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Delhi High Court
Surbhi Sharma vs State Of Nct Of Delhi And Ors on 27 August, 2025
Author: Manmeet Pritam Singh Arora
Bench: Manmeet Pritam Singh Arora
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th April, 2025
Date of Decision: 27th August, 2025
+ TEST.CAS. 69/2024 & I.As. 37687-88/2024, 42337-39/2024
SURBHI SHARMA .....Petitioner
Through: Mr. Visheshwar Shrivastav and Mr.
Manoj Kumar Gautam, Advocates
versus
STATE OF NCT OF DELHI AND ORS .....Respondents
Through: Ms. Avni Singh, Advocate for
GNCTD
%
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMEET PRITAM SINGH ARORA, J:
1. This testamentary petition is filed along with the applications which
have been taken up altogether.
2. The Petitioner has filed the present petition under Section 237 and
276 of the Indian Succession Act, 1925 (‘Act of 1925’) for grant of Probate
on a photocopy of an unregistered Will dated 01.11.2023 purported to have
been executed by late Ms. Sangam Sharma (‘Testatrix’), aged about 30
years, residing at 121, Ground Floor, Shubham Apartment, Sector-12,
Pocket-4, Dwarka, New Delhi-110077, at which address she was residing at
the time of her death on 12.01.2024.
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 1 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
3. By this judgment, this Court shall now proceed to decide the present
petition.
Submissions on behalf of the Petitioner
4. It is the case of the Petitioner that late Smt. Saroj Sharma, the mother
of the Petitioner, Respondent No. 3, and the Testatrix, was the owner/lessee
of the following properties:
A. Property 24-25 A, Sewak Park Extension, Rama Park, Uttam
Nagar, New Delhi-110059, admeasuring a total area of 225 Sq.
Yards having a built-up house consisting of Ground Floor and First
Floor.
B. Property 30 A, Sewak Park Extension, Rama Park, Uttam Nagar,
New Delhi-110059, admeasuring an area of 80 Sq. Meters
consisting of 1st Floor, 4th Floor & Baccha Floor Flat.
C. Property F-58, situated at RIICO Industrial Area, Bhiwadi,
District Alwar, Rajasthan.
D. Property Flat bearing No. 121, Ground Floor, Shubham
Apartment, Sector-12, Pocket-4, Dwarka, New Delhi-110077,
admeasuring area 91 Sq. Meters.
5. These properties were bequeathed equally amongst all three daughters
of late Smt. Saroj Sharma i.e., Surbhi Sharma/Petitioner, Smt. Sulekha
Sharma/Respondent No. 3 and late Ms. Sangam Sharma/Testatrix by a Will
dated 27.07.2005.
6. The Petitioner stated in the petition that, the property listed above at
serial no. ‘A’ (‘Property No. 24-25-A’), was mutually partitioned among the
three sisters in June 2022 by executing relinquishment deeds. The three
sisters agreed with Mr. Manoj Sharma (attesting witness no. 1) for the
demolition of the existing super-structure and construction of a new building
on the said property comprising of eight (8) flats. A General Power of
Attorney (‘GPA’) was executed in favour of the Petitioner by Respondent
No. 3 and the Testatrix, for managing the property.
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 2 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
6.1 It is stated that acting upon the said GPA, the Petitioner transferred all
the eight flats in favour of the nominees of Mr. Manoj Sharma (attesting
witness no. 1) and Mr. Vishnu Sharma (attesting witness no. 2) in January
2024.
6.2 It is stated in the petition that the Petitioner was unaware of the
existence of the Will dated 01.11.2023 and discovered a photocopy of the
said Will on 02.05.2024, while cleaning her apartment specifically
underneath her quilts in her personal almirah. It is stated that the Petitioner
has never seen the original Will and was not informed by the Testatrix about
the execution of the Will. It is further stated that, despite thorough searches
conducted by the Petitioner throughout her apartment, the original copy of
the Will could not be located.
6.3 It is stated that, to confirm the authenticity of the Will, the Petitioner
contacted Mr. Manoj Sharma, whose name and signature appear on the Will
along with Mr. Vishnu Sharma. Both Mr. Vishnu Sharma and Mr. Manoj
Sharma subsequently met with the Petitioner and verified that the Testatrix
had executed the Will on 01.11.2023. They further informed the Petitioner
that the Testatrix had called them to her residence to act as witnesses to her
Will, which she had prepared.
6.4 It is stated that the witnesses corroborated that the Testatrix duly
executed the Will by signing it in their presence, following which both
witnesses affixed their signatures on the alleged Will.
6.5 It is stated that she had continued her search for the original copy of
the Will, reaching out to various friends and relatives; however, these efforts
yielded no results.
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 3 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
6.6 It is stated that Respondent No. 3, at times, accompanied by her
husband or father-in-law, frequently visited the Testatrix’s residence, and the
Petitioner firmly believes that either Respondent No. 3 or her husband or
father-in-law may have discovered the original Will and unlawfully removed
it, as the contents of the Will run contrary to the interests of Respondent No.
3.
6.7 It is stated that only Respondent No. 3 stands to gain from the non-
production, disappearance, or loss of the Original Will, as evidenced by her
claims in a civil suit filed by Respondent No. 3 bearing CS(OS) 155/2024.
7. The Petitioner submits that she is the sole beneficiary of the
Testatrix’s estates as per the unregistered photocopied Will dated 01.11.2023
and she verily believes that the original Will exists and is currently in the
custody of Respondent No. 3.
Examination of Witnesses
8. It is pertinent to mention that Respondent No. 3 instituted a civil suit,
bearing CS(OS) 155/2024 titled as ‘Smt. Sulekha Sharma v. Ms. Surbhi
Sharma’, for partition of the estates of the Testatrix as well as for
cancellation of the transfers pertaining to Property No. 24-25-A, Sewak Park
Extension, Rama Park, Uttam Nagar, New Delhi-110059, on 31.01.2024
against the Petitioner herein, Mr. Manoj Sharma (attesting witness no. 1) and
the nominees of Mr. Vishnu Sharma (attesting witness no. 2) disputing the
authorization of the sale of the said flats.
It is at the stage of filing of the written statement in the said suit that
Petitioner propounded the photocopy of an unregistered Will dated
01.11.2023 to claim absolute right in the said estates of the Testatrix and
thus negate the claim of Respondent No. 3 based on intestate succession.
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 4 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
9. The propounded Will being a photocopy, its attesting witnesses being
in litigation with Respondent No. 3 and the Will itself seeking to completely
oust Respondent No. 3 were highly unusual and uncertain facts of this
Petition, and therefore, this Court deemed it fit to first examine the attesting
witnesses to the alleged Will as well as the Petitioner before setting the
proceedings in motion.
10. Mr. Manoj Sharma, one of the witnesses to the alleged Will was
examined on 09.10.2024. He stated that he has known the Testatrix for 22
years, and he witnessed her Will on 01.11.2023. He visited her home with
another witness, Mr. Vishnu Sharma, and confirmed that she was in good
health and made the Will due to family differences. After the Testatrix death,
on 22.01.2024 while returning from Haridwar after completing the last
rituals of the Testatrix, he informed about the execution of the Will to the
Petitioner herein.
11. Mr. Vishnu Sharma, second witness to the Will, on his first
examination on 09.10.2024 stated that he signed the Will on 01.11.2023 at
the Testatrix residence, along with another witness, Mr. Manoj Sharma. He
stated that he had not informed about the execution of the Will to any
person. On his second examination on 14.10.2024, he stated that he had
acquired five (5) out of eight (8) flats constructed on the Property No. 24-
25-A in partnership with his cousins namely, Mr. Manoj Sharma (attesting
witness no. 1) and Mr. Puneet Garg. He also explained the transactions
pertaining to the development, construction and sale of eight (8) flats by the
Petitioner in favour of the nominees of the attesting witnesses and stated that
the disputes regarding Property No. 24-25-A are ongoing with Ms. Sulekha
Sharma/Respondent No. 3 concerning the aforementioned sales.
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 5 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
12. The Petitioner in her statement during the examination on 14.10.2024,
stated that she is unable to locate the original Will dated 01.11.2023 but
found a photocopy of the same on 02.05.2024. She thereafter confirmed its
authenticity with witnesses, Mr. Manoj Sharma and Mr. Vishnu Sharma. She
stated that she sold Property No. 24-25-A for Rs. 1.73 crores, with the
proceeds held in a joint account. In her statement, she confirmed that she
had learnt about the existence of Will from Mr. Manoj Sharma, in the
presence of Mr. Vishnu Sharma, on 22.01.2024 while returning from
Haridwar (however, she had not disclosed this fact in her petition instead she
stated that she discovered the existence of the Will on 02.05.2024). She
stated that the flats at Property No. 24-25-A were sold by others at a higher
price after renovations. She stated that all relevant sale documents qua
Property No. 24-25-A are on record.
Findings and Analysis
13. This Court has heard the learned counsel for the Petitioner and
perused the record. Also, the record of CS(OS) 155/2024 pending between
the parties was summoned and perused.
14. The present petition has been filed under Section 237 and 276 of the
Act of 1925 seeking probate on a photocopy of an unregistered Will dated
01.11.2023.
15. Section 237 of the Act of 1925 provides that a probate may only be
granted for a copy of a lost or destroyed Will if it can be demonstrated that
the original was not intentionally destroyed by the testator. Section 276
pertains to the process of applying for probate or letters of administration
with the Will annexed regarding a deceased person’s estate.
The immovable properties involved: Analysis and Description
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 6 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
16. The properties in which the Testatrix had title (whether as a part
owner or absolute owner) as per the alleged photocopied Will in question
are:
• Property 24-25 A, Sewak Park Extension, Uttam Nagar, New
Delhi: Total area of 225 Sq. Yards with a built house consisting
of Ground Floor and First Floor.
• Property 30 A, Sewak Park Extension, Uttam Nagar, New
Delhi: Area of 80 Sq. Meters, comprising the First Floor, Fourth
Floor, and Baccha Floor Flat.
• Property F-58, RIICO Industrial Area, Bhiwadi, Rajasthan:
Area of 979 Sq. Meters, claimed under lease from RIICO.
• Flat No. 121, Ground Floor, Shubham Apartment, Sector-12,
Pocket-4, Dwarka, New Delhi: Area of 91 Sq. Meters.
17. The immovable properties mentioned above, which are the subject of
bequeath as per the alleged Will, is already a subject matter of a civil suit
bearing CS(OS) 155/2024 filed by Respondent No. 3 seeking partition of the
estate of the Testatrix as per intestate succession.
18. It is stated that a mutual partition of Property No. 24-25-A between
Petitioner, Respondent No. 3 and the Testatrix occurred in June 2022,
followed by a GPA executed by Respondent No. 3 and Testatrix in favour of
the Petitioner authorizing her to manage Property No. 24-25-A. The
Petitioner acting as an attorney, based on the said GPA, transferred eight (8)
newly constructed flats on Property No. 24-25-A in favour of the nominees
of Mr. Manoj Sharma (attesting witness no. 1) and Mr. Vishnu Sharma
(attesting witness no. 2).
In CS(OS) 155/2024, there is a serious dispute between the Petitioner
and the attesting witnesses on one hand with Respondent No. 3 on the other
hand, with respect to the said sale, alleging it as illegal and fraudulent. The
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 7 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
challenge to the sale deeds is qua Respondent No. 3’s 1/3rd share in the said
property as well as qua the 1/3rd share of the Testatrix.
19. Following the filing of the aforesaid civil suit in January 2024, a
photocopy of the alleged Will dated 01.11.2023, has inexplicably come to
light. In this context, the present petition has been filed, propounding the
photocopy of the Will, which the Petitioner claims to have discovered on
02.05.2024.
The Will in question
20. The alleged Will dated 01.11.2023, is claimed to be the last Will and
testament of the Testatrix, bequeathing all her properties solely to the
Petitioner herein, excluding her sister, Respondent No. 3. The Petitioner and
Respondent No. 3 are the only natural legal heirs of the Testatrix.
21. The alleged Will is drawn up on one page and witnessed by Mr.
Manoj Sharma (attesting witness no. 1) and Mr. Vishnu Sharma (attesting
witness no. 2), confirming its execution. The Petitioner became aware of the
existence of the alleged Will only upon discovering a photocopy while
cleaning the cupboard on 02.05.2024. However, she has never seen the
original Will and has been unable to locate it.
22. The pre-existence of the civil suit and the disputes therein, have a
material bearing in evaluating the effect of the absence of an original of the
alleged Will, which has mysteriously appeared on 02.05.2024; and the
prayer seeking probate on the basis of the photocopy of the disputed Will.
Discrepancies in the statements given by the Petitioner and attesting witnesses
with respect to the date of Petitioner’s knowledge of the existence of the Will and
the pendency of litigation between Petitioner, attesting witnesses and
Respondent No. 3 in CS(OS) 155/2024
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 8 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
23. In the peculiar facts of this case, this Court at the notice stage deemed
it appropriate to examine the attesting witnesses as well as the Petitioner to
record their statements with respect to the existence and execution of Will.
The said statements were recorded on 09.10.2024 and 14.10.2024.
24. In the petition, the Petitioner claims to have discovered a photocopy
of the alleged Will on 02.05.2024, and that she was previously unaware of
the existence of Will. The relevant portion of the petition at paragraph no. 2
reads as under:
“2. The Petitioner was unaware of the existence of the Will and
recently on 2nd May, 2024 started house cleaning including
cleaning of the cupboards and she was surprised to find a
photocopy of the WILL of Late Ms. Sangam Sharma underneath
her quilts in her personal almirah.”
(Emphasis supplied)
25. However, Mr. Manoj Sharma (attesting witness no. 1) in his statement
recorded on 09.10.2024 asserted that he informed the Petitioner on
22.01.2024 about the Will after the Testatrix’s death. The relevant portion of
the statement reads as under:
“I state that I informed Ms. Surbhi Sharma about the execution
of the Will by Ms. Sangam Sharma on or about 22.01.2024
when we were returning from Haridwar after completing the last
rituals of Ms. Sangam Sharma. I informed her that the Will was
executed in her favour and asked her to search for the said Will at
the residence.”
(Emphasis supplied)
26. The Petitioner, in her statement recorded at the next hearing i.e.,
14.10.2024, accepted the statement of Mr. Manoj Sharma (attesting witness
no. 1) and said that she had been informed about the execution of the Will
on 22.01.2024. She further clarified that Mr. Vishnu Sharma (attesting
witness no. 2) was also present on 22.01.2024 when Mr. Manoj Sharma
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 9 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
informed her about the said Will. The relevant portion of the statement reads
as under:
“I state that I was informed about the existence of this Will by
Mr. Manoj Sharma on my way back from Haridwar after
completing the last rituals of Ms. Sangam Sharma.
I state that I have not mentioned in this petition that Mr. Manoj
Sharma had informed me about the existence of the Will on the way
back from Haridwar. Mr. Vishnu Sharma was present when we
were returning from Haridwar and it was in the presence of Mr.
Vishu Sharma that Mr. Manoj Sharma informed me about the
existence of the Will.
I state I have not disclosed the said fact that I learnt about the Will
on the way back from Haridwar in the written statement filed in
CS(OS) 155/2024.”
(Emphasis supplied)
27. However, Mr. Vishnu Sharma (attesting witness no. 2), whose
statement was recorded on 09.10.2024 and 14.10.2024, unequivocally stated
that he had never apprised anyone about the existence of the alleged Will
dated 01.11.2023. The relevant portion reads as under:
“I state that I have not disclosed to anyone that I have signed the
Will of Ms. Sangam Sharma since Ms. Sangam Sharma had asked
me not to disclose this fact to anyone.”
(Emphasis supplied)
28. The averments made in the petition and the statements made by the
Petitioner and the attesting witnesses, with respect to the date of knowledge
of the Petitioner about the existence of the alleged Will, have material
contradictions.
28.1 The statement of Petitioner recorded on 14.10.2024 accepting that
Manoj Sharma apprised her about the existence of the Will in January 2024,
fails to explain the circumstances in which the averment of 02.05.2024 was
made in the petition at paragraph ‘2’, wherein she stated that she learnt
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 10 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
about the Will for the first time in May 2024. The same statement has been
reiterated by the Petitioner in her written statement filed in CS (OS)
155/2024.
28.2 The statement of Mr. Manoj Sharma (attesting witness no. 1), that he
apprised the Petitioner about the existence of the Will on 22.01.2024, in the
presence of Mr. Vishnu Sharma (attesting witness no. 2), as stated by the
Petitioner in her statement, while returning from Haridwar, is also
contradicted by the statement of Mr. Vishnu Sharma who states that he never
apprised anyone (which would include the Petitioner) about the Will. Mr.
Vishnu Sharma in his statement makes no reference to the alleged discussion
of 22.01.2024 between Mr. Manoj Sharma and the Petitioner.
29. The discrepancies between the assertions made in the petition
regarding the date of knowledge of the Will’s existence and the oral
statements of the Petitioner, Mr. Manoj Sharma, and Mr. Vishnu Sharma
recorded before the Court lead this Court to conclude that the Petitioner’s
claims regarding the chance discovery of a photocopy of the Will in the
cupboard on 02.05.2024, are implausible.
30. The written statement in CS (OS) 155/2024 was filed by Petitioner on
20.05.2024 and the photocopy of the said Will was also filed along with it, to
oppose the relief for partition of the estate of the Testatrix and setting in
motion a defence to prolong the litigation. This Court is left with the distinct
impression that the alleged Will was set-up for the purpose of being
submitted alongside the written statement.
31. Mr. Manoj Sharma (attesting witness no. 1) is defendant no. 2 in the
CS (OS) 155/2024 and nominees of Mr. Vishnu Sharma (attesting witness
no. 2) as well are defendants in the said civil suit, where Respondent No. 3
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 11 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
has challenged the Petitioner’s action of selling eight (8) flats standing in
Property No. 24-25-A. The animosity of attesting witnesses, Mr. Manoj
Sharma and Mr. Vishnu Sharma, against Respondent No. 3 is writ large in
these facts.
32. Such material contradictions qua the alleged date of Petitioner’s
knowledge of the Will, the absence of the original of the Will and the
pendency of litigation between the parties raises grave doubts in the
conscience of this Court with respect to the genuineness of the photocopy of
the alleged Will dated 01.11.2023.
The Will is surrounded by suspicious circumstances
33. The Petitioner, in her petition, deposed that Testatrix did not confide
in her about the execution of the alleged Will and therefore she was not
aware about the alleged Will prior to its discovery on 02.05.2024. The
attesting witnesses have also stated that there was no other person present
when the Will was allegedly executed on 01.11.2023.
34. It is a matter of record that Petitioner used to reside with the Testatrix
in the same premises. As per the Will, Testatrix bequeath her entire estate to
the Petitioner. In these facts, the non-disclosure of the Will to the Petitioner
by the Testatrix does not stand to reason. Ordinarily, a testator/testatrix
withholds the execution of the testament from a legal heir who is sought to
be excluded and not the legal heir who is receiving the bequest. In fact,
common prudence would demand that the Testatrix would make all efforts
to inform the legatee/Petitioner about the execution of the Will so that the
legatee gets the benefit.
35. Will is a valuable document and has serious legal consequences as it
affects the devolution of titles in immovable property. A testator/testatrix
Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 12 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
would ordinarily take all care to ensure that such a valuable document is
preserved safely and is readily available for the legatee post demise. The
Petitioner’s assertion that she was not informed about the execution of the
original Will by the Testatrix is a suspicious circumstance which points
against the existence of the Will.
36. Believing the submission of the Petitioner that the original of the Will
is untraceable and photocopy is lying around in a cupboard would be naïve
on the part of the Court as it is contrary to common prudence and how
parties would ordinarily plan their inheritance.
37. Assuming, even if any such document existed, there is no credible
evidence on record if it was either lost or destroyed unintentionally.
38. In the petition, the Petitioner has made the following averments about
the efforts made to trace the original of the alleged Will. The relevant paras
read as under:
“6. The Petitioner continued her search for Original copy of the
Will and was contacting some friends and relatives of her family
but her search did not bear fruit. The petitioner seeks liberty to
establish the existence of the will by seeking shelter under section
58(ii) r/w 60(c) of Bhartiya Sakshya Adhiniyam, 2023.
7. The Petitioner continued her search for Original copy of the Will
and was contacting some friends and relatives of her family but her
search did not bear fruit.
8. It is pertinent to mention that Respondent No. 3, sometimes with
her husband, and sometimes with her husband and father-in-law
used to visit 121, Ground Floor, Shubham Apartment, Seetor-12,
Pocket-4, Dwarka, New Delhi- 110077. The Petitioner is convinced
that either Respondent No. 3 or her husband or her father-in-law
found is the original Will and decamped with the same as the said
instrument went against the interests of Respondent No. 3.
9. It can be seen that only Respondent No. 3 stands to benefit by
non- production, disappearance, loss or mislaying of the OriginalSignature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 13 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
Will as due to which the Respondent No. 3 in her Suit bearing No.
CS(OS) 155/2024 titled Smt. Sulekha Sharma versus Ms. Surbhi
Sharma & Others is claiming to be owner of one half of the
properties details of which have been mentioned.
10. The Petitioner verily believes that that the original will exists
and is in custody of Respondent No. 3.
(Emphasis Supplied)
39. The averments made in the petition alleging that Respondent No. 3
may have removed the said Will is speculative, self-serving and
unsubstantiated. The Petitioner admittedly did not serve any notice on
Respondent No. 3 in the civil suit or prior to filing this petition seeking
production of the alleged Will.
40. The Coordinate Bench of this Court in Ashwini Kumar Aggarwal v.
B.K. Mittal1 emphasized that without credible evidence regarding the
existence or destruction of the original Will, granting probate for a
photocopy is inappropriate. The relevant part of the judgement reads as
under:
“5. The above resume of the facts of this case show that Section
237 of the Act squarely applies in this case and the ingredients
thereof are not proved for granting probate of a copy of the Will. I
may note that Courts are deliberately hesitant to grant probate of a
photocopy of the Will inasmuch as Will as a document can be
revoked by destroying the same in any manner and absence of the
original can strongly mean that the Will was revoked. Therefore,
once the original Will is not on record, there has to exist on record
such amount of credible evidence to show that the original of the
Will was never destroyed by an intentional act of the testator or if
the original Will is still available the same is lost or misplaced or
the original is with a person who is deliberately not producing the
same. In the absence of evidence in this regard, and that too
credible evidence which the Court can believe, Courts do not
grant probate of copies of the Will except in the circumstances1
2014 SCC OnLine Del 3462Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 14 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
which are specified in Sections 238 to 240. In my opinion, this
limited aspect of original Will not being on record and no evidence
led for granting copy of the Will as per Section 237, is enough to
allow the appeal and set aside the impugned judgment of the
probate court dated 7.1.2012.”
(Emphasis Supplied)
41. In the considered opinion of this Court, the averments at paragraph
nos. 6 to 10 of the petition fail to satisfy the judicial conscience of this Court
with respect to the non-traceability of the original. As such, the necessary
conditions of Section 237 of the Act of 1925 are not met.
42. Respondent No. 3 along with the Petitioner are the only natural legal
heirs of the Testatrix. As noted above Respondent No. 3 has been excluded
entirely under the propounded Will. In the case of H. Venkatachala Iyengar
v. B.N. Thimmajamma & Ors.2, a celebrated judgment with respect to the
proof of Wills, the Supreme Court held that if the propounder significantly
benefits from the will, this too is considered a suspicious circumstance
requiring clear evidence for resolution. The relevant part of the judgment
reads as under:
“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 ecclesiastical courts in England when they2
AIR 1959 SC 443Signature Not Verified TEST.CAS. 69/2024
Signed By:MAHIMA Page 15 of 26
SHARMA
Signing Date:27.08.2025
19:16:07
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.”
(Emphasis Supplied)
43. Also, the Supreme Court in Anil Kak v. Sharada Raje3, opined that
the Court is required to adopt a rational approach while considering the
question of grant of probate and is furthermore required to satisfy its
conscience as existence of suspicious circumstances plays an important role.
The relevant part of the judgment reads as under:
“52. Whereas execution of any other document can be proved by
proving the writings of the document or the contents of it as also
3
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the execution thereof, in the event there exists suspicious
circumstances the party seeking to obtain probate and/or letters of
administration with a copy of the will annexed must also adduce
evidence to the satisfaction of the court before it can be accepted as
genuine.
53. As an order granting probate is a judgment in rem, the
court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the
natural heir by itself may not be held to be a suspicious
circumstance but it is one of the factors which is taken into
consideration by the courts before granting probate of a will.”
(Emphasis Supplied)
44. Considering the aforesaid precedents, a fundamental question which
arises as to what could be the reason for the Testatrix being desirous of
providing all her estates to the Petitioner by completely ousting her another
sister/Respondent no. 3. There is absolutely no contemporaneous material on
record to show that Testatrix was estranged from Respondent No. 3. On the
contrary the 2022 documents executed between the parties for Property no.
24-25-A show that parties had an amiable relationship and were mutually
dealing with their joint assets. The exclusion of Respondent No. 3 in the
propounded Will is therefore a suspicious circumstance.
45. The submission of the Petitioner that she may be permitted to validate
the photocopy of the Will by leading secondary evidence as per Section
58(ii) r/w 60(c) of Bhartiya Sakshya Adhiniyam, 2023 (‘BSA’) is also not
tenable.
45.1 Section 58(ii) of BSA mandates that for a photocopy to be admissible
as secondary evidence, credible evidence must be provided by a witness
who has observed the preparation of the copy from the original document.
The Petitioner, by her own admission, has never seen the original Will,
which directly contravenes this requirement. Furthermore, there is no fact
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that the photocopy was created in her presence, which weakens her position,
as it indicates a lack of direct knowledge regarding the authenticity of the
photocopy. Additionally, the purported photocopy was not made in the
presence of either of the attesting witnesses. Section 58(ii) necessitates that a
competent witness; someone who can affirm the accuracy of the copy; must
be present. Given that neither the Petitioner nor the attesting witnesses can
substantiate that the photocopy is a true representation of the original, they
collectively lack the requisite competence to validate the document’s
authenticity.
45.2 Section 60(c) of BSA, governs the admissibility of secondary
evidence. It stipulates that secondary evidence may only be admitted when
the party seeking to introduce it demonstrates that the original document is
unavailable due to specific circumstances, such as loss or destruction. The
Petitioner has failed to provide adequate proof of the unavailability of the
original Will or to show that any such circumstances exist. Consequently,
she has not met the burden of proof necessary to invoke the provisions of
this section. The High Court of Karnataka in State of Karnataka v. M
Muniraju4 held that the xerox copy of a document is inadmissible as it is
not a substantive piece of evidence.
45.3 Therefore, the Petitioner has not even prima facie satisfied the legal
requirements set forth in Sections 58(ii) and 60(c) of BSA to be able to
validate the photocopy of the Will.
46. Based on the statements of the witnesses and the Petitioner, as
reproduced, discussed, and analyzed in the foregoing paragraphs, the burden
4
, AIR 2002 Kar 287, 310, at para 57, 58
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placed on the propounder to remove all suspicious circumstances
surrounding the Will has been inadequately discharged in the petition.
47. Moreover, the alleged Will is merely a photocopy and is unregistered.
It is admitted that Respondent No. 3 disputes the execution and existence of
the said Will. This is bound to give rise to the issue on behalf of Respondent
No. 3 that no such Will was ever executed by the Testatrix. In these facts, the
first issue that the Court would have to examine is the validity of the
signatures of the Testatrix on the alleged Will. For examining the validity of
the signatures, the existence of the original of the Will is necessary and
indispensable. The signatures of the Testatrix as they appear on this
photocopy cannot be verified by a forensic test. In these facts, a petition
seeking probate of photocopy of an unregistered Will, which is disputed
cannot even be entertained, as the signatures of the Testatrix on the
photocopy cannot be proved.
48. Entertaining a petition for probate entails serious consequences on the
devolution of estate of the deceased. The rapid technological advancements
which enable lifting signatures from existing documents by scanning them
and placing them on other documents, is an aspect of technology which
makes preparation of forged documents highly probable. This technology is
commonly available and makes a disputed document highly suspect.
In this regard it is imperative to refer to the ratio of the High Court of
Bombay in Ganpat Pandurang Ghongade v. Nivrutti Pandurang
Ghongade5 wherein the Court opined that in the process of preparing a
xerox copy, there can be several manipulations, hence, it is unsafe to act
upon such a xerox copy.
5
2008 SCC OnLine Bom 298, at para 13
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49. The attesting witnesses to the Will i.e., Mr. Manoj Sharma and Mr.
Vishnu Sharma along with the Petitioner are admittedly embroiled in a bitter
litigation against Respondent No. 3, and the unity of interest of the
Petitioner, along with the attesting witnesses and their animosity against
Respondent No. 3 is also writ large on the record of the proceedings in CS
(OS) 155/2024. The said attesting witnesses are not independent witnesses
and therefore their testimony alone cannot suffice to prove the alleged Will.
50. In these facts, initiating the process of probate on the basis of
photocopy of an unregistered Will in the case where the document is
disputed, appears to this Court to be an exercise in futility. And the only
purpose it seeks to achieve is to derail the adjudication of CS(OS) 155/2024
to the advantage of the Petitioner and the attesting witnesses.
51. The Will has conveniently surfaced at the time of filing of the written
statement in CS (OS) 155/2024, which suit includes the relief of partition of
the estate of the Testatrix as per the law of intestate succession. This act of
the Petitioner also leads this Court to believe that the photocopy of the Will
is not a genuine document and has been created post-facto to set up a
defence in CS (OS) 155/2024.
52. As noted above, the Will completely excludes Respondent No. 3 who
is the natural legal heir and bequeaths the entire estate to the Petitioner.
There is no independent verifiable document on record to show that
Testatrix had an estranged relationship with Respondent No. 3. This itself is
a suspicious circumstance and when seen in the conspectus of the facts
noted above i.e., (i) absence of the original Will; (ii) material contradiction
in the statement of the propounder and the attesting witnesses with respect to
Petitioner’s knowledge of the date of existence of the Will; (iii) absence of
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Petitioner’s knowledge of the Will during the lifetime of the Testatrix; and
(iv) the animosity of the Petitioner and attesting witnesses against
Respondent No. 3 qua the sale of eight (8) flats constructed on Property No.
24-25-A also gives an impression to this Court that it is not beyond the
realm of consideration that the purported photocopy of the Will is a forged
document created to oust the Respondent No. 3 from her claim of
inheritance and to create undue pressure on her to settle the civil suit.
53. The Petitioner has relied upon several judgements wherein the courts
have given various distinguished circumstances for granting or rejecting
probate petitions in the absence of its original. The Court has perused the
compilation of judgments and has distinguished those cases in which the
Will in question is merely a photocopy.
(i) In Jagjit Singh Rikhy v. State6, probate was granted for a photocopy
of a holograph Will. Moreover, the petitioner therein could
successfully prove the valid execution of the Will along with credible
evidence from multiple witnesses, including that the Will (in question)
was drafted by a retired High Court judge, who stepped into the
witness box and confirmed the same. Moreover, the judicial
Magistrate who had authenticated a copy of the Will after comparing
with the original also appeared in the witness box. The said facts are
completely distinguishable and inapplicable to the case in hand.
(ii) In Ashok Kothari v. Dipti Bavishi7 the probate was granted for a
photocopy because the Court found that the Will was validly executed
by the evidence presented, including the authenticated photocopy of
the Will and testimony from attesting witnesses, established its
6
196 (2013) DLT 217
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authenticity and compliance with legal requirements, including the
contents of the Will which did not completely oust the daughter
(Dipti) from the Will, making the intentions of the Testatrix clear.
Most significantly, the Court therein observed that there was no real
challenge to the signature of the testator on the authenticated
photocopy of the Will. The challenge in the said matter was with
respect to the mental capacity of the testator. The said facts are
completely distinguishable and inapplicable to the case in hand.
(iii) In Ishur Chunder Surmah v. Doyamoye Debea8 the Court reversed
the lower court’s decision and remanded the case for retrial, allowing
both parties to present evidence regarding the photocopied Will’s
status, as the High Court found that the dismissal by the ld. District
Judge was erroneous, stating that the existence and potential
destruction of the Will must be established through evidence. In the
said case, the fact that the testator had executed the Will was admitted
to by both the parties. The only point of consideration before the
District Court was whether the original Will had been destroyed by
the testator with an intent to revoke the Will. The said facts are
completely distinguishable and inapplicable to the case in hand.
54. Therefore, to rely on the fact that an important legal document, such
as a Will, has not been preserved in original considering that this document
is purported to be the last and final testament of the Testatrix, with only a
photocopy available, which was also discovered under questionable
circumstances lying around in a cupboard by the Petitioner on the
7
2006 SCC OnLine Cal 445
8
(1882) ILR 8 CAL 864
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02.05.2024, fails to persuade this Court to even prima facie accept such a
document as the last testament and Will of the Testatrix.
55. To summarize, having examined the record and the statements of the
Petitioner and the attesting witnesses, this Court is of the considered opinion
that no probate can be granted for the photocopy of the alleged Will dated
01.11.2023 in view of the following facts apparent from the record: –
(i) The statement of the Petitioner that she became aware of the existence
of the photocopy of the Will on 02.05.2024 is falsified by the
statement of attesting witness nos. 1 and 2
(ii) Respondent No. 3, a natural legal heir of the Testatrix has been wholly
excluded under the alleged Will. There is no contemporaneous
evidence to show that the relationship between Testatrix and
Respondent No. 3 was estranged and therefore her exclusion is a
suspicious circumstance which has not been satisfactorily explained in
the petition.
(iii) Respondent No. 3 in January 2024 instituted a civil suit CS(OS)
155/2024 seeking partition of the estate of the Testatrix on the plea
that the Testatrix died intestate, wherein the Petitioner was arrayed as
Defendant No. 1 and Mr. Manoj Sharma (attesting witness No. 1) as
Defendant No. 2.
(iv) Petitioner, Respondent no. 3 and the Testatrix had 1/3 rd share each in
Property No. 24-25-A, Sewak Park Extension, Uttam Nagar, New
Delhi. In the aforesaid civil suit, Respondent No. 3 has also
challenged Petitioner’s action of transferring eight (8) flats
constructed on Property No. 24-25-A, Sewak Park Extension, UttamSignature Not Verified TEST.CAS. 69/2024
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Nagar, New Delhi, while acting as an attorney, in favour of nominees
of attesting witness nos. 1 and 2.
(v) In the peculiar facts of this case, attesting witness nos. 1 and 2 are
interested parties and not independent witnesses. They have interests
adverse to Respondent No. 3 and they also have an animous against
Respondent No. 3.
(vi) There are therefore ex-facie pending disputes and animosity between
Respondent No. 3 on one hand and Petitioner along with attesting
witnesses on the other hand.
(vii) The Petitioner’s statement in the petition, and her statements given
before the court during examination, regarding her date of knowledge
of the existence of the Will i.e., 02.05.2024, contain material
contradictions. The Petitioner has failed to adequately explain this
significant discrepancy within the petition.
(viii) Similarly, the statement given by attesting witness no. 1 with respect
to 22.01.2024 has contradictions with respect to apprising the
Petitioner regarding the existence of the Will vis-à-vis the averments
in the petition and the statement of attesting witness no. 2.
(ix) The Petitioner admits that the Testatrix never informed her about the
execution and the existence of the alleged Will dated 01.11.2023,
which is a suspicious circumstance as ordinarily the Testatrix would
have shared such material information with the Petitioner/legatee.
(x) The Petitioner admits that she has never seen the original Will and is
unaware about the whereabouts of the said Will. The Petitioner and
the attesting witnesses admittedly have no knowledge about the
making of the photocopy of the Will. Thus, neither the Petitioner norSignature Not Verified TEST.CAS. 69/2024
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the attesting witnesses are competent to prove the photocopy as they
have no personal knowledge of its making as stipulated under Section
58(ii) of the BSA.
(xi) The Petitioner has speculated that the original Will may have been
unauthorizedly removed by Respondent No. 3 or her family members.
The Petitioner has however no credible or real proof of the said
allegation and she has not issued any notice to Respondent No. 3 for
seeking the production of the original Will. Such pleadings cannot be
sufficient to discharge the onus on the Petitioner under Section 237 of
Act of 1925.
(xii) The Petitioner admits that Respondent No. 3 disputes the validity of
the Will. This plea give rise to the issue of genuineness of the
signatures of the Testatrix as they appear on the Will. However, in the
absence of the original document, the Will cannot be sent for a
forensic test of the signatures. Thus, in these facts the validity of the
signatures cannot be proved to the satisfaction of the Court.
(xiii) Technological advancements make photocopies highly suspect.
Fabrication of a document by lifting scans of signatures is highly
probable. In such a scenario, granting probate on a photocopy of an
unregistered Will, which is shrouded by suspicious cirbcumstances
does not appeal to the conscious of this Court.
(xiv) This photocopy has surfaced conveniently at the time when the
Petitioner had to file a written statement in CS(OS) 155/2024. The
written statement was filed on 20.05.2024 and the photocopy is
alleged to have been discovered lying in a cupboard on 02.05.2024.
The story of discovery of the document in the cupboard is incredulous
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and to accept it would be naïve of the Court. The Will is not coming
from a custody which can be relied upon by the Court.
(xv) The absence of the original unregistered Will, which is a valuable
document and intended to devolve interest in immovable properties
cannot be accepted lightly. It is a valuable document and bound to be
preserved carefully. The absence of the original unregistered Will
indicates to its non-existence.
(xvi) In the facts of this case, it appears that the photocopy has been set up
to raise a false defence in the civil suit to prolong the legal
proceedings and coerce the Respondent No. 3 to give up from her
challenge to the sale of eight (8) flats in Property No. 24-25-A and to
completely oust Respondent No. 3 from her rightful share in the
estates of the Testatrix by claiming the probate on the false and
fabricated photocopy of the alleged Will dated 01.11.2023.
56. Thus, the prayer of the Petitioner for grant of probate in relation to the
photocopy of the unregistered Will dated 01.11.2023 is being dismissed
essentially after finding several unexplained suspicious circumstances
surrounding the said Will in question.
57. In view of the aforesaid findings and observations, the testamentary
petition filed by the Petitioner stands dismissed and disposed of. All pending
applications also stand disposed of.
MANMEET PRITAM SINGH ARORA, J
AUGUST 27, 2025/rhc/AM
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