Delhi High Court
Sanjeev Malhotra vs State And Ors on 25 June, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgement delivered on: 25.06.2025
+ FAO 119/2021 & CM APPL. 12338/2021
SANJEEV MALHOTRA .....Appellant
versus
STATE AND ORS. .....Respondents
Advocates who appeared in this case
For the Appellant : Mr. Kirti Uppal, Senior
Advocate with Mr. Siddhant
Asthana & Mr. Siddhartha
Negi, Advocates.
For the Respondents : Mr. Manashwy Jha, Advocate
[Panel Counsel (Civil)
GNCTD] for R-1
Mr. R.K. Dhawan, Ms.Nisha
Dhawan, Mr. V.K. Teng, Mr.
NamanKumar Thakur, Mr.
Purshottam Singh& Mr. Arun
Kumar Singh, Advocates for R-
2 for R-2.
CORAM:
HON'BLE MR. JUSTICE TEJAS KARIA
JUDGMENT
TEJAS KARIA, J
1. The present appeal has been preferred by Sanjeev Malhotra, the
Appellant herein, assailing the judgment and order dated 09.03.2021
(„Impugned Order‟) passed by the learned Additional District Judge-
FAO 119/2021 Page 1 of 19
02, West District, Tis Hazari Courts, New Delhi, in Probate Case No.
16006/2016 („Trial Court‟).
2. By way of the Impugned Order, the learned Trial Court granted
Letters of Administration in favour of Respondent No. 2, pursuant to a
petition filed under Section 278 of the Indian Succession Act, 1925, in
respect of an unregistered Will dated 07.01.2008 („2008 Will‟),
allegedly executed by Late Shri Devi Dass Malhotra („Testator‟). As
per the 2008 Will, the entire property bearing municipal number
40/1A, Ashok Nagar, Tilak Nagar, New Delhi admeasuring
approximately 100 square yards („Property‟) was bequeathed
exclusively in favour of Respondent No. 2 to the exclusion of the
other legal heirs.
FACTUAL MATRIX
3. The Testator passed away on 07.03.2008. The Parties to the
present Appeal are the legal heirs of the Testator. The pedigree
showing the legal heirs of the Testator is as under:
FAO 119/2021 Page 2 of 19
4. The Appellant is the younger son of the Testator and Respondent No.
2 is the elder son. Respondent Nos. 4, 5 and 6 are the daughters of the
Testator. Respondent Nos.7 to 11 are the legal heirs of the predeceased
daughter, Late Madhu Sharma, of the Testator. Respondent No.3 was the
wife of the Testator and the mother of the Appellant and Respondent Nos. 2,
4, 5 and 6. Respondent No.3 passed away on 05.04.2016 during the
pendency of the probate proceedings and was deleted from the array of
parties vide order dated 26.03.2021 passed by this Court in this Appeal.
5. The Property was inherited by the Testator from his father, Shri Ram
Lal Malhotra. The Property comprises both residential and commercial
components, including a ground floor and a 1st (first) floor. The ground floor
originally consisted of 4 (four) shops and a residential portion.
6. During the lifetime of the Testator, 2 (two) of the 4 (four) shops were
sold on 23.04.1997. At the time of filing the Probate Petition, 1 (one) of the
remaining 2 (two) shops were in possession of Respondent No. 2, and the
other was in possession of Respondent No. 3. The remaining residential
portion of the ground floor was occupied by Respondent No. 2 and his
family members. The entire 1st (first) floor was in the possession of the
Appellant.
7. The 2008 Will, as propounded by Respondent No. 2, allegedly
bequeaths the shop measuring 7.6 feet x 8 feet on the ground floor and the
entire first floor to Respondent No. 2, while the remaining ground floor
portion was bequeathed to the Appellant. The said Will also provided that
any future construction on the upper floors, namely the 2nd (second) and 3rd
(third) floors, was to be undertaken jointly by the Appellant and Respondent
No. 2 and was to be equally divided between them.
FAO 119/2021 Page 3 of 19
8. The Appellant disputes the authenticity and genuineness of the 2008
Will. It is the case of the Appellant that Respondent No. 2 was debarred by
the Testator from his estate, as evidenced by a public notice published in the
newspaper „Rashtriya Sahara‟ on 06.12.1998. This material fact was not
disclosed by Respondent No. 2 in the Probate Petition filed before the
learned Trial Court. The Appellant further relies upon a registered Will dated
19.02.2002 (“2002 Will”), under which the ground floor of the Property was
allegedly bequeathed jointly to the Appellant and Respondent No. 3. In
support of this claim, the Appellant has also placed reliance upon an
Agreement to Sell, a General Power of Attorney, an Affidavit, and other
supporting documents stated to have been executed by the Testator.
9. Prior to the filing of the Probate Petition on 11.01.2016, several
registered Relinquishment Deeds were executed in favour of the Appellant.
Respondent No.3 executed a Relinquishment Deed dated 09.01.2015,
relinquishing her share in the Property in favour of the Appellant. Similarly,
Respondent Nos.4, 5and 6 executed registered Relinquishment Deeds on
01.11.2014, 10.10.2014 and 22.12.2015 respectively thereby relinquishing
their respective shares in the Property in favour of the Appellant.
10. Prior to the filing of the present Appeal, the Appellant instituted Civil
Suit No. 38/2015 titled “Sanjeev Malhotra v. Raj Kumar Malhotra” before
the Court of the learned Civil Judge, West District, Tis Hazari Courts, New
Delhi. In the said Suit, the Appellant sought a decree of mandatory
injunction and possession in respect of the shop situated on the ground floor
of the Property, relying on the registered 2002 Will and the accompanying
documents. The Suit was dismissed by judgment dated 30.05.2019.
11. The Appellant has alleged that the unregistered 2008 Will was
fabricated and brought into existence by Respondent No.2 from his exclusive
FAO 119/2021 Page 4 of 19
custody, without the knowledge of the other legal heirs. It is further alleged
that the 2008 Will records the incorrect age of the Testator as 66 years,
whereas the admitted age at the relevant time was 74 years. The 2008 Will is
written in Hindi, while it is contended that the Testator was illiterate and was
conversant only with the Urdu language. Additionally, the attesting
witnesses to the 2008 Will were strangers to the family and were not known
to the legal heirs.
12. The Appellant also relied on the opinion of a handwriting expert, who
examined the signatures on the 2008 Will. According to the expert‟s report,
the signatures appeared shaky and were inconsistent with the admitted
signatures of the Testator as appearing on the registered 2002 Will.
13. In the Probate Petition, Respondent No. 2 averred that the 2008 Will
was the first and last Will of the Testator and was duly executed by the
Testator in the presence of 2 (two) attesting witnesses, namely Shri Mohd.
Akbar and Shri Gurdeep Singh Dua, Advocate. It was further stated that the
2008 Will bequeathed the shop measuring 7.6 feet x 8 feet on the ground
floor and the entire 1st (first) floor of the property to Respondent No. 2, while
the remaining ground floor portion was bequeathed to the Appellant.
14. Respondent No.2 also submitted that it was the wish of the Testator
that the Appellant and Respondent No. 2 would mutually develop the 2nd
(second) and 3rd (third) floors of the Property, if permissible under applicable
building regulations, and that such construction would be shared equally.
15. It was further averred that the Appellant and other legal heirs were
fully aware of the execution of the 2008 Will, and that even prior to the
execution of the 2008 Will, the Parties were already in possession of the
respective portions as eventually bequeathed in the 2008 Will.
FAO 119/2021 Page 5 of 19
16. Respondent No.2 alleged that the Appellant had initiated Civil Suit
No. 38/2015 to harass Respondent No. 2 and to illegally claim possession
over the portion bequeathed to Respondent No. 2. It was asserted that the
said Suit was based on forged and fabricated documents and was pending
adjudication at the time of filing the Probate Petition. Respondent No.2
submitted that there was no legal impediment in the grant of Letters of
Administration in respect of the 2008 Will.
PROCEEDINGS BEFORE THE LEARNED TRIAL COURT
17. Respondent No.2, who was the Petitioner before the learned Trial
Court, examined himself as PW-1 and filed his Evidence Affidavit, which
was exhibited as Ex. PW-1/A. He relied upon the Death Certificate of the
Testator, exhibited as Ex. PW-3/1, and placed on record the unregistered
2008 Will, which was marked as „Mark-A‟.
18. Respondent No.2 also examined Shri Gurdeep Singh Dua, Advocate,
as PW-2, who deposed that he was one of the attesting witnesses to the 2008
Will. PW-2 stated that the Will was brought to him already written in Hindi
by the Testator, was read over and explained to the Testator, and that it was
signed by the Testator in his presence and in the presence of the other
attesting witness, Shri Mohd. Akbar. PW-2 further stated that both attesting
witnesses signed the 2008 Will in the presence of each other and the
Testator, who was in a sound state of mind and health at the time.
19. The Appellant, who was Respondent No.3 before the learned Trial
Court, examined himself as R3W1 and filed his Evidence Affidavit asserting
his ownership over the Property based on a registered 2002 Will. He also
referred to an Agreement to Sell, General Power of Attorney, and other
related documents to support his claim. The Appellant further relied on a
FAO 119/2021 Page 6 of 19
Relinquishment Deed executed by Respondent No. 3 (his mother) in his
favour.
20. The Appellant examined Mr. B.N. Srivastava, a handwriting and
fingerprint expert, as R3W2. The expert opined that the signature on the
2008 Will did not match the Testator‟s known signatures appearing on a
photocopy of the registered 2002 Will. The Appellant also examined R3W3,
who produced and placed on record the certified copies of the pleadings and
documents filed in Civil Suit No. 38/2015, earlier instituted by the Appellant
against Respondent No. 2.
21. The learned Trial Court found the testimony of PW-2, Shri Gurdeep
Singh Dua, being 1 (one) of the attesting witnesses to the 2008 Will, to be
credible and legally sufficient. Relying on Section 68 of the Indian Evidence
Act, 1872, the learned Trial Court held that the Will had been properly
attested, and that only one attesting witness needed to be examined to prove
its execution.
22. The learned Trial Court rejected the handwriting expert‟s opinion
(R3W2), on the ground that the comparison was made between the disputed
2008 Will and a photocopy of the registered 2002 Will, rather than its
original. It held that such a comparison lacked evidentiary reliability and
could not be given weight.
23. The learned Trial Court also noted that the Appellant‟s conduct in
previous civil proceedings contradicted his stand. In Civil Suit No. 38/2015,
the Appellant had claimed ownership of the property on the basis of having
purchased it from his father, rather than on the basis of the 2002 Will. The
learned Trial Court viewed this contradiction as undermining the Appellant‟s
reliance on the earlier 2002 Will.
FAO 119/2021 Page 7 of 19
24. Regarding the delay in filing the Probate Petition [8 (eight) years after
the Testator‟s death], the learned Trial Court accepted the explanation that
Respondent No.2 only propounded the 2008 Will after the Appellant
initiated adverse civil proceedings in 2015. The delay was, therefore, held to
be reasonably justified.
25. The learned Trial Court acknowledged the 1998 newspaper
disownment notice, but found that familial estrangement was not permanent,
and that it was plausible for the Testator to have reconciled with Respondent
No. 2 before executing the 2008 Will.
26. The learned Trial Court also observed that the 2008 Will made a near-
equal distribution of property between the Appellant and Respondent No.2,
which rendered the bequest not unnatural or suspicious. It rejected the
contention that the 2008 Will was fabricated solely because it was
unregistered and came from the custody of the beneficiary.
27. Accordingly, the learned Trial Court held that Respondent No. 2 had
successfully discharged the onus of proving the 2008 Will, and that
suspicious circumstances were satisfactorily explained and removed.
SUBMISSIONS BY THE APPELLANT
28. Mr. Kirti Uppal, learned Senior Counsel appearing on behalf of the
Appellant, submitted that the learned Trial Court erred in granting Letters of
Administration in favour of Respondent No.2 on the basis of an unregistered
2008 Will. It was argued that the said 2008 Will originated solely from the
custody of Respondent No. 2, was propounded nearly 8 (eight) years after
the demise of the Testator and was completely unknown to the Appellant and
other legal heirs during the lifetime of the Testator.
FAO 119/2021 Page 8 of 19
29. It was submitted that the Appellant had filed objections before the
learned Trial Court and was supported by the other legal heirs. In these
circumstances, the burden was upon Respondent No. 2 to establish the due
execution, authenticity, and voluntariness of the 2008 Will, which had not
been discharged.
30. Learned Senior Counsel for the Appellant further submitted that the
2008 Will was surrounded by suspicious circumstances, including the
significant delay of nearly 8 (eight) years in its propounding, the absence of
any explanation regarding its late emergence, and the inconsistent position
adopted by Respondent No.2 in earlier proceedings.
31. It was also submitted that the 2008 Will made no reference to an
earlier registered 2002 Will, under which the ground floor of the Property
had been bequeathed jointly to the Appellant and their mother (Respondent
No. 3). The failure to acknowledge or revoke the earlier 2002 Will vitiated
the probative value of the subsequent unregistered 2008 Will.
32. Learned Senior Counsel for the Appellant further submitted that the
Testator had, during his lifetime, publicly disowned Respondent No.2 by
publishing a public notice to that effect in the „Rashtriya Sahara‟ newspaper
dated 06.12.1998. This act of formal disinheritance, which reflected the
Testator‟s hostility towards Respondent No. 2 was not disclosed in the
Probate Petition, and its omission was submitted to be material and
deliberate.
33. It was further submitted that the Appellant‟s right over the Property
had been reinforced by multiple registered Relinquishment Deeds executed
in his favour by other legal heirs. Specifically, Respondent No.3 (since
deceased) executed a registered Relinquishment Deed dated 09.01.2015, and
Respondent Nos.4, 5 and 6 executed similar deeds in 2014 and 2015
FAO 119/2021 Page 9 of 19
respectively. These deeds were prior in time to the institution of the Probate
Petition and recognised the Appellant‟s claim based on the 2002 Will.
34. Learned Senior Counsel for the Appellant emphasised that none of the
family members were aware of the existence of the 2008 Will, and that the
attesting witnesses were unknown to them, which was admitted by
Respondent No.2 during his cross-examination before the learned Trial
Court. The secrecy surrounding the document of 2008 Will and the fact that
it was produced from the sole custody of Respondent No.2 casts serious
doubt on its authenticity.
35. It was further submitted that the attesting witness PW-2, Advocate
Gurdeep Singh Dua, deposed that the Testator had brought a handwritten
Will in Hindi to him, which PW-2 then translated into English. However,
Respondent No.2 admitted that the Testator was only literate in Urdu. The
contradiction between the languages of the 2008 Will and the Testator‟s
linguistic capacity remained unexplained.
36. Learned Senior Counsel for the Appellant additionally pointed out that
the age of the Testator had been incorrectly mentioned as 66 years in the
2008 Will, when, in fact, he was 74 years old at that time. It was submitted
that such an error, if the document was truly authored by the Testator, was
inconsistent with the assertion that it was made with full knowledge and
understanding.
37. Learned Senior Counsel for the Appellant relied upon the opinion of a
handwriting and fingerprint expert (R3W2), who opined that the signature
appearing on the 2008 Will was forged and did not match the admitted
signature of the Testator appearing on the registered 2002 Will. It was
submitted that the learned Trial Court erred in disregarding this report solely
FAO 119/2021 Page 10 of 19
on the ground that the comparison had been made using a photocopy, despite
the 2002 Will having been accepted in evidence in Civil Suit No. 38/2015.
38. It was further argued that Respondent No.2 had not produced the 2008
Will in Civil Suit No. 38/2015 filed by the Appellant, nor did he rely upon it
in his written statement. Instead, he claimed ownership through a different
set of documents, including an Agreement to Sell, General Power of
Attorney, and an Affidavit. The 2008 Will was only introduced after the
dismissal of the said Suit, which demonstrated that the 2008 Will was an
afterthought.
39. It was also submitted that the learned Trial Court committed a legal
error in granting Letters of Administration simpliciter without annexing the
Will, in contravention of Section 232 of the Indian Succession Act, 1925.
Learned Senior Counsel for Appellant submitted that in a case involving a
testamentary document, administration could only be granted “with the Will
annexed,” and not otherwise.
40. Learned Senior Counsel for the Appellant submitted that an
application under Section 340 of the Code of Criminal Procedure, 1973 had
been moved before the learned Trial Court seeking initiation of proceedings
against Respondent No.2 for perjury and suppression of material facts. In the
face of such serious allegations, the Trial Court, it was argued, ought to have
exercised prudence before granting Letters of Administration.
41. Finally, it was submitted that the appeal was maintainable under
Section 299 of the Indian Succession Act, 1925 read with Section 104 of the
Code of Civil Procedure, and that the Impugned Order, being based on
suppression of facts and a misappreciation of evidence, deserved to be set
aside.
FAO 119/2021 Page 11 of 19
42. The judgments relied upon by the Appellants are as under:
a. Sudershan Lal Maini v. Virender Kumar Maini & Ors,
2012SCCOnLineDel 862: (2012) 187 DLT 414 (DB) [¶
27, 28, 34]
b. Ashish Virmani v. State, 2005 SCC OnLine Del 701 :
ILR (2005) 2 Del 284 [¶ 20, 42, 44, 45]
c. Smt. Lalita Sharma v. Smt. Sumitra Sharma, 2011 SCC
OnLine Del 1210 : (2011) 122 DRJ 538 : (2011) 178
DLT 358 : (2011) 2 Civ LT 77[¶ 18, 30, 33]
d. Vijay Sethi & Ors. v. State & Ors., 2014 SCC OnLine
Del 3432 :(2014) 5 AIR Del R 155 [¶ 10]SUBMISSIONS BY THE RESPONDENTS
43. Mr. Manashwy Jha, Advocate [Panel Counsel (Civil) GNCTD]
appeared on behalf of the Respondent No.1 and Mr. R.K. Dhawan appeared
on behalf of Respondent No. 2.
44. Learned Counsel for Respondent No. 2 submitted that the present
Appeal was not maintainable and deserved outright dismissal. It was argued
that the Appellant had merely reagitated issues that were fully considered
and adjudicated by the learned Trial Court. The Impugned Order was stated
to be well-reasoned and based on a thorough appreciation of the evidence.
45. It was submitted that the 2008 Will was validly executed by the
Testator and the bequest made therein reflected his clear testamentary intent
to divide the property between Respondent No. 2 and the Appellant. It was
further submitted that the Appellant‟s claim that the 2008 Will was unknown
to the family members was incorrect, as the factum of its execution was well
within the knowledge of all concerned.
FAO 119/2021 Page 12 of 19
46. The Respondent No.2 asserted that the Appellant had earlier filed
Civil Suit No. 38/2015 claiming title to the ground floor of the Property
based on documents including an Agreement to Sell, General Power of
Attorney, Affidavit, payment receipt, and a registered 2002 Will. It was
contended that these documents were forged, fabricated, and created for the
purpose of litigation and lacked evidentiary value. The inconsistency
between the Appellant‟s pleadings in the said Suit and his objections in the
Probate Petition was also emphasised.
47. It was submitted that the Appellant had failed to prove the authenticity
of the documents relied upon in Civil Suit No. 38/2015, and the said Suit
was dismissed.
48. It was further argued that the Relinquishment Deeds executed in
favour of the Appellant by the other legal heirs did not mention any alleged
purchase of the ground floor of the Property by the Appellant and
Respondent No.3. This omission cast serious doubt on the Appellant‟s claim
of title through sale.
49. Learned Counsel for Respondent No.2 submitted that the Appellant‟s
reliance on a photocopy of a public notice allegedly published by the
Testator in 1998, disowning Respondent No. 2, was misconceived. It was
argued that the said document had not been proved in accordance with law
and was marked only for identification as „Mark-A‟. It was also submitted
that there was no evidence to show that the Testator had indeed authorised
such publication, and the same could have been orchestrated by the
Appellant himself.
50. On the question of the 2008 Will‟s execution, it was submitted that
there was no requirement in law for the attesting witnesses to be family
members of the Testator. The attesting witness, Advocate Gurdeep Singh
FAO 119/2021 Page 13 of 19
Dua (PW-2), had categorically deposed that the Will was signed by the
Testator in his presence and in the presence of another attesting witness.
Learned Counsel for Respondent No.2 submitted that the learned Trial Court
had rightly accepted the validity of the 2008 Will, in the absence of any
cogent evidence to the contrary.
51. With respect to the contention that the 2008 Will was written in Hindi
while the Testator allegedly knew only Urdu, it was submitted that such a
discrepancy was immaterial as it was required to consider the 2008 Will as
executed, not any preliminary draft or language of origin. Moreover, PW-2
had deposed that the contents of the Will that were explained to the Testator
prior to the execution.
52. As to the expert opinion relied upon by the Appellant, it was submitted
that the handwriting expert compared the signature on the 2008 Will with
that appearing on a photocopy of the registered 2002 Will, and not with the
original. On this ground, learned Counsel for Respondent No.2 submitted
that the expert opinion was unreliable and had been rightly disregarded by
the learned Trial Court.
53. It was further submitted that the bequest made under the 2008 Will
demonstrated the Testator‟s affection for both the sons, and that the division
of property between Respondent No. 2 and the Appellant was broadly equal.
Thus, no allegation of undue influence or exclusion of natural heirs could be
sustained.
54. It was also submitted that the Appellant had failed to discharge the
onus placed upon him after having raised objections to the 2008 Will. The
issues framed by the learned Trial Court based on the Appellant‟s objections
were answered on the basis of the evidence led, and the findings recorded
did not need interference.
FAO 119/2021 Page 14 of 19
55. Accordingly, the learned Counsel for Respondent No.2 prayed for
dismissal of the Appeal, submitting that no error – legal or factual, had been
demonstrated in the Impugned Order needing any interference by this Court.
ANALYSIS AND FINDINGS:
56. This Appeal arises out of the Probate Petition initiated under Section
278 of the Indian Succession Act, 1925, wherein Respondent No.2 sought
the grant of Letters of Administration with the 2008 Will annexed. It is a
well settled principle of testamentary jurisprudence that such proceedings are
in rem and confined strictly to the adjudication of whether the Will
propounded is the last, valid, and duly executed testament of the Testator.
57. It is a trite law that a Court exercising testamentary jurisdiction does
not adjudicate upon questions of title or ownership inter se the parties. It is
equally unconcerned with collateral disputes pertaining to possession or
inheritance, which may arise independently of the Will. Its jurisdiction is
limited to determining whether the Will propounded is the last and valid
testament of the deceased, and whether it has been duly executed and
attested in accordance with the provisions of the Indian Succession Act, 1925
and the Indian Evidence Act, 1872. This position is firmly settled in judicial
precedents.
58. In Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon, (2007) 11
SCC 357, the Supreme Court unequivocally held that a Probate Court is not
competent to adjudicate disputes relating to title. This was further affirmed in
Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300, where
the Apex Court reiterated that the Probate Court‟s jurisdiction is confined to
the genuineness of the Will and whether the Will was executed in a sound
and disposing state of mind, free from coercion or undue influence. It was
FAO 119/2021 Page 15 of 19
clarified that the correctness of the contents of the Will or legal rights
flowing therefrom are not to be examined in a Probate Proceedings.
59. In the present case, the Respondent No.2 has, both before the learned
Trial Court and in the present Appeal, contended that the Appellant had, at
different stages, relied upon documents such as an Agreement to Sell, a
General Power of Attorney, an Affidavit, and a registered 2002 Will, and
thereafter, placed reliance on a set of Relinquishment Deeds executed by
other legal heirs in his favour. Even if these assertions are assumed to be
correct, they are immaterial in the context of the issue before the
Testamentary Court, which is not concerned with the establishment of
proprietary rights or title. The relevance of such documents, if any, falls
within the domain of a competent Civil Court inappropriate proceedings.
60. The primary issue before the Trial Court was whether the 2008 Will
propounded by Respondent No.2, was executed by the Testator in a sound
disposing mind, of his own volition, and attested in accordance with law.
61. The Impugned Order has considered the documentary and oral
evidence led in the Probate Petition. The learned Trial Court has relied upon
the testimony of Sh. Gurdeep Singh Dua, Advocate who was one of the
attesting witnesses to the 2008 Will. The learned Trial Court has found that
the 2008 Will was proved in view of Section 68 of the Indian Evidence Act,
1872 as one of the two attesting witnesses of the Will was examined, which
was held to be sufficient in accordance with law.
62. The learned Trial Court has examined the contradictory stand taken by
the Appellant in Civil Suit No.38/2015 wherein the Appellant claimed that
the property was purchased from his father based on the Agreement to Sell
GPA, Will etc. in the year 2002 whereby the Appellant and his mother
became the owner of the property. After the death of Appellant‟s mother, the
FAO 119/2021 Page 16 of 19
Respondent Nos.4 to 6, who are the sisters of the Appellant, executed the
relinquishment deeds dated 10.10.2014, 01.11.2014, 09.01.2015 and
22.12.2015. Accordingly, the Appellant had taken a contrary stand in the
Civil Suit No. 38/2015, which was dismissed as the Appellant was not able
to prove ownership of the property.
63. In view of the above, although the 2002 Will may have been executed
by the Testator, the same was not the last Will of the Testator as 2008 Will
was subsequent in time. Even 2002 Will was accompanied by Agreement to
Sell, GPA in favour of the Appellant and his mother and the same did not
transfer the property in the name of the Appellant and his mother in view of
the decision of the Supreme Court in Suraj Lamp v. State of Haryana, 183
(2001) DLT 1 (SC), whereby the Supreme Court held that agreement to sell,
GPA, Will shall not constitute valid transfer of the property. It appears that
the 2002 Will was executed by the Testator for the purpose of sale of the
property, which was not materialized. Hence, the Appellant cannot rely upon
2002 Will to claim ownership of the property.
64. The Appellant has not challenged the judgement dated 30.05.2019
whereby the Civil Suit No.38/2015 filed by the Appellant was dismissed,
which shows that the Appellant has not pursued his case about ownership of
the property on the basis of 2002 Will.
65. Even the Relinquishment Deeds do not mention about the 2002 Will
and proceed on the basis as if there was no Will of the Testator as the said
Deeds mention that the Appellant became the owner of 2/7th share in the
property after the demise of the Testator. The reliance on the said
Relinquishment Deeds by the Appellant shows that Appellant never
considered the 2002 Will as the last and final Will of the Testator.
FAO 119/2021 Page 17 of 19
66. The Trial Court has rightly rejected the evidence of handwriting expert
as the comparison of the signature of the Testator was carried out on the
2008 Will and photocopy of 2002 Will, rather than its original. Since, the
Appellant failed to produce the original of 2002 Will, the evidence of the
handwriting expert cannot be relied upon.
67. The Appellant has raised an objection that 2008 Will was not produced
by Respondent No.2 along with the written statement filed in Civil Suit
No.38/2015. However, the judgment dated 30.05.2019 dismissing Civil Suit
No. 38/2015 has framed an issue with regard to the 2008 Will executed by
the Testator. Hence, the objection of the Appellant about not filing a copy of
2008 Will along with the written statement to Civil Suit No. 38/2015 cannot
be accepted.
68. As regards 2008 Will being surfaced after eight years of the demise of
the Testator, the learned Trial Court has correctly observed that the 2008 Will
was produced when the Appellant filed Civil Suit No.38/2015. As the
Appellant and Respondent No.2 were in the possession of the property in the
same proportion as per the allocation in the 2008 Will, there was no occasion
to rely upon the 2008 Will until the Appellant filed the Civil Suit No.38/2015
claiming ownership of the entire property. Therefore, there was no
inconsistent position adopted by Respondent No. 2 and there were no
suspicious circumstances surrounding 2008 Will as alleged by the Appellant.
69. Further, there is no requirement to have attesting witnesses to a Will
known to the family members of the Testator under law. Hence, such an
objection by the Appellant is untenable. As regards, the Testator being
literate in Urdu language alone, the learned Trial Court has relied upon the
testimony of the attesting witness Sh. Gurdeep Singh Dua, Advocate, who
confirmed that the contents of the 2008 Will were explained to the Testator
FAO 119/2021 Page 18 of 19
prior to the execution. In view of the said evidence, the objection of the
Appellant was rightly rejected by the learned Trial Court in the Impugned
Order.
70. As regards, the 2008 Will incorrectly recording the age of the Testator
as 66 years, while the Testator was of 74 years at the time of execution of
2008 Will is not fatal so long as the execution of 2008 Will was proved in
accordance with law.
71. Regarding the 2008 Will not making reference to the earlier registered
2002 Will, it is not necessary under law to make reference to the prior Will
at the time of making the last Will. As 2008 Will was subsequent in time to
2002 Will, the subsequent Will would prevail irrespective of the mention
about the previous Will.
72. The learned Trial Court has considered all the objections of the
Appellant while passing the Impugned Order and found that the 2008 Will
was validly executed.
73. For the above reasons, this Court finds that the 2008 Will has been
proved in accordance with the law and the requirements of Section 63 of the
Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act,
1872 have been satisfactorily fulfilled.
74. There is no infirmity with the Impugned Order and, accordingly, the
present Appeal is dismissed. All the pending Application(s), if any, stand
disposed of. There shall be no order as to costs.
TEJAS KARIA, J
JUNE 25, 2025/ ‘A’
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FAO 119/2021 Page 19 of 19