Delhi High Court
Satya Dev Bharal vs Krishn Dev Bharal & Ors on 8 August, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.07.2025
Pronounced on: 08.08.2025
+ FAO(OS) 258/2017
SATYA DEV BHARAL .....Appellant
Through: Mr.Madan Lal Sharma,
Ms.Tejaswini Verma,
Mr.Priyankar Kaushik and
Mr.Vikrant Malwal, Advs.
versus
KRISHN DEV BHARAL & ORS .....Respondents
Through: Mr.S.K. Bhaduri,
Ms.Shreyanjana Bag,
Ms.Rimpy Rohilla, Advs. for
R-1-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT
NAVIN CHAWLA, J.
1. This appeal has been filed by the appellant, challenging the
judgment dated 08.08.2017 passed by the learned Single Judge of this
Court in TEST.CAS.03/2002, titled Krishan Dev Bharal & Anr. v.
State & Ors., allowing the said petition filed by the respondent nos.1
and 2 herein, granting them Probate in respect of the Will dated
26.07.1994 executed by late Shri Bhadar Sain (Ex.PW-2/1)
(hereinafter referred to as, „subject Will‟) in favour of the respondent
nos.1 and 2.
2. The respondent nos. 1 and 2 had filed the above Probate
Petition under Section 276 of the Indian Succession Act, 1925 (in
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short, „ISA‟), praying for grant of Probate/Letter of Administration in
respect of the moveable and immoveable properties bequeathed in
their favour by late Shri Bhadar Sain (hereinafter referred to as,
„Testator‟), by way of the subject Will.
3. It was claimed that the Testator had passed away on
08.01.2000, having executed the subject Will in full senses and sound
disposing mind, out of his free will, and without any undue pressure,
influence and coercion from any corner whatsoever.
4. The petition was accompanied with an affidavit of one of the
attesting witnesses, Shri Dhan Singh, who was later examined by the
petitioners as PW-2.
5. The petition was opposed by way of common objections filed
by the appellant as also by the respondent nos.3 and 4 herein.
6. In their objections, it was stated that the subject properties are
coparcenary properties and, therefore, the Testator had no right to
execute a Will in respect thereto. It was further stated that the Testator
was of feeble mind and had not executed the subject Will. It was
stated that the Testator was more than 93 years of age at the time of
the execution of the subject Will and was running ill-health and was
incapable of understanding things. It was further stated that the
Testator had also executed many Wills from time to time, bequeathing
the property to different heirs in different proportions, sometimes
alleging the properties to be self acquired and sometimes alleging
them to be ancestral properties.
7. The objectors denied that the Testator had signed the subject
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Will in the presence of the witnesses or that the witnesses had signed
the subject Will in the presence of the Testator. It was also denied that
the Testator had executed the subject Will with his free will and
without undue pressure, influence or coercion. Instead, it was stated
that the respondent no.1 had exercised undue influence on the Testator
and had induced him to deliver all his moveable assets to the
respondent no.1 so that he could run his packaging and cheese factory
at property bearing No.85, Gautam Nagar, Delhi.
8. Interestingly, there was no objection taken that the subject Will
does not bear the signatures of the Testator.
9. The respondent no.4 also set up another Will dated 08.03.1985
and stated that he had already filed another Probate Case bearing No.
42/2000, titled Manu Dev Bharel v. State & Ors.
10. The respondent nos.1 and 2 filed their reply to the objections,
whereafter the following issues were framed on 23.05.2006:-
“(i) Whether Sh. Bhader Sain executed legal
and valid Will dated 26.7.1994? OPP
(ii) Relief.”
11. The respondent nos.1 and 2 examined the respondent no.1 as
PW-1; Shri Dhan Singh, one of the attesting witnesses to the subject
Will as PW-2; Mr.Vimal Kumar, Head Clerk from the Office of Sub-
Registrar-V, Mehrauli, Delhi as PW-2 (wrongly mentioned as PW-2),
and Mr.Manoj Sagar, LDC, Sub-Registrar-III, Asaf Ali Road, Delhi as
PW-3.
12. The appellant examined himself as RW-1, the sole witness. The
other respondents did not enter the witness box. They have also not
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challenged the grant of Probate by way of the Impugned Judgment.
13. In his evidence by way of affidavit (Ex.PW-1/A), the
respondent no.1 (PW-1) basically deposed the contents of the Probate
Petition. He further deposed that the respondent no.3 had earlier filed
a Suit, being Suit No.858/1987, inter alia, seeking an injunction in
respect of the property bearing No.85, Gautam Nagar, New Delhi,
which was declined by an Order dated 15.01.1990 (Ex.PW-1/3). The
same was challenged in an appeal, which was dismissed by the
Division Bench of this Court vide its Order dated 26.02.1990. The said
Suit was thereafter settled and an application in this regard was filed
before the learned Single Judge, being I.A. No.11372/1991 (Ex.PW-
1/4). The Suit was disposed of on the basis of the said application vide
Order dated 31.10.1991 (Ex.PW-1/5).
14. The respondent no.1 was cross-examined by the learned counsel
for the appellant, firstly along the lines that the property was ancestral
in nature. He was also cross-examined on a property sold by him
claiming that it belonged to the Testator. These suggestions were
denied by him. He was also cross-examined on various other
properties and bank accounts, details of which need not be given here
as they are not relevant to the controversy that is to be adjudicated
herein. He stated that the Testator had passed away at an age of
approximately 100 years. He denied the suggestion that after the
operation for prostrate, approximately in the year 1991, the condition
of the Testator deteriorated or became precarious or that he lost his
memory and was unable to walk. He also denied the suggestion that
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after the year 1991, the Testator did not posses sound mind. He further
stated that he knows Shri B.D. Saini, Advocate as also Shri Dhan
Singh, one of the witnesses to the Will, who is his neighbour and also
the father of Shri B.D. Saini, Advocate. He admitted that he is on
visiting terms with Shri Dhan Singh. Importantly, he stated that he had
no personal knowledge about the contents of the subject Will until it
was given to him after the death of the Testator. He also admitted that
he had no knowledge about where the subject Will was executed or
registered. He stated that he got the subject Will from the almirah of
the Testator after four-five months of the death of the Testator. He
denied the suggestions that the subject Will was forged by himself,
Shri B D Saini, Advocate and Shri Dhan Singh.
15. One of the attesting witnesses, Shri Dhan Singh (PW-2), filed
his evidence by way of affidavit (Ex.PW-2/A), stating therein that he
knew the Testator and that the Testator during his lifetime had
executed the subject Will. He identified his signatures on the subject
Will as well as those of the Testator. He stated that he had signed the
subject Will in the presence of the Testator and the other witness to
the subject Will, Shri G.C. Sharma. He stated that the other witness to
the subject Will, Shri G.C. Sharma, had also signed the subject Will in
the presence of PW-2, as also the Testator. He further stated that the
Testator too signed the subject Will in the presence of PW-2 and Shri
G.C. Sharma, after understanding the contents thereof. He stated that
at the time of the execution of the subject Will, the Testator was in a
sound disposing mind and was well aware of the contents of the
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subject Will.
16. As much has been contended by the learned counsel for the
appellant in paragraph 6 of the evidence by way of affidavit of PW-2,
the same is reproduced hereinunder:
“6. That I further state that I can identify the
signatures of Sh. Bhadar Sain in the said
WILL. My signature are at point “A” and the
signature of said another attesting witness
namely Sh.G.C. Sharma are at point “B” in
the said WILL dt. 26/7/1994. I identify the
signature of Sh G.C. Sharma.”
17. PW-2 was also cross-examined by the learned counsel for the
appellant. He stated that he used to meet the Testator 10 to 20 times a
year. He stated that he knew the Testator from when the Testator used
to reside in village Masjid Moth, where he also used to reside,
whereafter he shifted to Gautam Nagar. He stated that the subject Will
was drafted by his son, Shri B.D. Saini, who is a practicing Advocate.
He denied the suggestions that Shri B.D. Saini is an associate of the
counsel for the respondent nos.1 and 2 herein, or that the said counsel
was his tenant. He, however, admitted that Mr.Bhaduri is his advocate
in a matter in Tis Hazari Court filed against his tenant. He also
admitted that his affidavit was prepared in the chamber of Mr.Bhaduri.
He stated that the Testator had signed the subject Will in his presence
and he could identify the signatures of the Testator, and he had seen
the Testator signing in the capacity of patron of the Arya Samaj
Mandir, Masjid Moth. He stated that the subject Will was first signed
by his son, Shri B.D. Saini, by whom it was also drafted, and then by
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him. He identified the signatures of Shri B.D. Saini on the subject
Will. Later, at the time of signing of the statement, he stated that the
subject Will was first signed by his son, Shri B.D. Saini, and then it
was signed by three/four other persons, whereafter, it was signed by
him. In the Order dated 06.03.2007, the learned Joint Registrar, who
was recording the evidence, has observed in his remarks that the
witness- PW-2 was changing his statement in this regard.
18. Importantly, PW-2 stated as under:
“…I cannot say anything in face of the
suggestion that the will Ex.PW2/1 was
manipulated and forged by petitioner No.1
Mr.Krishan Bharal and my son, Mr.B.D. Saini.
Again said there was no question of my son
Mr. B.D. Saini manipulating or forging the
Will Ex.PW2/1 and the site plan along with
petitioner no.1 Mr.Krishan Dev Bharal.”
19. He denied that the suggestions that the subject Will was not
signed by the Testator or not got registered by the Testator.
20. Importantly, he further stated as under:
“Volunteer, two lines on Will Ex.PW2/1 were
written by Mr.Bhadar Sain in his own hand
writing.”
21. He denied the suggestion that these lines had not been written
by the Testator in the presence of PW-2. He also denied the suggestion
that the other witness to the subject Will had not signed the same in
his presence.
22. Mr.Vimal Kumar, Head Clerk of the Office of the Sub-
Registrar-V, Mehrauli, Delhi, was examined as PW-2 (though
wrongly mentioned as PW-2). He stated that he could not locate the
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subject Will bearing registration no.3875, Volume III, Book No.805
dated 04.08.1994, which was sought to be summoned by the
respondent no.1. He stated that the details furnished are incorrect and
the same is not registered in the said office.
23. The respondent nos.1 and 2 then examined Mr.Manoj Sagar,
LDC, Sub Registrar-III, Asaf Ali Road, Delhi as PW-3. He brought
the subject Will and stated that the same was registered along with site
plan on 04.08.1994 vide Registration No.3075, Book No.III, Vol. No.
805 on pages 153 to 161. He admitted that as per the endorsement on
Ex.PW2/1, the subject Will produced by the respondent nos.1 and 2
shows that it was registered in the office of Sub-Registrar-III vide
Registration No.3875. He also stated that as per the endorsement on
the back side of the site plan, the same was registered vide
Registration No.3675 or 3875, Book No.III, Vol. No.805 on pages 153
to 161.
24. He was called upon to produce the Index to Book No.III, Vol.
No.805, which he produced on 28.03.2014, and exhibited the relevant
entry as Ex.PW3/X1, wherein the subject Will (Ex.PW2/1) was
shown to be registered at Serial No.9 as Document No.3875. He
admitted that the starting 1 or 2 pages of the register were torn and the
Index Register was not paginated. He also admitted that the Index
Register does not bear the signatures of the Sub-Registrar or of any
other official at any page. He admitted that the entries in the Index
Register are handwritten. The Court observed that one torn page
bearing the date 08.09.1994 had been bounded between pages bearing
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the date 02.08.1994 and 30.08.1994 in the Index Register. The witness
admitted that there were cuttings and overwriting in the entries
contained in the Index Register, which had not been initialled by any
official.
25. As far as the appellant is concerned, he filed his evidence by
way of affidavit (Ex.R2W1/A), wherein he stated that in the year
1991, the Testator had undergone prostrate surgery from which he
could not fully recover and from the year 1992, the Testator steadily
and progressively lost control of his senses. He stated that by the end
of December, 1993, the Testator had completely lost control of his
mental cognitive faculties and had become immobile and his condition
kept on deteriorating and he ultimately died in the said condition on
08.01.2000. He stated that the Testator was living with the respondent
nos.1 and 2 herein, and his complete medical records were in the
power and possession of the respondent nos.1 and 2. He stated that
subject Will does not bear the signatures or thumb impression of the
Testator. He stated that the Testator, having lost control of his senses,
was bedridden and, therefore, had not gone to the Office of the Sub-
Registrar on 04.08.1994 for the alleged registration of Ex.PW2/1. He
stated that the respondent no.1, in collusion and conspiracy with his
friend, Sh. B.D. Saini, Advocate and his father, Shri Dhan Singh, got
the signatures and the thumb impression of the Testator forged and
fabricated on the subject Will and thereafter, in collusion with the
officers of the Sub-Registrar, manipulated to put the seal of the Sub-
Registrar on the subject Will to show the registration of the same. He
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stated that the properties mentioned in the subject Will were joint and
ancestral. He stated that even the Will produced by Mr. Manoj Sagar
(PW-3) (Ex.PW3/1) has not been executed or got registered by the
Testator and is also fabricated and manufactured by the respondent
no.1 and his associates, in collusion with the staff of the concerned
Sub-Registrar.
26. He was cross-examined by the counsel for the respondent nos.1
and 2. He, apart from admitting the proceedings in Suit No. 858/1987
referred to hereinabove, also admitted that he has filed a Suit for
declaration, being Suit No.961/2005, challenging the compromise
Order dated 31.10.1991, which he withdrew on 19.11.2014. The copy
of the plaint and the order were exhibited as Ex.R2W1/P1(Colly.). He
was given suggestion that he was deposing falsely in his affidavit by
way of evidence.
27. After conclusion of the evidence and upon hearing the learned
counsels for the parties, the learned Single Judge passed the Impugned
Order granting Probate of the subject Will in favour of the respondent
nos.1 and 2.
28. As noted hereinabove, the Impugned Order has only been
challenged by the appellant and not by the respondent nos.3 to 8.
Submissions of the learned counsel for the appellant
29. The learned counsel for the appellant submits that the due
execution and attestation of the subject Will has not been proved by
the respondent nos.1 and 2 in accordance with Section 63(c) of the
ISA and Section 68 of the Indian Evidence Act, 1872 (hereinafter
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referred to as „IEA‟).
30. He submits that in his cross-examination, PW-2 sought to
contend that the Will was first signed by his son Shri B.D. Saini, and
thereafter by himself, which he later changed to say that after the
signing of the subject Will by Shri B.D. Saini, it was signed by three
to four other persons and thereafter was signed by him. He submits
that this improvement was even commented upon by the learned
Registrar who was recording the evidence.
31. He further submits that PW-2 in his evidence by way of
affidavit does not even identify the signatures of the Testator, but only
generally states that subject Will was signed by the Testator. He
submits that this omission is very vital and it must, therefore, be held
that the subject Will was not proved.
32. He submits that the evidence by way of affidavit of PW-2 was
prepared by the counsel for the respondent nos.1 and 2, which shows
the collusion between PW-2 and the respondent nos.1 and 2, because
of which the testimony of PW-2 cannot be relied upon. He submits
that the onus of proving a Will is on its propounder, and the
respondent nos.1 and 2 have failed to prove the execution of the
subject Will by the Testator and have also failed to explain the other
doubtful circumstances surrounding the subject Will. In support, he
places reliance on the judgements of the Supreme Court in
Shivakumar & Ors. v. Sharanabasappa & Ors., (2021) 11 SCC 277;
Janki Narain Bhoir v. Narayan Namdev Kadam, (2003) 2 SCC 91;
Moturu Nalini Kanth v. Gainedi Kaliprasad, 2003 SCC OnLine SC
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1488; and Murthy & Ors. v. C. Saradambal & Ors., AIR 2022 SC
167.
33. He submits that mere registration of a Will does not dispense
with the requirement of proof of due execution and attestation of the
Will. In support, he places reliance on Bhagat Ram v. Suresh & Ors.,
AIR 2004 SC 436, and; Moturu Nalini Kanth (supra).
34. He further submits that even otherwise, there are serious doubts
regarding the registration of the subject Will. He submits that the Will
produced by PW-3 (Ex.PW3/1) bears the registration no.3075, while
the subject Will (Ex.PW2/1) bears the registration no.3875. He
submits that the concerned Sub-Registrar has not been examined to
explain this discrepancy. Placing reliance on the judgements of the
Supreme Court in S. Srinivasa & Ors. v. S. Padmavathamma, (2010)
5 SCC 274; Rani Purnima Debi v. Kumar Khagendra Narayan Deb,
AIR 1962 SC 587 and Gurdial Kaur v. Kartar Kaur, AIR 1998 SC
2861, he submits that, therefore, the registration of the subject Will is
itself doubtful.
35. He submits that even otherwise there are interlineations of four
lines in Urdu language in Ex.PW2/1, and the same have not been
countersigned by the Testator nor has an entry in this regard been
made by the Registrar in the Register in accordance with Section 20 of
the Registration Act, 1908. Placing reliance on the judgements of the
Supreme Court in Valiammal Rangarao Ramachar v.
Muthukumaraswamy Gounder & Ors, (1982) 3 SCC 508, and D.R.
Rathna Murthy v. Ramappa, (2011) 1 SCC 158; and of the Karnataka
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High Court in Padmini Raghavan v. H.A. Sonnappa & Ors., 2013
SCC OnLine Kar 8544, and; Suresh Malani v. K.B. Munivenkata
Reddy, 2021:KHC:19713-DB, he submits that, therefore, the
document is void ab-initio and cannot be relied upon.
36. He further submits that Ex.PW3/1 produced by Mr.Manoj
Sagar is different from Ex.PW2/1, the subject Will. He submits that in
terms of Rule 29 and Rule 39 of the Delhi Registration Rules, 1976,
the office copy with the Sub-Registrar has to be an identical and exact
replica of the original document. He submits that the variance in the
two documents itself shows that Ex.PW2/1 is not a genuine
document.
37. He submits that even otherwise, the disposition in the subject
Will is unnatural and improbable. He submits that the appellant and
the respondent nos.3 to 6 are the children from the first wife of the
Testator, but, by the subject Will, have been excluded from
inheritance, while the property has been bequeathed in favour of the
respondent nos.1 and 2, the son and daughter from the second wife of
the Testator. He submits that this itself casts a doubt on the
genuineness of the subject Will. In support, he places reliance on
Bharpur Singh & Ors. v. Shamsher Singh, (2009) 3 SCC 687,
Narajan Umeshchandra Joshi v. Mrudula Jyoti Rao, AIR 2007 SC
614 and Murthy (supra).
38. He submits that the Impugned Order is also cryptic and not in
terms of Order XX Rule 4 of the Code of Civil Procedure, 1908 and
Section 295 of the ISA, which mandate that there must be a detailed
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judgment in a Probate Petition, just like a Civil Suit.
39. He fairly admits that the plea that the properties mentioned in
the subject Will were not the self-acquired properties of the Testator
and that the Testator was not competent to execute a Will in their
regard, cannot be a subject matter of the Probate Petition. He submits
that this challenge of the appellant shall be taken by him in
appropriate proceedings.
Submissions of the learned counsel for the respondent nos. 1 & 2
40. On the other hand, the learned counsel for the respondent nos.1
and 2 submits that the primary case of the appellant before the learned
Single Judge was that the properties bequeathed by way of the subject
Will were ancestral in nature. He submits that this issue has rightly
been not pressed by the appellant in the present appeal as the question
of title to the property cannot be determined in a Probate Petition. In
support, he places reliance on the judgment of this Court dated
13.10.2009 in Probate Case No. 19/1992 titled Laxman Das v. State.
41. He submits that even otherwise, the appellant is a habitual
litigant. He had filed the Suit, being Suit No.961/2005, challenging the
compromise arrived at including between himself and the Testator in
Suit No.858/1987, which he, however, later withdrew on 19.11.2014.
He submits that therefore, even otherwise the appellant is estopped
from challenging the title to the properties bequeathed by the Testator
in the subject Will.
42. As far as the due execution of the subject Will is concerned, he
submits that PW-2 has not only proved the due execution of the
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subject Will but has also deposed on the sound disposing mind of the
Testator. He submits that apart from relying upon vague assertions,
the appellant has not been able to discredit PW-2 in his cross-
examination.
43. As far as non-compliance with Section 20 of the Registration
Act is concerned, he submits that not only was this objection not taken
before the learned Single Judge, but even otherwise, there are no
interpolations or interlineations in the subject Will. He submits that
the handwritten words cannot be said to be interlineations or
amendments to the subject Will. He submits that even otherwise,
registration being not necessary for the enforcement of a Will, any
defect in registration cannot cast a doubt on the genuineness of the
subject Will.
44. He further submits that the appellant has only vaguely stated
that the subject Will has been executed under coercion and undue
influence, and the appellant has not produced any cogent evidence in
support of this plea. He submits that the onus of proving the same
would be on the appellant. In support, he places reliance on Sridevi &
Ors. v. Jayaraja Shetty & Ors., (2005) 2 SCC 784.
Analysis and Findings
45. We have considered the submissions made by the learned
counsels for the parties.
46. Section 63 of the ISA provides the set of rules in terms of which
a Will shall be executed. It reads as under:
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“Section 63. Execution of unprivileged wills.
Every testator, not being a soldier employed in
an expedition or engaged in actual warfare, or
an airman so employed or engaged, or a
mariner at sea, shall execute his will
according to the following rules:–
(a) The testator shall sign or shall affix his
mark to the will, or it shall be signed by
some other person in his presence and by
his direction.
(b) The signature or mark of the testator, or
the signature of the person signing for him,
shall be so placed that it shall appear that it
was intended thereby to give effect to the
writing as a will.
(c) The will shall be attested by two or more
witnesses, each of whom has seen the
testator sign or affix his mark to the will or
has seen some other person sign the will, in
the presence and by the direction of the
testator, or has received from the testator a
personal acknowledgment of his signature
or mark, or of the signature of such other
person; and each of the witnesses shall sign
the will in the presence of the testator, but it
shall not be necessary that more than one
witness be present at the same time, and no
particular form of attestation shall be
necessary.”
47. Section 68 of the IEA provides as to how an attested document
is to be proved. The said Section reads as under:
“68. Proof of execution of document required
by law to be attested.–If a document is
required by law to be attested, it shall not be
used as evidence until one attesting witness at
least has been called for the purpose of
proving its execution, if there be an attesting
witness alive, and subject to the process of the
Court and capable of giving evidence:
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Provided that it shall not be necessary to call
an attesting witness in proof of the execution
of any document, not being a will, which has
been registered in accordance with the
provisions of the Indian Registration Act, 1908
(16 of 1908), unless its execution by the person
by whom it purports to have been executed is
specifically denied.”
48. The Supreme Court in H. Venkatachala Iyengar v. B.N.
Thimmajamma & Ors., AIR 1959 SC 443, while interpreting the
requirements of a valid Will under Section 63 of the ISA, has clearly
distinguished the nature of proof required for a Will to be proved. We
may quote from the said Judgment as under:
“18. What is the true legal position in the
matter of proof of wills? It is well-known that
the proof of wills presents a recurring topic for
decision in courts and there are a large
number of judicial pronouncements on the
subject. 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 Section 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 Sections 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 theSignature Not Verified
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requirements and the nature of proof which
must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections
59 and 63 of the Indian Succession Act are
also relevant. Section 59 provides that every
person of sound mind, not being a 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
Section 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
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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 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 willSignature Not Verified
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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 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. Apart from the suspicious circumstances to
which we have just referred, in some cases the
wills propounded disclose another infirmity.
Propounders themselves take a prominent part
in the execution of the wills which confer on
them substantial benefits. If it is shown that
the propounder has taken a prominent part in
the execution of the will and has received
substantial benefit under it, that itself is
generally treated as a suspicious
circumstance attending the execution of the
will and the propounder is required to remove
the said suspicion by clear and satisfactory
evidence. 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
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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 in actions 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
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.”
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(Emphasis Supplied)
49. In Pentakota Satyanarayana & Ors. v. Pentakota
Seetharatnam & Ors., (2005) 8 SCC 67, the Supreme Court has
explained how the requirement of Section 68 of the IEA is to be met
by the propounder of the Will, as under:
“22. ….. Section 68 of the Evidence Act, 1872
deals with proof of execution of document
required by law to be attested. This section
lays down that if the deed sought to be proved
is a document required by law to be attested
and if there be an attesting witness alive and
subject to process of the court and capable of
giving evidence, he must be called to prove
execution. Execution consists in signing a
document written out, read over and
understood and to go through the formalities
necessary for the validity of legal act.
*****
It is clear from the definition that the attesting
witness must state that each of the two
witnesses has seen the executor sign or affix
his mark to the instrument or has seen some
other persons sign the instrument in the
presence and by the direction of the executant.
The witness should further state that each of
the attesting witnesses signed the instrument in
the presence of the executant. These are the
ingredients of attestation and they have to be
proved by the witnesses. The word
“execution” in Section 68 includes attestation
as required by law.”
(Emphasis Supplied)
50. In Sridevi (supra), with regard to the onus that rests on the
propounder of a Will, the Supreme Court has held as under:
“14. The propounder of the will has to show
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that the will was signed by the testator; that he
was at the relevant time in sound disposing
state of mind; that he understood the nature
and effect of dispositions and had put his
signatures to the testament of his own free will
and that he had signed it in the presence of the
two witnesses who attested in his presence and
in the presence of each other. Once these
elements are established, the onus which rests
on the propounder is discharged. …”
51. More recently, in Shivakumar (supra), the Supreme Court,
summarised the principles governing the adjudicatory process
concerning proof of a Will, as under:
“12. For what has been noticed hereinabove,
the relevant principles governing the
adjudicatory process concerning proof of a
will could be broadly summarised as follows:
12.1. Ordinarily, a will has to be proved like
any other document; the test to be applied
being the usual test of the satisfaction of the
prudent mind. Alike the principles governing
the proof of other documents, in the case of
will too, the proof with mathematical accuracy
is not to be insisted upon.
12.2. Since as per Section 63 of the Succession
Act, a will is required to be attested, it cannot
be used as evidence until at least one attesting
witness has been called for the purpose of
proving its execution, if there be an attesting
witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it
speaks from the death of the testator and,
therefore, the maker thereof is not available
for deposing about the circumstances in which
the same was executed. This introduces an
element of solemnity in the decision of the
question as to whether the document
propounded is the last will of the testator. The
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but the same can be taken to have been
primarily discharged on proof of the essential
facts which go into the making of a will.
12.4. The case in which the execution of the
will is surrounded by suspicious circumstances
stands on a different footing. The presence of
suspicious circumstances makes the onus
heavier on the propounder and, therefore, in
cases where the circumstances attendant upon
the execution of the document give rise to
suspicion, the propounder must remove all
legitimate suspicions before the document can
be accepted as the last will of the testator.
12.5. If a person challenging the will alleges
fabrication or alleges fraud, undue influence,
coercion et cetera in regard to the execution of
the will, such pleas have to be proved by him,
but even in the absence of such pleas, the very
circumstances surrounding the execution of
the will may give rise to the doubt or as to
whether the will had indeed been executed by
the testator and/or as to whether the testator
was acting of his own free will. In such
eventuality, it is again a part of the initial onus
of the propounder to remove all reasonable
doubts in the matter.
12.6. A circumstance is “suspicious” when it
is not normal or is “not normally expected in a
normal situation or is not expected of a normal
person”. As put by this Court, the suspicious
features must be “real, germane and valid”
and not merely the “fantasy of the doubting
mind”.
12.7. As to whether any particular feature or a
set of features qualify as “suspicious” would
depend on the facts and circumstances of each
case. A shaky or doubtful signature; a feeble
or uncertain mind of the testator; an unfair
disposition of property; an unjust exclusion of
the legal heirs and particularly the
dependants; an active or leading part in
making of the will by the beneficiary
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thereunder et cetera are some of the
circumstances which may give rise to
suspicion. The circumstances abovenoted are
only illustrative and by no means exhaustive
because there could be any circumstance or
set of circumstances which may give rise to
legitimate suspicion about the execution of the
will. On the other hand, any of the
circumstances qualifying as being suspicious
could be legitimately explained by the
propounder. However, such suspicion or
suspicions cannot be removed by mere proof
of sound and disposing state of mind of the
testator and his signature coupled with the
proof of attestation.
12.8. The test of satisfaction of the judicial
conscience comes into operation when a
document propounded as the will of the
testator is surrounded by suspicious
circumstance(s). While applying such test, the
court would address itself to the solemn
questions as to whether the testator had signed
the will while being aware of its contents and
after understanding the nature and effect of
the dispositions in the will?
12.9. In the ultimate analysis, where the
execution of a will is shrouded in suspicion, it
is a matter essentially of the judicial
conscience of the court and the party which
sets up the will has to offer cogent and
convincing explanation of the suspicious
circumstances surrounding the will.”
52. From the above, it would be apparent that the onus of proving
the Will is on the propounder thereof. The propounder has to prove
that the Will being propunded by them bears the signatures of the
Testator and has been duly attested by two or more witnesses, each of
whom had seen the Testator sign the said Will and each of whom had
also signed the Will in the presence of the Testator. It also has to be
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proved that the Testator was in a sound disposing mind and the Will
had been executed of his free will and without any coercion or undue
influence. The propounder also has to explain away all suspicious
circumstances that may surround the Will. The standard of proof,
however, is not the one beyond reasonable doubt, but of
preponderance of probabilities. Further, the suspicious circumstance
must be real, germane and valid and not merely the “fantasy of the
doubting mind”.
53. Judging the subject Will on the above parameters, the
respondent nos.1 and 2 produced PW-2, Shri Dhan Singh, who is one
of the attesting witnesses to the subject Will. Though, the learned
counsel for the appellant has, on basis of stray sentences reproduced
hereinabove, sought to discredit the testimony of PW-2, in our
opinion, PW-2 has withstood the cross-examination and is a reliable
witness to prove due execution of the subject Will, as also to the
Testator‟s sound disposing mind while executing the subject Will.
PW-2 was known to the Testator. Though the son of PW-2 is a friend
of the respondent no.1, in our opinion, the same cannot be sufficient to
discredit his testimony. Similarly, only because the learned counsel
for the respondent nos.1 and 2 took active part in the preparation of
the affidavit of evidence of PW-2 and in producing him as a witness in
the Probate Petition, the same cannot cast a doubt on his testimony. It
is not unnatural for the beneficiary under a Will to request the
attesting witness to the Will to depose on the due execution of the
Will and, in such deposition, give assistance to the witness. Merely
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because the attesting witness appeared before the Court at the request
of the beneficiary of the subject Will, the same cannot cast a doubt on
his testimony. The Court has to determine the credibility of the
witness on the testimony that he gives and to find out if there is any
inconsistency in the same or something which appears unnatural, not
making him trustworthy.
54. PW-2 has stated that the subject Will was signed in his presence
by the Testator; that he had signed on the subject Will in the presence
of the Testator and the other witness; and the other witness, Shri G.C.
Sharma had also signed the subject Will in presence of PW-2 and the
Testator. Merely because PW-2 failed to specifically point out the
signatures of the Testator in his evidence by way of affidavit by way
of a marking, the same cannot mean that his deposition is not
creditworthy, or is liable to be ignored.
55. The stray sentence in his cross-examination that he „cannot say
anything in face of the suggestion that the Will Ex.PW2/1 was
manipulated and forged by petitioner No.1 Mr. Krishan Bharal‟ was
followed immediately by the sentence that „there was no question of
my son, Mr.B.D. Saini manipulating or forging the Will Ex.PW2/1 and
the site plan along with petitioner no.1 Mr.Krishan Dev Bharal.‟ He
had specifically denied the suggestion that the subject Will and the site
plan had been manipulated and forged.
56. The appellant, apart from merely contending that the subject
Will was forged, has not produced any evidence in support of this
assertion.
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57. Coming to the submission of the learned counsel for the
appellant that the Testator was not shown to be in sound disposing
mind, again, apart from a self-serving statement in this regard, the
appellant led no evidence to even remotely cast a doubt on the
statement of the respondent no.1 (PW-1) or Mr. Dhan Singh (PW-2),
that the Testator was in a sound disposing mind and understood the
contents of the subject Will while executing the same.
58. On the matter of unnatural bequeath in the subject Will, it need
only to be noticed that the appellant had initiated litigations against
the Testator. These resulted in a settlement as far as the Suit filed by
the respondent no.3 is concerned, and withdrawal of the Suit as far as
the Suit filed by the appellant is concerned. It is also the own case of
the appellant that the Testator was residing with the respondent no.1 at
the time of his death and even before. It is, therefore, not unnatural for
the Testator to have bequeathed his properties to the respondent nos.1
and 2, who were looking after him, instead of the appellant and the
respondent no.3, who had initiated litigations against him. The
Testator has also, in the subject Will, stated that he is not enjoying
good relations with the appellant and with his family members and
that litigation was initiated by the appellant against him. Further, in
the subject Will, the Testator has also stated reasons for excluding the
other respondents from his bequeath. Therefore, the suspicious
circumstances alleged by the appellant, have been adequately
explained in the subject Will as also by way of the other surrounding
circumstances, by the respondent nos.1 and 2. We, therefore, do not
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find any merit in the said challenge of the appellant.
59. Now, coming to the submission with respect to the discrepancy
in the registration numbers of Ex.PW2/1 and Ex.PW3/1 as also the
presence of four against two signatures in the same on every page and
the handwritten note at the end, we first emphasize that the
registration of a Will is not essential under the IRA or ISA. Reference
in this regard is made to Bhagat Ram (supra) and Moturu Nalini
Kanth (supra).
60. While there is no doubt that in terms of Rules 29 and 39 of the
Delhi Registration Rules, 1976, the copy pasted on the Register Book
has to be a carbon copy/duplicate of the original, Section 87 of the
IRA states that nothing done in good faith pursuant to the said Act,
shall be deemed to be invalid merely by reason of any defect in the
procedure followed. It appears that as the registration of the subject
Will took place after a few days of the execution thereof, signatures of
the Testator were taken afresh in the copy attached to the Register
Book. Be that as it may, even if the registration is held to be invalid,
this would not make the subject Will itself invalid.
61. Similarly, not following of the mandate of Section 20 of the
Registration Act as far as the handwritten portion is concerned, would
not invalidate the subject Will or cast a doubt on the genuineness
thereof. The handwritten portion is stated to be in handwriting of the
Testator, which in its translation, reads as under:
“This Will has been prepared as per my
desire. The same has been read over andSignature Not Verified
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explained to me in the presence of the
witnesses mentioned hereinafter. The same is
correct. I have appended my signatures after
hearing the contents of the Will”
62. In Valiammal Rangarao Ramachar (supra), the Supreme Court
was considering a case involving a sale deed wherein the fact of
knowledge of a prior agreement by the vendor was inserted. From an
assessment of the whole evidence, the Court found the interpolation to
be not believable and, therefore, rejected the same.
63. In D.R. Rathna Murthy (supra), the Supreme Court was again
considering a document of sale wherein the reconveyance clause had
been inserted in an unusual manner at foot of the deed before the
signatures and without endorsement. The Court from the evidence
found that these interlineations were made after the execution of
documents but before the registration thereof and were without the
consent and knowledge of the respondent buyer therein.
64. In Padmani Raghavan (supra), the Karnataka High Court, on
an examination of the evidence, found that the addition in the sale
deed had been made without the consent of the party liable under it. It
was held that in view thereof, the sale deed had been rendered void.
65. In Suresh Malani (supra), again, the Karnataka High Court
found that there was no satisfactory explanation given for the
interpolation in the document. The Court, therefore, held that this
would make the document void.
66. From the above, it would be apparent that when confronted with
an allegation of interpolation/interlineations in a document, the Court
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has to consider whether the interpolation/interlineation was with the
consent of the other party; is the interpolation/interlineation material,
and; has the same been explained by the propounder of the document.
67. In the present case, the alleged interpolation/interlineation is not
material to the document and has been proved to be in the handwriting
of the Testator himself. What is further important is that this does not
appear to have been made an issue before the learned Single Judge.
68. As far as discrepancy in the registration number of the subject
Will is concerned, in our view, the same would again have no effect
on the validity of the subject Will. It appears to be more a bona fide
mistake in noting down the number on the subject Will.
69. On the submission of the learned counsel for the appellant that
the impugned judgment does not meet the standard of Order XX Rule
4 of the Code of Civil Procedure, 1908, we again find no merit in the
same. The learned Single Judge has considered the evidence of the
parties and discussed the same and given the findings on the issues
raised before it.
70. For the reasons stated hereinabove, we find no merit in the
present appeal. The same is accordingly, dismissed. The parties shall
bear their own costs.
NAVIN CHAWLA, J.
RENU BHATNAGAR, J.
AUGUST 08, 2025/rv/ns/SJ
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