Delhi High Court
Dr. Sri Krishan vs State & Anr on 8 August, 2025
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ TEST.CAS. 43/2005 and I.A. 22248/2014
Between: -
DR. SRI KRISHAN
S/O LATE SHRI RAM LAL
VO GROUND FLOOR, (REAR PORTION)
22, PASCHIM MARG, VASANT VIHAR,
NEW DELHI-110057
.... PETITIONER
(Through: Mr. Sanjeev Mahajan, Mr. RishabhVarshney and Ms. Simran
Rao, Advs..)
AND
1. THE STATE
THROUGH GOVT. OF NCT OF DELHI
2. SHRI S.M. ARORA (SINCE DECEASED)
THROUGH
(i) SMT. SNEH PRABHA ARORA
WIDOW OF LATE SH. S.M ARORA
(DIED ON 31.05.2023)
(ii) MRS. ANAMIKA KAPOOR
WIFE OF SH. SANJAY KAPOOR
R/O 116, SAMARAT APARTMENT
B-11, VASUNDHARA ENCLAVE
NEW DELHI-110096
(iii) SH. ANIMESH ARORA
SON OF LATE SH. S.M ARORA
R/O FIRST FLOOR, FRONT PORTION
22, PASCHIMI MARG,
Signature Not Verified Signature Not Verified
Signed By:AMIT KUMAR Signed
SHARMA
Signing Date:12.08.2025 By:PURUSHAINDRA
18:47:32 1 KUMAR KAURAV
VASANT VIHAR
NEW DELHI -110057
AND ALSO AT
6615,NORTH MILE LANE,
PEORIA, ILLINOIS
USA-61614
3. SHRI. JOGINDER MOHAN
S/O LATE SHRI RAM LAL
R/O GROUND FLOOR, (REAR PORTION)
22, PASCHIM MARG, VASANT VIHAR,
NEW DELHI-110057
4. SHRI. DEVENDRA MOHAN
S/O LATE SHRI RAM LAL
R/O GROUND FLOOR, (FRONT PORTION)
22, PASCHIM MARG, VASANT VIHAR,
NEW DELHI-110057
....RESPONDENTS
(Through: Mr. B. K. Sood, Mr. Harish Gaur,Advs for R-2(ii).
Mr.Aditya Wadhwa and Ms.RaginiKapoor, Advocates for LRs of R-2(iii)
Mr.J.R. Mathur, Advocate for R-3..)
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% Reserved on: 21.07.2025
Pronounced on: 08.08.2025
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JUDGMENT
Preface
The instant case is a contested testamentary petition, where the
petitioner seeks grant of probate of the Will dated 12.06.2000 with respect to
the estate left behind by his father late Shri Ram Lal. On one side stands the
petitioner’s assertion that the Will bears the imprimatur with due execution
and legal validity, and on the other side stand respondent Nos. 2 to 4, who
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denounce the Will as a product of fabrication, steeped in grave suspicion and
riddled with undue influence.
2. At the very outset, learned counsel for the petitioner submitted that
although the petition has been titled as one seeking probate of the Will, it
ought to have been instituted for the issuance of Letters of Administration
(hereinafter referred to as “LoA”), since the named executor, Dr. R.S.
Chaudhary, had expressed his inability to act due to his ill health and had
subsequently passed away in December, 2007.
3. Upon consideration, the Court deemed it appropriate to examine the
scope of Section 276(1) of the Indian Succession Act, 1925 (hereinafter
referred to as ―Succession Act‖), which governs the petitions both for
probate and LoA. The said provision, by any prudent stretch of reading, does
not create a rigid distinction between the two forms of relief and instead,
provides a common procedural foundation for both. As a sequitur, the
petition, which has been mischaracterised as one for probatewhen the
factual circumstances warranted a claim for LoAshould not be dismissed
solely on the ground of incorrect nomenclature, more so when the same has
been pending since the year 2005.
4. On this aspect, it is beneficial to refer to the decision of the Bombay
High Court in the case of Shirin Boman Faramarzi v. Zubin Boman
Faramarzi1, whereby, while referring to the decision of the Supreme Court
in Shambhu Prasad Agarwal v. Bhola Ram Agarwal2the High Court has
held as under:-
1
2013 SCC OnLine Bom 1267
2
(2000) 9 SCC 714Signature Not Verified Signature Not Verified
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“18. On perusal of the record produced by parties, in my view
both the executors who were alleged to have been appointed by
the said deceased in the Will in question have not come forward
to act as an executors. Though this Court had passed an order
impleading the executors with a view to ascertain whether any of
those executors who would act as executor or would renounce
the executorship, as far as Mr. Himanshu Kode is concerned, he
neither appeared before this Court nor filed any affidavit in
reply. There was no response given by Mr. Himanshu Kode to
any of the letters addressed by the petitioner. As far as Mr.
Diniar Mehta is concerned, he made a statement through his
counsel that he did not want to act as an executor in respect of
the Will in the form as annexed or produced with the petition by
the petitioner. Since Mr. Himanshu Kode has not come forward
to act as an executor though served with notice and proceedings
and since Mr. Diniar Mehta has refused to act as an executor in
respect of the Will in the form in which it is produced by the
petitioner, in my view in this situation, the beneficiary would
have been entitled to file a petition for Letters of Administration
with Will annexed. It is the case of the petitioner that since
none of the executors had come forward to act as executors
and in view of the erstwhile advocate filing a petition for
probate instead of filing petition for Letters of Administration,
petitioner had filed such proceedings. In my view, no prejudice
would be caused to the caveator if the petition filed for probate
is allowed to be converted into the petition for Letters of
Administration in the circumstances referred to above.
19. Supreme Court in case of Shambhu Prasad Agarwal has
considered a similar situation and has held that the petitioner in
that case who had filed a petition for probate instead of filing
petition for letters of administration would not be debarred to
get the petition for probate amended. The petitioner in that case
was a legatee and not an executor under the Will. It is held that
the legal heirs could file a petition for issuance of letters of
Administration even on the demise of the original petitioner and
in the interest of justice proceedings would not come to an end
and the appeal would not be dismissed merely on technical
ground. I am respectfully bound by the judgment of the Supreme
Court in case of Shambhu Prasad Agarwal (supra). In my view,
the judgment of Supreme Court in case of Shambhu Prasad
Agarwal (supra) squarely apply to the facts of this case.
20. In the facts of this case, it is clear that the petitioner who
claims to be the sole beneficiary under the Will in question is 69Signature Not Verified Signature Not Verified
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years old. On filing of the caveat and affidavit in support by the
caveator, petition for probate has been already converted into a
suit. Whether Will propounded by the petitioner was executed or
not or validly attested or not would be an issue which would be
tried at the time of trial of the petition. Merely because a
probate petition is allowed to be converted into a petition for
Letters of Administration with Will annexed, it would not prove
the existence and/or execution of the Will in question. The
caveator who has disputed the Will would be entitled to treat the
caveat as well as affidavit in support of the caveat filed as
caveat and affidavit in support in the petition for Letters of
Administration with the Will annexed.”
5. Regard may also be made to the decision of this Court in the case of
Preethi Swaminathan v. State (NCT of Delhi)3, wherein, while allowing the
oral prayer of the petitioner to convert the probate petition into the one
seeking LoA, this Court has held as under:-
“9. Having heard learned counsel for the parties, this Court is of
the view that in the present case since respondent no. 4-Executor
had refused to act, the petitioner, who is one of the legatees is
entitled to maintain a petition for letters of administration with
Will annexed.
10. The Supreme Court in Vatsala Srinivasan v. Shyamala
Raghunathan, (2016) 13 SCC 253 has held that, probate and
letters of administration proceedings are similar in nature. It
has further been held that the essence of both the proceedings
is the same and they relate to ascertainment of genuineness
and authenticity of the Will. It was also held, following a
decision of the Gujarat High Court in Jadeja
PravinsinhjiAnandsinhji v. Jadeja MangalsinhjiShivsinhji, 1961
SCC OnLine Guj 62, that if the executor fails in his duty, any of
those whom he represents are entitled to intervene and carry on
the proceedings with a “formal modification” that the prayer be
read for letters of administration with the Will annexed.
***
3
2018 SCC OnLine Del 9949
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13. Consequently, the oral prayer of learned counsel for the
petitioner is allowed and the present petition is directed to be
converted into letters of administration with Will annexed, as
the executor had refused to act. This Court may mention that
its approach is in consonance with Sections 229 and 230 read
with Section 232 of Act, 1925……”
6. In fact, it is trite that, as far as possible, a substantive right should not
be allowed to be defeated on account of a procedural defect which is
curable. Procedural irregularities which do not strike at the root of the matter
should not be permitted to frustrate a just cause. The Code of Civil
Procedure, 1908 bestows sufficient power in the hands of the Court to
ensure that injustice is not done to any party who has a legitimate case. (See:
United Bank of India v. Naresh Kumar & Ors4and Preethi Swaminathan
v. Govt. of NCT of Delhi & Ors.5).
7. Accordingly, in the interest of justice and in view of the judicial
precedents cited above, it is apposite to treat the instant petition as one
seeking issuance of LoA with the Will annexed.
BRIEF FACTS
8. The facts of the case would indicate that late Shri Ram Lal, the
Testator, died on 26.09.2001. He was survived by his four sons. The
pedigree of late Shri Ram Lal (Testator), is set out as follows:-
4
(1996) 6 SCC 660
5
2018 SCC OnLine Del 9949
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Late Shri Ram Lal (Testator)
(Expired on 26.09.2001)Surinder Mohan Joginder Mohan Davinder Mohan
Sri Krishan
(Respondent No. (Respondent No. (Respondent No.
(Petitioner)
2) 3) 4)
(i) Sneh Prabha
Arora (died on
31.05.2023)
(ii) Mrs. Anamika
Kapoor
(iii) Animesh
Arora
9. The petitioner is one of the sons of late Shri Ram Lal, who was a
permanent resident of Property No. 22, Paschimi Marg, Vasant Vihar, New
Delhi (hereinafter referred to as “the subject property”). At the time of his
death, late Shri Ram Lal was the exclusive owner of the subject property. It
is stated that he left behind a duly executed Will dated 12.06.2000,
witnessed by two persons, namely Mr. Ashok Kumar Goel and Mr. Suman
Nayyar. In the said Will, Dr. R.S. Chaudhary was appointed as the Executor.
10. It is stated that by way of the said Will, late Shri Ram Lal had desired
that the subject property be bequeathed in the manner stipulated in the Will,
where the petitioner is one of the beneficiaries. The wife of late Shri Ram
Lal had already pre-deceased him on 18.11.1988.
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11. On 05.10.2005 i.e., around four years after the demise of late Shri
Ram Lal, it is stated that the petitioner approached Dr. R.S. Chaudhary
requesting him to fulfil his obligations as Executor by signing and filing the
probate petition relating to the Will of late Shri Ram Lal. However, Dr. R.S.
Chaudhary expressed his inability to conduct the aforesaid exercise citing
health issues and the same was communicated to the petitioner vide response
letter dated 07.10.2005.
12. Consequently, the petitioner, being one of the beneficiaries under the
Will and upon refusal of the Executor, filed the present petition seeking
grant of probate. The respondent Nos. 2 to 4, while contesting the Will, filed
their objections, inter alia alleging that the Will was fabricated and the
Testator was of unsound mind at the time of execution, besides suffering
with old age, cataract, and dependent on regular blood transfusions.
13. Based on the pleadings, the following issues were framed on
19.02.2007:-
o “Whether the petition is liable to be rejected for non-
compliance of Section 281 of the Indian Succession Act? –
OPD-1o Whether the petition is barred by limitation and liable to be
dismissed on the ground of laches, acquiescence and
waiver? – OPD-1o Whether Shri Ram Lal left behind any validly executed last
Will dated 12.06.2000? – OPPSignature Not Verified Signature Not Verified
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o Whether the document dated 12.06.2000 bequeaths any
property or can be termed as a Will? – OPD-2o Relief”
14. However, issue nos. 1 and 4 were decided as preliminary issues in
favour of the petitioner vide order dated 15.03.2007. In the said order, the
Court also framed the following additional issue:
o “Whether Sh. R.S. Chaudhary, executor of the purported
Will as refused to present the petition and therefore, the
petition filed by the petitioner is maintainable? OPP”
15. Being aggrieved by the findings in the order dated 15.03.2007,
respondent No.4 preferred an appeal being FAO (OS) No. 301/2007.
However, the same was dismissed on 14.08.2007 and the order dated
15.03.2007 was upheld by the Division Bench of this Court.
16. In evidence, the petitioner appeared as PW-1 and examined attesting
witnesses PW-2 Mr. Ashok Kumar Goel and PW-3 Mr. Suman Nayyar, both
of them deposed in support of the execution of the Will. Several documents
were exhibited, while others were marked for identification.
17. Respondent No. 2, Surinder Mohan Arora, filed an affidavit and was
partly cross-examined before suffering a stroke. Respondent Nos. 3 and 4
also deposed and produced documents supporting their respective stands.
SUBMISSIONS ON BEHALF OF THE PETITIONER
18. Mr. Sanjeev Mahajan, learned counsel appearing on behalf of the
petitioner submitted as follows:
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18.1 The Will dated 12.06.2000 was validly executed and duly
attested in accordance with law. Both attesting witnessesPW-2 Mr. Ashok
Kumar Goel and PW-3 Mr. Suman Nayyartestified that they witnessed
the Testator, late Shri Ram Lal, sign each page of the Will, write his name
and particulars, and then sign in their presence. Mr. Goel signed the Will
after the Testator, and Mr. Nayyar signed thereafter, completing the
formal requirements under the Succession Act.
18.2 The execution of the Will stands duly proved through their un-
impeached testimonies. Further, respondent No. 3, Shri Joginder Mohan
Arora, has admitted the signature of late Shri Ram Lal on the last page of
the Will as well as the signature of Mr. Ashok Kumar Goel. His only
assertion, that Mr. Nayyar signed subsequently, remains unsubstantiated
and is contradicted by the consistent and corroborated testimonies of the
attesting witnesses.
18.3 On the issue of the Testator’s mental and physical condition, he
emphasized that there is no evidence on record to support the
respondents’ allegations that late Shri Ram Lal was unfit to execute a
Will. In fact, the evidence is to the contrary. The Testator was suffering
from bone marrow depression, which necessitated regular blood
transfusions, but this condition did not impair his mental soundness.
Respondent No. 4 initially claimed that the Testator was unable to see
properly; however, during cross-examination on 31.01.2009, he admitted
that the Testator could see properly post-cataract surgery.
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18.4 While relying on the decision of this Court in Rajesh Sharma
v. Krishan Kumar Sharma6, he contended that physical illness alone does
not amount to mental incapacity, and thus does not invalidate a Will.
18.5 Further, substantiating the Testator’s competence, Ex. PW-1/15
would show that late Shri Ram Lal executed a conveyance deed himself
and appeared before the Sub-Registrar. This act reinforces his ability to
understand legal processes and indicates that he was of sound mind.
18.6 There are no suspicious circumstances surrounding the
execution of the Will. The respondents have failed to produce any
credible evidence in support of their allegations of forgery or undue
influence. Despite furnishing a list of ten main witnesses and official
witnesses, only one individual, Ravi Malhotra, was produced by
respondent No. 2, and his testimony does not support their case.
18.7 The Will contains clear and reasoned exclusion of respondent
Nos. 2 to 4. It records that due to strained relationships and lack of
financial or emotional support, late Shri Ram Lal consciously decided to
exclude them. He did, however, provide for reimbursement of partial
construction costs (after deducting House Rent Allowance received) only
to respondents No. 2 and 3.
18.8 The notes and writings of Shri Ram Lal–admitted by
respondent No. 4reveal his clear intentions and form a contemporaneous
record of his decision-making. These documents, marked as Exhibits PW-
1/14, PW-1/22, PW-1/23, PW-1/25, PW-1/26 and PW-1/29, reinforce the
rationale behind the distribution of his estate.
6
FAO 641/2002
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18.9 The Testator was denied the right to occupy his own house.
Respondent Nos. 2 and 4 took possession of the subject property without
informing him around 1992-93. Despite earning House Rent Allowance
and residing in his property, they neither offered to contribute to property
tax nor spent any money on the welfare of late Shri Ram Lal or his wife.
As a result of this conduct, late Shri Ram Lal had to leave his own house
and stay with the petitioner in Bokaro, which further demonstrates the
neglect and disinterest shown by respondent Nos. 2 to 4.
18.10 The delay in seeking probate was explained on the ground that
Dr. R.S. Chaudhary, the named executor, did not file for probate due to ill
health and subsequently passed away in December 2007, making the
present LoA petition necessary.
18.11 On the question of limitation, it was submitted that while no
specific period of limitation applies to such petitions, Article 137 of the
Limitation Act, 1963 (―Limitation Act“) prescribes a three-year period
from when the right to apply accrues. The cause of action arose on
18.08.2004, when the respondents disputed the Will, and the petition,
filed on 18.10.2005, falls well within the prescribed limitation.
18.12 The letter dated 01.10.2001 written by the petitioner to the
MCD would show that the Will was propounded immediately after the
demise of the Testator. In the said letter, copy of the Will as well as the
death certificate issued by the Hospital was enclosed.
18.13 The allegation of irregularity of page numbers, font and spacing
in the Will does not hold any ground, inasmuch as, the Will was prepared
by the typewriter, probably over a period of days. The document made by
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the typewriter is distinct from the one prepared with the help of computer
as the latter maintains uniformity unlike the former.
18.14 The credibility of the petitioner’s witnesses cannot be
undermined merely due to their association with the Testator. Learned
counsel drew the attention of the Court to the decisions in Madhukar D.
Shende v. Tarabai Aba Shedage7, Budh Singh v. Raghubir Singh8, and
P. Subramanian v. Ramachandran9, to submit that familial relationships
do not, by themselves, taint credibility when the testimony is otherwise
consistent.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
19. On the contrary, Mr. B. K. Sood, learned counsel for respondent
No.2(ii) has advanced the following submissions:
19.1 The present petition for grant of probate is barred by limitation
and is liable to be dismissed at the threshold. The purported Will sought
to be probated is dated 12.06.2000, while the Testator, late Shri Ram Lal,
passed away on 26.09.2001. However, the petition seeking probate was
filed only on 24.10.2005, which is much beyond the statutory period of
limitation prescribed under Article 137 of the Limitation Act.
19.2 The right to apply for probate accrues when the petitioner first
acts upon the Will or asserts a right under it. In the instant case, the
petitioner wrote to the Municipal Corporation of Delhi on 01.10.2001,7
(2002) 2 SCC 85
8
2015 SCC OnLine Del 14528
9
1995 SCC OnLine Ker 171Signature Not Verified Signature Not Verified
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seeking mutation of property based on the said Will and annexed a copy
of the death certificate, which was issued only on 05.10.2001. This
discrepancy strongly suggests that the letter was either fabricated or
backdated, thus involving a deliberate act of misrepresentation. Therefore,
the right to apply accrued in 2001 itself, making the petition filed in 2005
ex facie barred by limitation.
19.3 The petitioner has neither filed any application seeking
condonation of delay nor offered any cogent explanation for the lapse of
more than four years. The conduct of the petitioner clearly reflects that he
was fully aware of the Will’s contested nature since the beginning. The
petitioner himself admits to discussing the Will with his brothers multiple
times between 2002 and 2005 but failed to provide them a copy of the
same despite repeated requests. These discussions not only reflect the
knowledge of the Will but also confirm the existence of disputes among
the heirs during the said period, which triggered the limitation.
19.4 The alleged Will dated 12.06.2000 is shrouded in suspicious
circumstances and has not been validly proved in accordance with the
Succession Act. The petitioner, being the sole beneficiary, had a dominant
role in the execution and has failed to discharge the heavy burden of
proving the genuineness and due execution of the Will, especially given
the unnatural exclusion of all other heirs.
19.5 The attesting witnesses to the Will were not familiar with the
Testator but were closely associated with the petitioner, thereby raising
questions about their impartiality. Their testimonies suffer from internal
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contradictions concerning the date, place, and manner of execution, which
seriously undermine the credibility of the alleged Will.
19.6 The factum of the death of Dr. R.S. Chaudhary, the executor
named in the Will, was brought to the notice for the first time only in the
written submissions filed by the petitioner and no document is placed on
record to that effect.
19.7 There is an unexplained absence of any contemporaneous
documentation or communication that would affirm the existence or
acknowledgment of the Will during the Testator’s lifetime or immediately
after his death. The petitioner has also failed to produce any such records,
even though he claims to have been in possession of the Will for several
years prior to initiating the probate proceedings.
19.8 The language of the Will indicates strained family
relationships, yet no independent evidence has been presented to
substantiate such claims. On the contrary, credible material shows that the
Testator maintained cordial relations with all family members, thereby
rendering the purported disinheritance unnatural and suspicious.
19.9 The advanced age and deteriorating health of the Testator at the
time of the Will’s execution severely compromised his testamentary
capacity. The Testator was 89 years old and suffering from significant
health issues. Despite claiming to have access to medical records, the
petitioner has not produced any evidence demonstrating that the Testator
was of sound and disposing mind at the relevant time. The Testator had
no sound disposition of mind as admittedly he was suffering from Bone
Marrow depression (MDS) requiring blood transfusion regularly, cataract,
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was not able to see, read and write except in bold letter, suffering from
Terminal Leukemia and Dementia. There is no satisfactory explanation or
clarification by the petitioner on all these aspects.
19.10 The Will was not registered, although the Testator registered a
conveyance deed two months later. The decision not to register the Will,
despite its crucial importance and the registration of other documents
during the same period, adds another layer of suspicion regarding its
authenticity.
19.11 The Executor’s non-appearance in the proceedings and his
stated lack of knowledge about the Will until shortly before the filing of
the probate petition further reinforce the conclusion that the Will was not
acted upon contemporaneously. The attesting witnesses’ inconsistencies
and their evident bias towards the petitioner makes their testimonies
wholly unreliable.
19.12 The complete exclusion of the Testator’s other children without
any credible explanation is not only unnatural but indicative of undue
influence. The overall tenor of the Will, coupled with the petitioner’s
dominant position, suggests coercion and manipulation in its execution.
19.13 The document being alleged Will, having been written in a very
haphazard manner with different pagination, blank spaces and no
continuity, raises a cloud of suspicion and demonstrates that the Will was
forged. More so, the said Will was never communicated by the petitioner
to any of the brothers or family members.
19.14 In the cross examination, it has been admitted that the Testator
and his wife had cordial relations with all of their children, thereby, no
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reason is forthcoming as to why all other legal heirs have been deprived
of any bequest. The said contention is bolstered by the fact that all the
natural children had executed relinquishment deed in favour of Testator
for enabling him to get the plans for first floor sanctioned, which portions
were constructed by respondent nos. 2 and 4 out of their own funds.
19.15 The fact that the petitioner did not disclose the existence of the
purported Will when he found it in 2001, is contrary to natural human
conduct and creates doubt over the veracity of the purported Will.
19.16 In light of the above, the Will is riddled with suspicious
circumstances, and the petitioner has failed to remove those suspicions or
prove due execution as mandated under law. Reliance is placed on the
judgments of the Supreme Court in H. Venkatachala Iyengar v. B.N.
Thimmajamma10, and Janki Narayan Bhoir v. Narayan Namdeo
Kadam11, wherein it was held that mere proof of signature is not sufficient
and that all suspicious circumstances must be fully dispelled before a Will
can be accepted as valid.
19.17 He, therefore, concluded that the Will has not been duly
proved, the petition is hopelessly barred by limitation, and the conduct of
the petitioner points to a calculated suppression of material facts. The
petition, therefore, deserves to be dismissed in limine.
20. Mr. Aditya Wadhwa, learned counsel for respondent No. 2(ii), Mr.
J.R. Mathur, learned counsel for respondent No. 3 and Ms. Maldeep Sidhu,
10
AIR 1959 SC 443
11
(2003) 2 SCC 91
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learned counsel for respondent No. 4, while adopting the aforesaid
submissions, additionally submitted as under:
20.1 Since the status quo of the subject property was in direct
challenge to the effect of the purported Will right from the date of death
of the Testator i.e., 26.09.2001, it was necessary for the petitioner to have
applied for a probate immediately at that time.
20.2 The Executor ought to have, at the very least, been called as a
witness to attest to his relationship with the Testator and his knowledge of
the purported Will. Curiously, despite the inclusion of the Executor’s
name in the list of witnesses on behalf of the petitioner, he was not
examined.
20.3 The petitioner had taken a prominent part in the execution of
the will to the exclusion of the other family members of the Testator,
which is a strong ground for inferring suspicious circumstances, as has
been held by the Division Bench of this Court in Raj Bala v. State &
Ors.1220.4 There are no particulars in the Will to demonstrate how the
balance sale proceeds are to be utilized, despite the Testator having
specifically directed the utilization thereof. This suggests that the Testator
had specific intentions for how the proceeds should be utilized, as
opposed to just being handed over to the petitioner, and that this portion
of the Will has been removed. Therefore, the said Will is uncertain in
material particulars and is void under Section 89 of the Succession Act.
12
MANU/DE/1789/2024
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20.5 The narration in a Will should be supported by independently
corroborated evidence. The petitioner has not provided any evidence
supporting the narration of events provided in the Will, most of which is
made up and bogus. In fact, no evidence has been led as to who drafted
the Will.
20.6 The attesting witnesses allegedly only added their signatures on
the last page of the purported Will, but did not read the contents thereof.
Since they failed to attest the contents of the purported Will, it becomes
invalid in light of the decision of this Court in Neeraj Katyal v. State13.
20.7 It was submitted on behalf of respondent No. 3 that the Will
propounded in the Court is not the same Will with which the Testator
went to the house of Mr. Ashok Kumar Aggarwal, one of the attesting
witnesses on 12.06.2000, along with respondent No. 2, Joginder Mohan
and the petitioner. The said Will ran into seven (7) pages only. Both the
attesting witnesses had stated that the Testator did not give page numbers
while signing the Will on each page, and there are other contradictions as
well in the testimony of both the attesting witnesses. For instance, PW 2,
during cross examination, firstly stated that PW-3 was his friend and
signed in his presence but later he stated that they were not friends.
Analysis
21. I have heard the learned counsel appearing on behalf of the parties
and perused the record.
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22. The issues which fall for consideration of this Court and which shall
be decided by the present judgment are enumerated as below-
I. Whether the petition is barred by limitation and liable to
be dismissed on the ground of laches, acquiescence and
waiver? – OPD-1
II. Whether Shri Ram Lal left behind any validly executed
last Will dated 12.06.2000? – OPP
III. Whether Sh. R.S. Chaudhary, Executor of the purported
Will has refused to present the petition and therefore, the
petition filed by the petitioner is maintainable? OPP
IV. Relief
Issue No. I
23. It has been strenuously argued by respondent Nos. 2 to 4 that the
present petition is barred by limitation and the same is liable to be dismissed
on the grounds of laches, acquiescence and waiver. Though the Succession
Act does not prescribe any specific period of limitation for filing a petition
seeking probate of a Will, however, it has been conspicuously settled
through judicial precedents that the limitation in such cases is governed by
Article 137 of the Limitation Act. Undisputedly, the said Article takes in its
sweep a petition seeking probate of a Will. As per this provision, a residual
limitation period of three years is envisaged, which commences from the
date when the right to apply for probate first accrues, as has been settled by
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the Supreme Court in the case of Kunvarjeet Singh Khandpur v. Kirandeep
Kaur and Others14.
24. Thus, what needs to be determined at the threshold is the date when
the right to apply for probate first accrued in favour of the petitioner. It
would be appropriate to lend credence to the decision of this Court in Amit
& Ors. v. State of NCT of Delhi & Ors.15, wherein, it was held that the need
to file the probate petition i.e., the cause of action to file the probate petition
arises when the subject Will is specifically denied by the objectors to the
notice/knowledge of the appellants/petitioners or their predecessor-in-
interest. The Court further highlighted that it is only upon the denial of the
validity etc. of the subject Will, as brought to the knowledge of the person
seeking probate, that the limitation would begin for filing of the probate
petition.
25. It is equally pertinent to refer to the decision of the Division Bench of
this Court in Anupam Mullick v. Raj Mullick16, which maintains the
position that non-filing of a probate petition by a legatee/executor for the
recognition of the right which has already vested in the legatee, would not
result in the said right getting destroyed on the ground of limitation. The
relevant paragraph of the said decision reads as under:-
“13. It is well-settled legal position that succession opens
immediately upon the death of the person, and the rights
in the property held by the deceased- whether he/she dies
intestate, or after making a will, devolve upon the
heirs/legatees immediately upon the occurrence of the14
(2008) 8 SCC 463
15
FAO No. 402/2015
16
2021 SCC OnLine Del 3544
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death of the person. Devolution of rights takes place by
operation of law, and is not dependent on any act of any
person-whether the heir/beneficiary, or the executor of
the will-if there is one left by the deceased. If the plea of
Mr. Sharma were to be accepted, it would mean that
non-filing of a probate petition by a legatee/executor for
the recognition of the right which has already vested in
the legatee, would result in the said right getting
destroyed on the ground of limitation, despite the estate
having already vested in the legatee. In our view, this
position cannot be accepted, and it is precisely for this
reason that the Supreme Court affirmed the decision of
the Bombay High Court, that an application to seek
Letters of Administration in respect of a will is only to
seek the Court’s permission to perform a legal duty
created by a will, or for recognition as a testamentary
trustee and is a continuous right which can be exercised
any time after the death of the deceased, as long as its
right to do so survives, and the object of the trust exists
or any part of the trust if created, remains to be
executed. No doubt, where such an application is moved
beyond a period of three years after the death of the
testator, the said delay may arouse suspicion and greater
the delay, greater would be the suspicion, but the mere
delay in approaching the Court cannot be treated as an
absolute bar on limitation. The decisions relied upon by
Mr.Sharma do not appear to have noticed these aspects,
including the ratio of the Supreme Court decisions in
Kunvarjeet Singh Khandpur (supra) and Krishan Kumar
Sharma (supra).”
26. In the present matter, it is the contesting respondents’ case that the
right to apply for probate had accrued when the petitioner wrote a letter to
the Municipal Corporation of Delhi on 01.10.2001 (Ex. PW 1/18) seeking
mutation of property based on the Will in question. Another contention
raised by the contesting respondents on this aspect is that since they were
not only occupying their respective portions in the subject property but also
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paying house tax and as such, they were projecting their ownership in rem,
the same was sufficient cause for the petitioner to apply for grant of probate
immediately after the Will came into his knowledge.
27. However, a careful examination of the assertions made by the
contesting respondents, when evaluated alongside the judicial precedents
discussed above, would manifest that none of these claims allude to a
relevant date from which the right to apply for probate could be said to have
accrued. For any date to trigger the clock of limitation, it must be shown that
the subject Will was expressly denied by the contesting respondents to the
notice/knowledge of the petitioner. However, any such express denial is
conspicuously missing from the evidence led by the respondents. Rather, the
events sought to be highlighted by respondent nos. 2 to 4 to suggest
commencement of the limitation period bear no relevance to the legal
requirements necessary to establish the accrual of the cause of action to
initiate probate proceedings. To curtail a vested right such as the one
involved in the present case on the ground of limitation certainly requires a
higher threshold and the conditions necessary for such curtailment must be
satisfied in strict terms. There is no scope for liberal construction of
circumstances or for indulging in an uncertain inferential exercise in such
cases. The denial and knowledge thereof must be proved in no uncertain
terms.
28. In the absence of any such repudiation, the only definitive act or
conduct denying the Will in a manner that was brought to the petitioner’s
knowledge is the legal notice dated 18.08.2004 (Ex. RW 1/10). It is only in
this notice, issued on behalf of one of the contesting respondents, that it was
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asserted for the first time that late Shri Ram Lal had died intestate and a
claim for partition was advanced. Thus, the effect of the Will was denied
and communicated for the first time in the said legal notice. It emerges from
the cross-examination of the petitioner that during the interregnum period
i.e., between 2002 to 2005, the petitioner had been engaged in talks with the
contesting respondents, in an attempt to amicably settle the issue.
29. As already mentioned above, only few days after the demise of the
Testator, the petitioner sent letter dated 01.10.2001 to the MCD notifying it
about the Testator’s death. This immediate administrative step negates the
claim that the petitioner sat on his rights or allowed time to lapse without
action. Thus, there does not appear to be any delay of such nature that could
invoke the doctrine of laches. Likewise, the concepts of waiver and
acquiescence are also not attracted in the facts and circumstances of the
present case. Waiver requires a voluntary and intentional surrender of a legal
right, which is clearly absent. The record would reflect that the petitioner
never renounced his entitlement under the Will.
30. In conclusion, the record establishes that the instant petition has been
filed well within the limitation period prescribed under Article 137 of the
Limitation Act,. The contesting respondents have failed to produce any
cogent evidence reflecting intentional delay or any abandonment of rights by
the petitioner which could frustrate the statutory limitation period.
Furthermore, the respondents have failed to discharge their evidentiary
burden in the instant issue as they could not bring any cogent evidence on
record to prove the denial of Will on their behalf and knowledge thereof to
the petitioner at any time prior to the legal notice, as mentioned above.
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Hence, the objection raised under issue No. I lacks merit and is decided in
favour of the petitioner and against the contesting respondents.
Issue No. II
31. Having decided issue No. I in favour of the petitioner to the extent
that the instant petition is not barred by limitation, the Court shall now
proceed to determine the next issue which would answer as to whether late
Shri Ram Lal had left behind any validly executed last Will dated
12.06.2000.
32. However, before delving into the law relating to Will and examining
the merits of the case at hand, it is expedient to clarify the limited scope of
inquiry before the probate Court. The jurisdiction of probate Court is
confined to determining the question as to whether the document put
forward as the last Will and testament of the deceased was duly executed
and attested in accordance with law. In addition to the above, the Court has
to assess whether, at the time of execution, the Testator had sound disposing
mind. However, the question whether a particular bequest is good or bad is
not within the purview of the probate Court. Put differently, a probate Court
in the proceedings before it, only has to determine the genuineness and due
execution of the Will and to preserve the original Will in its custody. The
contents of the Will pertaining to the respective shares of the heirs and
manner of bequest are not the facts in issue before a probate Court, however,
they may be relevant for determining the element of suspicion with respect
to a Will sought to be proved, as discussed below.
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33. The principles regarding the nature of proof required to prove a Will
have been succinctly elucidated by the Supreme Court in the case of Shiva
Kumar v. Sharanabasappa17. The relevant excerpt thereof reads as under:
“12. For what has been noticed hereinabove, the relevant principles
governing the adjudicatory process concerning proof of a will could be
broadly summarised as follows:
12.1. Ordinarily, a will has to be proved like any other document; the
test to be applied being the usual test of the satisfaction of the prudent
mind. Alike the principles governing the proof of other documents, in
the case of will too, the proof with mathematical accuracy is not to be
insisted upon.
12.2. Since as per Section 63 of the Succession Act, a will is required to
be attested, it cannot be used as evidence until at least one attesting
witness has been called for the purpose of proving its execution, if there
be an attesting witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it speaks from the death of the
testator and, therefore, the maker thereof is not available for deposing
about the circumstances in which the same was executed. This
introduces an element of solemnity in the decision of the question as to
whether the document propounded is the last will of the testator. The
initial onus, naturally, lies on the propounder but the same can be
taken to have been primarily discharged on proof of the essential facts
which go into the making of a will.
12.4. The case in which the execution of the will is surrounded by
suspicious circumstances stands on a different footing. The presence of
suspicious circumstances makes the onus heavier on the propounder
and, therefore, in cases where the circumstances attendant upon the
execution of the document give rise to suspicion, the propounder must
remove all legitimate suspicions before the document can be accepted
as the last will of the testator.
12.5. If a person challenging the will alleges fabrication or alleges
fraud, undue influence, coercion et cetera in regard to the execution of
the will, such pleas have to be proved by him, but even in the absence of
such pleas, the very circumstances surrounding the execution of the
will may give rise to the doubt or as to whether the will had indeed
been executed by the testator and/or as to whether the testator was
acting of his own free will. In such eventuality, it is again a part of the
initial onus of the propounder to remove all reasonable doubts in the
matter.
17
(2021) 11 SCC 277
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12.6. A circumstance is “suspicious” when it is not normal or is “not
normally expected in a normal situation or is not expected of a normal
person”. As put by this Court, the suspicious features must be “real,
germane and valid” and not merely the “fantasy of the doubting mind”.
12.7. As to whether any particular feature or a set of features qualify as
“suspicious” would depend on the facts and circumstances of each
case. A shaky or doubtful signature; a feeble or uncertain mind of the
testator; an unfair disposition of property; an unjust exclusion of the
legal heirs and particularly the dependants; an active or leading part
in making of the will by the beneficiary thereunder et cetera are some
of the circumstances which may give rise to suspicion. The
circumstances abovenoted are only illustrative and by no means
exhaustive because there could be any circumstance or set of
circumstances which may give rise to legitimate suspicion about the
execution of the will. On the other hand, any of the circumstances
qualifying as being suspicious could be legitimately explained by the
propounder. However, such suspicion or suspicions cannot be removed
by mere proof of sound and disposing state of mind of the testator and
his signature coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the will of the testator is
surrounded by suspicious circumstance(s). While applying such test,
the court would address itself to the solemn questions as to whether the
testator had signed the will while being aware of its contents and after
understanding the nature and effect of the dispositions in the will?
12.9. In the ultimate analysis, where the execution of a will is shrouded
in suspicion, it is a matter essentially of the judicial conscience of the
court and the party which sets up the will has to offer cogent and
convincing explanation of the suspicious circumstances surrounding
the will”
34. Furthermore, while relying on a series of its earlier decisions, the
Supreme Court in the case of Meena Pradhan v. Kamla Pradhan18, has
summarized the following principles required for proving the validity and
execution of the Will:-
“10.1. The court has to consider two aspects : firstly, that the will is
executed by the testator, and secondly, that it was the last will
executed by him;
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10.2. It is not required to be proved with mathematical accuracy, but
the test of satisfaction of the prudent mind has to be applied.
10.4. 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;
10.5. The attesting witness should speak not only about the testator’s
signatures but also that each of the witnesses had signed the will in
the presence of the testator;
10.6. If one attesting witness can prove the execution of the will, the
examination of other attesting witnesses can be dispensed with;
10.7. 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;
10.8. Whenever there exists any suspicion as to the execution of the
will, it is the responsibility of the propounder to remove all
legitimate suspicions before it can be accepted as the testator’s last
will. In such cases, the initial onus on the propounder becomes
heavier.
10.9. The test of judicial conscience has been evolved for dealing
with those cases where the execution of the will is surrounded by
suspicious circumstances. It requires to consider factors such as
awareness of the testator as to the content as well as the
consequences, nature and effect of the dispositions in the will; sound,
certain and disposing state of mind and memory of the testator at the
time of execution; testator executed the will while acting on his own
free will;
10.10. 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.
10.11. Suspicious circumstances must be “real, germane and valid”
and not merely “the fantasy of the doubting mind
[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] “. Whether a
particular feature would qualify as “suspicious” would depend on
the facts and circumstances of each case. Any circumstance raising
suspicion legitimate in nature would qualify as a suspicious
circumstance, for example, a shaky signature, a feeble mind, an
unfair and unjust disposition of property, the propounder himself
taking a leading part in the making of the will under which he
receives a substantial benefit, etc.”
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35. The aforesaid principles would be fundamental in determining the
validity and due execution of the Will dated 12.06.2000, which has been
propounded by the petitioner. As per the settled jurisprudence, it is for the
propounder to show that (i) the Will was signed by the Testator; (ii) that the
Testator was in sound disposing state of mind at the relevant time; (iii) that
he understood the nature and effect of the deposition; (iv) that he put his
signatures to the testament on his own free will and signed the testament in
the presence of two attesting witnesses who attested the Will in the presence
of the Testator and in presence of other attesting witnesses. The onus of the
propounder is discharged, once these elements are established. However, in
case where it is alleged that the Will is shrouded by some suspicious
circumstances, the onus on the propounder of the Will becomes heavier as
he has to remove the suspicion hovering over the Will. It was held
in Meenakshiammal (dead) through LRS. v. Chandrasekaran19, that
suspicious circumstance cannot be defined precisely, nor enumerated
exhaustively and must depend on the facts of each case. Having said that, it
needs to be noted that in a case wherein undue influence, fraud, forgery etc.
is alleged, it falls upon the person alleging the same to prove it on the basis
of cogent evidence. Thus, there is distinction in terms of the evidentiary
burden to be discharged by the parties in a probate case. Whereas, the
burden to dispel the suspicious circumstances concerning the Will is to be
discharged by the propounder of the Will; however, the burden to prove the
judicially determinable elements of undue influence, fraud, forgery etc. qua
the Will in question falls upon the person who alleges the same.
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36. The due execution of Will ought to be in compliance of Section 63 of
the Succession Act, which mandates that a Will must be signed by the
Testator and attested by at least two witnesses, each of whom must have
seen the Testator sign and must themselves sign in the Testator’s presence.
Section 68 of the Indian Evidence Act, 1872 further requires that at least one
attesting witness must be examined to prove the execution. In the present
case, both attesting witnessesPW-2, Mr. Ashok Kumar Goel, and PW-3, Mr.
Suman Nayyarhave deposed unequivocally that the Will was signed by Shri
Ram Lal in their joint presence, and that each signed it thereafter, also in
each other’s and the Testator’s presence.
37. PW-2, Mr. Ashok Kumar Goel, testified that the Testator visited his
residence on 12.06.2000 along with PW-3. He confirmed that late Shri Ram
Lal signed the Will in his presence, after which PW-2 and then PW-3
attested it. The attestation by the attesting witnesses also took place in the
presence of the Testator. In cross-examination, PW-2 remained unshaken
and consistently affirmed that the Testator appeared mentally sound and
physically well at the time of execution. He rejected all suggestions that the
Will was fabricated or improperly witnessed.
38. PW-3, Mr. Suman Nayyar, corroborated the entire sequence of events.
He confirmed his presence at the time of execution, verified the signatures,
and affirmed that the Testator was alert, coherent, and in full possession of
his faculties. The consistency in their accounts, and the absence of
contradictions during cross-examination, lends significant weight to their
testimonies and eliminates any suggestion of coercion or irregularity. Even
if the argument of the contesting respondents is accepted on the face of it,
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that PW-3 signed later, suffice to note that in terms of the decision of this
Court in Balbir Sher Gill v. State of Delhi & Ors.20, it is not necessary for
both the attesting witnesses to be present at the same time.
39. Further, the validity of the Will dated 12.06.2000 has been challenged
on the grounds that the Testator, late Shri Ram Lal, was of unsound mind at
the time of execution and that the Will is fabricated and unnatural. However,
before considering the credibility of these allegations, it is necessary to go
through the recitals of the Will itself, particularly the reasoning recorded by
the Testator for making a substantial part of bequest in favour of his
youngest son, the petitioner. The Will, spanning multiple pages, is exhibited
as Ex. PW-2/1 and does not appear to be a perfunctory document. It
meticulously adumbrates the deteriorated familial relations and specific
incidents that compelled the Testator for a disproportionate division amongst
his sons. These contemporaneously recorded statements are essential for
evaluating whether the Will was executed voluntarily and without undue
influence or under suspicious circumstances.
40. From pages 5 to 13 of the Will, late Shri Ram Lal explains in detail
the reasons for disinheriting his three elder sons. He records that after the
passing away of his wife, although all three elder sons resided in Delhi, none
offered him a place to live. In contrast, the petitioner, despite having the
most family obligations, took him to Bokaro and cared for him. While the
Testator was away, respondents No. 2 and 4 occupied the subject property
without permission and later refused to vacate, even after being repeatedly
asked to do so. The Will narrates a series of deeply personal
20
2019:DHC:3232
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grievancesfinancial neglect, disrespectful behaviour by daughters-in-law,
and a physical altercation among the sons that left one injured. A
particularly distressing incident involved respondent No. 2’s wife, who
demanded the return of Rs. 1000/- within three days towards payment for a
CT scan for the Testator’s ailing wife. The Will describes the emotional
trauma caused by such incidents and states unambiguously that the Testator
was denied the basic dignity of residing in his own self-acquired home. The
decision to bequeath the property substantially to the petitioner
unequivocally appears to be a well-considered response to years of neglect,
rather than an impulsive or suspicious act.
41. The contesting respondents’ claim that these reasons are
unsubstantiated lacks merit, as handwritten contemporaneous notes of the
testator (Exhibits PW-1/22, PW-1/23, PW-1/24, PW-1/25, PW-1/26 and
PW-1/29) independently support the narrative provided in the Will. There is
no cross examination in respect of these handwritten notes by the contesting
respondents. Rather, respondent No. 4 in his cross examination affirms that
the said notes are in the handwriting of the Testator. Thus, the respondents
have neither endeavoured nor succeeded in impeaching the credibility of the
said handwritten notes during cross-examination or otherwise.
42. The contesting respondents have also argued that the cordial
relationship amongst family members renders the exclusion unnatural. Yet,
substantial documentary evidence, including the aforementioned letters from
the Testator, explicitly contradicts these claims, clearly demonstrating
strained family dynamics. The isolated fact of a relinquishment deed,
previously executed by the sons for building permissions, is irrelevant to the
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testamentary intent, which specifically relates to emotional support and care,
not property contributions alone.
43. In any event, in the case of S.Sundaresa Pai v. Sumangala T. Pai21,
the Supreme Court has unambiguously held that uneven distribution of
assets amongst children, by itself, cannot be taken as a circumstance causing
suspicion surrounding the execution of the will. A similar view was taken by
the Supreme Court in Ramabai Padmakar Patil (Dead) through
LRS. v. Rukminibai Vishnu Vekhande22, deciding that the mere fact that
entire property was given to only one of the natural heirs, widowed
daughter, to the exclusion of others, is not a suspicious circumstance when it
was done with a view to make provision for the widow who had been left
destitute at an early age.
44. As far as the allegation of the Testator’s mental incapacity is
concerned, it is a settled principle that the burden of proving unsoundness of
mind lies upon the person asserting it. The contesting respondents have not
produced any medical records, expert testimony, or direct evidence to
support their claim. Instead, they rely on the Testator’s age, a history of
periodic blood transfusions, and general physical debility. However, none of
these factors are sufficient to establish legal incapacity. In Rajesh Sharma v.
Krishan Kumar Sharma23, this Court, while rejecting the contention that 12
years of illness would prejudice a sound disposing mind, held that before
holding a person to be of unsound mind, there must be sufficient medical
record showing the lack of soundness of mind on the anvil of preponderance
21
(2002) 1 SCC 630
22
(2003) 8 SCC 537
23
FAO 641/2002
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of probabilities. Therefore, it is not prudent to equate physical illness to
mental incompetence. Testamentary capacity requires that the Testator
understands the nature of the act and its consequencessomething which is
clearly evident in the facts of the case at hand.
45. Further, the Testator’s active legal conduct post-execution of the Will
strongly indicates mental competence. He personally executed and
registered a conveyance deed concerning the same property after the date of
the Will. This document, marked as Ex. PW-1/15, along with conversion
challans (Ex. PW-1/16 and PW-1/17), confirms that he remained capable of
managing legal affairs and appeared before the Sub-Registrar to complete
formalities. The execution of such a document post-Will significantly
reinforces the presumption of testamentary capacity. Notably, the
respondents have projected this instance as one raising a doubt over the Will
by contending that since the Testator stepped out for registration of the
conveyance deed at a subsequent stage, he could also have stepped out for
the registration of the Will in question. Thus, it has been contended, the Will
was not executed by him. In the considered opinion of this Court, based on
the unrebutted oral and documentary evidence on record, the said
circumstance does not turn the case in favour of the respondents. For, the
Testator was under no legal or statutory obligation to register the Will in
question. No adverse inference could be drawn on this basis, especially
when the inference is not supported by surrounding evidence.
46. Moreover, PW-2, who is also a medical practitioner, testified
specifically that Shri Ram Lal was in a sound state of mind and physically
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stable on the date of execution. His medical opinion, given during cross-
examination, was clear and unambiguous:
“The testator was in a sound state of mind as well as physically fit.”
47. The objection regarding poor eyesight due to cataract is equally
misplaced. Respondent No. 4 himself admitted during cross-examination
that the testator underwent successful surgery and was able to see properly
thereafter. This is further corroborated by the medical record dated
21.09.1999, evidencing the completion of cataract treatment well before the
execution of the Will.
48. Notably, the respondents’ own case is marred by contradictions.
Initially, they claimed that the Testator required blood transfusions every
three weeks, implying physical weakness. Later, they shifted their claim to
allege that he was suffering from terminal leukaemia. Neither assertion is
supported by medical evidence nor documentation which could show that
the said illness had any effect over the mental soundness of the Testator. The
shifting narrative only weakens their credibility and suggests a post hoc
attempt to discredit the Will without factual basis.
49. Another allegation that the Will is fabricated due to typographical
discrepancies ignores practical realities of typewritten documents, especially
lengthy ones prepared over multiple sittings. Such minor inconsistencies
paradoxically affirm authenticity, rather than forgery, as a forged document
would likely exhibit uniform formatting. There does not appear to be any
glaring discrepancy in the writing of the Will which could invalidate the
Will itself. Insofar as the allegations of coercion or undue influence are
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concerned, no credible evidence has been led to substantiate the same except
bald assertions in that regard.
50. Much reliance has been placed on the letter dated 01.10.2001 being
PW-1/18, addressed to the MCD by the petitioner, to contend that when the
death certificate was itself issued by the Government of NCT of Delhi on
05.10.2001, there did not lie any opportunity for the petitioner to enclose the
same in the letter which was sent prior in time. However, it came to be
explained by the petitioner that the death certificate mentioned in the said
letter relates to the death certificate issued by the hospital and not the one
dated 05.10.2001, which was issued subsequent to obtaining the certificate
from the hospital. A perusal of the said letter would indicate that the same
only mentions ―death certificate‖ as one of the enclosed documents.
Therefore, it would be incorrect to proceed merely on an assumption that the
same hinted towards a document which was not issued at the extant point of
time.
51. In light of the above, the Will dated 12.06.2000 stands duly proved
both in terms of execution and the Testator’s mental capacity. The petitioner
has discharged the burden of proof through credible and consistent evidence,
while the objectors have failed to substantiate their allegations. The
circumstances raised by the respondents, purportedly as suspicious
circumstances, have been duly explained by the petitioner and no element of
suspicion survives so as to draw any adverse inference against the execution
of the Will or mental capacity of the Testator. Accordingly, the Issue No. II
is also decided in favour of the petitioner.
Issue No. III
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52. This issue relates to the maintainability of the present petition. Under
the Succession Act, an Executor named in a Will holds the primary duty and
responsibility to seek probate of the Will. However, if the named Executor
refuses, or is unable to perform his legal obligations due to circumstances
such as ill health or death, the Succession Act clearly permits a beneficiary
or interested person under the Will to initiate proceedings for issuance of
LoA.
53. As already mentioned in the preface part of this judgment, though the
present petition ought to have been filed seeking issuance of LoA but the
said deficiency would not lead to the dismissal of the petition itself,
particularly at this stage. For the sake of brevity, the law on this aspect is not
reiterated.
54. As a matter of fact, in the present case, the Executor explicitly named
in the Will dated 12.06.2000 was Dr. R.S. Chaudhary. The record
conclusively demonstrates that Dr. Chaudhary, citing health concerns,
formally expressed his inability to file and contest the probate petition.
Specifically, vide letter dated 07.10.2005 (Ex. PW-1/1), Dr. Chaudhary
unambiguously stated that due to personal health constraints, he could not
undertake the probate proceedings. This written communication, duly
exhibited and proved on record, constitutes a clear and categorical refusal on
the part of the Executor, satisfying the statutory pre-condition for allowing a
beneficiary to step into the shoes of the Executor.
55. Further reinforcing this position, it was also brought to the knowledge
of this Court by the petitioner that subsequently, Dr. Chaudhary passed away
in December, 2007. This event rendered his participation permanently
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impossible. While the respondent Nos. 2 to 4 have contested the delay in
disclosing the Executor’s death, they have not materially contradicted the
authenticity or substance of Dr. Chaudhary’s refusal letter, nor have they
disproved his eventual demise.
56. The petitioner, who is explicitly named beneficiary under the Will, is
thus legally competent and statutorily permitted to pursue this petition upon
refusal or incapacity of the Executor, as per settled provisions under the
Succession Act. Hence, the refusal of the Executor having been established
by the documentary evidence on record (the Executor’s letter) and further
supported by subsequent events (the Executor’s death), the present petition
filed by the petitioner is entirely lawful and maintainable.
57. Thus, issue No. III is affirmatively answered in favour of the
petitioner, holding clearly that Dr. R.S. Chaudhary, the Executor, had indeed
refused to present the petition, and consequently, the present petition by the
petitioner is legally maintainable.
58. Before moving to the issue No. IV i.e., Relief, it is imperative to
highlight the dictum laid down in the case of Leela Rajagopal v. Kamala
Menon Cocharan24, which reinforces the position that in reaching any
conclusion on the validity of the Will, what weighs with the Court is the
cumulative effect of all the alleged unusual features put together, and not the
impact of any single feature that may be found in a Will. The conclusion of
the Court is to be based on the satisfaction of judicial conscience on a
comprehensive examination of the circumstances alleged to be suspicious
and the explanation tendered by the propounder of the Will. No rigid rule
24
(2014) 15 SCC 570
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can be laid down in matters which are of inferential character, based on
judicial conscience and satisfaction of the Court, and not on direct evidence.
Paragraph 13 of the said decision reads as under:-
“13. A will may have certain features and may have been executed in
certain circumstances which may appear to be somewhat unnatural.
Such unusual features appearing in a will or the unnatural
circumstances surrounding its execution will definitely justify a close
scrutiny before the same can be accepted. It is the overall assessment
of the court on the basis of such scrutiny; the cumulative effect of the
unusual features and circumstances which would weigh with the
court in the determination required to be made by it. The judicial
verdict, in the last resort, will be on the basis of a consideration of
all the unusual features and suspicious circumstances put together
and not on the impact of any single feature that may be found in a
will or a singular circumstance that may appear from the process
leading to its execution or registration. This, is the essence of the
repeated pronouncements made by this Court on the subject
including the decisions referred to and relied upon before us.”
Issue No. IV
59. In view of aforementioned discussion, there does not seem to be any
other Will after the Will dated 12.06.2000. The same is, thus, found to be the
last Will and testament in terms of the requirement of Section 276 of the
Succession Act. The death certificate, as has been noted hereinabove, is also
not disputed. The Court, thus, finds that the said Will is a legally executed
document, and on the basis thereto, the petitioner is entitled to issuance of
LoA with respect to the Will dated 12.06.2000.
60. Upon cumulative appraisal of the material on record and the
submissions made by the parties, the following factual position emerges:
i. Issue No. I – has been answered in the negative and is in favour of the
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as prescribed under Article 137 of the Limitation Act, 1963. The
contesting respondents have failed to produce any credible evidence
to show intentional delay or abandonment of rights by the petitioner,
nor have they discharged their evidentiary burden in establishing the
petitioner’s prior knowledge of the denial of the Will.
ii. Issue No. II -is also decided in favour of the petitioner. The Will
dated 12.06.2000 stands duly proved in accordance with law. The
petitioner has successfully discharged the burden of proof, and the
alleged suspicious circumstances raised by the respondents have been
adequately explained.
iii. Issue No. III -is answered in the affirmative and in favour of the
petitioner. The record clearly establishes the Executor’s refusal
through documentary evidence, and his subsequent death further
affirms his inability to act. Accordingly, the petitioner, being a named
beneficiary under the Will, is legally entitled to maintain the present
petition in accordance with the provisions of the Indian Succession
Act.
iv. The Court, therefore, finds that the Will dated 12.06.2000 is a legally
executed document, and based on the same, the petitioner is entitled
to the issuance of a LoA with respect to the said Will.
v. All three issues stand decided in favour of the petitioner, and the
petition is accordingly held to be lawful, maintainable, and deserving
of acceptance.
61. The petitioners are directed to file the requisite Court fee with the
registry and in compliance with the said requirement, let the registry issue
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the LoA in favour of the petitioner along with the copy of the Will which
was furnished to the Court. The petitioner is further exempted from
furnishing any security bond.
62. With the aforesaid directions, the instant petition stands allowed. The
application(s), if any, stands disposed of. Parties to bear their own Costs.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
AUGUST 08, 2025/aks
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