Delhi District Court
Dharamvir Singh vs State on 7 January, 2025
IN THE COURT OF SHIV KUMAR :
DISTRICT JUDGE, (WEST)-02,
TIS HAZARI COURTS: DELHI.
Probate Case No.- 71/16
New No. P.C. 16155/16
CNR No. DLWT01-005998-2016
DLWT010059982016
Sh. Dharmvir Singh
Son of late Sh. Pyare Lal Badgoojar,
R/o Khasra No. 5, House no. 31,
Village Kamruddin Nagar,
Nangloi, New Delhi-110041
Petitioner
Versus
1. The State
2. Sh. Tanvir Singh
Son of late Sh. Pyare Lal Badgoojar,
R/o Flat No. 90, First floor,
Pocket-25, Sector-3, Rohini
New Delhi-110085
3. Sh. Ranvir Singh
Son of late Sh. Pyare Lal Badgoojar,
R/o House no. 53A, Yusuf Sarai,
New Delhi- 110016
4. Sh. Dalvir Singh
Son of late Sh. Pyare Lal Badgoojar
R/o Flate No. 26/B, first floor,
Block A1/B, Paschim Vihar,
New Delhi-110063
PC No 16155-2016 Dharamvir Vs State & Ors Page 1 of 67
5. Sh. Balbir Singh
Son of late Sh. Pyare Lal Badoojar
House no. 31, Village Kamruddin Nagar
Nangloi, New Delhi-110041
6. Sh. Satvir Singh
Son of late Sh. Pyare Lal Badgoojar
House No. 31, Village Kamruddin Nagar
Nangloi, New Delhi-110041
7. Smt. Sushila Devi
Daughter of late Sh. Pyare Lal Badgoojar
R/o Flat no. 25/B, First floor,
Janyug Apartments,
Sector-14, Rohini
New Delhi-110085
8. Smt. Indira Devi
Daughter of late Sh. Pyare Lal Badgoojar,
R/o Flat no. 26/B, First floor,
Block-A1/B, Paschim Vihar,
New Delhi-110063
9. Late Smt. Krishna Devi ( Since Deceased)
through her legal heirs:-
i. Smt. Parveen (Daughter of late Smt. Krishna Devi)
Flat no. 248, Block A, Chaudhary Dilkush Marg, Sarojni
Nagar, New Delhi-110023.
ii Smt. Yogita ((Daughter of late Smt. Krishna Devi)
RZ-88C, Manas Kuunj Road, Uttam Nagar, Gali no. 7,
Near Nirankari Bhawan, New Delhi-110059
iii Sh. Chitrankan (Son of late Smt. Krishna Devi)
R/o House No. B2/337, Tara Nagar, Dugal Farm
Colony, Kakrola old Palm Road, New Delhi-110078
......Respondents
Date of institution of the case : 26.08.2016
Date reserved for judgment on : 06.12.2024
Date of pronouncement of judgment : 07.01.2025
PC No 16155-2016 Dharamvir Vs State & Ors Page 2 of 67
JUDGMENT:
1. Vide this judgment, I shall decide the petition filed
by the petitioner, under Section 276 of the Indian Succession
Act, 1925 whereby the petitioner has sought grant of Probate of
the will dated 05.06.2016, executed by late Shri Pyare Lal
Badgoojar S/o Late Shri Mehu Ram.
CASE OF THE PETITIONER AS PER HIS PETITION.
2. According to the petition, the case of the petitioner
in nutshall is that late Shri Pyare Lal Badgoojar S/o Late Shri
Mehu Ram ( hereinafter referred to as ‘ the deceased’) was the
father of petitioner and respondent no. 2 to 8 and he died on
21.06.2016. The deceased was residing at House no. 31, Village
Kamruddin Nagar, Nangloi, New Delhi-110041. The deceased at
the time of his death has left behind two self acquired immovable
and one movable property i.e.
(i) House no. 31, measuring 225 sq. yds. Of Village
Kamruddin Nagar, Nangloi, New Delhi-110041.
(ii) Plot measuring 451 sq. yds, out of 910 sq. yds, situated at
Khasra no. 5 of Village Kamruddin Nagar, Nangloi, New
Delhi-110041 and
(iii) Bank account no. 10167049475, State Bank of India,
Kishanganj (Delhi), Old Rohtak Road, New Delhi.
3. It is further averred in the petition that the deceased
during his life-time has duly executed his Will dated 05.06.2016
and he bequeathed the above said immovable properties.
( hereinafter referred to as ‘properties in question’) in favour of
the petitioner and respondents no. 2 to 6 in shares and
PC No 16155-2016 Dharamvir Vs State & Ors Page 3 of 67
proportions under various conditions as mentioned in the said
Will. It is further averred that as per the said Will the petitioner
is the duly authorized Executioner of the said Will.
4. It is further averred that the close relations of the
deceased are as under:
i) Sh. Dharamvir Singh Son ii) Sh. Tanvir Singh Son iii) Sh. Ranvir Singh Son iv) Sh. Dalvir Singh Son v) Sh. Balbir Singh Son vi) Sh. Satvir Singh Son vii) Smt. Sushila Devi Daughter viii) Smt. Indira Devi Daughter
5. Upon filing the present petition, notice of the same
was issued to all respondents. Citation for general public was
published in the daily newspaper ” Asian Age ” dated
21.09.2016. Notice was also served to State through Chief
Secretary.
6. No one from general public appeared in this case
and has not filed any objections despite such publication.
7. The Collector of Stamps, Punjabi Bagh has filed a
valuation report in respect of the property bearing H. No. 31,
Village Kamaruddin Nagar, Old Lal Dora (1908-09) valuing the
same to be of Rs. 50,61,196/- (Rupees Fifty lakh Sixty one
thousand One hundred Ninety Six only).
PC No 16155-2016 Dharamvir Vs State & Ors Page 4 of 67
8. The Collector of Stamps, Punjabi Bagh has also
filed a valuation report in respect of the property bearing plot in
Khasra No. 5, Village Kamaruddin Nagar, Old Lal Dora (1908-
09), Delhi,valuing the same to be of Rs. 87,57,936/- (Rupees
Eighty Seven lakh Fifty Seven thousand Nine hundred Thirty Six
only).
CASE OF RESPONDENT NO. 2 AS PER HIS OBJECTIONS
9. The respondent no. 2 has filed his objections cum
reply to the present petition by taking preliminary objections that
the deceased had never executed any alleged Will dated
05.06.2016 in regard to his movable and immovable properties. It
is contended that the Will dated 05.06.2016 is a forged and
fabricated document and has been manufactured just to usurp the
legal inheritance rights of respondent no. 2, over the immovable
and movable properties of his father.
10. It is further contended in the reply that in fact the
deceased, prior to his death was completely bed ridden and was
not in position to move anywhere or do anything at his own as he
was suffering with brain stroke and was not having sound state of
mind and even, due to the said ailment, he was not in a position
even to speak any word properly and his body was completely
paralyzed and he was not in a position to sign anywhere. It is
further contended by respondent no. 2 that from the date of
execution of the alleged Will i.e. 05.06.2016, the deceased
testator died on 21.06.2016, which is just after fifteen days from
the date of execution of the Will, which clearly proves that the
said Will dated 05.06.2016 is a false and forged document.
PC No 16155-2016 Dharamvir Vs State & Ors Page 5 of 67
11. It is further contended in the reply that the deceased
during his life time executed a registered Will dated 11.02.2010,
thereby he bequeathed his movable and immovable properties
amongst his children as well as charitable trust as such the
properties of the deceased shall be liable to be partitioned by
metes and bounds amongst all the legal heirs of the deceased
according to his actual last Will/Testament dated 11.02.2010,
duly registered with the office of Sub-Registrar, Delhi.
12. On merit, the contents mentioned in para no. 5, 6 &
11 of the petition, are denied by the respondent no. 2 and he
reiterated the objections taken by him hereinabove, and has
prayed that the petition filed by the petitioner may be dismissed
with exemplary costs.
CASE OF RESPONDENT NO. 3 AS PER HIS WRITTEN
STATEMENT
13. Respondent no. 3/Sh. Ranvir Singh has also filed
separate written statement/objection by taking the preliminary
objections that the present petition is based on concealment of
material facts, therefore it is liable to be dismissed on this ground
alone. It is further contended that the deceased had a pre-
deceased daughter namely Smt. Krishna Devi, who is survived
by her husband/Mr. Jai Pal Singh and three children and
petitioner has not impleaded them as respondents herein and
concealed their names from this Hon’ble Court.
14. It is further contended that the petitioner has further
concealed from this Hon’ble Court that deceased Pyare Lal
PC No 16155-2016 Dharamvir Vs State & Ors Page 6 of 67
Badgoojar has left behind a duly registered Will dated
11.02.2010, which is his last Will and Testament. It is contented
that the alleged Will dated 05.06.2016 propounded by the
petitioner is a forged and fabricated document and it does not
bear the real and actual signatures of the deceased.
15. It is further contended that the deceased was not in a
sound state of mind for around six to eight months prior to his
death i.e. 21.06.2016. It is further contended that the market
value of the properties/assets left behind by the deceased is more
than 2 Crores and petitioner has under valued the said assets.
16. It is further contended that the respondent no. 3 has
come to know for the first time about the alleged Sale Deed dated
31.03.2004 and the alleged Gift Deed dated 11.5.2010, from the
alleged Will dated 05.06.2016, therefore, he reserves his right to
challenge the said alleged Sale Deed dated 31.03.2004 and the
alleged Gift Deed dated 11.05.2010 in appropriate proceedings
before the appropriate court of law.
17. On merit, respondent no. 3 has denied most of the
paras of the petition and contended that the deceased had other
various properties and assets which the petitioner had already
usurped and grabbed from the deceased during his life time.
Respondent no. 3 further contended that the deceased had a 1
acre plot of agricultural land and another 200 sq. yards plot and
both these properties were sold by the deceased under influence
from petitioner and proceeds thereof were usurped and grabbed
by the petitioner alongwith all the retirement benefits of the
deceased. It is further contended by respondent no. 3 that the
PC No 16155-2016 Dharamvir Vs State & Ors Page 7 of 67
pension of over 35 years of the deceased alongiwth jewellery
belonging to the deceased’s wife was also usurped and grabbed
by the petitioner and he has manipulated things in such a manner
that are against all the legal heirs of the deceased. Respondent no.
3 also reiterated the objections taken by him and respondent no. 2
hereinabove.
18. Replication has been filed on behalf of the petitioner
to the Reply/objections filed on behalf of respondent/objector no.
2 & 3 and he denied all the objections taken by respondent no. 2
& respondent no. 3 and he reiterated the contents mentioned in
the petition.
NO OBJECTIONS ON BEHALF OF RESPONDENT NO. 4, 5
&6
19. It is pertinent to mention here that respondent no. 4,
5 & 6 have filed their no objection/affidavit in favour of the
petitioner on 6.10.2016 and stated that they have no objection if
the last and original Will dated 5.6.2016 of late Sh. Pyare Lal
Badgoojar may be probated as prayed in the present petition.
20. Vide order dated 19.11.2016, the right of respondent
no. 7 & 8 to file reply/objections was closed as none appeared on
their behalf despite service.
21. On the basis of the pleadings, the following issues
were framed vide order dated 07.12.2016:
1. Whether the Will dated 05.06.2016 executed
by late Shri Pyare Lal Badgoojar S/o late ShriPC No 16155-2016 Dharamvir Vs State & Ors Page 8 of 67
Mehu Ram , is his last genuine, legal, valid Will
and duly executed in his sound disposing mind?
OPP
2. Whether the petition is liable to be dismissed
for the objections raised by the
respondent/objector no. 2 & 3 in the written
statement/objections? OPR
3. Relief
22. It is pertinent to mention here that since
inadvertently, one formal issue left to be framed,
therefore, by exercising the power under order 14 of the
CPC, the above said issues framed on 7.12.2016 were
amended and the following issues were framed again on
06.03.2017.
1. Whether the Will dated 05.06.2016 executed
by late Shri Pyare Lal Badgoojar S/o late Shri
Mehu Ram , is his last genuine, legal, valid Will
and duly executed in his sound disposing mind?
OPP
2. Whether the petition is liable to be dismissed
for the objections raised by the
respondent/objector no. 2 & 3 in the written
statement/objections? OPR
3. Whether petitioner is entitled for letter of
administration/Probate in respect of Will dated
05.06.2016 of the deceased testator late Pyare
Lal Badgoojar? OPP
4. Relief.
23. It is pertinent to mention here that on the same date
i.e. 6.03.2017, after framing of issues, two applications i.e. one
under order 1 rule 10 (4) CPC for addition of L.Rs of Smt.
Krishna Devi, respondent no. 9 and another application under
PC No 16155-2016 Dharamvir Vs State & Ors Page 9 of 67
order 6 rule 17 CPC for amendment of petition, in consequences
to impleadment of L.Rs of Smt. Krishna Devi, were allowed and
L.Rs of late Smt. Krishna Devi, pre-deceased, daughter of
deceased, were impleaded as respondent no. 9 in this case.
CASE OF LRs OF RESPONDENT NO. 9 AS PER THEIR
OBJECTIONS.
24. The L.Rs of respondent no. 9 have filed their written
statement and contended that the deceased has left only two
immovable properties as mentioned in para 4 (I) and (ii). It is
further contended that the deceased was owned some other
properties and the particulars of which are in the exclusive
knowledge of the petitioner but he has not disclosed the same. It
is further contended that the deceased was an old man of 93
years and had been residing with the petitioner and his family
members. It is further contended that the petitioner was in
position of confidence qua the deceased and he had been abusing
his fiduciary position of active confidence induced the deceased
to transfer his other properties in favour of the family members
of the petitioner.
25. It is further contended that the deceased got, made or
executed Will dated 05.06.2016 in favour of the petitioner and
respondent no. 2 to 6, as alleged. It is further contended that the
Will dated 05.06.2016 is a fabricated and manipulated Will,
hence it is unenforceable due to reason that deceased was an old
man of 93 years of age and was suffering from various age
related medication conditions like dementia, hard of hearing,
extremely weak eyesight, physically impaired condition and was
PC No 16155-2016 Dharamvir Vs State & Ors Page 10 of 67
unable to move and due to his physical infirmities, he was not in
a position to comprehend import or purport of any legal
document nor he was in a position to take conscious and rational
decisions about his own affairs. It is further contended that the
deceased was not in a fit state of mind or body to make the
alleged Will.
26. It is further contended that the petitioner being the
eldest sone of deceased, had been living with him and had been
reposing confidence in the petitioner who had been managing the
personal affairs of the deceased. It is contended that the Will
dated 05.06.2016 being fraudulently and manipulatively procured
document from a mentally and physical infirm person is not
enforceable. The witnesses who purported to have witnessed the
Will, were neither present nor deceased had signed the alleged
Will in their presence.
27. Petitioner has also filed replication to the written
statement of L.Rs of respondent no. 9 on the same line as of the
respondent no. 2 & 3 and denied all the objections and reiterated
the contents mentioned in the petition.
28. In view of written statement filed on behalf of L.Rs
of respondent no.9, vide order dated 05.07.2017 again issues
were amended and following issues were framed:
1. Whether the Will dated 05.06.2016 executed
by late Shri Pyare Lal Badgoojar S/o late Shri
Mehu Ram , is his last genuine, legal, valid Will
and duly executed in his sound disposing mind?
OPP
PC No 16155-2016 Dharamvir Vs State & Ors Page 11 of 67
2. Whether petitioner is entitled for
Probate/letter of administration on the basis of
the aforesaid Will, as claimed OPP
3. Whether the petition is liable to be dismissed
for the objections raised by the
respondent/objector no. 2 & 3 and L.Rs of
respondent no. 9 in the written
statement/objections? OPR
4. Relief.
EVIDENCE ON BEHALF OF PETITIONER
29. Parties were directed to adduce evidence.
30. Sh. Dharamvir, petitioner appeared in the witness
box as PW-1 and tendered his affidavit in evidence as Ex
PW-1/A. PW-1 has reiterated & reaffirmed the contents of his
petition as well as replications and relied upon the following
documents:
1. Ex. PW-1/1: Death certificate of late Sh. Pyare Lal
Badgoojar
2. Ex. PW-1/3 : Will of the deceased.
3. Ex.PW-1/5: Valuation report filed by the Collector’s
4. Ex. PW-1/6 ( Colly) (OSR): Medical record of the
deceased.
5. Ex. PW-1/7 & 8 (Colly): Photographs
6. Ex. PW-1/9 (OSR): Copy of Aadhar Card of the deceased.
31. During cross-examination by counsel for L.Rs of
respondent no. 9, PW-1 deposed that his father i.e deceased did
not execute any Will prior to the Will in question. PW-1 further
PC No 16155-2016 Dharamvir Vs State & Ors Page 12 of 67
deposed that late Sh. Payare Lal Badgoojar was not suffering
from any disease in February, 2010. PW-1 denied the suggestion
that the deceased was suffering from dementia, paralysis and his
mental condition was not fit to execute Will in dispute. PW-1
further denied all the suggestion regarding withdrawal of money
from the account of the deceased.
32. PW-1 in further cross-examination deposed that he
knows the attesting witness Sh. Jasbir Singh Bajaj who is an IAS
Officer and posted in Tamil Nadu Bhawan. PW-1 denied the
suggestion that he has copied the earlier Will and prepared the
Will in dispute and obtained signatures of the deceased by
making material variations. PW-1 denied the suggestion that he
abused the fiduciary relationship with his father.
33. During cross-examination on behalf of respondent
no. 2, PW-1 admitted that it is correct that his father was living
separately in house no. 31, Khasra No. 5, Village Kamrudding
Nagar, Delhi at the distance of 500 metres from his house. PW-1
further admitted that he is employed with Indian Railway in the
year 1966 and was posted in Delhi from 1972 to 1974 and again
from 1976 to 1982. PW-1 further deposed that respondent no. 2
had contributed for the marriage of his two sisters, however,
again said his elder sister Sushila Devi married in the year 1960
and his father had made all the arrangements. He denied the
suggestion that his sister Sushila Devi married in the year 1962.
34. In further cross-examination, PW-1 deposed that he
had seen the Will Ex. PW-1/3 of his father for the first time after
his death in a trunk. Again said small trunk which he used to
PC No 16155-2016 Dharamvir Vs State & Ors Page 13 of 67
keep with him. PW-1 further deposed that he has not mentioned
this fact that he had discovered two Wills from the said small
trunk. PW-1 denied the suggestion that he stated about two Will
because of counsel for L.Rs of respondent no. 9 shown him the
second Will during his earlier cross-examination. PW-1 further
admitted that he did not mention any fact that he had discovered
two Will as he had no knowledge and he did not discuss this fact
with his advocate. PW-1 further deposed that his father had told
him about the second Will during his lifetime. He had no
knowledge that his father had actually executed the second Will
prior to discovery from the small trunk. PW-1 further deposed
that after seeing the second Will, he came to know that it was
executed on 29.04.2010. Today he does not remember that he
was present before the Sub-Registrar on 29.04.2010 when the
said Will was executed by his father.
35. PW-1 further deposed in cross-examination that he
know the attesting witness of the Will dated 29.04.2010 namely
Sh. Mai Chand and Sh. Shiv Raj, they belong to their village. He
further deposed that he know Jasbir Singh Bajaj and Sh. Jagbir
Singh and it is correct that there was age difference of his father
and abovsaid two person is about 30 years. PW-1 denied the
suggestion that Sh. Jasbir Singh Bajaj and Sh. Jagbir Singh are
his friends. PW-1 further deposed that he did not know whether
his father had executed any other Will prior to Will dated
29.04.2010. PW-1 denied the suggestion that his father had also
executed third Will dated 11.02.2010 and he was also present
before the Sub-Registrar on that day. PW-1 denied the suggestion
that the Will Ex. PW-1/3 is manufactured by him by putting
signatures of his father on the Will Ex. PW-1/3 and obtained the
PC No 16155-2016 Dharamvir Vs State & Ors Page 14 of 67
signatures of attesting witnesses on the Will Ex. PW-1/3 after the
death of his father.
36. In further cross-examination, PW-1 admitted that his
father had executed a General Power of Attorney in his favour on
11.05.2010 regarding a plot of 309 Sq. Yards in part of house no.
31. PW-1 further deposed that he had gifted the said plot to
Charitable Trust namely Salra Devi Charitable Trust in the name
of his mother as created by his father. He did not deposit Rs.
17,85,000/- in the said trust. PW-1 admitted that one Savitri
Devi had purchased plot of 150 sq. yards sold by his mother
during his lifetime on 31.03.2004 for consideration of Rs.
80,000/- to his father. PW-1 further deposed that he did not
make any payment of Rs. 80,000/- to his father. PW-1 denied the
suggestion that his late father was not mentally and physically fit
on the date of execution of alleged Will Ex. PW-1/3.
37. In further cross-examination, PW-1 deposed that he
does now know advocate by the name of Sh. Rishabh
Maheshwari. PW-1 submits that his deceased father never
suffered from brain stroke and paralysis and denied the
suggestion that his deceased father prior to his death was bed
ridden and not mentally sound.
38. PW-1 further deposed that he never told to
respondent no. 3 about execution of Sale Deed dated 31.04.2004
and Gift Deed dated 11.05.2010. PW-1 denied the suggestion
that he got prepared the Trust Deed, however he voluntarily
deposed that his father got prepared the Trust Deed and he was
mentally fit. PW-1 admitted that he is the only trustee of the
abovesaid trust.
PC No 16155-2016 Dharamvir Vs State & Ors Page 15 of 67
39. PW-1 deposed that his deceased father had also one
acre agricultural land at Kamrudding Nagar, Delhi and one plot
measuring 200 sq. yards and the same was sold by his father.
However, he denied the suggestion that he received the sale
proceeds thereof. PW-1 denied that he kept all retirement
benefits of his deceased father or that he used to utilize pension
after his retirement or that he was actively involved in execution
of Will dated 05.06.2016 and he had called his known two
attesting witness to the said Will.
40. PW-2 Sh. Jasbir Singh Bajaj S/o late Sh. Kartar
Singh, who is one of attesting witnesses of the will dated
05.06.2015 has appeared in the witness box and tendered his
evidence by way of affidavit Ex. PW-2/A and relied upon the
Will already exhibited as Ex. PW-1/3. PW-2 stated in his
affidavit in evidence that the Sh. Pyare Lal Badgoojar was
known to him since 2012, who during his life time executed a
Will in respect of his estate. He is one of the attesting witness to
the Will dated 05.06.2016 and the other attesting witness is Sh.
Jagbir Singh.
41. PW-2 further deposed that the Will was prepared by
Shri Rishabh Maheshwari, Advocate at the asking of the
deceased, who accepted the same to be as per his wish and
instructions and then he put his signature on the said will in his
presence, on all the twenty pages at Mark -A. PW-2 further
deposed that the deceased signed in his presence and in the
presence of Sh. Jagbir Singh and Sh. Rishabh Maheswari,
Advocate. He further deposed that he and Sh. Jagbir Singh, on
the request of deceased, signed and attested the said Will as
PC No 16155-2016 Dharamvir Vs State & Ors Page 16 of 67
attesting witness and then the Will was signed by Sh. Rishabh
Maheshwari, Advocate. PW-2 further deposed that the
deceased, at the time of execution of the Will Ex. PW-1/3, was
in good health and sound disposing mind and the deceased
executed the Will without any pressure or coercion, of his own
volition.
42. In the cross-examination conducted on behalf of
respondent no. 2, PW-2 admitted that there is difference of about
40 years between his age and the age of the deceased/testator
Payare Lal. PW-2 further deposed that his father was employed
in Northern Railway as conductor and deceased was in accounts
department and grand daughter of the deceased Mrs Sunita
Suman was his class fellow at Law Centre II, Delhi University.
43. PW-2 further deposed that it is wrong to suggest that
he knew the deceased Paryare lal since 2012. PW-2 further
deposed that he cannot tell about the schooling, village of his
wife, and when the deceased Payare Lal joined Railway service
but he deposed that the deceased retired in the year 1982. PW-2
admitted that deceased never came to see him at his office. PW-2
further deposed that the deceased was blessed with 6 sons and 3
daughters but he cannot tell the name of all the children of the
deceased.
44. PW-2 further submit that Sh. Dharamvir- petitioner
blessed with three children i.e. one son and two daughters. PW-2
further submits that he had attested the Will Ex. PW-1/3 in his
personal capacity. PW-2 denied the suggestion that petitioner is
working in his office.
PC No 16155-2016 Dharamvir Vs State & Ors Page 17 of 67
45. PW-2 further deposed that he do not know where the
Will Ex. PW-1/3 was drafted. He does not know Sh. Rishab
Maheshwari, Advocate. He did not ask deceased whether he had
executed any Will prior to Will Ex. PW-1/3. PW-2 further
deposed that when he had signed the Will Ex. PW-1/3 as
attesting witness, only deceased Payare Lal was present. PW-2
further deposed that prior to day of execution of the Will,
deceased Payare Lal did not use to talk to him on phone. He
does not have any documentary evidence to show that his father
was colleague of deceased Payare Lal. PW-2 denied the
suggestion that Dharambir-petitioner had approached to him for
execution of the Will Ex. PW-1/3. He further deposed that as per
his knowledge, deceased Pyare Lal was not suffering from any
physical decease. PW-2 admitted that at the time of signing of
the Will as attesting witness, no doctor was present.
46. In response to a specific question as to how he is
sure that deceased was of sound mental health on the day of
execution of Will Ex. PW-1/3, PW-2 deposed that because he
had seen him in full senses. PW-2 further denied all the
suggestion given to him about the mental condition or got
preparation of the Will by the petitioner with his collusion.
47. During the cross-examination on behalf of
respondent no. 3, PW-2 deposed that he does not know whether
petitioner was actively involved in preparation of the Will Ex.
PW-1/3. PW-2 further deposed that he does not know whether
deceased had suffered from brain stroke and paralysis or
deceased was bed ridden for six months prior to his death. He
denied the suggestion that Will Ex. PW-1/3 is forged and
PC No 16155-2016 Dharamvir Vs State & Ors Page 18 of 67
fabricated. PW-2 admitted that he know daughter of petitioner
and petitioner. PW-2 further deposed that he used to see deceased
at this house prior to 05.06.2016. PW-2 further deposed that he
met Jagbir Singh, other attesting witness on the same day i.e.
05.06.2016. PW-2 denied the suggestion that on page 1 and 19
the signatures of deceased were on blank papers and later on the
alleged Will was got printed on them.
48. During the cross-examination by L.Rs of respondent
no. 9, PW-2 admitted that his official stamp can be used only
when he has to perform his official duty and attestation of the
Will Ex. PW-1/3 was not his official duty. PW-2 further deposed
that Sh. Rishabh Maheshwari, Advocate was present when Will
was executed.
49. In further cross-examination PW-2 in response to a
specific question regarding para no. 3 of the Will Ex. PW-1/3, he
deposed that deceased testator did not write anywhere that he is
having any serious ailment and he has mentioned his age related
ailment in the Will Ex. PW-1/3 in Para 3. PW-2 denied the
suggestion that petitioner stood in the capacity of active
confidence qua the testator. PW-2 further deposed that it is
written in the Will as read over to him today in the court that
petitioner was attorney of alleged testator. PW-2 further deposed
that it is correct that he came to know the fact that petitioner was
the attorney of the testator before signing the Will Ex. PW-1/3
and as per Will petitioner is beneficiary of Rs. 17,88,300/-. PW-2
further deposed that the Will was read over to the deceased by
Sh. Rishabh Maheshwari, Advocate in his presence. PW-2
denied the suggestion that he had full knowledge of earlier
PC No 16155-2016 Dharamvir Vs State & Ors Page 19 of 67
alleged will alleged testator. PW-2 denied the suggestion that
petitioner has manipulated the Will in question just to usurp the
suit property. PW-2 denied the suggestion that in his presence
Jagbir Singh was neither present nor signed the Will in his
presence.
50. Vide separate statement of petitioner, the evidence
on behalf of petitioner stands closed on 07.08.2018.
EVIDENCE ON BEHALF OF RESPONDENT NO. 2
51. Respondent no. 2, Sh. Tanvir Singh appeared in the
witness box as R2W-1 and he tendered his affidavit in evidence
as Ex R2W-1/A and reiterated the contents of his objections. He
has relied upon the certified copy of the Will dated 11.02.2010,
executed by his father late Sh. Pyare Lal Bagoojar as Ex.
R2W1/1.
52. RW2W1 has been duly cross-examined by ld. Counsel
for petitioner and ld. Counsel for L.Rs of respondent no. 9.
53. In the cross-examination conducted on behalf of
petitioner, R2W1 deposed that he came to know about the Will
dated 11.02.2010 after filing of the present case and the Will
dated 11.02.2010 was not executed in his presence. R2W1
further deposed that his father used to stay in his house and
family members of his brothers, namely Balbir Singh and Satbir
Singh and Balbir Singh and his family members used to provide
food etc. R2W1 further deposed that he used to say in Rohini
about 8 kms away from his father’s house and used to visit his
PC No 16155-2016 Dharamvir Vs State & Ors Page 20 of 67
father at least three-four days in a week.
54. R2W1 in further cross-examination deposed that
after, 2008, his brother Dharamvir retired from the Railways and
after that he said that he would look after the father. R2W1
denied the suggestion that his father was in a sound state of mind
around six-eight months before his death. R2W1 further deposed
that he does not have any documentary proof regarding the
medical of the deceased to show that he was in a sound mind. He
denied the suggestion that the value of the properties of the
deceased is not more than Rs. 2 crores.
55. R2W1 in further cross-examination deposed that he
has not filed any case against the execution of the sale deed dated
31.03.2004 and gift deed dated 11.05.2010 and he has no
knowledge if his father had filed any case regarding these
documents. R2W1 further deposed that he cannot say whether
his father rightly executed sale deed 31.03.2004 and Gift Deed
dated 11.05.2010 of his own wish. He further deposed that his
father sold his one acre plot of agriculture land and another 200
sq. yards plot somewhere in 1995 and at that time the petitioner
was posted in Punjab. R2W1 deposed that he had sold the
property and he invested amount in constructing his house in
which our younger brother Balbir Singh is residing. R2W1
submits that he was well paid and his father used to help his
other sons, namely, Balbir, Dharamvir, Satbir and Dalbir. He
further deposed that he never stated that the petitioner has
grabbed the pension of his father. He further deposed that the
petitioner himself told him that he spent the money of the father
on treatment of his father.
PC No 16155-2016 Dharamvir Vs State & Ors Page 21 of 67
56. Sh. Daya Nand S/o late Shiv Saran, appeared in the
witness box as R2W2 and he tendered his affidavit in evidence
Ex. R2W2/A.
57. In his affidavit in evidence, R2W2 deposed that he is
a resident of Village Kamrudding Nagar since his birth and was
a neighbour of late Sh. Pyare lal Badgoojar and used to visit him
almost daily. R2W2 further deposed that he know the family
members of late Pyare Lal Badgoojar, the deceased and
respondent no. 2/Sh. Tanvir Singh, who retired from UPSC class
one officer, who is a reputed person of the village and used to
help the Villagers in all possible manner.
58. R2W2 further deposed that the deceased was 10th
class pass. The deceased was working as an officer in Indian
Railways. At the time of death, the deceased was about 90-91
years old. R2W2 further deposed that he had never seen the
medical documents of the deceased Piyare Lal prior to his death.
59. R2W2 denied the suggestion that he never
accompanied late Shri Piyare Lal to the hospital or that late
Piyare Lal visited the hospital as stated by him or that the
deceased was hale and hearty and was of sound mind till his
death or that he is deposing falsely on the asking of respondent
nos. 2 & 3.
EVIDENCE ON BEHALF OF RESPONDENT NO. 3.
60. Respondent no. 3 Sh. Ranvir Singh appeared in the
witness box as R3W1 and he tendered his affidavit in evidence
as Ex. R3W1/A and he reiterated the contents of his objections.
PC No 16155-2016 Dharamvir Vs State & Ors Page 22 of 67
Respondent no. 3 has relied upon the certified copy of the Will
dated 11.02.2010, executed by his father late Sh. Pyare Lal
Bagoojar already Ex. R2W1/1. Respondent no. 3 was duly
cross-examined by the ld. Counsel for the petitioner.
61. Sh Manoj Shokeen, appeared in the witness box as
R3W5 and he tendered his evidence by way of affidavit as Ex.
R3W5/A. He was duly cross-examined by ld. Counsel for the
petitioner.
62. In his affidavit in evidence, R3W5 deposed that he is a
resident of Village Kamruddin Nagar since his birth. He further
deposed that late Sh. Pyare lal Badgoojar was personally known
to him being respectable elder of Village and he used to visit
him once a week at his house. R2W5 further deposed that his
father late Attar Singh, Pardhan was a very good friend of the
deceased. He further deposed that his brother late Sh. Prem
Shokeen was a very good friend of Sh. Balbir Singh, son of the
deceased late Sh. Pyare Lal Badgoojar and he know the family
members of late Pyare Lal Badgoojar.
63. R3W5 denied the suggestion that late Shri Piyare
Lal was hale and hearty and was of sound mind till his death or
that he is deposing on the asking of respondent nos. 2 & 3.
EVIDENCE ON BEHALF OF LRs OF RESPONDENT NO. 9.
64. Ms. Parveen, one of the LRs of respondent no. 9
appeared in the witness box as R9W1 and tendered his evidence
by way of affidavit Ex. R9W1/A.
PC No 16155-2016 Dharamvir Vs State & Ors Page 23 of 67
65. In the cross-examination conducted by ld. Counsel
for the petitioner, R9W1 deposed that he is 51 years old and his
mother died on 06.01.1981 and his father expired on 20.08.2016.
He further deposed that he had relations with our Nanaji and
Mamaji, he, lastly, visited Kamruddin Nagar Village in the
year,2006 or 2007 before that he had visited the said village in
1984 or 1985. R9W1 further deposed that he also visited in 90’s
and probably, met his nanaji in the year, 2006 or 2007. He met
Sh. Satbir Mamaji and Sh. Balbir Mamaji, when he visited
Kamruddin Nagar Village.
66. R9W1 further deposed during her cross-examination
that he also met Sh. Dharamvir Singh and his daughter, Ms Gogi
at their house in Kamruddin Nagar Village though their house is
at some distance. She further deposed that her Nanaji was
residing separately in a separate house. R9W1 further deposed
that she never saw any document regarding treatment of her
nanaji. Her Nanaji retired in the year, 1981. He was having his
bank account in Kishan Ganj. She never saw passbook or any
statement of his account. Again said, she saw bank statement of
her Nanji may be in the year, 2015 or 2016. R9W1 further
deposed that she herself got issued the bank statement of her
Nanaji from the bank for the period 2015-2016. The bank
statement shows that payment was taken by Sh. Dharamvir
Singh.
67. R9W1 further deposed during her cross-examination
that she did not make any complaint to bank or any authority
regarding taking off her nanaji’ money by her mamaji, Sh.
Dharamvir Singh. R9W1 further deposed that since 2003, she
PC No 16155-2016 Dharamvir Vs State & Ors Page 24 of 67
was residing at Sarojini Nagar and from 2018, she is residing at
R.K. Puram. R9W1 further deposed that her Nanaji used to visit
her house, Kishan Ganj for taking pension and used to meet
them. She further deposed that she has no idea about the
quantum of pension of her nanaji. She did not trace out the
details of properties except as mentioned in the Will, however,
she heard from his Ranbir Mamaji that her nanaji had other
properties also besides the property mentioned in the Will. She
further deposed that she did not find necessary to trace out the
properties mentioned by her Ranbir Mamaji. She said in Para no.
6 of the affidavit that her nanaji did not execute any Will in
favour of her Mamajis because it is her firm belief that her
nanaji could not have done injustice to other legal heirs, left in
the Will. RW9/1 deposed in Para no. 6 of her affidavit that the
Will in question is false and fabricated because her nanaji signed
in the previous Will and all other documents as Pyare Lal,
however, in the second Will/latest Will his signature has been
affixed as Pyare Lal Badgujar which is not his correct signature.
68. In further cross-examination RW9/1 further deposed
that both the Wills were not prepared in her presence. She never
met her Nanaji after 2006.
69. It is pertinent to mention here that R9W1 Ms
Parveen D/o late Smt. Krishna Devi was recalled for re-
examination as per order 10.09.2024 and in her further
examination in chief she deposed that she has brought the
certified copy of bank statement of the testator late Sh. Pyare Lal
Badgoojar in respect of account no. 10167049475 with State
Bank of India, Kishanganj branch, Old Rohtak Road, Delhi for
the period from 1.1.2015 to 12.05.2017 and the same is Ex
PC No 16155-2016 Dharamvir Vs State & Ors Page 25 of 67
R9W1/1. ( objected to by ld. Counsel for the petitioner on the
mode of proof).
70. In the cross-examination on behalf of petitioner, she
admitted that neither the name of any officer nor the date is
mentioned on the statement Ex. R9W1/1. However, she
voluntarily stated that she had visited the branch with the copy of
said bank statement and got it verified, stamped and certified by
the concerned official of the branch which has code number of
the branch.
71. In reply to a specific question put it to her that the
statement is not certified as per Banker’s Book Act and there is
no marking in this regard on the statement? R9W1 deposed that
she is not aware of the rules of the banks or the provisions of
Banker’s Book Act. R9W1 further deposed that she had given
the copy to the concerned official for certification and he put the
required stamping and signature and gave it back to her.
72. R9W1 further deposed that she had taken out the
print out of the above said statement about in the year 2016-
2017. She denied the suggestion that the statement is false and
fabricated or that the above said account statement cannot be
verified by the bank officials as the bank officials has already
been given statement regarding weeding out the record of the
above said period of year 2015-16 of the above said bank
account. R9W1 further denied the suggestion that she never
visited the bank for getting the bank statement verifying or that
said bank statement has not been verified by the bank officials.
73. Sh. Vishal Pawar, Associate from State Bank of India,
Kishan Ganj branch appeared as RW9/W2 and deposed that he
is a summoned witness and he has brought the statement of
PC No 16155-2016 Dharamvir Vs State & Ors Page 26 of 67
account of Sh. Pyare Lal Badgoojar bearing account no.
10167049475 at Kishan Ganj, SBI, Delhi from 01.01.2016 to
30.06.2021 and copy of the same is Ex. RW9/2/A. He further
deposed that he has not brought the record from January 2010
till December, 2015 as the same has been destroyed as per rules
of the Bank.
74. In the cross-examination by ld. Counsel for the
petitioner, RW9/2 admitted that the statement is not certified as
per banker’s book evidence Act and he has no personal
knowledge regarding the said account.
75. In the cross-examination on behalf of R-2 & R-3,
RW9W2 deposed that the last debit entry in the account of Pyare
Lal Badgoojar is 04.08.2016 of Rs. 29,390/- However, he
voluntarily deposed that this amount has been taken by the
department as per pension recovery.
76. Evidence on behalf of L.Rs of respondent no. 9
stands closed vide separate statement of one of the L.Rs of
respondent no. 9 on 13.09.2024.
FINAL ARGUMENTS
77. I have heard ld. Counsel for the petitioner,
respondent no. 2 & 3 and L.Rs of respondent no. 9 and have
perused the entire record including pleadings, documents,
testimony of the witnesses examined in the court from both sides
and judgments filed by the parties.
PC No 16155-2016 Dharamvir Vs State & Ors Page 27 of 67
WRITTEN SUBMISSIONS ON BEHALF OF PETITIONER
78. Ld. Counsel for the petitioner has stated in the
written submissions that the petitioner has examined one of the
attesting witness namely Sh. Jasbir Singh Bajaj/PW-2 and PW-2
has duly proved that the Will in question has been voluntarily
executed by the deceased and the deceased was healthy and in
sound mind at the time of execution of the Will. It is further
stated in the written submissions that the Will was read over to
the deceased by advocate Sh. Rishabh Meheshwari. It is further
stated that the deceased had signed the Will after admitting the
contents of the Will as correct.
79. It is further stated in the written submissions that the
deceased had signed the each page of the Will in the presence of
both attesting witnesses as well as in the presence of advocate,
Sh. Rishabh Maheshwari. It is further stated that the Will was
prepared by the advocate Sh. Rishabh Maheshwari as per the
direction and instructions of the deceased.
80. It is further stated in the written submissions that the
petitioner is not a beneficiary of any of the properties mentioned
in the Will rather the other five sons of the deceased are the only
beneficiary in the Will in question.
81. It is further stated in the written submissions that
there are contradictions in the statement of witnesses examined
on behalf of the respondents. It is further stated that R2W2 has
deposed during cross-examination that the deceased used to live
with his six children in the same house whereas R2W1 deposed
PC No 16155-2016 Dharamvir Vs State & Ors Page 28 of 67
that he was living separately with his own family and R3W1, the
another son of the deceased deposed that the deceased was
staying with his brother namely Balbir Singh only and he was
staying with his family separately at Yusf Sarai.
82. It is further stated in the written submissions that the
L.Rs of respondent no. 9/RW91 deposed that she never met the
deceased after 2006. So, it is not probable that she can make
submissions about the mental and physical health of the deceased
in 2016.
83. It is further stated in the written submissions that
deceased had died a natural death peacefully at his form. It is
further averred in the written submissions that petitioner has not
played any role in preparation of the Will in question. It is
further averred that the deceased never resided with any of the
respondent and they never took care of the deceased.
84. It is further stated in the written submissions that
the petitioner has taken care of his father and the respondent had
absconded their duties. It is further averred that even after the
death of his father, the petitioner performed his last rites and
other rituals as per the traditions of the relation society and the
family and the said rites and rituals was not even attended by the
respondents.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT
NO. 2 & 3
85. It is stated in the written submissions that the
PC No 16155-2016 Dharamvir Vs State & Ors Page 29 of 67
present petition is preferred by the petitioner seeking probate of
one alleged unregistered Will dated 05.06.2016 allegedly
executed by late Sh. Pyare Lal Badgoojar, who on the alleged
date 05.06.2016 was about 93 years of age and admittedly
expired on 21.06.2016 after 16 days of making that alleged Will
in question.
86. It is further stated in the written submissions that the
present petition deserved to be dismissed being comes into the
category of ‘Suspicious’ on the following grounds:
i) Petitioner being the major beneficiary under the alleged
Will dated 05.06.2016.
ii) Petitioner played active role in execution of alleged Will
dated 05.06.2016
iii) Exclusion of other well reputed obedient sons and legal
heirs of real pre-deceased daughter.
iv) Manner of preparation of alleged Will dated 05.06.2016
v) No information of execution of Will to the legal heirs.
vi) Vague contents of Will dated 05.06.2016.
vii) Contradiction in the statement of witnesses.
viii) Non-comparison of the signatures of the deceased testator
( late Sh. Pyare Lal ).
ix) The bad and aged physical condition of testator
x) The deliberate attempt of petitioner, not disclosing names
of necessary parties to the petition which makes the document
highly suspicious and seriously doubtful against the genuineness
of the documents propounded as Will dated 05.06.2016.
PC No 16155-2016 Dharamvir Vs State & Ors Page 30 of 67
87. Ld. Counsel for respondent no. 2 & 3 mentioned
about section 59, 61, 62, 67, 68 81 & 89 of the Indian Succession
Act.
88. In the written submissions it is further averred that
the evidence of the petitioner is unreliable on the following
grounds:
1. Besides the non proving of the signatures of the
testator on the Will in question, the statement, cross-examination
of the petitioner raises a thick cloud of suspicion, those are
unanswered and unreliable.
2. The petitioner has no where stated or claimed
regarding the signatures of the testator on the Will in question, he
did not state that he can identify the signature of the testator.
3. The petitioner has failed to explain the manner, he
found the Will, rather when the specific question were asked to
him, he deliberately admitted about non-disclosing of the
situation in which, he came into the possession of the Will in
question.
4. The petitioner deliberately denied the execution of
any other Will, prior to the execution of Will in question by the
testator however later on admit the existence of registered Will
of testator and also admit the knowledge of the same.
5. The petitioner specifically denied about the
exclusive withdrawal of all the saving of the testator, during
cross-examination, however the Bank witness who brought the
statement of account of testator shows that much prior to 2015
the entire funds/saving of late Sh. Pyare Lal were exclusively
withdrawn/transferred by him only moreover, at that time of the
death of late Sh. Pyare Lal, there was not even a single penny left
by the petitioner in his saving account.
6. The petitioner at the time of filing of petition,
deliberately chosen not to implead the L.Rs of respondent no. 9
and at the time of cross-examination on this point he admitted to
visit the LRs of respondent no. 9 to give evidence in his favour,
proves his shaken and unreliable evidence.
PC No 16155-2016 Dharamvir Vs State & Ors Page 31 of 67
7. The petitioner has admitted during the cross-
examination the manufacturing of the chain of so many
documents in his favour and non-disclosing of the fact to
respondent no. 2 & 3 as well as to the other contesting
respondents.
8. The petition as well as evidence on record is
completely silent about any person who claims to read over the
contents of Will in question to the testator, the witness namely
Jasbir Singh Bajaj, PW-2 clearly admitted in his cross-
examination that he has closed acquaintance with the petitioner
only, he further admit that where the Will in question was
drafted, he admit that he does not know any advocate namely
Rishabh Maheshwari. He further admits that no one except the
testator was present when he signed the Will in question as
witness, he also admitted about the involvement of petitioner in
making the Will in question. Ld. Counsel for respondent no. 2
relied upon the judgment of the Hon’ble High Court in ILR
(1981) 2 Delhi 477 ” Closeness of attesting witness of the Will
with propounder is itself a suspicious circumstances.”
9. It is further stated that the execution of Will in
question is highly suspicious, if the petitioner claims that the will
in question has been drafted by a person who may be an advocate
and the document was legally prepared by him and the petitioner
could have examined or at least summon him in the present case,
to remove the major doubt.
10. It is further stated that there is no evidence on the
record to explain the suspicious circumstance of excluding
respondent no. 2 &3 from bequeath of the immovable property,
there is no evidence that deceased had understand the contents of
Will in question. It is further averred that both the respondents
are not aware about the execution of the alleged will in question
and respondents has produced witnesses who have clearly stated
in evidence about the closeness, faithfulness and sincerity
towards their father and no adverse suggestions were given to
them.
11. Respondent no. 2 & 3 further relying upon the
judgment passed by the Hon’ble Supreme Court in a case titled
Kavita Kanwar Vs Mrs Pamela Mehta, AIR 2020 SC 2614, DB.
It is further submitted that the Will in question is surrounded by
various suspicious circumstances which has remained un-
explained and the possibility of the Will in question is not duly
PC No 16155-2016 Dharamvir Vs State & Ors Page 32 of 67
executed by the deceased Sh. Pyare Lal, the present petition may
kindly be dismissed.
WRITTEN SUBMISSIONS ON BEHALF OF L.Rs OF
RESPONDENT NO. 9.
89. The L.Rs of respondent no. 9 also filed written
submissions and it is averred in the written submission that at the
time of making of the alleged Will, the testator was 93 years old
and admittedly, he was not of sound disposition and suffering
from various ailments since long time prior to the execution of
the said Will. ( page 8, 9, 10, 12 and 15 of the Will)
90. It is further averred that there are suspicious
circumstances around the execution of the alleged Will and thus
the said Will cannot be accepted as the last Will of the Testator.
91. It is further averred that there has been unfair and
unjust disposition of the properties under the said Will and the
petitioner himself took a lead part in the making of the Will
under which he received substantial benefits. It is further
averred that in para 10 of the alleged Will, the testator himself
avers that his three sons namely Sh. Dharamvir Singh, Sh. Dalvir
Singh, Sh. Balbir Singh alongwith their families have looked
after him in his movements and in proper medical care.
92. It is further averred that petitioner has been
appointed as an Executor of the Will and General Attorney of the
testator appointed as the Chairman of Trust established by the
testator and had to be managed entirely by the petitioner under
the Will, an amount of Rs. 25 lakhs had to paid to the petitioner
PC No 16155-2016 Dharamvir Vs State & Ors Page 33 of 67
by the other children of the testator, petitioner was given sole
power to take decision with respect to the land devolving upon
the said Trust, therefor there has been unfair and unjust
disposition of the properties under the alleged Will.
93. It is further alleged that the petitioner himself took
an active part in making the Will and got his acquaintance as
one of the witnesses to the alleged Will, namely Shri Jasbir
Singh Bajaj/PW-2, who is the classmate of petitioner’s daughter
and was very well known to the petitioner.
94. It is further averred that petitioner was in a position
of active confidence qua the testator and while abusing his
fiduciary position of active confidence, he induced the testator to
transfer his other properties in favour of the family members of
the petitioner. The petitioner, taking advantage of his fiduciary
relationship with the testator and position of active confidence
usurped and appropriated all pensionary benefits of his father
which he received on his retirement and thereafter, under
fraudulent inducement, had been regularly withdrawing the
pension amount being credited to the bank account of the
testator. It is further averred that there are suspicious
circumstances around the execution of the alleged Will and this
the said Will cannot be accepted as the last Will of the testator
and as per the decision of the Hon’ble Supreme Court in the case
of Meena Pradhan & Ors. V Kamla Pradhan & Anr. Civil appeal
No. 3351 of 2014 decided on 21.09.2023.
PC No 16155-2016 Dharamvir Vs State & Ors Page 34 of 67
STATUTORY PROVISIONS RELEVANT TO THE PRESENT
CASE.
95. Before adjudicating the issues, I would like to discuss
various statutory provisions relevant for deciding the present
case.
96. 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”.
97. Section 59 of Indian Succession Act, declares that
every person ( not being a minor) “of sound mind” may dispose
of his property by Will.
98. Section 61 of Indian Succession Act declares a Will as
void and the section 61 reads as under:
Sec. 61. 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, or by such importunity as takes away
the free agency of the testator, is void.
99. 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:-
Sec. “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.
PC No 16155-2016 Dharamvir Vs State & Ors Page 35 of 67
(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”.
100. Section 276 of Indian Succession Act states as under;-
276. Petition for probate- (1) Application for probate or
for letters of administration, with the Will annexed,
shall be made by a petition distinctly written in English
or in the language in ordinary use in proceedings before
the Court in which the application is made, with the
Will or, in the cases mentioned in sections 237, 238 and
239, a copy, draft, or statement of the contents thereof,
annexed, and stating-
a) the time of the testator's death
b) that the writing annexed in his last will and testament,
c) that it was duly executed,
d) the amount of assets which are likely to come to the
petitioner's hands, and
e) when the application is for probate, that the petitioner is
the executor named in the Will.
(2) In addition to these particulars, the petition shall further
state-
(a) when the application is to the District Judge, that the
deceased at the time of his death had a fixed place of abode, or
had some property situate within the jurisdiction of the Judge,
and
(b) when the application is to a District Delegate, that the
deceased at the time of his death had a fixed place of abode
within the jurisdiction of such Delegate;
(3) Where the application is to the District Judge and any
portion of the assets likely to come to the petitioner’s hands is
situate in another Sate, the petitioner shall further state the
amount of such assets in each State and the District Judges
within whose jurisdiction such assets are situate.
PC No 16155-2016 Dharamvir Vs State & Ors Page 36 of 67
101. 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 that 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.
ISSUE WISE FINDINGS
102. Finding on issue no. 1 & 3.
1. Whether the Will dated 05.06.2016 executed
by late Shri Pyare Lal Badgoojar S/o late Shri
Mehu Ram , is his last genuine, legal, valid Will
and duly executed in his sound disposing mind?
OPP
3. Whether the petition is liable to be dismissed
for the objections raised by the
respondent/objector no. 2 & 3 and L.Rs of
respondent no. 9 in the written
statement/objections? OPR
103. Issues no. 1 & 3 are taken together as both are
interconnected and have mutual bearing. Onus to prove issue no.
1 is upon the petitioner and onus to prove issues no. 3 is upon the
respondent no. 2, 3 & L.Rs of respondent no. 9.
104. In order to prove his case the petitioner has
examined total two witnesses i.e. PW-1/petitioner and PW-2 Sh.
PC No 16155-2016 Dharamvir Vs State & Ors Page 37 of 67
Jasbir Singh Bajaj, one of the attesting witnesses to the Will
dated 05.06.2016.
105. The respondent no. 2, in order to prove his defence
has examined two witneses i.e. R2W1/respondent no. 2 and Sh.
Daya Nand/R2W2.
106. The respondent no. 3, in order to prove his defence
has examined two witneses i.e. R3W1/respondent no. 3 and Sh.
Manoj Shokeen/R3W5.
107. The L.Rs of respondent no. 9, in order to prove
their defence has examined two witneses i.e. R9W1/Ms Parveen,
one of the Lrs of respondent no. 9 and Sh. Vishal Panwar from
State Bank of India/R9W2.
108. The principles for proving the Will have been well
settled, in catena of judgments by Hon’ble Supreme Court of
India as well as by Hon’ble Delhi High Court. Some of the
judgments have been mentioned below to appreicate the law,
applicable on the facts of the present case.
109. 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 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.
PC No 16155-2016 Dharamvir Vs State & Ors Page 38 of 67
(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 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 emphasizes 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.
PC No 16155-2016 Dharamvir Vs State & Ors Page 39 of 67
(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.”
110. 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 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, 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;
PC No 16155-2016 Dharamvir Vs State & Ors Page 40 of 67
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 the execution of the Will is
surrounded by suspicious circumstances. It requires to
consider factors such as awareness of the testator as to the
content as well as the consequences, nature and effect of the
dispositions in the Will; sound, certain and disposing state of
mind and memory of the testator at the time of execution;
testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et
cetera has to prove the same. However, even in the absence
of such allegations, if there are circumstances giving rise to
doubt, then it becomes the duty of the propounder to dispel
such suspicious circumstances by giving a cogent and
convincing explanation.
xi. Suspicious circumstances must be ‘real’ germane and
valid’ and not merely ‘the fantasy of the doubting mind’.
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.
111. 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 thePC No 16155-2016 Dharamvir Vs State & Ors Page 41 of 67
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 by S.63 of the Indian Succession Act. The
onus of proving the will is on the propounder and in the
absence of suspicious circumstances surrounding the
execution of the will, proof of testamentary capacity and
the 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)
112. 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
PC No 16155-2016 Dharamvir Vs State & Ors Page 42 of 67
constitute 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.
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 circumstancesPC No 16155-2016 Dharamvir Vs State & Ors Page 43 of 67
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.
113. In a case titled Inder Bala Bose vs Maninder Chandra
Bose AIR 1982 SC 133, the Hon’ble Supreme Court of India has
held that
“any and every circumstance is not a suspicious
circumstance. A circumstance would be suspicious
when it is not normal or is not normal in a normal
situation or is not expected from a normal person.”
114. In a case titled Kavita Kanwar Vs Mrs Pamela Mehta
decided on 19.05.2020 passed by Hon’ble Supreme Court of
India has held as follows:
PC No 16155-2016 Dharamvir Vs State & Ors Page 44 of 67
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.
115. 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
sound and disposing state of mind:
(iii) That the testator had executed the Will, of 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:
(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,
atleast, if alive, must be examined in the Court as per section 68
of the Indian Evidence Act.
PC No 16155-2016 Dharamvir Vs State & Ors Page 45 of 67
116. PW-1/petitioner, in his examination in chief by way
of affidavit has deposed that he looked after the deceased
physically as well as emotionally hence bequest of the properties
has to be done as per the last and original testament dated
05.06.2016, as left by late Sh. Pyare Lal Badoojar. PW-1 further
deposed in his affidavit that the last and original Will of late Sh.
Pyare Lal Badoojar is the present Will dated 05.06.2016, bearing
the real and actual signatures of the deceased Sh. Pyare Lal
Badoojar, in the presence of independent witnesses, in his
complete and full senses and alert mental faculties and in good
physical conditions.
117. PW-1 further deposed by way of his affidavit in
evidence that late Sh. Pyare Lal Badoojar was in an extremely
and good state of mind all along till the time of his demise on
21.06.2016 and more particularly at the time of executing the
present Will on 05.06.2016. PW-1 further deposed that late Sh.
Pyare Lal Badoojar used to go with him to the Sonia Hospital,
which is about one kilometer from his residence for his regular
medical checkups which were conducted by eminent doctors of
the hospital and he was given necessary treatment and medical
attention by Dr. Shuchin Bajaj M.D, Dr. Hari Kishan ( MBBS)
and Dr. Naveen Nischal M.D and the medical record of his such
treatment as an out patient are tendered in evidence as Ex.
PW-1/6 (Colly).
118. PW-1, further deposed by way of his affidavit in
evidence that late Sh. Pyare Lal Badoojar was in a hale and
hearty physical condition and extremely good mental health as
he had been actively participating in various family get-togethers
PC No 16155-2016 Dharamvir Vs State & Ors Page 46 of 67
and functions not only at his residence but at community hall of
the locality and the banquet halls far away from his residence.
PW-1 further deposed that on 24.03.2016, just less than 2 months
before his demise, to welcome his grand daughter Sanjeeta, her
daughter and her family, who all had come from New Zealand
after more than 7-8 year, he went all the way to a banquet by
name ‘Submarine’ in Punjabi Bath, New Delhi and blessed them
all.
119. PW-1/petitioner has deposed in his examination in
chief by way of affidavit that late Sh. Pyare Lal Badgoojar in his
last and original Will dated 05.06.2016, clearly stated on page 16
that ” as far as my daughters are concerned, I have already spent
money beyond my capacity in their respective marriages and also
have performed all other social obligations after their marriages.
All my daughters are well settled in their respective matrimonial
houses and they are not in any manner dependent upon me.
Hence, I do think not to include them as a part of my properties”.
120. PW-1 further deposed in his affidavit in evidence
that late Smt. Krishna Devi had met an unnatural death almost 30
years ago because of her family conditions and it was her last
desire and wish conveyed to the petitioner and to their father late
Sh. Pyare Lal Badoojar in clear words, not to have any relations
with her husband Sh. Jaipal Singh and his family after her death.
PW-1 further deposed in his affidavit in evidence that on her
death bed, she had even refused to talk to her husband and told
petitioner and his father late Sh. Pyare Lal Badoojar, the whole
unfortunate tragedy and cause of her unnatural death. PW-1
further deposed in his affidavit that it was such a shock and
PC No 16155-2016 Dharamvir Vs State & Ors Page 47 of 67
irreparable loss to the family which is till today has not been able
to come out of it. PW-1 further deposed in his affidavit that after
the death of Smt. Krishna Devi, it was decided by late Sh. Pyare
Lal Badoojar, not to have any relations with Sh. Jaipal Singh and
his family. PW-1 further deposed that keeping in view the last
wish of late Smt. Krishna Devi, her legal heirs were not
impleaded in the present petition. PW-1 further deposed that
respondent no. 2 & 3 have the only sheer motive of just usurping
the property of late Sh. Pyare Lal Badoojar and have no love
either towards their own real sister late Smt. Krishna Devi or his
father late Sh. Pyare Lal Badoojar.
121. PW-1 in his affidavit in evidence further deposed
that the Adhar Card of the deceased was made on 11.04.2016
after duly taking his bio-metric details none other than by a team
of Government of India Officials at his residence itself. PW-1
further averred that this is a very important government
document, which has the universal recognition and acceptance as
per law in force and is issued to a normal healthy person and not
to an incapacitated person after due verifications by senior
government officials who have expertise in doing so.
122. PW-2 Sh. Jasbir Singh ( one of the attesting witness)
has further deposed that the Will was prepared by Shri Rishabh
Maheshwari, Advocate at the asking of the deceased, who
accepted the same to be as per his wish and instructions and then
put his signature on the said will in his presence, on all the
twenty pages at Mark -A. PW-2 further deposed that the
deceased signed in his presence and in the presence of Sh. Jagbir
Singh and Sh. Rishabh Maheswari, Advocate. He further
PC No 16155-2016 Dharamvir Vs State & Ors Page 48 of 67
deposed that he and Sh. Jagbir Singh, on the request of deceased
signed and attested the said Will as attesting witnesses, then the
Will was signed by Sh. Rishabh Maheshwari, Advocate. PW-2
further deposed that Sh. Jagbir Singh and Sh. Rishabh
Maheswari signed in his presence and in the presence of late Sh.
Pyare Lal Badgoojar. PW-2 further deposed that his signatures
at at point B and signatures of Sh. Jagbir Singh and Sh. Rishabh
Maheshwari are at point C & E on the Will Ex. PW-1/3.
123. PW-2 further deposed that the deceased, at the time
of execution of the Will Ex. PW-1/3 was in good health and
sound disposing mind and the deceased executed the Will
without any pressure or coercion, of his own volition.
124. As per section 68 of Indian Evidence Act, it is
mandatory for the petitioner to examine one of the attesting
witnesses to prove the Will in question. Sh. Jasbir Singh Bajaj,
who is one of the attesting witness of the Will in question, has
been examined as PW-2. He has deposed that the Will in
question has been executed by the deceased voluntarily and it
bears his signatures as well as signatures of deceased and second
attesting witness Sh. Jagbir Singh. He also deposed that the
deceased was healthy and in sound disposing mind at the time of
execution of the Will in question. During cross-examination
conducted by ld. Counsel for respondent no. 2, PW-1 has
deposed that he was sure about sound mental health of the
deceased, on the day of execution of the Will as he had seen the
deceased in full senses.
PC No 16155-2016 Dharamvir Vs State & Ors Page 49 of 67
125. During cross-examination conducted by ld. Counsel
for respondent no. 3, PW-2 deposed that he had met advocate
Mr. Rishabh Maheshwari, on the day of execution of the Will,
Ex. PW-1/3. He further deposed during his cross-examination
that he met Sh. Jagbir Singh, the other attesting witness on the
same day i.e. 5.6.2016. PW-2 further deposed during cross-
examination conducted by ld. Counsel for L.Rs of respondent
no. 9 that Sh. Rishabh Maheshwari advocate was present when
the Will was executed and he was already present when he
reached in the evening at the house of the deceased. During
cross-examination, PW-2 further deposed that the Will was read
over to the deceased by Sh. Rishabh Maheshwari Advocate in
his presence.
126. Ld. Counsels for respondent no. 2, 3 and L.Rs of
respondent no. 9 have argued that there are several suspicious
circumstances surrounding the execution of the Will the said
suspicions have not been removed by the petitioner. The
suspicious circumstances alleged by respondents have been
considered as follows:
127. The petitioner is a major beneficiary in the Will in
question and L.Rs of respondent no. 9 have been excluded from
the inheritance in the Will in question without any valid and just
ground. I have perused the Will in question. In the Will in
question, the petitioner is not the direct beneficiary of
immovable properties of the deceased. The deceased has given
his movable properties to the petitioner. The deceased has
devolved the property measuring 225 sq. yards in Khasra No. 5
of Lal Dora, of Village, Kamruddin Nagar, Nangloi, Delhi,
PC No 16155-2016 Dharamvir Vs State & Ors Page 50 of 67
which is comprising of a building with construction portion on
the ground floor and first floor, upon his three sons namely, Sh.
Tanvir Singh ( respondent no. 2), Sh. Ranvir Singh ( respondent
no. 3) and Sh. Satvir Singh ( respondent no. 6) with the
condition that Sh. Tanvir Singh will collect Rs. 8 lakh each from
above said his both brothers and he will also contribute Rs. 8
lakh and will hand over this amount of Rs. 24 lakhs to Sh.
Dharamvir Singh for depositing the same into the trust account
and in case, they do not meet the desire criteria of paying Rs. 24
lakh then the above said property shall devolve upon the trust,
and Sh. Dharamvir Singh will take over the trust as Chairman
and will take appropriate decisions to the said land in the best
interest of the said trust.
128. In the said Will, the deceased has given property
admeasuring 451 sq. yards out of original measured 910 sq.
yards situated in Khasra No. 5 of Village Kamruddin Nagar,
Nangloi, Delhi to Sh. Dalbir Singh/respondent no. 4 ( 150 sq.
yards ) and Sh. Balbir Singh/respondent no. 5 (150 sq. yards)
and to Smt. Sarla Devi Budgoojar Charitable Trust (151 sq.
yards). Therefore , the contention of respondents that petitioner
is major beneficiary in the Will is not valid. Respondent no. 2 to
6 have been given shares in the immovable properties by the
deceased, in the Will in question. The deceased has given the
reason for excluding his daughters from receiving share in his
properties, in the Will in question. Moreover, it is settled law
that the Will is usually executed to disturb the line of succession
and it is the sweet will of the deceased to give his property to
any person and he can even exclude all his legal heirs from the
inheritance of his properties.
PC No 16155-2016 Dharamvir Vs State & Ors Page 51 of 67
129. The respondent no. 2 & 3 have relied upon earlier
Will dated 11.02.2010, executed by the deceased. As per R-2 &
R-3, the properties of the deceased should be partitioned
amongst all the legal heirs of the deceased, according to Will
dated 11.02.2010.
130. The petitioner has not denied execution of Will
dated 11.02.2010 by the deceased. Petitioner has averred in his
replication of objections of R2 & R-3 that the bequest of the
immovable properties left behind by the deceased is similar in
Will dated 5.06.2016 and Will dated 11.02.2010. The petitioner
has further submitted in replication that some conditions have
been changed due to certain changed circumstances and as per
the last wish & desire of the deceased as the answering
respondent did not perform his duties & responsibilities towards
the deceased as a son and the family as is the accepted norm in a
joint Hindu Family.
131. I have perused the said Will dated 11.02.2010. In
the said Will, the deceased had appointed the petitioner as an
Executor and had also given his movable properties to the
petitioner. In the said Will the immovable properties which are
subject matter of the present petition were given to respondent
no. 2 to 4 and wife of respondent no. 6. In the said Will, it is
also mentioned that the above said persons alongwith petitioner
will contribute Rs. 7 lakh each for running of the Smt. Sarla
Devi Budgoojar Charitable Trust. In the present Will also the
petitioner has been appointed as an Executor and the immovable
properties have been given to respondent no. 2 to 6 and movable
properties have been given to the petitioner. Instead of Rs. 7
PC No 16155-2016 Dharamvir Vs State & Ors Page 52 of 67
lakh and petitioner, the respondent no. 2, 3 & 5 are obliged to
make payment of Rs. 8 lakh each for running the above said
trust. The earlier Will also proves that the deceased had trust
upon the petitioner. In the earlier Will also the daughters have
been excluded from inheritance by the deceased. The earlier
Will also proves the genuineness of the Will in question and
trust and confidence of the deceased upon the petitioner.
132. The petitioner has played a prominent role in the
execution of the Will in question. No evidence has been led by
the respondents to prove any role played by the petitioner in
preparation of the Will in question. Even no suggestion has
been given by the respondents to the petitioner or to the attesting
witness regarding presence of the petitioner at the time of
execution of the Will in question.
133. The attesting witness Sh. Jasbir Singh is the
classmate of the daughter of the petitioner. The mere fact that
the attesting witness is the classmate of the daughter of the
petitioner, it does not raise any doubt upon the execution of the
Will in question by the deceased. Nothing has come on record
as to what benefit Sh. Jasbir Singh has obtained by signing the
Will in question as a witness. It is not probable that a person
who is a gazetted officer will sign the Will in question falsely,
after the death of the deceased, without getting any benefit,
being only the classmate of daughter of the petitioner. The mere
fac that there is age gap of 40 years between the age of the
deceased and witness, it cannot be said that Sh. Jasbir Singh
cannot become a witness in the Will. There is no requirement in
law that the attesting witness should be of the same age of the
PC No 16155-2016 Dharamvir Vs State & Ors Page 53 of 67
testator. The only requirement is that the attesting witness must
be known to the testator and in this case, it is proved that the
attesting witness Sh. Jasbir Singh was known to the deceased.
134. The contents of the Will are vague in nature. I have
perused the Will in question, the Will in question is in detail and
the distribution of property has been made clearly in express
terms by the deceased. The respondents have not disclose as to
what contents of the Will are vague in nature.
135. There are contradictions in the statement of the
witnesses. Ld. Counsel for the respondents have argued that the
petitioner has not disclosed about previous Will dated
29.04.2010 in the petition. He further argued that initially the
petitioner has denied the execution of the previous Will but later
on, he admitted the registered Will as the previous Will was
shown to him by ld. Counsel for L.Rs of respondent no. 9,
during his cross-examination.
136. It is settled law that only last Will of the deceased
is effective and probate/letters of administration can be issued
only of the last Will of the deceased. Therefore, there is no force
in the contention of respondents that the Will in question is
suspicious as the petitioner has not disclosed the previous will in
his petition.
137. The deceased was bed ridden and was not in sound
disposing mind, at the time of execution of the Will and the
deceased expired just after 15 days of the execution of the Will
in question.
PC No 16155-2016 Dharamvir Vs State & Ors Page 54 of 67
138. In order to prove above said contention, the
respondents have examined R2W2 & R3W5.
139. R2W2 deposed that Sh. Pyare Lal Badgoojar was
not in his full sense, physically sound and disposing mind for
about 6-8 months prior to his death i.e. 21.06.2016 and during
his last days of life he was completely bed ridden for about 7-8
months. He further deposed that the deceased hardly recognized
any one during his last days and he was not able to do anything
i.e. taking water, food etc. and used to take food, change clothes,
bath etc. with the help of others. R2W2 further deposed that Sh.
Tanvir Sigh used to visit the house of late Sh. Pyare Lal
Badgoojar mostly daily to look after him and also to provide
medical aids to his father.
140. In the cross-examination on behalf of petitioner,
R2W2 deposed that he was asked by Mr. Tanvir Singh to depose
before this court whatever is in his knowledge. Sh. Piyare Lal
used to live with his six children in the same house. All or any
of the six children used to take him to the doctor whenever he
fell ill. The deceased used to be taken to the nearby hospital
Sonia, he had also accompanied him to Sonia hospital once in the
year 2016 in the month of May/June. R2W2 further deposed that
he was accompanied by Satbir at that time thereafter other sons
of the deceased also came there and he came back. R2W2
further deposed that he stayed there in emergency department of
the hospital and then he came back and he did not know when
the deceased was discharged from the hospital.
PC No 16155-2016 Dharamvir Vs State & Ors Page 55 of 67
141. R3W5 further deposed that Sh. Pyare Lal Badgoojar
was not in his full sense, physically sound and disposing mind
for about 6-8 months prior to his death i.e. 21.06.2016 and
during his last days of life he was completely bed ridden for
about 7-8 months. He further deposed that the deceased hardly
recognized any one during his last days, he was not able to do
anything i.e. taking water, food etc. and used to take food,
change clothes, bath etc. with the help of others.
142. In the cross-examination on behalf of petitioner,
R3W5 deposed that Mr. Ranbir Singh asked him to be witness in
the present matter. Sh. Piyare Lal expired on 21.06.2016. The
deceased was about 90 or 92 years old at the time of his death.
R3W5 further deposed that his house is located at the distance of
60-70 meters from the house of the late Sh. Piyare Lal. The
deceased was residing with all his three sons and their family
members namely, Balbir Singh, Dalbir Singh and Satbir Singh,
however, later on one son of the deceased shifted to Paschim
Vihar, namely Dalbir Singh. Sh. Dalbir Singh had shifted about
10 years back from the death of Sh. Piyare lal.
143. R3W5 further deposed that Late Piyare Lal was
suffering from many diseases for the last about three yeas prior
to his death. All or any of his four sons used to take the deceased
to the hospital for treatment. R3W5 further deposed that he do
not know in which hospital they used to take him for the
treatment. He never accompanied Sh. Piyare Lal to the hospital
for his treatment. R3W5 further deposed that the deceased was
well read and was working. Again said the he does not know as
to up to what class the deceased had studied. R3W5 further
PC No 16155-2016 Dharamvir Vs State & Ors Page 56 of 67
deposed that he never saw any document regarding medical
treatment of deceased Piyare Lal at that time I.e prior to his
death. As per his knowledge once prior to his death i.e. 4-5
months prior, the deceased was once hospitalized but he cannot
tell the name of the hospital. R3W5 denied the suggestion that
late Piyare Lal was not admitted in the hospital prior to his death
as stated by him.
144. It is deposed by R2W2 Shri Daya Nand, during his
cross-examination that Testator Shri Pyare Lal used to live with
his six children in the same house, whereas R2W1 Shri Tanvir
Singh has deposed that he was living separately and R3W1 Shri
Ranvir Singh, another son of the Testator has deposed in his
cross-examination that his father (the deceased) was staying with
his brother namely Balbir Singh only and he was staying with his
family separately at Yusuf Sarai, at a distance of about 28 Kms
from the house of deceased at Village Kamruddin Nagar.
145. As per respondent no. 2, the deceased was living
separately in house no. 31, Khasra no. 5, Village Kamruddin
Nagar, Delhi. R2W2 and R3W5 do not know with whom
deceased was residing & R2W2 deposed falsely regarding
residing of deceased with all his six children. R3W5 has deposed
falsely regarding residing of deceased with his 3 sons namely Sh.
Balbir Singh, Sh. Dalbir Singh and Sh. Satbir Singh.
146. As per R2W2 all or any of six children used to take
the deceased to hospital. As per R3W5, all or any of 4 sons of
deceased used to take him to hospital for treatment. As per
respondent no. 2/R2W1, after 2008, the petitioner said that he
PC No 16155-2016 Dharamvir Vs State & Ors Page 57 of 67
would look after their father and after that they never took their
father (the deceased) to any hospital for any medical check up.
Respondent no. 3/R3W1 deposed that he never took his father
for any treatment and never brought or called any doctor for
treatment of the deceased.
147. There is material contradictions in the statement of
R2W2 and R3W5. R2W2 & R3W5 do not know with whom the
deceased was residing and who was looking after the deceased
and who was taking the deceased to the hospital. They have not
seen any medical document of the deceased. If they were on
visiting terms with the deceased then they must have known
about said facts. The testimony of R2W2 and R3W5 is not
credible and not inspiring the confidence of the court and also
not supported by any medical document regarding health
condition of the deceased and therefore, their testimony is
discarded being not reliable.
148. PW-1 in his affidavit in evidence has deposed that
petitioner looked after the deceased physically as well as
emotionally and late Sh. Pyare Lal Badgoojar was in an
extremely good state of mind all along till the time of his demise
on 21.06.2016 and more particularly at the time of executing the
present Will on 05.06.2016. PW-1 further deposed in his
affidavit in evidence that late Sh. Pyare Lal Badgoojar used to go
with him to the Sonia Hospital, which is about one kilometer
from his residence for his regular medical checkups which were
conducted by eminent doctors of the hospital and he was given
necessary treatment and medical attention by Dr. Shuchin Bajaj
M.D, Dr. Hari Kishan ( MBBS) and Dr. Naveen Nischal M.D
PC No 16155-2016 Dharamvir Vs State & Ors Page 58 of 67
and the medical record of his such treatment as an out patient are
tendered in evidence as Ex. PW-1/6 (Colly).
149. PW-1 in his affidavit in evidence further deposed
that late Sh. Pyare Lal Badoojar was in a hale and hearty
physical condition and extremely good mental health as he had
been actively participating in various family get-togethers and
functions.
150 . PW-1 deposed in his examination in chief by way of
affidavit that the deceased attended retirement function of his
sone Sh. Dalbir Singh in community hall in July, 2015, in which
he himself made a speech & blessed his retiring son and also
filed photographs of that function which are Ex. PW-1/7. PW-1
further deposed that on 24.03.2016, the deceased attended family
function in Submarine Banquet Hall, in Punjabi Bagh and filed
photographs of that function as exhibited Ex. PW-1/8. The
respondents have not denied the above facts of attending
functions by the deceased. No suggestion in denial of above
facts has been given to PW-1 by the respondents. The above
facts has been remained unrebutted & unchallenged. The
deceased had attended function on 24.03.2016, just three months
before his death and in photographs, he is seen sitting on a chair
and appears to be in senses. The deceased was well and in sound
mind otherwise he would not attend above function on
24.03.2016.
151. PW-1 in his affidavit in evidence further deposed
that the Adhar Card of the deceased was made on 11.04.2016,
after duly taking his bio-metric details by a team of Government
PC No 16155-2016 Dharamvir Vs State & Ors Page 59 of 67
of India Officials at his residence itself. PW-1 further deposed
that this is a very important government document, which has the
universal recognition and acceptance as per law in force is issued
to a normal healthy person and not to an incapacitated person
after due verifications by senior government officials who have
expertise in doing so.
152. The respondents have not disputed above said facts
during cross-examination of PW-1 and no suggestion in denial
regarding above said facts has been given to PW-1 by the
respondents. The above said facts remains unrebutted and
unchallenged. In the photographs Ex. PW-1/7 & Ex. PW-1/8 the
deceased is visible in full senses. The respondents have not led
any evidence to prove that the deceased was not in sound mind,
at the time of execution of the will or the deceased was bed
ridden at the time of execution of the Will in question. No
doctor has been summoned or examined by the respondents to
prove the ill health of the deceased. No medical document has
been filed on record on behalf of the respondents. The petitioner
as well as PW-2 has clearly deposed that the deceased was
healthy and in sound mind at the time of execution of the Will in
question. During cross conducted on behalf of respondent no. 2,
PW-2 deposed that ” it is correct that deceased Pyare Lal was
capable of walking on 5.6.2016. The preparation of Aadhar Card
of the deceased by government official also shows that the
deceased was not of unsound mind.
153. The mere fact that deceased died just after 15 days
of execution of Will, it cannot be presumed that the deceased
was not mentally fit at the time of execution of Will in question.
PC No 16155-2016 Dharamvir Vs State & Ors Page 60 of 67
There is no evidence on record to the fact that the deceased was
not in sound mind before his death. The respondents have failed
to prove that the deceased was not in sound mind at the time of
execution of the Will in question. In view of the above said
facts, it is held that the petitioner is succeeding in proving that
the deceased was in sound and disposing state of mind at the
time of execution of Will.
154. The petitioner has not deliberately initially made the
L.Rs of respondent no.9 as party in the present case.
155. PW-1 further in his affidavit in evidence deposed
that late Smt. Krishna Devi had met an unnatural death almost 30
years ago because of her family conditions and it was her last
desire and wish conveyed to the petitioner and their father late
Sh. Pyare Lal Badoojar in clear words not to have any relations
with her husband Sh. Jaipal Singh and his family after her death.
PW-1 further deposed in his affidavit in evidence that on her
death bed, she had even refused to talk to her husband and told
petitioner and his father late Sh. Pyare Lal Badoojar the whole
unfortunate tragedy and cause of her unnatural death. PW-1
further deposed in his affidavit that it was such a shock and
irreparable loss to the family which is till today has not been able
to come out of it. PW-1 further deposed in his affidavit that after
the death of Smt. Krishna Devi, it was decided by late Sh. Pyare
Lal Badoojar not to have any relations with Sh. Jaipal Singh and
his family. PW-1 further deposed that keeping in view the last
wish of late Smt. Krishna Devi her legal heirs were not
impleaded in the present petition.
PC No 16155-2016 Dharamvir Vs State & Ors Page 61 of 67
156. The respondents have not disputed above said facts
during cross-examination of PW-1 and no suggestion in denial
regarding above said facts has been given to PW-1 by the
respondents. The above said facts remains un-rebutted and
unchallenged. The mere fact that initially L.Rs of respondent no.
9 had not been made party in the present case does not raise any
suspicion upon the execution of the Will in question.
157. Ld. Counsel for respondent no. 2 & 3 has argued
that PW-2 is not a reliable witness. He further argued that PW-2
even did not know the schooling and other details of the
deceased. He further argued that deceased never visited his
office at Tamil Naidu and also never visited his house during his
life time. PW-2 could not even tell the name of all the children
of the deceased. PW-2 has deposed that grand daughter of the
deceased was his class fellow at law Centre, Delhi University.
PW-2 has admitted in his cross-examination that in Para no. 1 of
his affidavit, he mentioned that he knew deceased Sh. Payare Lal
since 2012. PW-2 also deposed that the deceased retired from
his job in 1982 and deceased was having six sons and three
daughters and out of which one daughter has died. PW-2 has
denied the suggestion that he did not attend the cremation of
deceased Payare Lal. Ld. Counsel for R-3 has given suggestion
to PW-2 that, ” it is wrong to suggest that I had visited the house
of the deceased on the request of petitioner on 5.6.2016.” “It is
correct that on that day I had came in my official vehicle”. PW-2
further deposed that he used to see deceased at his house prior to
5.6.2016. The above said facts proves that PW-2 knew the
deceased. It does not create any doubt upon the testimony of
PW-2 only also to the facts that PW-2 did not know minute
PC No 16155-2016 Dharamvir Vs State & Ors Page 62 of 67
details about the education qualification of the deceased, about
the profession of the father of the deceased, about the name of
the Village of deceased’s wife, names of all the children of the
deceased and regarding date of joining of the deceased in
Railway Services. For becoming an attesting witness in a Will, it
is not required by law that the attesting witness should know
complete details of the testator. PW-2 has disclosed the manner
of execution of Will by the deceased and it is also proved that
PW-2 was known to the deceased.
158. Ld. Counsel for respondent no. 2 & 3 further argued
that the PW-2 does not know where the Will was drafted. He
further argued that PW-2 has deposed that when he signed the
Will, only deceased was present. He further argued that PW-2
has deposed that in his presence deceased did not instruct the
advocate Mr. Rishabh Maheshwari for preparation of Will and he
was not present when the Will was got drafted and typed. As per
section 63 of Indian Succession Act, it is not mandatory that the
Will should be drafted in the presence of the attesting witnesses.
The only requirement is that the attesting witnesses must have
either seen the testator signing the Will, after admitting its
contents or got acknowledgment from the testator regarding his
signature on the Will, after understanding the contents of the
Will. The mere fact that the Will was not drafted in the presence
of PW-2 and PW-2 does not know where the Will was drafted, it
does not effect the legality and validity of the Will in question.
Reliance is placed upon the judgment titled as Hari Singh & Anr.
Vs State & Ors. decided on 3.10.2010, the Hon’ble High Court
of Delhi. In para no. 62 of the above said judgment, has
observed as follows:
PC No 16155-2016 Dharamvir Vs State & Ors Page 63 of 67
“We have already held that the petitioner is not
required in a probate case to lead evidence as
regards preparation of Will. The factum of
valid attestation is alone to be proved. The fact
that Shri Dajit Singh was not consulted for
preparation of the Will cannot be a ground for
suspicion”.
159. The Will in question does not bear the signatures of
the deceased and is a forged and fabricated Will. Ld. Counsels
for the respondents have argued that the deceased used to sign as
Pyare Lal but the Will in question bears signatures of deceased
as Pyare Lal Badgoojar. During cross-examination, the
petitioner/PW-1 was asked to produce original Trust Deed &
same was produced by PW-1 and exhibited as Ex. PW-1/R3.
The respondents have not disputed the genuineness of Trust
Deed Ex. PW-1/R3. In the Trust Deed Ex. PW-1/R3, the
deceased has put his signatures as Pyare Lal Badgoojer. The
respondents have not disputed signatures of deceased on Trust
Deed Ex. PW-1/R3. So, there is no force in the contention of
respondents that the deceased used to sign only as Pyare Lal and
not as Pyare Lal Bodgoojer.
160. PW-2 has deposed that the deceased had signed the
Will in question in his presence and he further deposed in his
evidence by way of affidavit that he identified the signatures of
late Sh. Pyare Lal Badoojar as the same has been put in his
presence, on all pages of the Will. PW-2 also deposed that the
other attesting witness Sh. Jagbir Singh also signed the Will in
his presence and signatures of Sh. Jagbir Singh, are at point C on
the Will. Petitioner/PW-1 has also deposed that the Will in
question bears the real and actual signatures of the deceased. No
evidence has been led on behalf of the respondents that the Will
PC No 16155-2016 Dharamvir Vs State & Ors Page 64 of 67
in question does not bears the signatures of the deceased or that
the signatures of the deceased on the Will are forged and
fabricated. Moreover, ld. Counsel for L.Rs of respondent no. 9
has given suggestion to PW-1 that ” it is wrong to suggest that I
have copied the earlier Will and prepared the Will in dispute and
obtained signatures of my father by making material variations”.
This suggestion shows that signatures of deceased on the Will in
question are admitted by L.Rs of respondent no. 9. Respondent
no. 4, 5 & 6 have already filed no objection for granting Probate
of Will dated 5.6.2016 to the petitioner. Respondent no. 7 & 8
have not filed any objection in the present case. In view of the
foregoing discussions, it is held that the petitioner is succeeded
in proving that the Will in question bears the signatures of the
deceased.
161. No other Will executed after 5.6.2016 by the
deceased has been either alleged or brought on record by any of
the parties. Therefore, it is held that the Will in question is the
last Will of the deceased.
162. The L.Rs of respondent no. 9 has also alleged in
their objections that the Will in question has been procured
fraudulently by the petitioner from the deceased and it is
manipulated Will and the petitioner was in position of
confidence qua the deceased. The deceased was a literate person
and was retired from Railway and he was Chairman of Trust and
looking after the said trust. No evidence has been led by the
L.Rs of respondent no. 9 to prove that the petitioner has put
undue influence upon the deceased or procured Will in question
fraudulently from the deceased or the Will in question is
PC No 16155-2016 Dharamvir Vs State & Ors Page 65 of 67
manipulated Will. The L.Rs of respondent no. 9 has failed to
prove their above said objection.
163. In view of the foregoing discussion, it is held that
the deceased has executed the Will in question voluntarily with
his free consent and he was in sound disposing state of mindand
was aware about the contents of the Will at the time of its
execution. It is held that the Will in question is legal, valid and
last Will of the deceased. Accordingly issue no. 1 & 3 are
decided in favour of the petitioner and against the respondents.
164. Finding on issue no. 2
2. Whether petitioner is entitled for
Probate/letter of administration on the basis of
the aforesaid Will, as claimed OPP
165. Issue no. 1 & 3 have already been decided in favour of
the petitioner. It has already been held above that the Will in
question is legal, valid and last Will of the deceased. The
petitioner has been appointed as an Executor, in the Will in
question by the deceased. As per Section 222 of the Indian
Succession Act, the probate can be granted only to an Executor,
appointed by the Will. In view of section 222 of the Indian
Succession Act, the petitioner is entitled to obtain Probate of the
Will in question. Accordingly, issue no. 2 is decided in favour
of the petitioner and against the respondents.
166. Relief
167. In view of abovesaid discussions and findings, the
present petition stands allowed and it is ordered that a certificate
PC No 16155-2016 Dharamvir Vs State & Ors Page 66 of 67
of Probate of the Will dated 5.06.2016, executed by late Shri
Pyare Lal Badgoojar be issued to the petitioner under the seal of
this court, in the form set forth in Schedule VI of the Indian
Succession Act, 1925 with copy of Will, subject to completion
of the following formalities.
(i) furnishing of administration cum surety bond and requisite
court fees on the value of the movable and immovable properties
of the deceased, coming into the hand of the petitioner for
administration, as per Will Ex. PW-1/3.
168. Further, the petitioner is also directed to file the
inventory of movable and immovable properties within six
months and final statement of account within one year from the
date of receipt of formal certificate of Probate of the Will. The
formalities of issuance of certificate of Probate of the Will be
completed within six months from the date of the judgment, as
per Section 290 & 291 read with Section 317 of Indian
Succession Act.
169. File be consigned to the Record Room after due
compliance.
SHIV Digitally signed by
SHIV KUMAR
KUMAR Date: 2025.01.07
17:11:08 +0530
Announced in the open court (Shiv Kumar )
on 7th January, 2025 DJ-02 (West)
Tis Hazari Courts
Delhi.
PC No 16155-2016 Dharamvir Vs State & Ors Page 67 of 67