the respondents to prove that
the they have disputed the Will in question before 6.6.2023. In
view of the above said facts, it is proved that Will in question has
been disputed by the first time by the respondents, after filing of
written statement filed by petitioner/defendant no. 1 in the civil
suit. In view of the above said facts, it is held that the petition of
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 52/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
the petitioner is within limitation.
128. Ld. counsel for the respondents has argued that petitioner
has not summoned any witness from the office of Sub-Registrar for
proving the registration of Will in question. As per section 63 of
the Indian Succession Act, registration of the Will is not
compulsory. Therefore, if petitioner has not examined any witness
from the Sub-Registrar office for proving the registration of the
Will, it does not make the Will in question as invalid.
129. Ld. counsel for the respondents has argued that Will in
question is forged and fabricated. The burden is upon the
respondents to prove the said fact but no witness has been
examined on behalf of respondents to prove that the Will in
question is forged and fabricated. No handwriting expert has been
examined on behalf of the respondents to prove that the signatures
of late Sh. Harbans Singh on the Will are not his genuine
signatures. PW-2 one of the attesting witness has already deposed
that the Will in question was singed by late Sh. Harbans Singh in
his presence. Moreover, suggestion has also been given to PW-2
on behalf of the respondents that at the time of execution of the
Will, late Sh. Harbans Singh was not in proper state of mind or that
he was not even aware about the execution of the said Will. No
suggestion has been given to PW-2 that the Will in questions does
not bear the signatures of late Sh. Harbans Singh. Therefore, it is
held that the respondents have failed to prove that the Will in
question is a forged and fabricated document.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 53/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
130. Ld. counsel for the respondents have argued that late Sh.
Harbans Singh was not in fit state of mind at the time of execution
of Will in question. No Doctor has been examined on behalf of the
respondents for proving that late Sh. Harbans Singh was not in fit
state of mind at the time of execution of the Will in question. Even
no medical document of late Sh. Harbans Singh has been placed on
record by the respondents. PW-1/Sh. Harvinder Singh, in civil suit
has deposed that he has not placed on record, any medical
document pertaining to the treatment of his father. PW-2 Sh.
Kuljeet Singh, in civil suit has deposed that he cannot file any
medical document regarding late Sh. Harbans Singh . PW-2 in the
probate petition has deposed that late Sh. Harbans Singh was of
sound health and senses, at the time of execution of Will in
question. PW-2 during cross-examination has deposed that he
inquired from late Sh. Harbans Singh about his identity and also
confirmed whether he is in proper senses to execute the Will. In
view of the testimony of PW-2, it is proved that late Sh. Harbans
Singh was in sound disposing state of mind at the time of execution
of the Will in question. Accordingly issue no. 1 & 4 are decided
in favour of the petitioner and against the respondents.
FINDINGS ON ISSUE NO. 3 OF CIVIL SUIT NO. 1128-2022
Issue no.3. Whether defendant no. 1 is the exclusive owner of
the suit property by virtue of registered Will and on the basis of
assertion that suit property was given to D-1 by his father? OPD1
131. Ld. counsel for the plaintiff has argued that by way of
Will in question, late Sh. Harbans Singh had given complete and
absolute right in the suit property to his wife/late Smt. Manjeet
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 54/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
Kaur. He further argued that in the Will in question, rights in the
suit property upon the defendant no. 1 has been conferred subject
to death of late Smt. Manjeet Kaur before the death of late Sh.
Harbans Singh. He further argued that the said contingency has
not happened and Smt. Manjeet Kaur has died after the death of
late Sh. Harbans Singh. He further argued that even it is presumed
that Will in question is legal and valid Will of late Sh. Harbans
Singh, no right in the suit property has been conferred upon the
defendant no. 1.
132. Ld. counsel for the defendant no. 1 has argued that late Sh.
Harbans Singh has given limited interest in the suit property to late
Smt. Manjeet Kaur and after her death, the defendant no. 1 is
entitled for suit property. Ld. counsel for the defendant no. 1 has
relied upon the judgment of Hon’ble Supreme Court of India given
in a case titled Navneet Lal @ Rangi Vs Gokul & Ors. ( 1976) 1
Supreme Court case, 630 and he relied upon the following relevant
paras of the said judgment:
8. From the earlier decisions of this Court the following principles,
inter alia, are well established:-
(1) In construing a document whether in English or in vernacular
the fundamental rule is to ascertain the intention from the words used; the
surrounding circumstances are to be considered; but that is only for the
purpose of finding out the intended meaning of the words which have actually
been employed. [Ram Gopal v. Nand Lal and others(1)].
(2) In construing the language of the will the court is entitled to put
itself into the testator’s armchair [Venkata Narasimha v. Parthasarathy(2)]
and is bound to bear in mind also other matters than merely the words used.
It must consider the surrounding circumstances, the position of the testator,
his family 928 relationship, the probability that he would use words in a
particular sense….but all this is solely as an aid to arriving at a right
construction of the will, and to ascertain the meaning of its language when
used by that particular testator in that document. [Venkata Narasimha‘s case
supra and Gnanambal Ammal v. T. Raju Ayyar and Others(1)].
(3) The true intention of the testator has to be gathered not by
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 55/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
attaching importance to isolated expressions but by reading the will as a
whole with all its provisions and ignoring none of them as redundant or
contradictory [Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer(2)].
(4) The court must accept, if possible, such construction as would
give to every expression some effect rather than that which would render any
of the expression inoperative. The court will look at the circumstances under
which the testator makes his will, such as the state of his property, of his
family and the like. Where apparently conflicting dispositions can be
reconciled by giving full effect to every word used in a document, such a
construction should be accepted instead of a construction which would have
the effect of cutting down the clear meaning of the words used by the testator.
Further, where one of the two reasonable constructions would lead to
intestacy, that should be discarded in favour of a construction which does not
create any such hiatus. [Paerey Lal v. Rameshwar Das(3)].
(5) It is one of the cardinal principles of construction of wills that to
the extent that it is legally possible effect should be given to every disposition
contained in the will unless the law prevents effect being given to it, Of
course, if there are two repugnant provisions conferring successive interests,
if the first interest created is valid the subsequent interest cannot take effect
but a Court of construction will proceed to the farthest extent to avoid
repugnancy, so that effect could be given as far as possible to every
testamentary intention contained in the will. [Ramachandra Shenoy and
Another v. Mrs. Hilda Brite and Other(4)]
9. Bearing in mind the above principles we may now look at the will
in question as a whole. This will is written in the urdu language. An official
translation is placed on the record. From the contents of the will we find the
background and the exact position of relationship of the parties set out
earlier. Gokul was residing with Bhola Chaubey 929 and Smt. Jarian. It may
bear repetition that Gokul was held in great love and affection by the testator
who was keenly anxious for the welfare both of his wife and of Gokul. There
is yet another feature which is prominent in the will. The testator was
apprehensive of his only brother, Ram Raj and his nephew, Kishnu, who
“might trouble his wife and Gokul after his death.
10. From such of the aforesaid prefatory recitals as appear in the
will, two objects stand out, namely, that he was deeply interested in the
enjoyment of his property movable and immovable after his death by his wife
and after her death by Gokul. The second object was that he intended that his
property should not fall into the hands of his brother and nephew who had
been separate from him since long after some arbitration and even bore ill-
will against him and his wife.
11. After the above revelation of his mental attitude in the will there
follows the following recitals:-
“So long as I, the executant, am alive, I myself shall remain the
owner in possession (malik wa qabiz) of my entire movable and immovable
property and of the income from Birt Jijmani. After my death Mst. Jarian, the
wedded wife of me, the executant, shall be the owner (malik) of my entire
estate, movable and immovable, and of the income from Birt Jijmani andCiv Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 56/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
shall have all the proprietary powers (aur usko jamiya akhtiyarat malikana
hasil honge). After the death of Mst. Jarian, Gokul aforesaid shall be the
owner of the entire estate left by me (malik kamil jaidad matruka meri ka
hoga), and he shall have all the proprietary powers and the power of making
transfer of all sorts (aur usko jamiya akhtiyarat malikana wa inteqalat har
qism hasil honge). If per chance, Mst. Jarian dies in my life time, then Gokul
aforesaid will be the absolute owner (malik kamil) of the estate left by me
(matrura meri) and he shall have power of making all sort of transfers (aur
usko har quism ke akhtiyarat inteqalat hasil honge). Gokul aforesaid should
go to Jijmana and should continue to give to Mst. Jarian during her life time
the charitable gifts (daan dakshina) which he brings from there. After her
death he might continue to be benefited thereby. Mst. Jarian should get my
obsequies, Barsi (annual death ceremony), Chhamchhi etc. performed
through Gokul aforesaid according to the custom prevalent in the
brotherhood. It will be the duty of Gokul aforesaid to obey and serve my wife
Mst. Jarian. It will be necessary for Mst. Jarian to keep my heir (waris) Gokul
aforesaid and to act in consultation with him. At present I have the following
immovable properties and the Birt Jijmani. If in addition to these I purchase
or get any property the aforesaid persons shall be the owners of that also
according to. the aforesaid conditions”.
12. Mr. Naunit Lal, on behalf of the appellant, submits that since
the testator stated in the will that after his death Smt. Jarian “shall be the 930
owner (malik) of my entire estate.. and shall have all the proprietary
powers (aur usko jamiya akhtiyarat malikana hasil honge)”, it is absolutely
clear that he intended to confer upon his wife an absolute estate to his
entire property. Mr. G. S. Pathak, on behalf of the respondents, contests the
proposition.
19. Reading the present will as a whole and if every disposition
has to be rationally harmonised, we find that the testator intended a life estate
for his wife so long as she lived. This is consistent with his description of
Gokul as “my heir (waris)” after his death. It is further consistent with the
recital that
“if per chance, Mst. Jarian dies in my life time, then Gokul aforesaid
will be the absolute owner (malik kamil) of the estate left by me (matruka
meri) and he shall have power of making all sorts of transfers (aur usko har
quism ke akhtiyarat inteqalat hasil honge)”.
In obvious contrast even though Smt. Jarian was made the malik of
his entire estate after his death “having all the proprietary rights” nothing
is stated about her “power of making all sorts of transfers” which power is
expressly mentioned as belonging to him and also exclusively conferred upon
Gokul after Smt. Jarian’s death. While describing his own “proprietary
powers” the testator made reference to his “power of making transfers of all
sorts”. This power of making transfer which was prominent in the mind of the
testator at the time of execution of the will is conspicuous by total omission
in relation to Smt. Jarian’s enjoyment of the property.
23. All the above features run counter to the theory of an absolute
estate in favour of Smt. Jarian. There is still another clinching factor. It is
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 57/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
clear from the will that the testator had misunderstanding and quarrels with
his brother regarding ancestral property and the matter had to be| settled by
arbitration leading to partition and separate enjoyment of property as far
back as 1889. It also appears from the recitals in the will that he had grave
apprehension that after his death his only reversioners, his brother and
nephew, “might trouble and harass my wife Mst. Jarian and my sister’s son
Gokul.” One thing was, therefore, clear that the testator never intended that
his property should pass to his brother and nephew. This intention of the
testator would 932 best be achieved by holding that there was a devise of a
life estate to his wife and an absolute estate thereafter to Gokul indicating a
different line of inheritance in the will. On the other hand, if any absolute
estate would have been conferred on the widow, then on her death the
property would have passed on by inheritance to her husband’s heirs who
were none else than the brother and the nephew of the testator. There was no
other heir of Mst. Jarian to inherit the property after her death.
24. A Plenitude of absolute estate in favour of the wife will make the
absolute bequest to Gokul void in law. No such repugnant interpretation
detrimental to the interest of Gokul can be made in the light of the entire tenor
of the instrument.
133. I have perused the judgment of Hon’ble Supreme
Court of India given in a case titled Unmukt Bhatnagar & Ors Vs
Manoj Bhatnagar(D) by LRs. Civil Appeal Nos. 5199-5201 of
2011 decided on 01.02.2024 and the relevant paras of the said
judgments are mentioned as under:
3. The contention raised by the appellants is with
respect to the interpretation of Will in question dated
23.12.1991 executed by Sh. Bankey Behari
Bhatnagar. We may hasten to state that there is
no dispute with respect to the execution of the Will in
question. Learned counsel for the appellants virtually
reiterated the arguments, which were unsuccessfully
raised before the courts below. The nub of his
contentions is that what was bequeathed to his wife-
Smt. Shanti by Sh. Bankey Behari Bhatnagar under the
Will was nothing but only life interest in case she
survives him and in other words, she was not given
absolute right over the property in question under any
such contingency under the Will. This contention was
repelled by the learned Single Judge and that
was confirmed by the Division Bench.
4. We have carefully gone through the Will. There
cannot be any room for doubt with respect to the fact
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 58/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
that going by the Will, the Testator had bequeathed
absolute right over the property i.e. A-49, Gulmohar
Park, New Delhi comprising of Ground and First Floor,
in case she survives him. A perusal of the first part of
the Will as to inheritance incase the testator’s wife Smt.
Shanti Bhatnagar survives him has been stated in
unequivocal terms under the Will in question thus:
“Till I am alive, I shall remain the absolute owner of my
aforesaid property and would continue to look after and
manage the same in any manner I like. After my
demise, the whole of property No. A-49, Gulmohar
Park, New Delhi, comprising of both ground and first
floor shall be inherited absolutely by my wife, Smt.
Shanti Bhatnagar, residing with me at the
said premises.”
The second part of the Will disambiguate any doubt
with respect to the said aforesaid position reads thus :-
Subsequent to my death and consequent upon the death
of my wife Smt. Shanti Bhatnagar, and in case she
predeceases me, the property No. A-49, Gulmohar Park,
New Delhi, would be divisible into two parts and
inherited as follows:-
“(a) The entire ground floor will be inherited jointly by
my son, Sh. Manoj Bhatnagar, his (legally married) wife
Smt. Meenakashi Bhatnagar, my grandson Unmukt
Bhatnagar and my grand daughter Kumari Atima
Bhatnagar. Notwithstanding the inheritance as above,
neither my son Manoj Bhatnagar, nor his wife
Meenakashi Bhatnagar, nor my grandson, nor my grand
daughter Atima shall have any right or power to mortgage
and/or sell any part of the said ground floor of the
property.
(b) The entire first floor of the property No.
A-49, Gulmohar Park, New Delhi, shall be inherited by
my daughter Smt. Sadhna Bhatnagar, who will be
the sole owner of the said first floor, and no one else
will have any right or claim on this part of the property.
After the demise of my daughter Sadhna Bhatnagar, the
said first floor will be inherited by her daughter Manasi,
who is my grand daughter. Notwithstanding, the
inheritance as above neither my daughter Sadhna
Bhatnagar, nor my grand daughter Manasi shall have any
right or power to mortgage and/or sell any part of the first
floor of the property.”
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 59/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
Thus, the position is as plain as a pikestaff that
the question of dividing the available portion of the
aforementioned house into two parts would arise, as per
the Will, only in case Smt. Shanti Bhatnagar pre-deceases
the testator Shri Bankey Behari Bhatnagar and upon the
subsequent death of Shri Bankey Behari Bhatnagar
himself.
5. It is an indisputable and undisputed factual position
that Smt. Shanti Bhatnagar survived Sh. Bankey Behari
Bhatnagar and to be precise, Sh. Bhatnagar died on
30.7.1995 and his wife Smt. Shanti Bhatnagar died only on
17.12.2005. Evidently, it is on consideration of the said
factual position that the learned Single Judge and the
Division Bench held that there occurred no occasion to
make the second condition operative.
134. The relevant contents of Will in question has been
reproduced as under:
” Whereas my son namely Gurcharan Singh age 37 Yrs. is not
serving me faithfully and sincerely with physical and financial
help sibstantially. My above said son is not helping in my old
age, I am trusted from his conduct and behaviour. So I do not
want to give any thing from my property to my son. I have
already published in the Newspaper of the STATESMAN dt.
31.01.1998. Copy attached. As such I do not make any
provision for my above said son who is exclude from any
benefit udner this Will.
I hereby devise and bequeath that the above said
property shall go and devolve upon to my wife Smt. Manjit
Kaur wife of S. Harbans Singh r/o WZ-25-E, Krishana Park,
P.O Tilak Nagar, New Delhi-18, in case, my wife prodeceases
me then after my death, the portion of the above said
property 16’x45, consisting of One Room, One kitchen, One
bathroom, and One latrine, on ground floor, and first floor,
bearing property No. 28, land measuring area 80 sq. yrds., with
roof rights, out of total land measuring area 150 sq. yrds,
situated at Krishana Park, P.O. Tilak N agar, New Delhi-18, to
my son namely S.Prabhjeet Singh son of S. Harbans Singh R/o
WZ-25-E, Krishana Park, P.O. Tilak Nagar, New Delhi-18,
with the free hold rights of the land under the said property,
which is bounded as under:-
East: Gali 10'. North Other Property,
West: Gali10". South Portion of the said Plot.
And the portion of the above said property size 14’x45,
consisting of Three Room set, on gound floor, and Two
Rooms, on first Floor, with root rights, bearing Property No.Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 60/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
28, Land measuring area 70 sq. yrds., out of total land
measuring area 150 sq. yrds., situated at Krishana Park, P.O.
Tilak Nagar, New Delhi-18, to
(1) S. Harvinder Singh S/o S. Harbans Singh R/o B-52,
Ganesh Nagar, P.O. Tilak Nagar, New Delhi-18, (2) Smt.
Manmohan Kaur W/o S. Harminder Singh D/o S. Harbans
Singh R/o WZ-18, Ram Nagar, P.O. Tilak Nagar, New
Delhi-18 and (3) Smt. Harjit Kaur W/o S. Bhobhander Singh
D/o S. Harbans Singh R/o C-77, Karbla Lodhi Road, New
Delhi, who have been faithfully and sincerely serving me with
physical and financial help substantially”.
135. The judgment relied upon by the ld. counsel for the
defendant no. 1 is not applicable to the facts of the present case. In
the Will of above said judgment relied upon by ld. counsel for the
defendant no. 1, it is mentioned that after the death of Mst. Jarian,
Gokul shall be the owner of the entire estate left by the testator and
he shall have all the proprietory powers and the power of making
transfer of all sorts. It is further mentioned in the said Will that if
per chance, Mst. Jarian, dies in the life time of Testator, then Gokul
aforesaid will be the absolute owner of the estate left by the
Testator and he shall have power of making all sorts of transfers.
It is further mentioned in the Will that Gokul aforesaid, should go
to Jimans and should continue to give to Mst. Jarian during her
lifetime the Charitable gifts which he bring from there. And after
her death he might continue to be benefited thereby.
136. In view of the above said facts mentioned in the Will, the
Hon’ble Supreme Court of India has held that the Testator intended
a life estate for his wife so long as she lived. It is also held that the
testator never intended that his property should pass to his brother
and nephew.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 61/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
137. But in the present case, the property has been bequeathed
to late smt. Manjeet Kaur with condition that if late Smt. Manjeet
Kaur died during the life time Testator/late Sh. Harbans Singh, then
the property ad-measuring 80 Sq. yards out of 150 Sq. yards will
devolve upon his son namely S. Parbhjeet Singh/defendant no. 1
and property ad-measurring 70 Sq. Yards out of 150 Sq. yards will
devolve upon Sh. Harvinder Singh/plaintiff, Smt. Manmohan
Kaur/D-3 and Smt. Harjeet Kaur/D-4. Late Smt. Manjeet Singh,
has not died during the lifetime of late Sh. Harbans Singh. So, the
contigency mentioned in the Will, upon the happening of which
the suit property had to be devolved upon defendant no. 1,
plaintiff, defendant no. 3 and defendant no. 4, have not happened.
The judgment given by the Hon’ble Supreme Court in a case titled
Unmukt Bhatnagar & Ors Vs Manoj Bhatnagar(D) by LRs
( SUPRA) is fully applicable to the facts of the present case.
138. From the terms of the Will it is clear that late Sh. Harbans
Singh had bequeath absolute right in the suit property to his
wife/late Smt. Manjeet Kaur. In the Will, no limitation/restriction
has been put upon late Smt. Manjeet Kaur for dealing with the suit
property. As per above said Will, Sh. Prabhjeet Singh and Sh.
Harvinder Singh are entitled to get the suit property, only if Smt.
Manjeet Kaur expired before late Sh. Harbans Singh. It is admitted
fact that Smt. Manjeet Kaur has died after the death of late Sh.
Harbans Singh. Smt. Manjeet Kaur died on 31.07.2022 where late
Sh. Harbans Singh has expired on 9.11.2008. The right of Sh.
Prabhjeet Singh and Sh. Harvinder Singh to get the subject
property of Will was a contigent right and the said contingency
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 62/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
mentioned in the Will i.e. death of Smt. Manjeet Kaur before the
death of Sh. Harbans Singh, has not happened as Sh. Harbans
Singh has died during the life time of Smt. Manjeet Kaur. Hence,
Sh. Prabhjeet Singh and Harvinder Singh are not entitled to get the
property by way of Will of late Sh. Harbans Singh.
139. The defendant no. 1 has also alleged that 70 Sq. Yards of
suit property was given to him by his father and he is in possession
of the entire suit property. PW-1/son of defendant no. 1 has
deposed in the probate petition that the rights in the above said 70
Sq. yards property was given orally without executing any
document by his grandfather. No Sale Deed or Conveyance Deed
and Gift Deed regarding transferring the 70 Sq. Yards of suit
property to defendant no. 1 by late Sh. Harbans Singh has been
placed on record by defendant no. 1. The title of immovable
property can be transfer only by way of Sale Deed/Conveyance
Deed/Gift deed or by way of Will. Defendant no. 1 has failed to
led any evidence to prove that late Sh. Harbans Singh had ever
transferred the ownership of 70 Sq. yards of the suit property in
favour of defendant no. 1 by way of any legal and valid documents.
140. In view of the above facts and discussion, issue no. 3 is
decided in favour of the plaintiff and against the defendant no. 1.
FINDINGS ON ISSUE NO. 3 IN PROBATE CASE
3. Whether the petitioner has concealed the material facts and
not approached the court with clean hands, if so, then its
effects? OPR2 to 7
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 63/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
141. The burden to prove issue no. 3 is upon respondent no.2 to
7. The respondents have not led any evidence for proving that the
petitioner has concealed the material facts and not approached the
court with clean hands. Even no arguments on this issue has been
addressed on behalf of respondents, therefore, it is held that
respondent no. 2 to 7 have failed to prove that petitioner has
concealed the material facts and not approached the court with
clean hands. Accordingly issue no. 3 is decided in favour of the
petitioner and against the respondents.
FINDINGS ON ISSUE NO. 2 IN THE PROBATE CASE.
2. Whether the petitioner is entitled for probate/letters of
administration on the basis of aforesaid Will, as claimed? OPP
142. It is already held above in issue no. 1 of Civil Suit that the
defendant no. 1 who is petitioner in the present case, is not entitled
to get the suit property on the basis of Will in question as right of
petitioner to get the suit property was contingent right but the
contingency mentioned in the Will i.e. death of late Smt. Manjeet
Kaur, before the death of late Sh. Harbans Singh, has not happened
as late Smt. Manjeet Kaur died on 31.07.2022 whereas late Sh.
Harbans Singh died on 9.11.2008. Therefore, it is held that
petitioner is not entitled to receive probate/letters of administration
on the basis of Will dated 24.02.1998 executed by late Sh. Harbans
Singh. Accordingly, issue no. 2 is decided against the petitioner
and in favour of the respondents.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 64/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
FINDINGS ON ISSUE NO. 1 OF CIVIL SUIT BEARING NO.
1128-2022
Issue No. 1: Whether the plaintiff is entitled to 1/5th share in the
suit property as consequently whether he is entitled to decree of
partition by metes and bounds to the extent of his share? OPP
143. The defendant no. 1 has alleged in the written statement
that present suit is barred by limitation. It is also settled law that
possesion of one co-owner is treated as joint possession of all the
co-owners of the suit property. The limitation period for filing the
suit for partition starts from the day when the plaintiff is ousted
from the suit property. The defendant no. 1 has not led any
evidence to prove the ouster of plaintif from the suit property. The
defendant no. 1 has to prove that his possession upon the suit
property was adverse possession in respect of other co-owners of
the suit property but he fails to prove the same. Morover, the right
of plaintiff to inherit the suit property is based upon intestate
succession of late. Smt. Manjeet Kaur, who has died on
31.07.2022. The present suit has been filed on 14.12.2022, therefor
it is held that the suit of the plaintiff is within limitation.
144. It is already held above in issue no. 3 of civil suit that the
suit property was bequeathed absolutely upon late Smt. Manjeet
Kaur and by way of Will in question, she had become the absolute
owner of the suit property. Late Smt. Manjeet Kaur has died
intestate on 31.10.2022 so her property will be devolved upon her
legal heirs as per section 15 of Hindu Succession Act 1956.
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 65/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
145. Smt. Manjeet Kaur has died on 31.10.2022 by leaving
behind the following legal heirs as per section 15 of the Hindu
Succession Act, 1956:
i) Sh. Harvinder Singh, Son ( Plaintiff ) ii) Sh. Prabhjeet Singh , Son ( Defendant no. 1)
iii) Sh. Gurcharan Singh, Son ( Defendant no. 2, who expired
on 21.12.2022).
iv) Smt. Ramanpreet Kaur, Daughter ( defendant no. 3)
v) Smt. Harjeet Kaur, Daughter ( defendant no. 4)
146. As per section 15 of the Hindu Succession Act, the above
said sons and daughters of late Smt. Manjeet Kaur are equally
entitled to inherit the estate of late Smt. Manjeet Kuar, therefore,
they have 1/5th share each in the suit property.
147. Sh. Gurcharan Singh has died on 21.12.2022, so his share
( 1/5th) in the suit property will be devolved upon his legal heirs
as per section 8 of Hindu Succession Act, 1956.
148. Sh. Gurcharan Singh has died leaving behind his following
Class-I legal heirs as per Section 8 of the Hindu Succession Act:
1) Smt. Surinder Kaur , wife (defendant no. 2(i))
ii) Sh. Sukhvinder Singh, Son ( defendant no. 2(ii)
iii) Smt. Damanpreet Kaur, daughter ( defendant no. 2(iii)
149. As per section 10 of the Hindu Succession Act, the above
said wife, son and daughter of late Sh. Gurcharan Singh are equally
entitled to inherit the 1/5th share of late Sh. Gurcharan Singh in the
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 66/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
estate of late Smt. Manjeet Kuar, therefore, they have 1/15th share
each in the suit property.
150. In view of the foregoing facts and discussion, the shares of
the parties in the suit property has been determined and the same is
as under:
i) Sh. Harvinder Singh, Son ( Plaintiff ) 1/5th share
ii) Sh. Prabhjeet Singh , Son ( Defendant no. 1) 1/5th share
iii) Smt. Surinder Kaur , wife (defendant no. 2(i)) 1/15th share
ii) Sh. Sukhvinder Singh, Son ( defendant no. 2(ii) 1/15th
share
iii) Smt. Damanpreet Kaur, daughter ( defendant no. 2(iii)
1/15th share
iv) Smt. Ramanpreet Kaur, Daughter ( defendant no. 3) 1/5th
share
v) Smt. Harjeet Kaur, Daughter ( defendant no. 4) 1/5th
share.
151. In view of the above said facts and findings, it is held that
plaintiff is entitled for getting the partition of the suit property.
However, further proceedings are required for the purpose of
ascertaining as to whether suit property can be partitioned by metes
and bounds or not. Accordingly, issue no. 1 is decided in favour
of plaintiff and against the defendants no. 1.
FINDINGS ON ISSUE NO. 2 IN CIVIL SUIT
2. Whether plaintiff is entitled to decree of permanent
injunction restraining the defendants from selling or alienating
the suit property to any third party? OPP
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 67/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
152. It is already held above that plaintiff, defendant no. 1, 3, 4
and L.Rs of defendant no. 2 are entitled to get 1/5th share in the
suit property. So, the defendants have no right to transfer the 1/5th
share of plaintiff to third person. The defendants are not entitled
to sell specific share of suit property by delivering specific
possession to third person. Till the partition of the suit property
by metes and bounds, the defendants are not entitled to sell, create
third party interest or part with possession of suit property. With
the above said findings, issue no. 2 is decided in favour of the
plaintiff and against the defendants.
153. RELIEF IN PROBATE CASE NO. 19/2023
154. In view of findings on issue no. 2, the petition of the
petitioner stands dismissed without cost.
155. RELIEF IN CIVI SUIT NO. 1128/2022.
156. In view of findings on issue no. 1, 2 & 3, the suit of the
plaintiff regarding determining the shares of the plaintiff and
passing decree of permanent injunction against the defendants
stands decreed witout cost and following reliefs have been given
to the plaintiff:
157. The parties are held entitled following shares in the suit
property i.e. WZ-25E, Krishna Park, Gali No. 11, Tilak Nagar,
New Delhi, ad-measuring 150 Sq. yards:
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 68/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
i) Sh. Harvinder Singh, Son ( Plaintiff ) 1/5th share
ii) Sh. Prabhjeet Singh , Son ( Defendant no. 1) 1/5th share
iii) Smt. Surinder Kaur , wife (defendant no. 2(i)) 1/15th share
iv) Sh. Sukhvinder Singh, Son ( defendant no. 2(ii) 1/15th
share
v) Smt. Damanpreet Kaur, daughter ( defendant no. 2(iii)
1/15th share
vi) Smt. Ramanpreet Kaur, Daughter ( defendant no. 3) 1/5th
share
vii) Smt. Harjeet Kaur, Daughter ( defendant no. 4) 1/5th
share.
158 . The defendants are restraining from selling, creating third
party interest or parting with the possession of the suit property, till
partition of the suit property by metes and bounds. Preliminary
decree sheet be prepared accordingly.
159. Signed common judgment be placed in each file and be
uploaded on e-portal in each case.
160. Separate Decree Sheet be prepared in both cases
accordingly.
SHIV Digitally signed by
SHIV KUMAR
KUMAR Date: 2026.05.23
18:44:42 +0530
Announced in the open court (Shiv Kumar )
on 23rd May, 2026 District Judge-02
Room No. 127
(West: Delhi)
Civ Dj No. 1128-2022 Harvinder Singh Vs Prabhjeet Singh & Ors 69/69
P.C No. 19-2023 Prabhjeet Singh Vs State & Ors.
