Delhi District Court
Gulshan Kumar vs Roshan Lal on 31 July, 2025
IN THE COURT OF DISTRICT JUDGE-05, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
DLCT010002542005
Presided by:-
Sh. Abhishek Srivastava, DHJS
PC No. 42273/16
CNR No. - DLCT01-000254-2005
1. Sh. Gulshan Kumar
2. Sh. Babu Lal
Both S/o Late Sh. Chunni Lal
R/o 16/11, Kalkaji,
New Delhi-110019 ........ Petitioners
Versus
1. Sh. Roshan Lal
S/o Late Sh. Chunni Lal
R/o 1811, Govindpuri Extension,
Kalkaji, New Delhi
2. Sh. Darshan Lal (deceased)
S/o Late Sh. Chunni Lal
R/o 16/11, Kalkaji Extension,
New Delhi
(2a) Smt. Pushpa Rani (Wife of Sh. Darshan Lal)
(2b) Sh. Ankit (son of Sh. Darshan Lal)
PC 42273/16 1 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
Both R/o 16/11, Kalkaji Extension,
New Delhi
3. Smt. Prakash Devi
D/o Late Sh. Chunni Lal
R/o H.No. 283,
Mohalla : Jat Katian
Jammu Tavi, Jammu & Kashmir
(expired during the pendency of the petition)
4. Ms. Raj Rani
D/o Late Sh. Chunni Lal
R/o C-5/36, Vansant Kunj,
Delhi
5. Ms. Swaran Kanta
D/o Late Sh. Chunni Lal
R/o H.No. 1342, Gali No. 13,
Govindpuri, New Delhi-110019
6. Sh. Kamalesh Rani
D/o Late Sh. Chunni Lal
R/o Mohalla: Kawar Khand,
Jammu Tavi, Jammu & Kashmir
7. The State ........ Respondents
Date of Institution: 15.12.2005
Date of conclusion of final arguments: 26.05.2025
Date of Judgment: 31.07.2025
JUDGMENT
1. By this judgment, this court shall dispose of the present petition filed by the
petitioners, seeking grant of probate/ letters of administration, in terms of Will
dated 16.09.2003, duly registered on the same day i.e. 16.09.2003 with the
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
Sub-Registrar-VII, Vikas Sadan, INA, New Delhi vide registration No. 4831
in Book No. III, Volume No. 382 on pages 1 to 3, of estate of deceased Late
Sh. Chunni Lal S/o Late Sh. Labamal (hereinafter referred to as the deceased
testator) i.e. property bearing No. 16/11, Kalkaji, New Delhi, a built up
property measuring 200 Sq. Yds. (hereinafter referred to as subject property)
in their favour.
2. Brief facts of the case are;
(a) That the petitioners No. 1 and 2 and the respondents No. 1 and 2 are
the sons, and respondents Nos. 3 to 6 are daughters of the deceased
testator.
(b) That the deceased testator was the absolute owner of the subject
property by virtue of a conveyance deed registered as document No.
7367 in Addl. Book No. I, Vol. No. 1199 on pages 15 to 16 dated
15.07.1997 executed/ registered in the office of S. R. Delhi.
(c) That the petitioners No. 1 and 2 were looking after the deceased
testator as they had love and affection for him, and the deceased
testator was also having the love and affection for both the petitioners
and as such the deceased testator executed a Will dated 16.09.2003
(registered on 16.09.2003) in favour of the petitioners thereby
bequeathing the subject property in their favour.
(d) That the deceased testator expired on 20.03.2005 leaving behind the
petitioners and respondent No. 1 to 6. There are no other legal heirs of
the deceased testator except the petitioners and the respondents.
PC 42273/16 3 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
(e) That, in terms of the Will dated 16.09.2003, the petitioners have equal
rights in the subject property, and the respondents have no right, title
or interest in the subject property.
(f) That the petitioners are in use and occupation of the subject property
except the first floor tin shed which was in the possession of the
respondent No. 2 previously. During his lifetime, the deceased Chunni
Lal succeeded in a suit for possession filed against respondent No. 2
and now the petitioners are entitled for the said possession of the first
floor tin shed from respondent No. 2.
(g) That there is no impediment as to why the relief as prayed for should
not be granted to the petitioners.
3. The record of the Court file shows that upon filing of this petition, notice of
the petition was directed to be issued to the respondents including the
respondent/ State through concerned District Collector. Further, citation in
terms of Section 283 of the Act was directed to be published in Hindi
newspaper “Rashtriya Sahara” calling upon all the persons claiming interest in
the estate of the deceased testator to come and see the proceedings and file
objections vide Order dated 15.12.2005. Citation was also directed to be
displayed on the notice board of the Court.
4. As per record, the citation was duly published in the newspaper “Rashtriya
Sahara”. Further, as per the record, notices of this petition were served upon
all the respondents. A joint written statement/ objection has been filed on
behalf of respondents No. 1 and 5. Respondent No. 2 has filed a separate
objection. Ld. predecessor of this Court vide Order dated 27.04.2006
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
proceeded respondents No. 3 and 4 ex-parte. Subsequently, respondent No. 4
has filed an affidavit in the form of ‘no-objection’. Ld. predecessor of this
Court vide Order dated 29.03.2007 rejected the application of respondent No.
6 whereby the respondent No. 6 was seeking an opportunity to file objections.
5. In their joint written statement/ objection, the respondents No. 1 and 5 took
the following objections:-
(a) That the respondents No. 1 and 5 always took care of the deceased
testator and as such there was no question of excluding the
respondents from the inheritance. On the contrary, it was petitioners
who used to misbehave and quarrel with him. It may be noted that the
last rites were performed by the respondent No. 1.
(b) That the alleged Will dated 16.09.2003 is written in English, a
language/ script in which the deceased testator was not conversant
with.
(c) That the deceased testator was not in good physical and mental health
at the time of execution of the alleged Will.
(d) That the alleged Will dated 16.09.2003 is a forged and fabricated
document. Forgery and fabrication are apparent from the fact that
although the deceased testator never possessed a driving licence, a
driving licence number is appearing beneath the photograph of
testator affixed on the said Will.
(e) That it is pertinent to mention that the petitioners earlier got a Will
dated 18.03.1999 forged and fabricated, and when it came to the
knowledge of deceased testator, he revoked and cancelled the samePC 42273/16 5 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
vide a document dated 16.07.2003. Thus, there was hardly any
occasion or reason for deceased testator to bequeath the same property
to the same legatees after a mere lapse of two months.
(f) That no plausible reason has been assigned in the alleged Will to
disinherit the respondents (who happen to be natural successors) from
the estate of the deceased. It is pertinent to note that the daughters
were given gifts worth Rs. 25000/-30,000/- in their respective
marriages whereas the subject property is of crores of rupees.
(g) That, in any case, the deceased testator had no right to bequeath the
subject property as it was/ is an ancestral property. The subject
property was allotted to the deceased testator in lieu of the property
(House ‘Pai Da Bugga’, Rang pura road, opposite police station
Sialkot, Pakistan) left in Pakistan which was in the name of
grandfather Sh. Labha Mal. Earlier, grandfather was temporarily
allotted a quarter No. 3/6, Lord Mint, Purana Quilla, Delhi and of late,
the Subject property was allotted in 1963.
(h) Thus, the petition of the petitioners is liable to be dismissed.
6. In his written statement/ objection, the respondents No. 2 took the following
objections:-
(a) That the deceased testator was neither competent nor empowered to
bequeath the subject property in favour of the petitioners in view of
the fact that the grandfather of the petitioners and the respondents
namely Sh. Labha Mal, after migration from Pakistan, was allotted the
property by the Ministry of Rehabilitation, Govt. of India in the yearPC 42273/16 6 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
1960 and after his death said property was mutated in the name of the
father of the parties being the eldest member of the family.
(b) That the petitioners have not come to this Court with clean hands and
have concealed the material fact that earlier also the petitioners
procured a Will dated 18.03.1999 and during his lifetime the father of
the parties cancelled the said Will before Sub-Registrar-V, New Delhi
on 16.07.2003 vide a document registered as document No. 5924 in
Book No. 4, Volume No. 1956 at pages 179 to 180. The Will in
question dated 16.09.2003 does not mention/ refer to the earlier Will
dated 18.03.1999 and about its cancellation. The question of executing
the alleged Will does not arise as he himself voluntarily cancelled the
alleged previous Will dated 18.03.1999 after coming to know about
the alleged previous Will dated 18.03.1999.
(c) That the alleged Will dated 16.09.2003 is a void document as the
father of the parties did not execute any such Will in favour of
petitioners. It is stated that the father of the parties was quite ill and
was not in a sound health and disposing mind.
(d) That the contents of procured Will were not known to the father of the
parties till his death. The alleged Will in question dated 16.09.2003
has been got registered by the petitioners outside the area of Sub
registrar’s office where the subject property is situated after putting
the alleged thumb impression of deceased testator.
(e) Thus, Thus, the petition of the petitioners is liable to be dismissed.
PC 42273/16 7 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
7. The petitioners thereupon filed the replication to the respective written
statement/ objection of the respondent Nos. 1 & 5 and 2 wherein the
petitioners denied the case of the respondents and reaffirmed the contents of
the petition. Petitioners submitted that the deceased testator during his lifetime
disowned the respondents No. 1 and 2 by issuing a public notice dated
06.08.1999 in Jansatta Hind daily. Respondent No. 1 alongwith his family, in
pursuance to a judgment passed in the suit, have already been evicted from the
subject property. Even the respondent No. 2 has lost a Suit filed by the
deceased testator against him. It is reiterated that the Will dated 16.09.2003 is
the last valid Will of the deceased testator.
8. On the basis of pleadings of the parties, following issues were framed by the
Ld. predecessor of this Court vide Order dated 16.10.2006:-
1. Whether the Will dated 16.09.2003 as propounded by the petitioners was
validly executed by the deceased Sh. Chunni Lal in his sound disposing
mind and same is last Will and testament ? OPP
2. Relief.
9. During the trial of this petition, four witnesses viz; petitioner No. 1 Sh.
Gulshan Kumar as PW1; Sh. Sunil Kumar, LDC from the office of Sub
Registrar- VII, INA, New Delhi as PW4; petitioner No. 2 Sh. Babu Lal as
PW5; and Sh. Satvinder Singh (one of the attesting witnesses to the Will) as
PW6 have been examined in support of the case of the petitioners. It may be
noted that no witness has been examined as PW2 and PW3. So, the sequence
of petitioner’s witnesses is as PW1, PW4, PW5 and PW6.
PC 42273/16 8 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
10. Sh. Gulshan Kumar (petitioner No. 1) has been examined by the petitioners as
PW1, who has tendered his evidence by way of affidavit Ex.PW1/A alongwith
following documents:-
(i) Ex.PW1/1: Certified copy of lease deed and conveyance deed of the
subject property
(ii) Ex.PW1/2: Original Will dated 16.09.2003
(iii) Ex.PW1/3: Death Certificate of deceased testator
(iv) Ex.PW1/4: Photocopy of page of newspaper ‘Jansatta’ dated 06.08.1999
wherein public notice was published that the deceased testator disowned
respondents No. 1 and 2.
11. Sh. Sunil Kumar, LDC from the office of Sub Registrar- VII, INA, New Delhi
has been examined as PW4. He has brought the summoned record i.e. Will
executed by Late Sh. Chunni Lal which was registered in the office of Sub
Registrar on 16.09.2003 at Serial No. 4831 Book No. 3, Volume No. 382,
pages 1 to 3. PW4 saw the original Will and deposed that the said Will is the
same which is registered in his office. Original Will for the purpose of
identification was marked as Mark A.
12. Sh. Babu Lal (petitioner No. 2) has been examined by the petitioners as PW5,
who has tendered his evidence by way of affidavit Ex.P-5. He relied on
documents earlier exhibited during examination of PW1.
13. Sh. Satvinder Singh, one of the attesting witnesses to the Will, has been
examined by the petitioners as PW6 who has tendered his evidence by way of
affidavit Ex.PW6/1.
PC 42273/16 9 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
14. All the witnesses were cross-examined on behalf of the respondents. PE was
thereafter closed vide Order dated 08.09.2011 and the petition was posted for
RE.
15. During the trial of this petition, three witnesses viz; respondent No. 5 Smt.
Swaran Kanta as R5W1; respondent No. 6 Smt. Kamlesh Rani as R6W1; and
Sh. Rakesh Sharma, Superintendent, Land & Development Office, Nirman
Bhawan, New Delhi as R6W2 have been examined in support of the case of
the respondents.
16. Smt. Swaran Kanta (respondent No. 5) has been examined by the respondents
as R5W1, who has tendered her evidence by way of affidavit Ex.R5W1/A.
17. Smt. Kamlesh Devi (respondent No. 6) has been examined by the respondents
as R6W1, who has tendered her evidence by way of affidavit Ex.R6W1/A.
18. Sh. Rakesh Sharma, Superintendent, Land & Development Office, Nirman
Bhawan, New Delhi has been examined by the respondents as R6W2. He has
brought summoned documents exhibited as Ex.R6W2/A (Colly) (Running
into 90 pages) (OSR).
19. All the witnesses were cross-examined on behalf of the petitioners. RE was
thereafter closed vide order dated 28.08.2018 and the petition was posted for
final arguments.
20. Here, at this point, some facts are required to be noted;
(a) Perusal of record shows that the respondent No. 1 is not traceable
since March, 2017 (refer Order dated 11.12.2018).
(b) Perusal of record reveals that respondent No. 2 has been examined-in-
chief in part as R2W1 who tendered his evidence affidavit
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
Ex.R2W1/A, and his further examination-in-chief was deferred.
However, in the meantime, respondent No. 2 has expired and his LRs
are taken on record vide Order dated 02.05.2017.
(c) During the pendency of petition, respondent No. 3 has expired,
however, Ld. predecessor of this Court exempted the petitioners to
implead the LRs of deceased respondent No. 3 vide Order dated
11.07.2019.
(d) During the pendency of the petition, respondent No. 4 has given a no-
objection in favour of petitioners, however, subsequently she alleged
that her no-objection was obtained by playing fraud upon her. She
even filed an application to contest the case. The said application was
dismissed by the Ld. predecessor of this Court vide Order dated
11.07.2019.
21. Final arguments have thereafter been heard on behalf of petitioners, LRs of
deceased respondent No. 2 and respondents No. 5 & 6. Besides, additional
written submissions have also been filed on behalf of petitioners. Record
shows that written submissions on behalf of petitioners and of respondents
No. 5 and 6 are already on record.
22. Ld. Counsel for petitioners has relied on following judgments;
(i) Gopal Krishan and Ors. V/s Daulat Ram and Ors.; (2025) 2 SCC 804
(ii) K. L. Malhotra V/s Sudershan Kumari and Anr.; 2008 SCC OnLine Del
435
(iii) Naresh Charan Das Gupta V/s Paresh Charan Das Gupta; (1954) 2 SCC
800
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Judgment dated 31.07.2025
(iv) Mt. Riazul Nisa Begum V/s Lala Puran Chand; 1943 SCC OnLine Oudh
CC 73
(v) Ram Lal V/s Hari Kishan; 1986 SCC OnLine Del 253
(vi) W. Dhasaratha Rao and Ors. V/s Heroji Rao and Ors. 1986 SCC OnLine
Mad 15
(vii) Nagarathinammal V/s Pichai and Anr.; CRP No. 2006 of 2001
(viii) Bitu Bhalla V/s Rajesh Mohan Bhalla and Anr.; 2011 SCC OnLine Del
4287
(ix) Anil Prakash and Anr. V/s State and Ors. 2018 SCC OnLine Del 7084
(x) Derek AC Lobo and Ors. V/s Ulric M A Lobo; 2023 SCC OnLine SC
1893
(xi) Nutan Kumar and Anr. V/s Rajesh Arora and Ors.; 2013 SCC OnLine
Del 167
(xii) Mahesh Kumar (dead) by LRs. V/s Vinod Kumar and Others; (2012) 4
SCC 387
23. Ld. Counsel for LRs of deceased respondent No. 2 has relied on following
judgments;
(i) Lilian Coelho & Ors. V/s Myra Phiomena Calho; Civil Appeal No. 7198
of 2009 (decided on 02.01.2025)
(ii) Kavita Kanwar V/s Mrs. Pamela Mehta; AIR 2020 SC 2614
(iii) V. M. Mathew V/s V. S. Sharma & Ors.; 1996 AIR 109
(iv) Ramjus Foundation V/s Union of India; Civil Appeal No. 6662 of 2004
(decided on 09.11.2010).
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24. I have heard the submissions made on behalf of the parties and have also
carefully perused the material available on record. Before proceeding to give
my issue wise findings, I would like to refer to what Hon’ble Supreme Court
has noted in Leela Rajagopal & Ors. V/s Kamla Menon Cocharan & ors.; AIR
2015 SC 107;
10. A Will may have certain features and may have been executed in
certain circumstances which may appear to be somewhat unnatural. Such
unusual features appearing in a Will or the unnatural circumstances
surrounding its execution will definitely justify a close scrutiny before the
same can be accepted. It is the overall assessment of the Court on the basis
of such scrutiny; the cumulative effect of the unusual features and
circumstances which would weigh with the Court in the determination
required to be made by it. The judicial verdict, in the last resort, will be on
the basis of a consideration of all the unusual features and suspicious
circumstances put together and not on the impact of any single feature that
may be found in a Will or a singular circumstance that may appear from the
process leading to its execution or registration. This is the essence of the
repeated pronouncements made by this Court on the subject including the
decisions referred to and relied upon before us.
(Underlined by me)
25. My issue wise findings on the issues settled by Ld. predecessor of this Court
vide Order dated 16.10.2006 are as under:-
ISSUE NO. 1
1. Whether the Will dated 16.09.2003 as propounded by the petitioners was
validly executed by the deceased Sh. Chunni Lal in his sound disposing
mind and same is last Will and testament ? OPPPC 42273/16 13 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
26. Onus to prove issue No. 1 was on the petitioners.
27. Before coming to facts of the Case, it would be pertinent to refer to the
relevant principles relating to examination of Wills as settled by judicial
decisions. Law relating to proof of Wills is no longer res-integra, in view of
the authoritative pronouncements of Hon’ble Supreme Court in H.
Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426: AIR
1959 SC 443; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321; Kavita
Kanwar v. Pamela Mehta, (2021) 11 SCC 209 : 2020 SCC OnLine SC 464
and various other judgments. It is a well settled legal position that the onus to
prove the due execution of the Will by the testator in a sound and disposing
state of mind is upon the propounder of the Will. Moreover, as per the
provisions of Section 68 of the Indian Evidence Act, 1872 (Section 67 of the
Bharatiya Sakshya Adhiniyam, 2023), even a registered Will is required to be
proved by examining at least one of the attesting witnesses to the Will, who
shall prove the execution thereof by the testator in terms of Section 63 of the
Indian Succession Act, 1925.
28. Moreover, in case, the execution of the Will is surrounded by suspicious
circumstances, onus to remove all the legitimate suspicions, before the
document is accepted by the Court as the last and genuine Will of the testator,
shall also be upon the propounder of the Will. No doubt, if a Caveat is filed
alleging exercise of undue influence, fraud or coercion in respect of execution
of the Will, the same is required to be proved by the Caveator, however, even
without any such plea, the circumstances, may give rise to doubts as to
whether the testator was acting of his own free will in execution of the Will
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Judgment dated 31.07.2025
and onus to remove such legitimate doubts shall also be the part of initial onus
of the propounder. The issue as to what circumstances can be considered to be
suspicious circumstances surrounding the execution of the Will, shall depend
upon the peculiar facts and circumstances of each case and no straight jacket
formula can be laid down in this regard.
29. Relevant observations of Hon’ble Supreme Court of India as to the legal
position in the matter of proof of Wills in H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1959 Supp (1) SCR 426: AIR 1959 SC 443 are being
reproduced herein below for ready reference:
“18…The party propounding a will or otherwise making a claim under a
will is no doubt seeking to prove a document and, in deciding how it is to
be proved, we must inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68 of the Evidence Act are
relevant for this purpose. Under s. 67, if a document is alleged to be signed
by any person, the signature of the said person must be proved to be in his
handwriting, and for proving such a handwriting under ss. 45 and 47 of the
Act the opinions of experts and of persons acquainted with the handwriting
of the person concerned are made relevant. Section 68 deals with the proof
of the execution of the document required by law to be attested; and it
provides that such a document shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its
execution. These provisions prescribe the requirements and the nature of
proof which must be satisfied by the party who relies on a document in a
court of law. Similarly, ss.59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of sound mind, not being aPC 42273/16 15 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
minor, may dispose of his property by will and the three illustrations to this
section indicate what is meant by the expression “a person of sound mind”
in the context. Section 63 requires that the testator shall sign or affix his
mark to the will or it shall be signed by some other person in his presence
and by his direction and that the signature or mark shall be so made that it
shall appear that it was intended thereby to give effect to the writing as a
will. This section also requires that the will shall be attested by two or more
witnesses as prescribed. Thus, the question as to whether the will set up by
the propounder is proved to be the last will of the testator has to be decided
in the light of these provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the will? Did he put
his signature to the will knowing what it contained? Stated broadly it is the
decision of these questions which determines the nature of the finding on
the question of the proof of wills. It would prima facie be true to say that
the will has to be proved like any other document except as to the special
requirements of attestation prescribed by s.63 of the Indian Succession Act.
As in the case of proof of other documents so in the case of proof of wills,
it would be idle to expect proof with mathematical certainty. The test to be
applied would be the usual test of the satisfaction of the prudent mind in
such matters.
19. However, there is one important feature which distinguishes wills from
other documents. Unlike other documents the will speaks from the death of
the testator, and so, when it is propounded or produced before a court, the
testator who has already departed the world cannot say whether it is his will
or not; and this aspect naturally introduces an element of solemnity in the
decision of the question as to whether the document propounded is proved
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Judgment dated 31.07.2025
to be the last will and testament of the departed testator. Even so, in dealing
with the proof of wills the court will start on the same enquiry as in the case
of the proof of documents. The propounder would be called upon to show
by satisfactory evidence that the will was signed by the testator, that the
testator at the relevant time was in a sound and disposing state of mind, that
he understood the nature and effect of the dispositions and put his signature
to the document of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested, satisfactory and sufficient to
prove the sound and disposing state of the testator’s mind and his signature
as required by law, courts would be justified in making a finding in favour
of the propounder. In other words, the onus on the propounder can be taken
to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be
surrounded by suspicious circumstances. The alleged signature of the
testator may be very shaky and doubtful and evidence in support of the
propounder’s case that the signature in question is the signature of the
testator may not remove the doubt created by the appearance of the
signature; the condition of the testator’s mind may appear to be very feeble
and debilitated; and evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the testator; the dispositions
made in the will may appear to be unnatural, improbable or unfair in the
light of relevant circumstances; or, the will may otherwise indicate that the
said dispositions may not be the result of the testator’s free will and mind.
In such cases the court would naturally expect that all legitimate suspicions
should be completely removed before the document is accepted as the last
will of the testator. The presence of such suspicious circumstances naturally
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Judgment dated 31.07.2025
tends to make the initial onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the document as the last will
of the testator. It is true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the execution of the will
propounded, such pleas may have to be proved by the caveators; but, even
without such pleas circumstances may raise a doubt as to whether the
testator was acting of his own free will in executing the will, and in such
circumstances, it would be a part of the initial onus to remove any such
legitimate doubts in the matter.
21….It is in connection with wills that present such suspicious
circumstances that decisions of English courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference to judicial
conscience in this connection is a heritage from similar observations made
by ecclesiastical courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the word ‘conscience’ in
this context would, in our opinion, be purely technical and academic, if not
pedantic. The test merely 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 deciding a solemn question and it must be fully
satisfied that it had been validly executed by the testator who is no longer
alive.
22. It is obvious that for deciding material questions of fact which arise in
applications for probate or inactions on wills, no hard and fast or inflexible
rules can be laid down for the appreciation of the evidence. It may,
however, be stated generally that a propounder of the will has to prove the
due and valid execution of the will and that if there are any suspicious
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Judgment dated 31.07.2025
circumstances surrounding the execution of the will the propounder must
remove the said suspicions from the mind of the court by cogent and
satisfactory evidence. It is hardly necessary to add that the result of the
application of these two general and broad principles would always depend
upon the facts and circumstances of each case and on the nature and quality
of the evidence adduced by the parties. It is quite true that, as observed by
Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] “where a will
is charged with suspicion, the rules enjoin a reasonable scepticism, not an
obdurate persistence in disbelief. They do not demand from the Judge, even
in circumstances of grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to the truth”. It would
sound platitudinous to say so, but it is nevertheless true that in discovering
truth even in such cases the judicial mind must always be open though
vigilant, cautious and circumspect.”
(Underlined by me)
30. The petitioners are propounding a Will dated 16.09.2003 of Late Sh. Chunni
Lal. The petitioners having set up the Will dated 16.09.2003 must prove this
Will in order to succeed in this probate petition. While dealing with this issue,
this court will also examine whether there were/ are suspicious circumstances
surrounding the Will dated 16.09.2003 Ex.PW1/2 making it unreliable.
31. This Court shall now proceed to examine whether, in the peculiar facts and
circumstances of the case and in the light of aforesaid legal principles,
petitioners, being the propounder of the Will dated 16.09.2003 Ex.PW1/2,
have been able to discharge their onus to prove the due execution of the said
Will by the deceased testator in a sound disposing state of mind.
PC 42273/16 19 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
32. In order to appreciate this case in perspective, let us first set out the important
events of the case in chronological order:-
(a) Before Will in question i.e. registered Will dated 16.09.2003 (in
favour of the petitioners), the deceased testator earlier also executed a
registered Will dated 18.03.1999 (that too in favor of the petitioners).
(b) Will dated 18.03.1999 was revoked by the deceased testator vide a
registered document dated 16.07.2003.
(c) The deceased testator again executed the Will in question i.e. Will
dated 16.09.2003 within two months of revocation of earlier Will.
(d) The deceased testator during his lifetime had filed (on 04.10.1990) a
Suit for permanent injunction and for possession (Suit No. 315/93)
against the respondent No. 1 which was decreed vide judgment and
decree dated 19.11.1994.
(e) The deceased testator during his lifetime had filed (on 10.12.2001)
another Suit for mandatory and permanent injunction and for recovery
of damages (Suit No. 876/2002) against the respondent No. 2 which
too was decreed vide judgment and decree dated 05.03.2005.
(f) The testator expired on 20.03.2005.
33. I am reproducing herein below the relevant portion of cross-examination of
petitioner No. 1 Sh. Gulshan Kumar (PW1) (PW1 has been cross examined on
several dates viz. 31.05.2007, 23.08.2007, 10.01.2008, 01.12.2008 and
12.05.2011) ;
“…It is correct that my father executed one will on 18.03.1999. It is correct
that that will was canceled by my lather through a registered document onPC 42273/16 20 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
16.7.2003. Vol. That was done by the objector under pressure from the
father. It is incorrect that that will was canceled by the father of his own
free will and without any coercion or pressure by the objector…
… I was aware of the cancellation. It is incorrect that my father
revoked the earlier will because he wanted to give share to his each son in
his properties. It is correct that will dated 16.9.2003 is not registered with
the same sub registrar in whose office the earlier will was registered and
revocation deed was registered…
…It is correct that respondent no. 2 is residing on the first floor of the
property in dispute itself. I never informed the respondent no. 2 about the
fresh will executed by my father. Vol. because we were not on visiting
terms. We came to know about the revocation of the previous will after one
month of its revocation through my father himself. It is correct that my
father used to sign in Urdu. He was not knowing English. My father was
not well for about one and a half year prior to his death as he was having
some problem in his legs. It is correct that in the earlier will and revocation
registered with the Sub Registrar my father only signed on the pages of the
will and no where he put his thumb impression and it is correct that only
Will propounded by me each of the will is thumb marked by my father. It is
correct that earlier will and revocation was registered with the same sub
registrar. It is correct that the will propounded by me is registered in the
office of different sub registrar. It is correct that Ishwar Kumar Garg
advocate was the witness in the first will as well as in the revocation deed. I
was accompanying my father at the time of execution of the Will. My
father enquired that what was written in the will and he issued the
instructions that it was the same will which was earlier revoked by him andPC 42273/16 21 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
will was read over and explained to him and thereafter he signed it. It is
incorrect that will was not read over and explained to him. My advocate in
this case read over and explained the will to my father in Hindi. It is
incorrect that my father was only understand Urdu and not Hindi. The will
was got typed by the advocate. My father was having cordial relations with
all his daughters but he was not having cordial relations with his sons
Darshan Lal and Roshan Lal…
…The will was prepared by my father in my presence and in the
presence of Babu Lal but now I do not remember the date. The will was
prepared somewhere in the office of the sub registrar near INA. I do not
know the name of the typist who typed the will. Orally I also do not
remember the name of the person who drafted the will. It is correct that Sh.
Ajay Sharma, advocate appearing on my behalf in this case is one of the
attesting witness of this will…
…I have no idea that how many days, months or year prior to the
execution of the will he was disowned but it was much prior to the
execution of the will…
…It is correct that due to old age sometimes my father even used to
pass his urine and stool in the bed itself…
…No kachcha draft of the will was got prepared because it was same
will which was the earlier will of my father and from the earlier will this
will was got prepared without any rough draft. The beneficiaries in the
earlier will were also myself and Babu Lal. My father told me the reason of
executing fresh will in my favour and in favour of Babu Lal because he told
me that my other two brothers had taken the father and got the earlier will
cancelled which necessitated executing of a fresh will in our favour…
PC 42273/16 22 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
…We reached the office of sub registrar at about 11 or 11:30 a.m. It
took about one and a half year in getting this will prepared. Only myself
and Babu Lal accompanied our father. Advocate Sh. Ajay Sharma read over
and explained the contents of this will to my father before its execution by
him. Sh. Ajay Sharma was not having his seat in the office of the sub
registrar, INA. My father took him along with him for the purpose of
execution of the will. Signature of по other advocate/draftman/typist was
obtained in this will except Sh. Ajay Sharma, the advocate representing me
in this case. The present will was not drafted by Sh. Ajay Sharma,
advocate. My father knew Sh. Ajay Sharma, advocate since the time he
filed the case against Darshan Lal in the court…
…I know Satvinder Singh. He is the attesting witness of the will
executed by my father. He resides near the shop of my brother Babu Lal.
Satvinder Singh is aged about 35-36 years at present…It is correct that my
father used to send rupees two thousand per month to each sister…
…At the time of execution of the Will, my father was more than 75
years of age. He was not suffering with any major decease, but he was not
able to walk due to some problem in his knees. At the time of cancellation
of earlier Will, my father was residing with me..”
34. From reading the deposition of Sh. Gulshan Kumar (PW1), the following
things emerge;
(a) At the time of cancellation of earlier Will, the deceased testator was
residing with the petitioner No. 1. Petitioner No. 1 was aware that his
father had revoked the earlier Will through a registered document on
16.07.2003. The said fact was told by the father himself to him within
one month of revocation.
PC 42273/16 23 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
(b) The deceased testator told petitioner No. 1 that the respondents No. 1
and 2 had taken him and got the earlier will cancelled/ revoked which
necessitated execution of a fresh Will in their favour.
(c) Sh. Ishwar Kumar Garg, Advocate was one of the attesting witnesses
to the earlier Will and to the revocation deed.
(d) The Will was prepared in the office of the sub registrar near INA.
PW1 did not remember the date when the Will was prepared. PW1 did
not remember the name of the person who drafted the Will. The
present Will was prepared from the earlier Will. The Will in question
was not drafted by Sh. Ajay Sharma, Advocate.
(e) At the time of registration of Will dated 16.09.2003, only the
petitioners accompanied their father.
(f) The deceased testator did not know the English language. He used to
sign in Urdu.
(g) The deceased testator enquired about what is written in the Will and
he had instructed that it should be the same Will which was earlier
revoked by him. Advocate Sh. Ajay Sharma read over and explained
the contents of the Will to the deceased testator before its execution
by him.
(h) Sh. Ajay Sharma, Advocate is one of the attesting witnesses to the
present Will. The deceased testator knew Sh. Ajay Sharma, advocate
since the time he filed the case against respondent No. 2 in the court.
(i) Sh. Ajay Sharma, Advocate represented the petitioners in the present
petition.
PC 42273/16 24 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
(j) The other attesting witness Sh. Satvinder Singh is known to the
petitioners. He resided near the shop of petitioner No. 2.
(k) In the earlier Will and on the revocation document, the deceased put
only his signature and not thumb impression. It is only in the
subsequent Will, the deceased put his thumb mark as well.
(l) The subsequent Will i.e. Will in question dated 16.09.2003 is not
registered in the Sub registrar office where the first Will dated
18.03.1999 was registered or the revocation deed dated 16.07.2003
was registered. The earlier Will and the revocation deed were
registered in the same Sub registrar office.
(m) Respondent No. 2 resided on the first floor where the petitioners
resided, however they did not inform the respondent No. 2 about
execution of subsequent Will as they were not on visiting terms.
(n) Testator was not well for about one and a half year prior to his death
as he was having some problem in his legs. Due to old age sometimes
the deceased testator used to pass his urine and stool in the bed itself.
(o) The deceased testator used to send Rs. 2000/- per month to each of his
daughters. The deceased was having cordial relations with each of his
daughters.
35. Now, I am reproducing herein below the relevant portion of cross-
examination of petitioner No. 2 Sh. Babu Lal (PW5);
“…My father Shri Chunni Lal had executed a Will prior to Will dated
16.09.2003 bụt 1 cannot tell the date, month or year. The said Will was in
my favour and in favour of my elder brother Gulshan Kumar. My father
had cancelled the said Will and executed a fresh Will dated 16.09.2003…
PC 42273/16 25 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
…My father did not inform me as to why he had cancelled the
previous Will. The Will dated 16.09.2003 was not executed in my
presence…”
36. From reading the deposition of Sh. Babu Lal (PW5), the following things
emerge;
(a) Petitioner No. 2 was aware that his father had revoked the earlier Will.
However, he deposed that his father did not tell him the reason as to
why he revoked/ canceled the earlier Will.
(b) The Will dated 16.09.2003 was not executed in his presence.
37. Clearly, the testimony of PW5 is contradicting the testimony of PW1 on two
counts; (i) PW1 deposed to the effect that the deceased testator had told him
that the respondents No. 1 and 2 had taken him and got the earlier will
cancelled/ revoked which necessitated execution of a fresh Will whereas the
PW5 deposed that his father did not tell him the reason as to why he revoked/
canceled the earlier Will, and (ii) PW1 deposed that both the petitioners
accompanied the deceased testator and the Will was prepared in the presence
of both the petitioners whereas the PW5 deposed that the Will dated
16.09.2003 was not executed in his presence.
38. Petitioners, in order to prove the Will dated 16.09.2003, examined one of the
attesting witnesses Sh. Satvinder Singh as PW6. He tendered his evidence by
way of affidavit Ex.PW6/1 in his examination-in-chief. It reads as under;
“…1. That the deponent is one of the Witness in the above noted case at the
time of Executing the WILL on 16-09-2003 and well conversant with the
facts of the case and thus, competent to swear the present affidavit.
PC 42273/16 26 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
2. That I am Present at time of executing the Will and Sh Ajay Sharma Was
translate the Will Contents in the Version of Hindi&Punjabi, and late Sh
Chunni Lal Was asked that this is the same Will as executed before…”
39. Upon perusal of the examination-in-chief of PW6, the following aspects come
to light;
(a) He is one of the attesting witnesses to the Will dated 16.09.2003.
(b) At the time of execution of Will, PW6 was present, and Sh. Ajay
Sharma had translated the contents of the Will in Hindi and Punjabi to
the deceased testator Sh. Chunni Lal.
(c) It is relevant to note that the original Will dated 16.09.2003 Ex.PW1/2
has not been shown to the witness PW6 from judicial records for
identifying his signature, and signatures of the deceased testator and
the other attesting witness.
40. The relevant cross-examination of PW6 is reproduced herein below;
“I witnessed execution of will in office of Sub Registrar, INA New Delhi. I
was called there by MR. Babu Lal at about 10.30 am on that day i.e.
15.9.2003. He had come personally to me. He had disclosed me that his
father was going to execute a will. We were four persons who went to the
office of Sub Registrar. Apart from me, other three were Babu Lal, Gulshan
Kumar and Late Sh. Chunni Lal. The latter i.e. Sh. Chunni Lal was with us
in the same auto. Chunni Lal was conversant with Hindi and Punjabi. It is
wrong to say that he was knowing only Urdu. Vol. He had signed will in
Urdu. The will was got typed in English Language. It was not already
signed but was signed in the office of sub Registrar. The testator had
disclosed in that office to me that he was bequeathing his property in favourPC 42273/16 27 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
of his two sons. None other was present at that time. I do not remember
whether he had disclosed about any other will which was executed by him.
I do not remember whether testator had disclosed me about cancellation of
some earlier will on 16.7.2003. I do not know whether he had cancelled his
earlier will in the same office on 16.7.2003. Counsel of testator had also
disclosed to me contents of will in question. It is true that the testator was
sick at that time but I cannot say that he was sick for two years. It is wrong
to say that testator had not gone to office of sub registrar on 15.9.2003. It is
wrong to say that mental condition of testator was not well at that time. It is
true that he was accompanied by two of his sons in said office. Testator
signed this will before I signed it. Mr. Sharma has also signed it. I cannot
say that this will was executed on 15.9.2003. It is wrong to say that I had
not gone to that office or I had not witnessed execution of it. I have come to
depose in court on being asked by Babu Lal one or two days before today. I
had not noted down the date i.e. 15.9.2003 in any diary etc. I had seen Mr.
Sharma (another witness) in the office of sub registrar only. As I remember
Mr. Sharma had signed this will prior to me. I had signed only last page of
this will. It is true that testator was not knowing English. It is wrong to say
that He was not understanding even in Hindi. It is true that I had seen that
will in the office of sub registrar on that day. It is true that Babu Lal is our
neighbour for more than 20 years. It is wrong to say that I am deposing
falsely in this regard.”
41. From reading the cross-examination of Sh. Satvinder Singh (PW6), the
following things emerge;
(a) At the outset, it may be noted that in the deposition sheet of PW6, the
date of execution of Will has been noted as 15.09.2003 instead of
PC 42273/16 28 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
16.09.2003. It appears that this is a typographical mistake as PW6 in
his examination in chief has deposed about execution of Will on
16.09.2003.
(b) The Will was executed in the office of Sub registrar, INA, New Delhi.
(c) PW6 came to the Sub registrar office on the asking of respondent No.
2 who told him that his father is going to execute a Will. Petitioner
No. 2 has been a neighbour of PW6 for the last 20 years.
(d) Four persons – PW6, testator, petitioner No. 1 and petitioner No. 2 –
went to the office of Sub registrar in an auto.
(e) PW6 saw the Will in the office of Sub registrar.
(f) The deceased testator disclosed to the witness that he is bequeathing
his property in favour of two sons. Counsel of the deceased testator
had also disclosed to the PW6 about contents of will in question.
(g) The deceased testator signed the Will in Urdu in the office of Sub
registrar.
(h) The deceased testator signed the Will before PW6 signed the Will.
The other attesting witness (Mr. Sharma) signed the Will before PW6.
(i) PW6 failed to tell whether the deceased testator had disclosed to him
about any other will which was executed by him. PW6 further failed
to tell whether the deceased testator had disclosed to him about
cancellation of some earlier Will on 16.7.2003.
42. I will now assess evidence presented through witness testimonies referred
hereinabove.
PC 42273/16 29 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
43. PW1 deposed to the effect that [T]he will was prepared by my father in my
presence and in the presence of Babu Lal but now I do not remember the date.
The will was prepared somewhere in the office of the sub registrar near INA. I
do not know the name of the typist who typed the will. Orally I also do not
remember the name of the person who drafted the will. PW1 also deposed to
the effect that [T]he present will was not drafted by Sh. Ajay Sharma,
advocate. So, the Will dated 16.09.2003 Ex.PW1/2 was prepared prior to
16.09.2003 (PW1 did not remember the date) in the presence of PW1 and
PW5 and not in the presence of PW6 or in the presence of other attesting
witness Sh. Ajay Sharma, Advocate. One of the attesting witnesses Sh.
Satvinder Singh who has been examined as PW6 deposed that [I]t is true that I
had seen that will in the office of sub registrar on that day.
44. Once it is not the case that the Will dated 16.09.2003 Ex.PW1/2 was drafted
and typed at the instruction of the deceased testator in the presence of attesting
witnesses, it is naturally of very great importance to produce satisfactory
evidence that the testator had put his signature on the Will after understanding
the nature and effect of its contents.
45. From the testimony of PW1 it appears that no draft Will was prepared prior to
the final Will dated 16.09.2003, as Will dated 16.09.2003 is evidently the
same Will that had earlier been revoked by the deceased testator. Will dated
16.09.2003 was prepared from the earlier Will dated 18.03.1999. PW1 has
deposed and I quote [N]o kachcha draft of the will was got prepared because it
was same will which was the earlier will of my father and from the earlier will
this will was got prepared without any rough draft. PW1 also deposed to the
PC 42273/16 30 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
effect that [M]y father enquired that what was written in the will and he issued
the instructions that it was the same will which was earlier revoked by him
and will was read over and explained to him and thereafter he signed it.
46. It seems that one of the attesting witnesses Sh. Satvinder Singh (PW6) also
wants to convey the same thing (as deposed by PW1) when PW6 deposed
through his evidence affidavit Ex.PW6/1 that late Sh Chunni Lal was asked
that this is the same Will as executed before.
47. So, the emphasis is on the fact that the testator was concerned that the
contents of the Will dated 16.09.2003 should be the same as what was in the
earlier Will dated 18.03.1999 and which was revoked by the testator on
16.07.2003 and for that he kept enquiring from PW1 and PW6.
48. But, as is apparent from cross-examination of PW6, PW6 was completely
unaware whether the deceased testator had disclosed to him about any
previous Will or revocation thereof. PW6 deposed in cross examination that I
do not remember whether he had disclosed about any other will which was
executed by him. I do not remember whether testator had disclosed me about
cancellation of some earlier will on 16.7.2003. So, PW6 is not speaking truth
when he deposed in his examination-in-chief that late Sh Chunni Lal was
asked that this is the same Will as executed before as he himself was having
no knowledge about the previous Will dated 18.03.1999.
49. At this stage, we can examine, as to what led, as per the petitioners, to the
deceased testator to cancel/ revoke the earlier Will dated 18.03.1999 vide a
registered document dated 16.07.2003, and then what compelled him to again
PC 42273/16 31 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
execute, within two months, another Will dated 16.09.2003 (which is exactly
the same as earlier Will dated 18.03.1999 was).
50. An objection was taken by the Ld. Counsel for the petitioners that as the
propounders of cancellation deed have not led any evidence to prove due and
valid execution of revocation/ cancellation of Will and as the revocation deed
has not been tendered into evidence, the contents of such documents can not
be considered by this Court and no inference regarding testator’s intent/ state
of mind can be drawn.
51. It is true that revocation/ cancellation deed dated 16.07.2003 has not been
proved as per law. Mere photocopy of the same has been filed by the
respondents No. 1 and 5. So, contents of the same can not be read by this
Court. But fact of execution of revocation/ cancellation deed dated 16.07.2003
and certain other facts connected therewith are admitted by the petitioners in
their cross-examination. It is a settled principle (as provided in Section 53 of
Bharatiya Sakshya Adhiniyam, 2023) that facts admitted by the parties need
not be proved in any proceeding. And, an inference can always be drawn from
admitted facts.
52. At the outset, it may be noted that both the petitioners were aware that their
father had revoked the earlier Will dated 18.03.1999 and this fact was told to
them by their father only. PW1 deposed to the effect that We came to know
about the revocation of the previous will after one month of its revocation
through my father himself. However, there is contradiction in the testimony of
PW1 and PW5 as to under what circumstances the earlier Will got cancelled/
revoked or as to what led the testator to revoke/ cancel the earlier Will dated
PC 42273/16 32 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
18.03.1999. PW1 deposed to the effect that the deceased testator had told him
that the respondents No. 1 and 2 had taken him and got the earlier will
cancelled/ revoked which necessitated execution of a fresh Will whereas the
PW5 deposed that his father did not tell him the reason as to why he revoked/
canceled the earlier Will.
53. Petitioners have not led any evidence to prove that the deceased father
cancelled/ revoked the earlier Will dated 18.03.1999 not of his own volition,
but at the behest of the respondents No. 1 and 2. During cross-examination of
PW1, a very important fact came on record which rather suggests that the
cancellation/ revocation of the earlier Will dated 18.03.1999 should be a
voluntary act of the deceased testator. PW1 deposed to the effect that [I]t is
correct that Ishwar Kumar Garg advocate was the witness in the first will as
well as in the revocation deed. To my mind, having the same witness in
execution of a document and revocation thereof would lend credence to the
supposition that the revocation was a voluntary act of the executor of the
document. And, if the petitioners at all want to rebut this inference, they must
have examined Sh. Ishwar Kumar Garg as a witness in the present case.
54. PW1 further deposed to the effect that [I]t is correct that earlier will and
revocation was registered with the same sub registrar. It further corroborates
that there was nothing suspicious about revocation of the earlier Will dated
18.03.1999.
55. In the considered view of this Court, the petitioners have failed to bring on
record anything which shows that the revocation of earlier Will was not a
voluntary act of the deceased testator. Petitioners have failed to prove any
PC 42273/16 33 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
circumstance which suggests that the deceased testator was forced by the
respondents, particularly by the respondents No. 1 and 2, to revoke the earlier
Will which necessitated for the deceased testator to execute the Will in
question dated 16.09.2003.
56. It is, in fact, the petitioners who should have a vested interest in the execution
of a fresh Will, as the revocation had deprived them of the substantial benefits
granted under the earlier Will. And, it is a matter of record that the petitioners
(propounders of Will) have taken a prominent part in the execution of Will
dated 16.09.2003.
57. Earlier Will dated 18.03.1999 has neither been proved as per law nor given
any exhibit/ mark. However, a photocopy of the same is on record as filed by
respondents No. 1 and 5. Will dated 16.09.2003 Ex.PW1/2 is an exact replica
of earlier Will dated 18.03.1999. PW1 has deposed that Will dated 16.09.2003
was prepared in presence of petitioners from the earlier Will.
58. The Will in question dated 16.09.2003 (Ex.PW1/2) is a three pager typed
document. It is in English. The signature and thumb impression of the
deceased testator is appearing on each page. The testator had signed in Urdu.
The signature of both the attesting witnesses is appearing on the last page of
the Will.
59. It has come on record that the testator did not know the English language.
PW6 Sh. Satvinder Singh (one of the attesting witnesses) has stated in cross-
examination that It is true that testator was not knowing English. PW1 in his
cross-examination has stated that It is correct that my father used to sign in
Urdu. He was not knowing English. As per PW6, Sh. Ajay Sharma (the other
PC 42273/16 34 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
attesting witness) had translated the contents of the Will in Hindi and Punjabi
to the testator Sh. Chunni Lal. Even PW1 deposed that Sh. Ajay Sharma,
Advocate had read over and explained the contents of the Will to his father
before he signed and put his thumb impression on the Will.
60. Two attesting witnesses to the Will dated 16.09.2003 are Sh. Satvinder Singh
and Sh. Ajay Sharma. Petitioners have examined only one attesting witness
Sh. Satvinder Singh as PW6. Petitioners have not examined the other attesting
witness Sh. Ajay Sharma. Sh. Ajay Sharma is an Advocate who represented
the petitioners in the present petition for quite a long time. From perusal of
Order dated 02.09.2009, it appears that an objection was taken on behalf of
respondents No. 1 and 5 regarding Sh. Ajay Sharma, Advocate representing
the petitioners as he was as one of the attesting witnesses to the Will (by filing
an application), however, Ld. predecessor of this Court dismissed the said
application. Yet, the petitioners chose not to examine Sh. Ajay Sharma as a
witness in the present case.
61. PW6 Sh. Satvinder Singh is the neighbour of petitioner No. 2 Sh. Babu Lal for
the last 20 years. PW6 came to the Sub registrar office on the asking of
respondent No. 2 who personally visited the PW6 and told him that his father
is going to execute a Will. As per PW1, PW6 was about 35-36 years of age.
PW6 deposed that there were four persons- both the petitioners, deceased
testator and he himself- who went to the office of Sub registrar in an auto. He
saw another witness Sh. Ajay Sharma in the office of Sub registrar only. As
per PW6, Sh. Ajay Sharma (the other attesting witness) had disclosed to him
PC 42273/16 35 of 43
Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
about the contents of Will. Further, Sh. Ajay Sharma translated the contents of
the Will in Hindi and Punjabi to the testator Sh. Chunni Lal.
62. So, the attesting witness PW6 was not present at the request of the testator. He
was present on the asking of one of the petitioners (a neighbour for 20 years)
who had told him that his father is going to execute the Will. The Will was not
prepared in his presence. He was not aware about the contents of the Will. The
other attesting witness had disclosed to him about the contents of the Will.
63. In connection with execution of Will dated 16.09.2003, few things may be
noted down;
(a) PW6 has deposed in cross-examination that the testator was sick on
16.09.2003.
(b) PW1 has deposed to the effect that My father was not well for about
one and a half year prior to his death as he was having some problem
in his legs. PW1 further deposed that it is correct that due to old age
sometimes my father even used to pass his urine and stool in the bed
itself.
(c) It is a fact that the Will dated 16.09.2003 is in English.
(d) PW6 deposed to the effect that it is true that testator was not knowing
English.
(e) PW1 deposed to the effect that it is correct that my father used to sign
in Urdu. He was not knowing English.
(f) PW1 further deposed that It is correct that in the earlier will and
revocation registered with the Sub Registrar my father only signed on
the pages of the will and no where he put his thumb impression and it
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Judgment dated 31.07.2025
is correct that only Will propounded by me each of the will is thumb
marked by my father. So, the executant would normally put his
signature and indeed he had done so in the first Will and in revocation
thereof. It is only in the Will in question dated 16.09.2003, he had
affixed a thumb impression besides signing it.
(g) As already noted, a photocopy of an earlier Will dated 18.03.1999 is
on record. If compared with that, signatures of the testator on Will
dated 16.09.2003 appear to be shaky.
(h) I have observed hereinabove that PW6 is not speaking truth when he
deposed in his examination-in-chief that late Sh Chunni Lal was asked
that this is the same Will as executed before as he himself was having
no knowledge about the previous Will dated 18.03.1999. It has been
the case of petitioners that the testator was concerned that the contents
of the Will dated 16.09.2003 should be the same as what was in the
earlier Will dated 18.03.1999 and which was revoked by the testator
on 16.07.2003. If the subsequent Will had itself referred to the
execution and revocation of earlier Will, it would have reflected that
the testator made the subsequent Will of his own volition. Ld. Counsel
for the petitioners has relied on a decision of Hon’ble High Court in
Bitu Bhalla Supra to contend that non-reference of the cancellation in
the subject Will is of no consequence. I would like to quote what the
Hon’ble High Court noted in the said judgment. Hon’ble High Court
held [T]he mere fact that the exact date of the earlier Will is not
mentioned in the subsequent Will cannot be said to be such a strong
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
ground to urge that the subsequent Will, which is otherwise validly
executed, was not a valid Will inasmuch as one cannot deny the fact
that the deceased was admitted in a nursing home for an operation,
and therefore there would not have been readily available with him
the date of the earlier Will. Further, it is not incumbent to necessarily
make a mention of an earlier Will in a subsequent Will so as to give
validity to the subsequent Will and this is only one out of the many
factors which are examined by the Court to determine the suspicious
circumstances with respect to a Will.
(i) As per PW1, cancellation/ revocation of earlier Will under influence
of respondents No. 1 and 2 necessitated execution of Will dated
16.09.2003. However, it has already been noted that the petitioners
have failed to bring on record anything showing that the Will dated
18.03.1999 was revoked at the behest of respondents No. 1 and 2.
Rather, it appears that revocation was a voluntary act of the testator.
64. Above discussion (about PW6) and circumstances detailed in para 63 supra
show that the testator was not capable of exercising his own judgment and he
had not put his thumb impression and signature on Will dated 16.09.2003 after
understanding the nature and effect of its contents.
65. There are two other circumstances making the execution of Will dated
16.09.2003 suspicious. They are;
(a) First, PW1 has deposed in cross examination to the effect that [M]y
father was having cordial relations with all his daughters but he was
not having cordial relations with his sons Darshan Lal and Roshan
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
Lal. It is an admitted case that no family members including any sister
were present at the time of execution of Will.
(b) Second, PW1 deposed to the effect that It is correct that earlier will
and revocation was registered with the same sub registrar. It is correct
that the will propounded by me is registered in the office of different
sub registrar. Meaning thereby, the Will in question was registered in
a different sub registrar office from where the earlier Will and its
revocation deed were registered.
66. Before concluding this issue, I would like to discuss two other circumstances
seemingly in favour of the propounders of the Will dated 16.09.2003 (i.e.
petitioners).
67. Firstly, that the testator, during his lifetime, filed two separate suits against
respondent No. 1 and respondent No. 2 respectively after issuing a
proclamation to the public in a newspaper whereby he disinherited respondent
No. 1 and respondent No. 2. The testator filed a Suit for permanent injunction
and possession against respondent No. 1 (Suit No. 315/93), on 04.10.1990,
which was decreed on 19.11.1994. Such suit was filed for the same
immovable property which is the subject matter of the Will in question. The
testator filed another suit for mandatory and permanent injunction and
recovery of damages against respondent No. 2 (Suit No. 876/02), on
10.12.2001, which was decreed on 05.03.2005.
68. Proclamation to the public in a newspaper has been exhibited as Ex.PW1/4.
However, petitioners have not proved the records of both the Suits above
referred. Petitioners have merely filed certified copy of both the judgments
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
and decrees passed in both the suits. It was submitted by Ld. Counsel for the
petitioners that both the judgments constitute ‘public record’ and this Court
can take judicial notice of public record. Ld. Counsel for the petitioners had
submitted that this Court should take judicial notice of the fact that the
testator, during his lifetime, sought to protect his interest in the subject
property from respondent No. 1 and the respondent No. 2.
69. The first Suit was instituted against respondent No. 1 and was even decreed,
before execution of first Will dated 18.03.1999. Whereas, the second Suit
against respondent No. 2 was instituted (on 10.12.2001) after the execution of
first Will dated 18.03.1999 and decreed (on 05.03.2005) after execution of
Second Will i.e. Will in question dated 16.09.2003. It is, however, an admitted
case that the testator revoked/ cancelled the Will dated 18.03.1999 vide a
registered document dated 16.07.2003.
70. So, both the Suits were instituted before revocation of Will dated 18.03.1999
vide a registered document dated 16.07.2003. This Court has already held that
the petitioners have failed to prove that the deceased father cancelled/ revoked
the earlier Will dated 18.03.1999 not of his own volition, but at the behest of
the respondents No. 1 and 2. Rather, revocation appears to be a voluntary act
of the testator.
71. Further, when it has otherwise been proved on record that the testator was not
capable of exercising his own judgment and he had not put his thumb
impression and signature on Will dated 16.09.2003 after understanding the
nature and effect of its contents, mere continuation of Suit against respondent
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
No. 2 even after revocation of Will on 16.07.2003 could not be considered as
circumstance in favour of petitioners.
72. There could be several reasons for the testator to revoke the Will dated
18.03.1999 and at the same time to continue with the Suit filed against the
respondent No. 2. In this context, I would like to refer to the cross-
examination of R5W1 and R6W1 done on behalf of petitioners. R5W1
deposed in her cross-examination [M]y father never received any money in
respect of the suit property. It is wrong to suggest that my father sold the suit
property to Hemant Verma. R6W1 deposed in her cross-examination that I do
not know if my father had executed any agreement to sell qua the suit property
before his death. I know Hemant Verma as I had met him only once.
73. Secondly, respondent No. 1 and respondent No. 2 did not enter into the
witness box. Perusal of record reveals that respondent No. 2 has been
examined-in-chief in part as R2W1 who tendered his evidence affidavit
Ex.R2W1/A on 28.03.2013 and his further examination-in-chief was deferred.
However, his examination-in-chief could not be completed, and in the
meantime, respondent No. 2 expired (on 05.12.2015). Whereas, the
respondent No. 1 is not traceable since March, 2017. Respondents No. 5 and 6
stepped into the witness box. RE was finally closed vide order dated
28.08.2018.
74. A civil case is decided on the balance of probabilities and there is no case in
which there would not be pros and cons in favour of each party with respect to
pleadings and evidence (Hon’ble High Court of Delhi in Bitu Bhalla Supra).
PC 42273/16 41 of 43 Gulshan Kumar Vs. Roshan Lal Judgment dated 31.07.2025
75. The rule is that presumption of due execution of a pious and solemn document
like Will stood rebutted due to existence of suspicious circumstances which
the propounders could not rule out, especially when they had taken active part
in its execution. Seeing cumulatively, the circumstances brought on record
create grave suspicion, a suspicion so grave that it can hardly be removed, that
the Will is a created document.
76. The suspicion establishes a high degree of probability justifying a reasonable
conclusion that the Will dated 16.09.2003 Ex.PW1/2 has not been duly
executed by the testator and is a fabricated document.
77. Registration of the Will is not compulsory. Law is well settled that registration
of the Will alone does not prove that it was also duly executed. The Sub-
Registrar signs the Will for the purpose of its registration and not for the
purpose of its attestation as held by the Hon’ble Supreme Court of India in
case Bhagat Ram V/s Suresh; AIR 2004 Supreme Court 436. In this case, the
Hon’ble Supreme Court held that on account of registration of a document
including of Will or codicil, a presumption as to the correctness or regularity
of attestation cannot be drawn. Registration of the Will is no guarantee that it
was executed duly and validly as per the provisions of section 63 of Indian
Succession Act. Registration of a document does not dispense with the need
of proving the execution and attestation of a document which is required by
law to be proved. Presumption attached to the registered documents is only in
respect of matters of the registration as per requirement of provisions of
Indian Registration Act and not in respect of factum of attestation within the
meaning of section 63 (c) of Indian Succession Act and section 68 of Indian
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Gulshan Kumar Vs. Roshan Lal
Judgment dated 31.07.2025
Evidence Act. Accordingly, the petitioners are not entitled to any special
benefit simply on the account that Will was registered one. No presumption of
due execution of the Will can be raised in their favour due to its registration
which fact petitioners are under obligation to prove as per law.
78. In this regard, it will also be apt to quote the following observation of the
Hon’ble Supreme Court in the case of Rani Purnima Debi And Another v.
Kumar Khagendra Narayan Dev reported as AIR 1962 SC 567:-
“23. There is no doubt that if a will has been registered, that is a
circumstance which may, having regard to the circumstances, prove its
genuineness. But the mere fact that a will is registered will not by itself be
sufficient to dispel all suspicion regarding it where suspicion exists, without
submitting the evidence of registration to a close examination.”
79. This Court accordingly holds that the deceased Sh. Chunni Lal did not execute
any Will on 16.09.2003. This Court further holds that Ex.PW1/2 is not proved
to be the last legal and valid testament of the deceased Sh. Chunni Lal.
80. Hence, issue No. 1 is decided against the petitioners and in favour of the
respondents.
RELLIEF
81. In view of the aforesaid findings given qua the issues framed in this petition,
on, 16.10.2006, this petition is dismissed. There shall be no order as to costs.
82. File shall be consigned to the record room after due compliance.
Announced in the open court on this 31th day of July, 2025.
This Judgment consists of 43 signed pages.
(Abhishek Srivastava)
Distt. Judge-05,
Central, THC, Delhi
PC 42273/16 Digitally 43 of 43
signed by
Gulshan Kumar Vs. Roshan Lal ABHISHEK
ABHISHEK SRIVASTAVA
Judgment dated 31.07.2025 SRIVASTAVA Date:
2025.08.01
14:11:33
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