Delhi District Court
Sushila Devi (Senior Citizen) vs Suresh Chand Sharma Anr on 19 August, 2025
IN THE COURT OF SH. SACHIN SOOD
DJ-01, CENTRAL, THC, DELHI
CS NO. 13994/2016
CNR NO. DLCT01-001770-2014
SMT. SUSHILA DEVI
W/O LATE JAWAHAR LAL SHARMA
R/O 223-224, GALI KANYA PATHSHALA
TELIWARA, SADAR BAZAR,
DELHI-110006 .....PLAINTIFF
VERSUS
1. SURESH CHAND SHARMA
SON OF LATE RAM SWAROOP
2. SMT. GANGASHREE
W/O SURESH CHAND SHARMA
BOTH R/O 227, GALI KANYA PATHSHALA
TELIWARA, SADAR BAZAR,
DELHI-110006 .....DEFENDANTS
DATE OF INSTITUION : 22.04.2014
DATE OF RESERVING : 11.08.2025
DATE OF JUDGMENT : 19.08.2025
JUDGMENT
1. The present suit has been filed by the plaintiff seeking the relief of possession
in respect of the property bearing no. 227, Gali Kanya Pathshala, Teli Wara,
Sadar Bazar, Delhi-110006 along with the decree of permanent injunction and
damages/mesne profits @ 15000/- per month with interest @15% per annum
together with cost, pleading inter alia as under:-
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 1/38
(i) That defendant no.1 is the brother-in-law and defendant no. 2 is the sister-
in-law of the plaintiff.
(ii) That Smt. Katori Devi, aunt (bua) of defendant no. 1 was the absolute
owner of property bearing no. 223-224, admeasuring 30 sq yds and property
bearing no. 227 admeasuring 40 sq yds both situtated at Gali Kanya Pathshala,
Teli Wara, Sadar Bazar, Delhi which was a self acquired property and acquired
through registered sale deeds.
(iii) That Smt. Katori Devi, aunt (bua) of defendant no. 1 was issue-less and
was a widow.
(iv) Plaintiff’s husband namely Sh. Jawahar Lal Sharma was residing with Smt.
Katori Devi since his childhood. The marriage of the late husband i.e. Sh.
Jawahar Lal Sharma was solemnized by Smt. Katori Devi.
(v) The plaintiff as well as her husband were taking proper care of Smt. Katori
Devi and she was also treating the plaintiff’s husband as her own son. The
plaintiff as well as her husband were treating Smt. Katori Devi as their mother-
in-law/mother respectively.
(vi) Defendant no. 1 was earlier residing in his native village and somewhere
in the year 1971 came to Delhi and requested Smt. Katori Devi to permit him
to reside in a portion of her property for some period as he was not having any
accommodation to live and that considering her relations with the defendant
no. 1, Smt. Katori Devi allowed the defendant no. 1 to live in a portion in the
property bearing no. 227, Gali Kanya Pathshala, Teliwara, Sadar Bazar,
Delhi-06.
(vii) That during her lifetime, Smt. Katori Devi had executed a Will dated
07.08.1972 thereby interalia bequeathing her aforesaid two properties in favour
of the plaintiff’s husband and defendant no. 1.
(viii) That Smt. Katori Devi till her death, lived with plaintiff and her husband
and both of them took proper care of Smt. Katori Devi and she was very happy
with the services rendered by the plaintiff and her husband.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 2/38
(ix) That Smt. Katori Devi executed her last and final Will dated 08.11.1996
duly registered in the office of Sub-Registrar, Delhi thereby bequeathing her
properties in favour of the husband of the plaintiff exclusively.
(x) That unfortunately, Smt. Katori Devi died on 04.04.1997 and after her
death, on the request of the defendant no. 1, the husband of the plaintiff also
permitted the defendants to live in the suit property as a permissive
user/licensee without any use and occupation charges out of love and affection
towards them.
(xi) That unfortunately, the husband of the plaintiff died on 08.03.2006 leaving
behind the plaintiff and other legal heirs however, the oher legal heirs
released/relinquished their respective shares in favour of the plaintiff vide
reliquishment deed dated 02.02.2012 duly registered in the office of Sub-
Registrar, Delhi and on the basis of said relinquishment deed, the plaintiff
became the absolute owner of the properties, which were bequeathed by Smt.
Katori Devi in favour of the husband of the plaintiff.
(xii) That considering her fiduciary relations with the defendants, the plaintiff
also allowed the defendant to live in the suit property as a licensee without any
charge.
(xiii) That on 12.04.2014, the plaintiff came to know that the defendants want
to sell/transfer create third party and/or part possession of the suit property
illegally and unlawfully without any right, title or interest whatsoever. Upon
coming know, plaintiff contacted the defendants and requested them to vacate
the suit property and hand over the peaceful vacant possession to her but the
defendants extended threats to the plaintiff that they will sell/transfer/create
third party interest and part with possession of the suit property and the
plaintiff may do whatever she wants. The plaintiff lodged a complaint with the
police station Bara Hindu Rao, Delhi on 12.4.2014 but the police did not take
any action. The plaintiff also lodged complaint with ACP & DCP on 14.4.2014
but to no avail.
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(xiv) That the defendants have no right, title or interest whatsoever in the suit
property but their intentions became dishonest and malafide and they want to
grab the suit property illegally and unlawfully.
(xv) That as the plaintiff has revoked/cancelled the permission granted to the
defendants to live/ occupy the suit property, hence, the status of the defendants
in the said premises is merely as that of illegal/ unauthorized trespasser/
occupant.
(xvi) That the defendants were allowed to use the said premises as a permissive
user purely on license basis without any charges. The defendant have no right,
title or interest in the suit property and they are liable to pay Rs. 15,000/- per
month to the plaintiff towards the use and occupation charges as per the
prevailing rent in the locality.
(xvii) The cause of action for filing the suit arose on 12.04.2014 when the
plaintiff came to know that the defendant want to sell/transfer the suit property
which also arose when the plaintiff requested the defendants to vacate the suit
property but the defendants extended threats. The cause of action also arose
when the plaintiff reported the matter to the police. The cause of action still
subsisting and continuing as the defendant is adamant in his illegal designs.
Accordingly, it was prayed that a decree for possession, permanent injunction,
damages, cost etc.,be passed in favour of the plaintiff.
Amended written statement of the defendants
2. The defendants, by way of preliminary objections has taken the plea that the
present suit based upon the WILL dated 08.11.1996 executed by late Smt. Ram
Katori Devi is completely motivated false and frivolous and is an attempt to
illegally oust the defendants from the suit property. As per the defendants, the
Will dated 08.11.1996 is a forged and fabricated document and is surrounded
by suspicious circumstances.
3. The defendants have contended that in terms of the admitted Will dated
07.08.1972, left by Late Smt. Ram Katori Devi, a bequest was made by her in
respect of all her five properties in unequivocal and unambiguous manner
whereby house no. 223-224, Gali Kanya Pathshala, Teliwara, Delhi-06 was
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 4/38
bequeathed to the late husband of the plaintiff i.e. Sh. Jawahar Lal Sharma. In
terms of the said Will, house bearing no. 227, Gali Kanya Pathshala, Teliwara,
Delhi-06 was bequeathed by her in favour of defendant no. 1 and out of the
remaining three properties, two properties viz. B-79, Khasra no. 1086, Block
A, Khureji Khas, Preet Nagar, Shahdara and Khasra no. 1, etc 64/2, Ghonda
Chauhan Nagar, Shahdara was bequeathed to Smt. Savitri Devi i.e. sister of
defendant no. 1 and the Late husband of the plaintiff i.e. Sh. Jawahar Lal
Sharma. As per the said Will, property bearing no. R-23, Block A, Preet Nagar,
Khureji Khas, Shahdara was bequeathed to Late Sh. Kishore Bhai, Husband of
Smt. Savitri Devi.
4. As per the defendants, defendant no. 1 alongwith his wife i.e. defendant no. 2
has been continuously holding and enjoying the suit property as its rightful and
legal owner since the year-1971 in terms of the bequest made by Late Smt.
Ram Katori Devi in terms of her Will dated 07.08.1972 to the knowledge of the
plaintiff.
5. That the Plaintiff’s Late husband Shri Jawaharlal Sharma did not ever raise any
objection during his lifetime with respect to ownership and peaceful enjoyment
of the suit property by the Defendant No. 1 in accordance with the scheme of
the admitted first and last Will dated 07.08.1972 executed by Late Smt. Ram
Katori Devi.
6. That the Will dated 08.11.1996 allegedly executed by Late Smt. Ram Katori
Devi is not a valid, genuine and enforceable Will and is surrounded by
following/various suspicious circumstances with respect to the execution and
attestation of the said Will:
(i) That the relations of the defendants with the Late Smt. Ram Katori Devi
were always close and cordial during her lifetime who used to live with each
of her all three nephews viz late Shri Jawahar Lal Sharma, Shri Suresh Chand
Sharma and Smt. Savitri Devi separately in his/her respective residence
accommodation at different times with her own choice during her lifetime.
That Smt. Ram Katori Devi was continuously residing with the defendants is
evident from the fact that in the year-1995, a suit was instituted by one Sh.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 5/38
Jorawar Singh against defendant no. 1 and Smt. Ram Katori Devi alleging
unauthorized construction being raised in the suit property. It is further
submitted that only around the last week of her life, when she visited the home
of the plaintiff’s late husband, she took her last breath there. As per the
defendants, there were no good or sufficient reasons which would have
impelled Smt. Ram Katori Devi to change her first and last Will dated
07.08.1972 or to have executed Will dated 08.11.1996 after a long period of 24
years from the date of the execution of her Will dated 07.08.1972 i.e. five
months before her demise thereby excluding defendant no. 1 and Smt. Savitri
Devi from the benefits of her estate. Thus, as per the defendants, since there
was no change in circumstances, the revocation of the Will dated 07.08.1972
and the execution of Will dated 08.11.1996 exclusively in favour of the
plaintiff’s husband is highly unnatural, improbable and unfathomable.
(ii) That as per the defendants, there was no substantial change in the financial
condition in the position of the plaintiff, the defendants or Smt. Savitri Devi
which could have impelled Late Smt. Ram Katori Devi to change the bequest
made by her vide her Will dated 07.08.1972 so as to bequeath the properties
bequeathed to husband of defendant no. 1 and Smt. Savitri Devi in favour of
the Late husband of the plaintiff. Thus, as per the defendants, the bequest made
in favour of the late husband of the plantiff vide Will dated 08.11.1996 is
highly unnatural, improbable and unfathomable.
(iii) That it is further the case of the defendants that the alleged Will dated
08.11.1996 did not see the light of the day for the long period of 14 years from
death of Late Smt. Ram Katori Devi on 04.04.1997 until Shri Sachin Sharma,
son of the Plaintiff, his wife Mrs Priya Sharma, and the Plaintiff raised their
claim over the suit property sometime around February 2011 when on the basis
of the said Will, the Defendants objected to the validity and genuineness of the
said Will. As per the defendants, the plaintiff started harassing the Defendants
to illegally oust them from the suit property by extending threats and bringing
over several prospective buyers at different times to show the suit property
claiming them to be the rightful owner of the suit property on the basis of the
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 6/38
said Will. It is further submitted that the trouble and harassment caused to the
Defendants by the attitude of the son of the Plaintiff, his wife and the Plaintiff
was so much that the Defendants were constrained to file a complaint against
Shri Sachin Sharma, his wife Mrs. Priya Sharma, and the Plaintiff for
harassment, criminal conspiracy, threat to life and liberty on 20.03.2012 in the
P.S Bara Hindu Rao. It is further submitted that following the said complaint,
an undertaking dated 03.04.2012 was signed before the Sub-Inspector, Sanjiv
Kumar, wherein the Plaintiff’s son Shri Sachin Sharma agreed not to harass the
Defendants thereafter saying that he had no forged Will, and the Defendant No.
1 agreed to forgive him for his misbehavior.
(iv) That as per the defendants, no petition has ever been filed with respect to
the alleged Will dated 08.11.1996 for the grant of probate/letters of
administration is another indicator that the said Will is surrounded by the
suspicious circumstances.
(v) Without prejudice to the above, it is further submitted that Late Smt. Ram
Katori Devi, at the time of executing the alleged Will dated 08.11.1996 was not
in good health and sound disposing state of mind to understand the nature of
the disposition which was clearly unnatural, improbable and unfair in the light
of relevant circumstances. As per the defendants, at the time of her death, Smt.
Ram Katori Devi was ill who further submits that the Will dated 08.11.1996,
was executed by Smt. Ram Katori Devi under coercion, undue influence, fraud
and mis-representation.
(vi) That there is no reason given in the alleged Will dated 08.11.1996 to alter
the disposition made vide admitted first and last Will dated 07.08.1972 and that
the only mention of I want the above said will revoke or cancel and Sh.
Suresh Chand Sharma and Savitri Devi with no concern of above said will
qua the reason unambiguously shows that the alleged Will dated 08.11.1996 is
surrounded by suspicious circumstances.
(v) That there is no endorsement made on the alleged Will dated 08.11.1996 in
Hindi signed by Late Smt. Ram Katori Devi showing that the Hindi translation
of the Will had been read over and explained to her who signed the document
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 7/38
after understanding the contents of the said Will and being satisfied that it had
been prepared and drafted as per her instructions keeping in mind that Late
Smt. Ram Katori Devi was not conversant with English language.
(vi) That the alleged Will dated 08.11.1996 has not been attested in accordance
with the law as apparently both the attesting witnesses viz. Plaintiff being the
spouse of the beneficiary Late Sh. Jawahar Lal Sharma and Sh. D.P Singh
being the deed writer are non-independent witnesses and names of Late Smt.
Ram Katori Devi and Sh. D.P Singh are not even typed as testatrix and witness
respectively in the said Will.
(vii) That the alleged Will dated 08.11.1996, when seen in the light of the
admitted first and last Will dated 07.08.1972 contains incorrect and incomplete
recital of essential facts like description of properties, names and/or residential
address of persons including testatrix, beneficiary and witness which are
described as follows :-
(a) That the property bearing no. 223-224, Gali Kanya Pathshala, Teliwara,
Delhi-06 in the alleged Will dated 08.11.1996 is mentioned to be of area 30 sq
yds and on the other hand, in the admitted first and last Will dated 07.08.1972,
the said property is mentioned to be of area 32 sq yds.
(b) That the suit property bearing no. 227, Gali Kanya Pathshala, Teliwara,
Delhi-06 in the alleged Will dated 08.11.1996 is mentioned to be of area 30 sq
yds and on the other hand, in the admitted first and last Will dated 07.08.1972,
the said property is mentioned to be of area 40 sq yds.
(c) That the mention of And bank account in Punjab National Bank, Chawari
Bazar, Delhi-06 and including moveable and immovable properties” in the
said alleged Will dated 08.11.1996 is not complete and clear.
(d) That the alleged Will dated 08.11.1996 has mention of three properties only
whereas the admitted first and last Will dated 07.08.1972 has mention of five
properties.
(e) That the name of testatrix in the alleged Will dated 08.11.1996 is typed as
Smt. Ram Katori Devi only and that on the other hand, in the admitted first and
last Will dated 07.08.1972, the name of testatrix is typed as Smt. Ram Katori
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 8/38
Devi i.e. her complete name and also that the word “testator” instead of
“testatrix” is used in the alleged Will dated 08.11.1996.
(f) That the residential address of Late Smt. Ram Katori Devi in the alleged
Will dated 08.11.1996 is mentioned as R/o 55, Gali Kedar Nath, Chawari
Bazar, Delhi-06 and also that in the admitted first and last Will dated
07.08.1972, her residential address is mentioned as R/o 55-A, Gali Raja Kedar
Nath, Bazar Chawari, Delhi.
(g) That the name of plaintiff’s late husband as beneficiary in the alleged Will
dated 08.11.1996 is typed as Jawar Lal and Shri Jawar Lal Sharma .
(h) That the residential address of the plaintiff’s Late husband as beneficiary in
the alleged Will dated 08.11.1996 is mentioned as R/o 55, Gali Kedar Nath,
Chawari Bazar, Delhi-06 which interestingly is also mentioned therein as the
residential address of Smt. Ram Katori Devi through admittedly he had been
living at the property bearing no. 223-224.
(i) That the residential address of the plaintiff as witness in the alleged Will
dated 08.11.1996 is mentioned as R/o 55, Gali Kedar Nath, Chawari Bazar,
Delhi-06 which interestingly is also mentioned therein as the residential
address of Smt. Ram Katori Devi through admittedly the plaintiff had been
living with her late husband at the property bearing no. 223-224.
(j) That the death certificates of Late Smt. Ram Katori Devi and plaintiff’s late
husband produced with the plaint are surrounded by various suspicious
circumstances for containing incorrect recital of essential facts.
(k) That in the death certificate of Late Smt. Ram Katori Devi, the date of
death and date of registration of her death are mentioned to be the same i.e.
04.04.1997 which is quite unnatural.
(l) That in the said death certificate, the age of Late Smt. Ram Katori Devi is
mentioned to be 90 years though according to admitted first and last Will dated
07.08.1972, it should be approximately 86 years as at the time of execution of
the said Will dated 07.08.1972, Late Smt. Ram Katori Devi was approximately
62 years old.
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(m) That in the death certificate of plaintiff’s late husband Sh. Jawahar Lal
Sharma, the name of his father is incorrectly mentioned as Late Nathu Ram
which is rather the name of the husband of Late Smt. Ram Katori Devi.
(n) That the plaintiff has deliberately suppressed the fact that the defendant no.
1 had spent substantial money for construction upon the suit property
sometime around May 1995 which led to a suit as filed by one Sh. Jorawar
Singh in the same year falsely claiming himself to be the owner of the
neighbourhood property bearing no. 228 and falsely alleging unauthorized
construction being raised in the suit property against Late Smt. Ram Katori
Devi. It is further submitted that the filing of the said suit in the year-1995 also
establishes the fact that Late Smt. Ram Katori Devi had been continously
residing with the defendants during the last couple of years of her life.
(o) That the plaintiff has deliberately suppressed the fact that the said property
stands duly mutated in the name of the defendant no. 1 in the records of the
MCD vide certificate of mutation dated 07.06.2011 and the defendant no. 1 has
been paying property tax, electricity bills, water bills and phone bills since he
came in possession of the suit property.
(p) That the plaintiff has no right, title or interest whatsoever in the suit
property to bring the present suit. It is further submitted that the plaintiff being
the attesting witness of the Will dated 08.11.1996 allegedly executed in favour
of her Late Husband Sh. Jawahar Lal Sharma as beneficiary would not inherit
the suit property in accordance with the law.
(q) That the present suit is hopelessely barred by limitation as it has been filed
after a long and unexplained period of 17 years from the death of Late Smt.
Ram Katori Devi on 04.04.1997 and hence liable to be dismissed.
(viii) On merits, it has been submitted by Late Smt. Ram Katori Devi had love
and affection towards her all three nephews viz Late Sh. Jawahar Lal Sharma
and also that the present suit is hopelessely barred by limitation as it has been
filed after a long and unexplained period of 17 years from the death of Late
Smt. Ram Katori Devi on 04.04.1997 and hence is liable to be dismissed.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 10/38
(ix) It is further submitted that the defendant no.1 alongwith defendant no. 2
has been in actual continued possession of the suit property even after the
death of Late Smt. Ram Katori Devi on 04.04.1997. It is further more
submitted that the defendant no.1 alongwith defendant no. 2 has been
continously and peacefully holding and enjoying the entire suit property as a
rightful and legal owner with the due authority bestowed by Late Smt. Ram
Katori Devi.
(x) That the admitted Will dated 07.08.1972 was the first and last Will executed
by Late Smt. Ram Katori Devi and the alleged Will dated 08.11.1996 is a
forged and fabricated document and is surrounded by various suspicious
circumstances.
REPLICATION
7. The plaintiff filed her replication denying each and every allegation levelled by
the defendant in his written statement denying that the defendant is residing,
holding and enjoying the suit property as a rightful and legal owner with the
due authority bestowed by Late Smt. Ram Katori Devi on him in accordance
with the scheme of admitted first and last Will dated 07.08.1972 as alleged and
it is further submitted that the Will dated 07.08.1972 was revoked/cancelled on
execution of last Will dated 08.11.1996 therefore the defendant has no right,
title or interest in the suit property. It is further denied that the plaintiff’s Late
Huband Sh. Jawahar Lal Sharma did not ever raise any objection during his life
time with respect to ownership and peaceful enjoyment of the suit property by
the defendant no. 1 in accordance with the scheme of the admitted first and last
Will dated 07.08.1972. It is denied that the will dated 08.11.1996 is not a valid,
genuine and enforceable Will and is surrounded by various suspicious
circumstances. It is further denied that the relation of the defendant with Late
Smt. Ram Katori Devi were always close and cordial during her lifetime or that
she used to reside with each of her three nephews or that there were no
sufficient reasons impelling Smt. Ram Katori Devi to change her first executed
Will dated 07.08.1972. It was submitted that the Will dated 08.11.1996 was
executed by Late Smt. Ram Katori Devi with her own choice and it was denied
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that the said Will did not see the light of the day for long and unexplained
period of 14 years from the date of demise of Smt. Ram Katori Devi. Rest of
the contents of the written statement were specifically denied.
ISSUES
8. Vide order dated 14.09.2016, the court had framed the following issues for
adjudication :-
1. Whether the suit is barred by law of limitation? OPD
2. Whether Late Smt. Ram Katori Devi executed any Will on 08.11.1996? If
so, whether it was validly executed? OPP
3. Whether the plaintiff is entitled for recovery of possession of suit property
i.e. property bearing no. 227, Gali Kanya Pathshala, Teliwara, Sadar Bazar,
Delhi-110006, admeasuring 40 sq. Yds as shown in red colour in site plan?
OPP
4.Whether the plaintiff is entitled for permanent injunction for restraint of
defendants from selling, transferring, creating any third party interest or
parting with possession of the suit property? OPP
5. Whether the plaintiff is entitled for damages/mesne profits from
defendants? If so, at what rate, for which period and from which of the
defendants? OPP
6. Relief.
EVIDENCE
9. The plaintiff, in order to prove her case had examined four witness including
herself. The plaintiff entered into the witness box as PW-1 and deposed as
PW1/A. She relied upon the documents i.e.
S.No. Exhibits Documents
1. PW1/1 Photocopy of ID proof.
2. PW1/2A Receipts of house taxes.
to
PW1/2D
3. PW1/3 Property shown in red colour in
site plan.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 12/38
4. PW1/4 Certified copy of Will dated
07.08.1972.
5. PW1/5 Will dated 08.11.1996.
6. PW1/6 Death certificate of Ram Katori
Devi.
7. PW1/7 Death certificate of Jawahar
Lal Sharma.
8. PW1/8 Relinquishment deed.
9. PW1/9 & Complaint with ACP and DCP
PW1/10 on 12.04.2014 and 14.04.2014
respectively.
10. PW1/11 Certificate issued dated
08.09.1954
10.The said witness was duly cross-examined by the counsel for the defendants on
subsequent dates.
11.Sh. D.P Singh, Advocate entered into the witness box as PW-2 and was duly
cross-examined by the counsel for the defendants on subsequent dates.
12.Sh. Parveen Kumar Rana who was a summoned witness was examined as
PW-3 and had brought the summoned record i.e. the original summoned record
i.e. relinquishment deed dated 01.02.2012 executed by Smt. Mamta W/o Sh.
Ashok Kumar and ors in favour of Smt. Sushila Devi W/o Late Sh. Jawahar
Lal Sharma which was registered at Sub-Registrar I, Kashmeri Gate vide
registration no. 1017 in book no. 1 Volume no. 4222 on pages 52-58 registered
on 02.02.2012. The said witness was also duly cross-examined by the counsel
for the defendants.
13.Sh. Ramesh Rawat was examined as PW-4 who was a summoned witness and
had stated that he had no record of Late Smt. Ram Katori Devi who was
working as teacher at Arya Girls Senior Secondary School, Teliwara, Delhi-06
and had further submitted that record was available only 20 years from the
retirement of employees/teacher. He further stated that Late Smt. Ram Katori
Devi was working as an Assistant Teacher. Report dated 03.09.2019 issued by
Ms. Asha Chhabra, Principal Arya Girls Senior Secondary School, Teliwara,
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 13/38
Delhi-06 was exhibited as PW4/A. The said witness was duly cross-examined
by the counsel for the defendants.
14.The defendant, in order to prove his case had examined two witnesses
including himself. The defendant was examined as DW-1 and entered into the
witness box as DW1/A and had relied upon the following documents :-
S.No. Exhibits Documents
1. DW1/1 Certified copy of
the Will dated
07.08.1972.
2. Mark Site plan of the
DW1/A suit property.
3. DW1/3 Original summons
dated 23.05.1995
issued in the suit
filed by Jorawar
Singh.
4. Mark Copy of the plaint
DW1/B dated 20.05.1995
filed by Jorawar
Singh.
5. Mark Copy of the order
DW1/C dated 12.09.1996
passed in suit filed
by Jorawar Singh.
6. DW1/6 Original letter
dated 07.06.2011
issued by MCD.
7. DW1/7 Original three
(Colly) challans dated
04.05.2011,
31.05.2012 and
29.05.2013 issued
by MCD.
8. DW1/8 Two telephone
(Colly) bills dated
16.07.1999 and
28.04.2004.
9. Mark The complaint
DW1/D made by
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defendant against
son of plaintiff
dated 20.03.2017
with PS. Bara
Hindu Rao.
10. Mark Copy of
DW1/E understanding
dated 03.04.2012.
15.The said witness was duly cross-examined by the counsel for the plaintiff on
subsequent dates.
16.Sh. Naresh Kumar was examined as DW-2 and entered the witness box as
DW2/A. The said witness was duly cross-examined by the counsel for the
plaintiff on subsequent dates and vide order dated 26.07.2023, DE was closed.
ANALYSIS AND FINDINGS
Issue no. 1. Whether the suit is barred by law of limitation? OPD
17.The onus to prove the said issue was upon the defendant. The present suit has
been filed by the plaintiff seeking the relief of possession, permanent
injunction, damages/mesne profits alleging that the defendants have been
permitted to live in the suit property as permissive users/licensees without any
use and occupation charges, out of love and affection, after the demise of Smt.
Ram Katori Devi w.e.f 04.04.1997. As per the plaintiff, the plaintiffs are the
absolute owners of the suit property and since the defendants being her
licensee, were intending to sell/transfer and create third party rights and
interest in the property, request was made to them on 12.04.2014 to vacate the
suit property and handover the peaceful vacant possession but to no effect. The
plaintiff also made a police complaint on 12.04.2014 and as per the plaintiff,
the permission granted to the defendants was revoked by the plaintiff and
accordingly, the present suit was maintained claiming possession, permanent
injunction and damages/mesne profits.
18.As per the defendants, the defendants have been bequeathed the suit property
vide registered Will dated 07.08.1972 executed by Smt. Ram Katori Devi who
consequent upon her demise are the absolute owners of the suit property in
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 15/38
terms of the bequest made by Smt. Ram Katori Devi. As per the defendants,
the alleged Will dated 08.11.1996 saw the light of the day only in
February-2011 when the plaintiff raised their claim over the suit property for
the first time. As per the defendants, the suit is barred by limitation since the
same has been filed after a period of 17 years from the date of the demise of
Smt. Ram Katori Devi on 04.04.1997. The defendants, in support of the
contention that the suit is barred by limitation has placed reliance upon the
judgment passed in the matter of Pratap Singh and anr vs. State and anr 2010
(118) DRJ 534 and also upon the judgment of the Hon’ble Apex Court in the
matter of Kunwarjeet Singh Khandpur vs. Kirandeep Kaur and ors. to contend
that the present suit is governed by Article 137 of the Limitation Act and since
the plaintiff has not filed any probate petition seeking grant of the probate, the
present suit is barred by limitation.
19.As stated in the foregoing paras, the present suit has been filed by the plaintiff
alleging that the defendants are in permissive possession of the property who
despite the permission having been revoked, have continued to stay in the suit
property and are trying to create third party rights and interest in the suit
property. Since as per the plaintiff, the defendants being her licensees and were
trying to alienate, create third party rights or interest in the suit property and
had failed to vacate the same despite requests made by the plaintiff consequent
upon the revocation of the license on 12.04.2014, the present suit for
possession has been maintained by the plaintiffs. The present suit which has
been filed on 22.04.2014 based upon the cause of action which as per the
plaintiff arose on 12.04.2014 cannot be said to have been filed beyond the
period of limitation. The reliance placed by the defendant on the judgments as
stated in the foregoing paras is clearly misconceived as the present suit has
been filed by the plaintiff seeking the relief of possession, permanent
injunction, damages/mesne profits etc., and not for the grant of the probate.
Accordingly, the present issue is decided in favour of the plaintiff and against
the defendants.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 16/38
Issue no. 2. Whether Late Smt. Ram Katori Devi executed any Will on
08.11.1996? If so, whether it was validly executed? OPP
20. The onus to prove the said issues was upon the plaintiff. She is also the
propounder of the will dated 08.11.1996. It is the case of the plaintiff that Smt.
Ram Katori Devi was the aunt of the husband of the plaintiff, defendant no. 1
and Smt. Savitri Devi. Smt. Ram Katori Devi was a widow and was issue-less.
21.The plaintiff’s husband was residing with Smt. Ram katori Devi since his
childhood. The marriage of the late husband i.e. Sh. Jawahar Lal Sharma was
solemnized by Smt. Katori Devi. Smt. Ram Katori Devi was treating the
husband of the plaintiff as her own son. Defendant no. 1 was earlier residing in
his native village and somewhere in 1971 came to Delhi and requested Smt.
Katori Devi to permit him to reside in a portion of her property for some period
as he was not having any accommodation to live and that considering her
relations with the defendant no. 1, Smt. Katori Devi allowed the defendant no.
1 to live in a portion in the property bearing no. 227, Gali Kanya Pathshala,
Teliwara, Sadar Bazar, Delhi-06. Smt. Katori Devi was the absolute owner of
the following properties i.e.
(a) Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar,
Delhi-110006 admeasuring 40 sq yds.
(b) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya
Pathshala, Teli Wara, Sadar Bazar, Delhi-110006.
(c) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji
Khas Preet Nagar, Shahdara, Delhi.
(d) House bearing Khasra no. 1, etc, 64/2, Ghonda Chauhan, Bangar Ilaka,
Shahdara, Delhi admeasuring 100 sq yds.
(e) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas,
Shahdara, admeasuring 200 sq yds.
22. That Smt. Ram Katori Devi, at the age of 62 years, vide her Will dated
07.08.1972 bequeathed the aforesaid five properties in the following manner :-
(a) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya
Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 and Property bearing no. 227,
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 17/38
Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 40
sq yds was bequeathed in favour of the husband of the plaintiff and defendant
no. 1. Vide the aforesaid Will, Smt. Ram Katori Devi granted only life interest
in favour of the husband of the plaintiff and bequest was infact made in favour
of his children.
(b) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji
Khas Preet Nagar, Shahdara, Delhi and House bearing Khasra no. 1, etc, 64/2,
Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds were
bequeathed in favour of Smt. Savitri Devi, W/o Sh. Kishore Bhai.
(c) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas,
Shahdara, admeasuring 200 sq yds was bequeathed in favour of Sh. Kishore
Bhai, S/o Sh. Subedar.
23. That Smt. Ram Katori Devi thereafter expired on 04.04.1997. The husband of
the plaintiff also expired on 08.03.2006. It is the case set-up by the plaintiff
that besides the aforesaid Will dated 07.08.1972, Smt. Ram Katori Devi had
also executed another Will dated 08.11.1996 in respect of properties bearing
no. 223-224, admeasuring 32 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar
Bazar, Delhi-110006, Property bearing no. 227, Gali Kanya Pathshala, Teli
Wara, Sadar Bazar, Delhi-110006 admeasuring 40 sq yds and house bearing no.
D-25, admeasuring 100 sq yds, situated at Shashtri Park, Ghonda Chauhan,
Bangar Ilaka, Shahdara, Delhi. Vide the Will dated 08.11.1996, Smt. Ram
Katori Devi had revoked/cancelled the bequest made by her in favour of Sh.
Suresh Chand Sharma(defendant no. 1) and Smt. Savitri Devi. It was specified
in the Will dated 08.11.1996 that Sh. Suresh Chand Sharma and Smt. Savitri
Devi would have no concern with respect to her earlier Will dated 07.08.1972
and after her demise, Sh. Jawahar Lal Sharma (Late Husband of the plaintiff)
would be the exclusive owner of the aforesaid three properties.
24. That as per the plaintiff, the husband of the plaintiff thus was vested with the
absolute ownership of the suit property ( property bearing No 227) who
permitted the defendants to stay in the suit property as licensee. Plaintiff also
granted the permission to the defendants to stay in the suit property. The
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 18/38
husband of the plaintiff expired on 08.03.2006 and as per the plaintiff, on
02.12.2012, the relinquishment deed was executed by the other Lrs of the
husband of the plaintiff in favour of the present plaintiff who thereafter became
the absolute owner of the properties bequeathed by Late Smt. Ram Katori
Devi. The plaintiff, thus, on coming to know that the defendants are intending
to sell/transfer the suit property under their possession having no rights thereto
have filed the present suit for possession contending that she has revoked the
permission granted to the defendants to stay in the suit property who thus has
prayed the relief for possession, permanent injunction, damages/mesne profits
togetherwith costs.
25. Thus, in order to be entitled to the reliefs as claimed in the present suit, the
plaintiff is required to prove that vide the subsequent Will dated 08.11.1996,
the plaintiff has become the absolute owner of the suit property to which effect,
issue no. 2 has been framed by the Court and upon which the other reliefs as
prayed for vide issues no. 3, 4, 5 and 6 are dependent.
26. The plaintiff thus in order to assert her claims as prayed for in the suit was
required to prove that the Will dated 08.11.1996 has been validly executed by
the deceased Smt. Ram Katori Devi with her free will and in sound disposing
state of mind and the deceased was aware about the contents of Will, at the
time of signing it and that the same is beyond the pale of any suspicion.
27. In order to prove her case, the plaintiff has examined PW-1 (herself being an
attesting witness), PW-2 (the other attesting witness to Will dated 08.11.1996)
and PW-3 (UDC from the office of Sub-Registrar I, Kashmere Gate).
28. Before analysing the aforesaid testimonies of PW-1 and PW-2, it would be
relevant to discuss various statutory provisions as well as relevant case law
which govern the wills and their proof as follows :-
The expression “Will” is defined by Section 2(h) of Indian Succession Act, 1925 and
the said section is reproduced as under:
Section 2(h):- ‘Will’ means the legal declaration of the intention of a testator
with respect to his property which he desires to be carried into effect after
his death.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 19/38
Section 59 of Indian Succession Act, states that every person of sound mind (not
being a minor) may dispose of his property by Will.
Section 61 of Indian Succession Act states that a Will obtained by fraud coercion or
importunity is void and the section 61 reads as under:
Sec. 61. Will obtained by fraud, coercion or importunity- A Will
or any part of a Will, the making of which has been caused by
fraud or coercion, or by such importunity as takes away the free
agency of the testator, is void.
The execution of an unprivileged Will, as the case at hand relates to, is governed by
Section 63 of the Indian Succession Act, 1925, which reads thus:-
“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
directions.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that it
was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the Will or
has seen some other person sign the Will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or the
signature of such other person; and each of the witnesses shall sign
the Will in the presence of the testator, but it shall not be necessary
that more than one witness be present at the same time, and no
particular form of attestation shall be necessary”.
The provisions contained in Section 68 of the Indian Evidence Act, 1872
are also to be kept in mind in such type of matters.
“Section 68 of Indian Evidence Act states that if a document is required by law
to be attested, it shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there be an attesting
witness alive and subject to the process of the Court and capable of giving
evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the
execution of any document, not being a will, which has been registered in
accordance with the provisions of Indian Registration Act 1908 unless its
execution by the person by whom it purported to have been executed is
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 20/38
specifically denied.
29. The principles for proving the Will have been well settled, in catena of
judgments by Hon’ble Supreme Court of India as well as by Hon’ble Delhi
High Court. Some of the judgments have been mentioned below to appreciate
the law, applicable on the facts of the present case.
30. In a case titled as H. Venkatachala Iyengar v. B.N. Thimmajamma [H.
Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, Hon’ble Apex
Court has laid down the following propositions:
(1) Stated generally, a will has to be proved like any other document,
the test to be applied being the usual test of the satisfaction of the
prudent mind in such matters. As in the case of proof of other
documents, so in the case of proof of wills, one cannot insist on proof
with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be
attested, it cannot be used as evidence until, as required by Section
68 of the Evidence Act, one attesting witness at least has been called
for the purpose of proving its execution, if there be an attesting
witness alive, and subject to the process of the court and capable of
giving evidence.
(3) Unlike other documents, the will speaks from the death of the
testator and therefore the maker of the will is never available
for deposing as to the circumstances in which the will came to be
executed. This aspect introduces an element of solemnity in the
decision of the question whether the document propounded is proved
to be the last will and testament of the testator. Normally, the onus
which lies on the propounder can be taken to be discharged on proof of
the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by
suspicious circumstances stand on a different footing. A shaky
signature, a feeble mind, an unfair and unjust disposition of property,
the propounder himself taking a leading part in the making of the will
under which he receives a substantial benefit and such other
circumstances raise suspicion about the execution of the will. That
suspicion cannot be removed by the mere assertion of the propounder
that the will bears the signature of the testator or that the testator was
in a sound and disposing state of mind and memory at the time when
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 21/38
the will was made, or that those like the wife and children of the
testator who would normally receive their due share in his estate were
disinherited because the testator might have had his own reasons for
excluding them. The presence of suspicious circumstances makes the
initial onus heavier and therefore, in cases where the circumstances
attendant upon the execution of the will excite the suspicion of the
court, the propounder must remove all legitimate suspicions before the
document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded
by suspicious circumstances that the test of satisfaction of the judicial
conscience has been evolved. That test emphasizes that in determining
the question as to whether an instrument produced before the court is
the last will of the testator, the court is called upon to decide a solemn
question and by reason of suspicious circumstances the court has to be
satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard
to the execution of the will, such pleas have to be proved by him, but
even in the absence of such pleas, the very circumstances surrounding
the execution of the will may raise a doubt as to whether the testator
was acting of his own free will. And then it is a part of the initial onus
of the propounder to remove all reasonable doubts in the matter.”
iv. For the purpose of proving the execution of the Will, at least one
of the attesting witnesses, who is alive, subject to the process of court,
and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator’s
signatures but also that each of the witnesses had signed the will in the
presence of testator;
vi. If one attesting witness can prove the execution of the Will, the
examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to
prove its due execution, then the other available attesting witness has to
be called to supplement his evidence:
viii.Whenever there exists any suspicion as to the execution of the Will,
it is the responsibility of the propounder to remove all legitimate
suspicious before it can be accepted as the testator’s last Will. In such
cases, the initial onus on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 22/38
with those cases where the execution of the Will is surrounded by
suspicious circumstances. It requires to consider factors such as
awareness of the testator as to the content as well as the consequences,
nature and effect of the dispositions in the Will; sound, certain and
disposing state of mind and memory of the testator at the time of
execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to
prove the same. However, even in the absence of such allegations, if
there are circumstances giving rise to doubt, then it becomes the duty of
the propounder to dispel such suspicious circumstances by giving a
cogent and convincing explanation.
xi. Suspicious circumstances must be ‘real’ germane and valid’ and not
merely ‘the fantasy of the doubting mind’. Whether a particular feature
would qualify as ‘suspicious’ would depend on the facts and
circumstances of each case. Any circumstances raising suspicion
legitimate in nature would quality as a suspicious circumstances for
example, a shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a leading part in
the making of the Will findings ll under which he receives a substantial
benefit, etc.
31. In Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964, SC 529, a
Constitution Bench of the Hon’ble Supreme Court of India has discussed the
settled principles governing mode of proof of a Will before a probate court and
the same are reproduced as under:-
“4…. The mode of proving a will does not ordinarily differ from that
of proving any other document except as to the special requirement
of attestation prescribed in the case of a will by S.63 of the Indian
Succession Act. The findings onus of proving the will is on the
propounder and in the absence of suspicious circumstances
surrounding the execution of the will, proof of testamentary capacity
and the signatures of the testator as required by law is sufficient to
discharge the onus. Where however there are suspicious
circumstances, the onus is on the propounder to explain them to the
satisfaction of the Court before the Court accepts the will as
genuine. Where the caveator alleges undue influence, fraud and
coercion, the onus is on him to prove the same. Even where there
are no such pleas but the circumstances give rise to doubts, it is for
the propounder to satisfy the conscience of the Court. The suspicious
circumstances may be as to genuineness of the signature of the
testator, the condition of the testator’s mind, the dispositions made in
the will being unnatural improbable or unfair in the light of relevant
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 23/38
circumstances or there might be other indications in the will to show
that the testator’s mind was not free. In such a case the Court would
naturally expect that all legitimate suspicious should be completely
removed before the document is accepted as the last will of the
testator. If the propounder himself takes part in the execution of the
will which confers a substantial benefit on him, that is also a
circumstance to be taken into account and the propounder is required
to remove the doubts by clear and satisfactory evidence. If the
propounder succeeds in removing the suspicious circumstances the
Court would grant probate, even if the will might be unnatural and
might cut off wholly or in part near relations…”
32. In Hari Singh & Anr. Vs State & Anr. 176 (2011) DLT 199 (DB), the Hon’ble
High Court of Delhi made reference to FAO No. 874/2003 dated 21.11.2007
titled Jagdish Lal Bhatia vs Madan Lal Bhatia which dealt with the legal
burden of proof when a Will is propounded and also spelt as to what would
constitute suspicious circumstances and what form of affirmative proof should
be sought by the court to satisfy the judicial conscience that the document
propounded is the last, legal and valid testament of the testator. These are as
under:
I. The legal burden to prove due execution always lies upon the
person propounding a will. The propounder must satisfy the judicial
conscience of the court that the instrument so propounded is last
will of a free and capable testator.
II. The onus is discharged by the propounder adducing prima facie
evidence proving the competence of the testator and execution of
the will in the manner contemplated by the law. The contestant
opposing the will may bring material on record meeting such prima
facie in which event the onus would shift back on the propounder to
satisfy the Court affirmatively that the testator did know well the
contents of the will and in sound disposing capacity executed the
same. (see the decision of the Supreme Court in Madhukar D.
Shende v Tarabai Aba Shedge, AIR 2002 SC 637).
III. No specific standard of proof can be enunciated which must be
applicable to all the cases. Every case depends upon its
circumstances. Apart from other proof, conduct of parties is very
material and has considerable bearing on evidence as to the
genuineness of will which is propounded. Courts have to be vigilant
and zealous in examining evidence. Rules relating to proof of wills
are not rules of laws but are rules of prudence.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 24/38
IV. Expanding on the care and caution to be adopted by the courts,
and presumptions to be raised, in the decision reported as (1864) 3
Sw& Tr. 431 In The Goods of Geale, it was opined that where a
person is illiterate or semi literate or the will is in a language not
spoken or understood by the executor, the court would require
evidence to affirmatively establish that the testator understood and
approved all the contents of the will.
V. One form of affirmative proof is to establish that the will was
read over by, or to, the testator when he executed it. If a testator
merely casts his eye over the will, this may not be sufficient.
VI. Courts have to evaluate evidence pertaining to the
circumstances under which the will was prepared. If a will is
prepared and executed under circumstances which raise a well
grounded suspicion that the executor did not express his mind under
the will, probate would not be granted unless that suspicion is
removed.
VII. A word of caution. Circumstances can only raise a suspicion if
they are circumstance attending, or at least relevant to the
preparation and execution of the will itself.
VIII. Another point that has to be considered is about the
improbability in the manner in which the instrument is scripted.
Instance of suspicious circumstances would be alleged signatures of
testator being shaky and doubtful, condition of the testator’s mind
being feeble and debilitated, bequest being unnatural, improbable
and unfair.
IX. Suspicious circumstances are a presumption to hold against the
will. Greater is the suspicion more heavy would be the onus to be
discharged by he who propounds the will.
X. A will is normally executed by a person where he intends to alter
the rule of succession or where he desires a particular form of
inheritance and to that extent, nature of bequest is not of much
substance to invalidate a will, but consistent view taken by
the courts is that this could be treated as a suspicious circumstance.
What weightage has to be attached to this suspicion would depend
upon case to case.
XI. Suspicion being a presumptive evidence, is a weak evidence and
can be dispelled.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 25/38
33. In the light of Legal principles as carved out in catena of Judgments by the
Hon’ble Superior Courts and some of them as discussed above, it is obligatory
for the plaintiff to prove the following essentials:
(i) That the Will in question is a legal declaration of the intention of the
testator:
(ii) That the testator while executing the Will was in sound and disposing
state of mind:
(iii) That the testator had executed the Will with his own free will, meaning
thereby that he was a free agent when he executed the Will and he was aware
about the contents of Will at the time of signing the Will.
(iv) The plaintiff has to prove that the Will in question is the last Will of the
testator.
(v) The plaintiff has to remove all the suspicious circumstances, surrounding
the execution of the Will.
(vi) For proving the Will, at least, one attesting witness of the Will, if alive,
must be examined in the Court as per section 68 of the Indian Evidence Act.
(vii) The attesting witnesses must fulfill the requirement of Section 63 (C) of
Indian Succession Act.
34. In the present manner, it is first required to be analysed as to whether PW-1
and PW-2 are able to prove the execution of the will dated 08.11.1996 in terms
of the provisions of Section 63 (C) of the Indian Succession Act, 1925. PW-1
has testified on the lines of the plaint as filed by her. She has specifically stated
that Smt. Ram Katori Devi executed her last and final Will dated 08.11.1996
which was registered in the office of sub-registrar. PW-1 was duly cross-
examined by the counsel for the defendants. She has propounded the Will dated
08.11.1996 (Ex. PW1/5).
35. In her cross-examination, PW-1 has admitted that Sh. Ram Katori Devi was
having good relations with her niece Smt Savitri Devi and her husband. She
has further admitted that Smt. Ram Katori Devi initially had been treating Sh.
Jawahar Lal and defendant no. 1 without any discrimination. She also admitted
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 26/38
that Smt. Ram Katori Devi used to visit her self acquired properties during her
lifetime. She also admitted that at the time of the demise of Smt. Ram Katori
Devi, she was aged between 85-88 years and also that Smt. Ram Katori Devi
expired due to illness since she was suffering from Pneumonia. She also
admitted that she has not seen Smt. Ram Katori Devi ever signing in English
who was 8th class pass and used to teach students of 4 th and 5th class. She has
further admitted that Smt. Ram Katori Devi used to write letters and
correspondences in Hindi Language. It was further admitted that she alongwith
her husband and Smt. Ram Katori Devi went to the office of sub registrar on
08.11.1996 for the execution of the Will. It was also admitted that her husband
had met advocate D.P Singh at the sub-registrar office. She has shown her
ignorance to the existence of any person by the name of P.D Bhardwaj and has
clearly stated that she is not aware as to whether any person by the name of Sh.
P.D Bhardwaj was present at the time of execution of the Will.
36. PW-1 in clear terms has stated that Advocate DP Singh was sitting in open and
the typist who typed the Will was sitting separately however, she could not
remember how far away the typist was sitting. It was further admitted by PW-1
that Smt. Ram Katori Devi had affixed her thumb impression as well as
signatures at the place where the said Will was typed. It has clearly admitted by
PW-1 that her signatures were affixed on the Will at the place where the same
were typed. She could not disclose as to at what place in the compound of sub
registrar office Advocate D.P Singh had signed the said Will or out of the two
attesting witnesses, who signed first. She has further stated that her husband
did not inform her as to how much expenses were borne in the preparation and
execution of the Will dated 08.11.1996.
37. PW-1 in her cross-examination, although has admitted that the other two
properties which are not mentioned in the list of properties bequeathed by Late
Smt. Ram Katori Devi vide her Will dated 08.11.1996 i.e. property bearing no.
B-79, Khajuri Khas, Delhi and R-23, Preet Vihar, Delhi were owned by Smt.
Ram Katori Devi in which as per her, Smt. Savitri Devi had no share after the
demise of Smt. Ram Katori Devi and the said two properties too were devolved
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 27/38
upon her husband under the Will dated 08.11.1996. She has volunteered that
even the third property which is located in trans-yamuna at Shashtri Park also
devolved upon her husband. She, however, has contradicted herself by stating
that she is not aware about the properties at Khajuri Khas and Preet Vihar or
that as to in which manner the said two properties also devolved upon her
husband.
38. PW-2 who was also the attesting witness of the Will dated 08.11.1996 in his
examination-in-chief has deposed that Smt. Ram Katori Devi had approached
him for the preparation and registration the Will regarding Property bearing no.
223-224, admeasuring 30 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar
Bazar, Delhi-110006, Property bearing no. 227, Gali Kanya Pathshala, Teli
Wara, Sadar Bazar, Delhi-110006 admeasuring 30 sq yds both situated at Gali
Kanya Pathshala, Teliwara, Sadar Bazar, Delhi-110006 and house bearing no.
D-25, admeasuring 100 sq yds, situated at Shashtri Park, Ghonda Chauhan,
Bangar Ilaka, in Khasra no. 1 etc., /64/2/1, Shahdara, Delhi and also the bank
account with Punjab National Bank and including immovable and movable
properties in favour of Sh. Jawahar Lal Sharma. He has further deposed that
Smt. Ram Katori Devi had revoked and cancelled her earlier registered Will.
He has further deposed that he prepared the Will of Late Smt. Ram Katori Devi
and the same was executed on 08.11.1996 in his presence where he has put his
stamps and signatures as a witness of the said Will. As per him, Smt. Sushila
Devi was the other witness to the new Will.
39. In his cross-examination, he has deposed that the plaintiff and her late husband
had accompanied Smt. Ram Katori Devi to the registrar’s office for registering
the Will. He has stated that Smt. Ram Katori Devi approached him through his
client whose name he do not remember. He has clearly admitted that the age of
the executant of the Will has not been mentioned and has stated that he had
prepared a hand draft of the Will and thereafter it was got typed by the typist.
He has categorically admitted that the typist who types the Will sits at a
distance from his seat. He has also categorically stated that he has put his
signatures on the Will at his seat and the other witness also signed the Will at
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 28/38
his seat. He also admitted that Smt. Ram katori Devi had only told him about
the properties mentioned in Ex. PW1/5 and has not mentioned about the other
properties as mentioned in the previous Will.
40. The testimonies of PW-1 and PW-2 in the present case are at variance with
each other. As per the testimony of PW-1, Smt. Ram Katori Devi had affixed
her thumb impression as well as signatures at the place where the same were
typed i.e. in front of the typist who was sitting at a distance from Advocate D.P
Singh i.e. PW-2.
41. The plaintiff (PW-1) also affixed her signatures at the place where the same
were typed i.e. before the typist. PW-2, thus, could not have witnessed the
affixing of the thumb impression by Smt. Ram Katori Devi or affixation of his
signatures on the Will dated 08.11.1996 in the presence of Smt Ram Katori
Devi since the said impression as well as signatures were appended by Late
Smt. Ram Katori Devi before the typist which was at a distance from where
advocate D.P Singh was sitting on table and chair. In any case, the testimony of
the attesting witnesses is inconsistent since as per their testimonies, one
attesting witness has not seen Smt. Ram Katori Devi putting her thumb
impression as well as her signatures upon the alleged Will dated 08.11.1996. In
the present case, the plaintiff through the testimonies of PW-1 and PW-2 has
not been able to establish that the mandatory requirement of Section 63(c) of
the Indian Succession Act, 1925 has been fulfilled in the present case. Thus,
the plaintiff has failed to prove that the Will dated 08.11.1996 has been legally
and validly executed by Smt. Ram Katori Devi.
42. In a judgment titled as Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead
Through Lrs.) Civil Appeal no. 2435 of 2010, decided on 20 November, 2023,
the Hon’ble Supreme Court of India has observed as follows:-
20. Trite to state, mere registration of a Will does not attach
to it a stamp of validity and it must still be proved in terms
of the above legal mandate. In Janki Narayan Bhoir vs.
Narayan Namdeo Kadam 1, this Court held that the
requirements in clauses (a), (b) and (c) of Section 63 of the
Succession Act have to be complied with to prove a Will
and the most important point is that the Will has to be
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 29/38
attested by two or more witnesses and each of these
witnesses must have seen the testator sign or affix his mark
to the Will or must have seen some other person sign the
Will in the presence of and by the direction of the testator or
must have received from the testator a personal
acknowledgment of his signature or mark or of the signature
or mark of such other person and each of the witnesses has
to sign the Will in the presence of the testator. It was further
held that, a person propounding a Will has got to prove that
it was duly and validly executed and that cannot be done by
simply proving that the signature on (2003) 2 SCC 91 the
Will was that of the testator, as the propounder must also
prove that the attestations were made properly, as required
by Section 63(c) of the Succession Act. These principles
were affirmed in Lalitaben Jayantilal Popat vs. Pragnaben
Jamnadas Kataria and others 2.
43. In the case titled as Meena Pradhan & Ors. vs Kamla Pradhan & Anr. (Supra),
the Hon’ble Apex Court has deduced the following principle regarding signing
of Will by the testator in the presence of both attesting witnesses as per section
63 of the Indian Succession Act and the same are as under; –
iii A Will is required to fulfill all the formalities required under
Section 63 of the Succession Act, that is to say:
(a) ...........
(b) ...........
(c) Each of the attesting witnesses must have seen the testator
sign or affix his mark to the Will findings or has seen some other
person sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal acknowledgment
of such signatures:
44. In a case titled Geeta Devi Goel Vs State, Test case 75/2008 decided on
19.01.2011, the Hon’ble High Court of Delhi has held as under:
8.”A bare perusal of Section 63(c)of Indian Succession Act would show
that a Will is required to be attested by two or more witnesses and each
of them must have seen the Testator sign or affixing his mark to the Will
or should have seen some other person signing the Will in the presence
and under the directions of the Testator or should have received a
personal acknowledgment from the Testator with respect to his signature
or mark or signature of the another person who signs the Will in the
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 30/38
presence and under the direction of Testator and it is also necessary that
each witness should sign the Will in the presence of the Testator. This,
however, is not the requirement of law in India that both the attesting
witnesses should also sign in the presence of each other”.
45. In a case titled Gopal Krishan & Ors. Vs Daulat Ram & Ors. Civil Appeal No.
(S) 13192 of 2014, decided on 02.01.2025, the Hon’ble Supreme Court of
India has held as follows:
Section 63 of the Indian Succession Act, 1925 runs thus:-
“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 acknowledgement of
his signature or mark, or the signature of such other person; and each of
the witnesses shall sign the Will in the presence of the testator, but it
shall not be necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary.”
(emphasis supplied)
As seen above, Section 63(c) enumerates five distinct situations:
A is the testator of the Will in question. B and C have signed the Will.
For B and C to qualify as attestors,-
Situation 1:
Each of them has to have seen A sign the will or put his mark on it;
OR
Situation 2:
They should have seen some other person, let’s say D sign the will in the
presence of and on the direction of A;
OR
Situation 3:
They ought to have received a personal acknowledgment from A to the
effect that A had signed the Will or has affixed his mark thereon; With
the use of the conjunctive, ‘and’ one further stipulation has been
provided:
\B, C, D or any other witness is required to sign the Will in the presence
of A however it is not necessitated that more than one witness be present
at the same time.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 31/38
The statutory language also clarifies that B and C, the attestors, are not
required to follow any particular prescribed format.
13. The language of Section 63(c)of the Act uses the word ‘OR’. It states
that each Will shall be attested by two or more witnesses who have seen
the Testator sign or affix his mark on the Will OR has seen some other
persons sign the Will in the presence and by the direction of the Testator
OR has received a personal acknowledgment from the Testator of his
signature or mark etc. What flows therefrom is that the witnesses who
have attested the Will ought to have seen the
Testator sign or attest his mark OR have seen some other persons sign
the Will in the presence of and on the direction of the Testator. The
judgment relied on by the learned Single Judge in the impugned
judgment, i.e., Kanwaljit Kaur (supra) holds that the deposition of the
attesting witness in the said case had not deposed in accordance with
Section 63(c) of the Act, where two persons had undoubtedly attested
the Will, but the aspect of the ‘direction of the testator’ was absent from
such deposition. In the considered view of this Court, the Learned Single
Judge fell in error in arriving at such a finding for the words used in the
Section, which already stands extracted earlier, read -“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…”. That being the case, there
is no reason why the ‘or’ employed therein, should be read as ‘and’.
After all, it is well settled that one should not read ‘and’ as ‘or’ or vice-
versa unless one is obliged to do so by discernible legislative intent.
Justice G.P Singh’s treatise, ‘Principles of Statutory Interpretation’ tells
us that the word “or” is normally disjunctive while the word “and” is
normally conjunctive. Further, it is equally well settled as a proposition
of law that the ordinary, grammatical meaning displayed by the words of
the statute should be given effect to unless the same leads to ambiguity,
uncertainty or absurdity. None of these requirements, to read a word is
which is normally disjunctive, as conjunctive herein, are present.
46. The Hon’ble Supreme Court of India in a case titled Dhani Ram (D) Thr. Lrs.
vs Shiv Singh, Civil Appeal No. 7172 of 2009, decided on 06.10.2023, has
held as follows:
“22. We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo
Kadam, wherein this Court held that, to prove that a Will has been
executed, the requirements in clauses (a), (b) and (c) of Section 63 of the
Succession Act have to be complied with. It was pointed out that the
most important point is that the Will has to be attested by two or more
witnesses and each of these witnesses must have seen the testator sign or
affix his mark to the Will or must have seen some other person sign the
Will in the presence of and by the direction of the testator or must have
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 32/38
received from the testator a personal acknowledgment of his signature or
mark or of the signature or mark of such other person and each of the
witnesses has to sign the Will in the presence of the testator. It was
further held that, a person propounding a Will has got to prove that the
Will was duly and validly executed and that cannot be done by simply
proving that the signature on the Will was that of the testator, as the
propounder must also prove that the attestations were made properly, as
required by Section 63(c) of the Succession Act. These observations
were affirmed and quoted with approval by this Court in its later
judgment in Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria
and others 3.
23. Viewed in the context of the legal requirements and the law laid
down by this Court, we find that neither of the attesting witnesses in this
case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove
the Will. Though Lok Nath Attri claimed that Leela Devi affixed her
signatures in the Will in their presence, which was vehemently denied by
the other attesting witness, Chaman Lal, the fact remains that Lok Nath
Attri also did not state that he affixed his signatures in the Will in the
presence of Leela Devi. This is one of the compulsory requisites of
Section 63(c) of the Succession Act.”
47. Besides, the aforesaid, the plaintiff being the propounder of the Will dated
08.11.1996 through the testimonies of PW-1 and PW-2 was also required to
prove that the Will as executed by Late Smt. Ram Katori Devi did not suffer
from any suspicious circumstances and that the same also satisfies the test of
judicial conscience. In the present case, the will dated 08.11.1996 as
propounded by the Plaintiff is surrounded by various suspicious circumstances
which can be gauged by the following facts and reasons.
A. Smt. Katori Devi was the absolute owner of the following properties i.e.
(a) Property bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar,
Delhi-110006 admeasuring 40 sq yds.
(b) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya
Pathshala, Teli Wara, Sadar Bazar, Delhi-110006.
(c) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji
Khas Preet Nagar, Shahdara, Delhi.
(d) House bearing Khasra no. 1, etc, 64/2, Ghonda Chauhan, Bangar Ilaka,
Shahdara, Delhi admeasuring 100 sq yds.
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 33/38
(e) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas,
Shahdara, admeasuring 200 sq yds.
B. That Smt. Ram Katori Devi at the age of 62 years, vide her Will dated
07.08.1972 bequeathed the aforesaid five properties as follows :-
(a) Property bearing no. 223-224, admeasuring 32 sq yds at Gali Kanya
Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 and Property bearing no. 227,
Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring 40
sq yds was bequeathed in favour of the husband of the plaintiff and defendant
no. 1. Vide the aforesaid Will, Smt. Ram Katori Devi granted only life interest
in favour of the husband of the plaintiff and bequest was infact made in favour
of his Lrs.
(b) Plot no. B-79, admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji
Khas Preet Nagar, Shahdara, Delhi and House bearing Khasra no. 1, etc, 64/2,
Ghonda Chauhan, Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds were
bequeathed in favour of Smt. Savitri Devi, W/o Sh. Kishore Bhai.
(c) House bearing Plot no. R-23, Block A, Preet Nagar, Khureji Khas,
Shahdara, admeasuring 200 sq yds was bequeathed in favour of Sh. Kishore
Bhai, S/o Sh. Subedar.
C. Vide her subsequent Will dated 08.11.1996 (Ex. PW1/5), Smt. Ram
Katori Devi bequeathed Property bearing no. 223-224, admeasuring 30 sq yds
at Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006, Property
bearing no. 227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006
admeasuring 30 sq yds both situated at Gali Kanya Pathshala, Teliwara, Sadar
Bazar, Delhi-110006 and house bearing no. D-25, admeasuring 100 sq yds, out
of Khasra no. 1 etc/64/2/1, situated at Shashtri Park, Ghonda Chauhan Khadar,
Ilaka Shahdara, Delhi in favour of the husband of the plaintiff. Vide the Will
dated 08.11.1996, Smt. Ram Katori Devi had revoked/cancelled the bequest
made by her in favour of Sh. Suresh Chand Sharma(defendant no. 1) and Smt.
Savitri Devi. It was specified in the Will dated 08.11.1996 that Sh. Suresh
Chand Sharma and Smt. Savitri Devi would have no concern with respect to
her earlier Will dated 07.08.1972 and after her demise, Sh. Jawahar Lal Sharma
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 34/38
(Late Husband of the plaintiff) would be the exclusive owner of the aforesaid
three properties.
48. Perusal of the Will dated 07.08.1972 goes to show that vide the aforesaid Will,
Smt. Savitri Devi had been bequeathed two properties i.e. Plot no. B-79,
admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar,
Shahdara, Delhi and House bearing Khasra no. 1, etc. 64/2, Ghonda Chauhan,
Bangar Ilaka, Shahdara, Delhi admeasuring 100 sq yds were bequeathed in
favour of Smt. Savitri Devi, W/o Sh. Kishore Bhai.
49. Thus, on one hand, Smt. Ram Katori Devi, vide her earlier Will dated
07.08.1972 had bequeathed two properties to Smt. Savitri Devi who without
mentioning about the other property i.e. property bearing Plot no. B-79,
admeasuring 200 sq yds, Khasra no. 1086, Block A, Khureji Khas Preet Nagar,
Shahdara, Delhi has altogether excluded Smt. Savitri Devi from her earlier
executed Will vide her subsequently executed Will dated 08.11.1996. PW-1 in
her cross-examination has admitted that Sh. Ram Katori Devi was having good
relations with her niece Savitri Devi and her husband, hence, there was no
reason for Smt. Ram Katori Devi to exclude Smt. Savitri Devi from her Will
dated 08.11.1996 (Ex. PW1/5) and that too without cancelling the bequest
made in her favour with respect to the second property bequeathed to her vide
her previous will dated 07.08.1972. Thus the aforesaid fact in itself is sufficient
to demonstrate that Smt. Ram Katori Devi at the time of execution of the
Second Will Dated 08.11.1996 was not in a sound disposing mind and neither
was she aware of the bequest being made by her or cancelling the earlier
bequest having been made by her vide Will Dated 07.08.1972.
50. Besides the aforesaid, the husband of the plaintiff who was merely granted life
interest vide previous will dated 07.08.1972 and bequest was infact made in
favour of his Children/ Lrs, was granted absolute ownership of the three
properties i.e. Property bearing no. 223-224, admeasuring 30 sq yds at Gali
Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006, Property bearing no.
227, Gali Kanya Pathshala, Teli Wara, Sadar Bazar, Delhi-110006 admeasuring
30 sq yds both situated at Gali Kanya Pathshala, Teliwara, Sadar Bazar,
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 35/38
Delhi-110006 and house bearing no. D-25, admeasuring 100 sq yds, out of
Khasra no. 1 etc/64/2/1, situated at Shashtri Park, Ghonda Chauhan Khadar,
Ilaka Shahdara, Delhi vide the alleged subsequently executed will dated
08.11.1996. The Plaintiff has failed to establish any change in circumstances
which prompted Smt Ram Katori Devi to alter her earlier bequest in as much
as not only granting the Plaintiff the absolute ownership of House Bearing
No223-224, admeasuring 30 sq yds at Gali Kanya Pathshala, Teli Wara, Sadar
Bazar, Delhi-110006 instead of the life interest but also the ownership of other
two houses by completely excluding Defendant No 1 and Smt Savitri Devi.
51. In the alleged subsequently executed Will dated 08.11.1996, the areas of the
properties is at variance with the areas of properties as mentioned in her earlier
executed WILL dated 07.08.1972. In the Will dated 07.08.1972, property
bearing no. Property bearing no. 223-224 at Gali Kanya Pathshala, Teli Wara,
Sadar Bazar, Delhi-110006 was stated to be admeasuring 32 sq yds. However,
in the subsequently executed of the said property is said to be 30 sq yds.
Similarly, the area of the property bearing no.227, Gali Kanya Pathshala, Teli
Wara, Sadar Bazar, Delhi-110006 was stated to be admeasuring 40 sq yds.
However, in the subsequently executed Will, was stated to be admeasuring 30
sq yds. This fact also goes to show the feeble mind of the Testator at the time
of alleged execution of the subsequent Will dated 08.11.1996.
52. The will executed by Smt. Ram Katori Devi on 07.08.1972 has been executed
by her in Hindi whereas the subsequently executed Will dated 08.11.1996 (Ex.
PW1/5) has been allegedly executed by her in English where even the
signatures as appended by Smt. Ram Katori Devi are at variance with her
admitted signatures on the earlier executed Will dated 07.08.1972. PW-1, in her
cross-examination has clearly admitted that Smt. Ram Katori Devi used to
write letters and correspondences in Hindi Language and also that she used to
sign in Hindi. Since, Smt. Ram Katori Devi in terms of the aforesaid testimony
was comfortable with the Hindi Language and has thus executed her Will dated
07.08.1972 in Hindi Language, there was no reason for her to have executed
the subsequent Will in English Language. It is not the testimony of any of the
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 36/38
attesting witnesses that she was read over or explained the draft of the will
dated 08.11.1996 or that she understood the bequest being made by her in
derogation to the bequest earlier made by her.
53. PW-1 in her entire examination-in-chief or in her cross-examination has not
mentioned about any change in the circumstances which prompted Smt. Ram
Katori Devi to have executed the subsequent Will thereby excluding defendant
no. 1 or Smt. Savitri Devi from the bequest having been made by her vide her
first Will dated 07.08.1972.
54. PW-1 in her cross-examination has clearly admitted that she alongwith her
husband had actively participated in the execution of the subsequently
executed Will dated 08.11.1996. It has been admitted by PW-1 that she
alongwith her husband and Smt. Ram Katori Devi went to the office of sub
registrar on 08.11.1996 for the execution of the Will. She has further stated that
her husband did not inform her as to how much expenses were borne in the
preparation and execution of the Will dated 08.11.1996. Given the fact that at
the time of execution of the subsequent Will dated 08.11.1996, Smt. Ram
Katori Devi was aged 85-88 years as admitted by PW-1 and also given the fact
that without any change in the circumstances having been established by the
plaintiff, it cannot be said that the exclusion of defendant no. 1 or Smt. Savitri
Devi with whom Smt. Ram Katori Devi was enjoying good relations, was with
the free consent of Smt. Ram Katori Devi who at the time of execution of the
subsequent Will dated 08.11.1996 was residing with the plaintiff and her
husband who had taken an active part in its execution.
55. Thus, in the considered opinion of the court, the Plaintiff has failed to satisfy
the judicial conscience of the court who has failed to satisfy the court the
reasons for the execution of the subsequent will dated 08.11.1996. The
Plaintiffs have further failed to explain the inherent contradictions in the
subsequently executed alleged will dated 08.11.1996 or the reasons for Smt
Ram Katori Devi to have executed the subsequent will in favour of her
husband to the exclusion of Defendant No 1 and Smt Savitri Devi where the
Plaintiff and her late husband have taken an active part in its execution. Given
CS NO. 13996/16 Sushila Devi vs. Suresh Chand Sharma and anr. Page no. 37/38
the fact that the dispositions made in the subsequent will are inherently
contradictory, unnatural, improbable and unfair also reflect that the subsequent
will dated 08.11.1996 was not executed with free and sound disposing mind.
The Plaintiff has failed to remove all these suspicious circumstances has thus
failed to prove that the will dated 08.11.1996 was executed by Smt Ram Katori
Devi validly and with a free disposing mind. The plaintiff being the
propounder of the Will neither could prove that the Will dated 08.11.1996 (Ex.
PW1/5) was validly executed in accordance with the mandate of Section 63 (c )
of the Indian Succession Act nor could the Plaintiff dispel the suspicious
circumstances surrounding the Will dated 08.11.1996 (Ex. PW1/5).
Accordingly, the present issue is decided against the plaintiff and in favour of
the defendant.
FINDINGS ON ISSUE NO 3-5
56. Since the reliefs as claimed vide Issue no. 3, 4 and 5 were dependent upon the
findings returned qua Issue no. 2, the same are also accordingly decided
against the plaintiff and in favour of the defendants.
57. Accordingly, the present suit is hereby dismissed.
58. No order as to costs.
59. Decree sheet be prepared accordingly.
60. File be consigned to record room after necessary due compliance.
Announced in the Open Court on Sachin Sood
19.08.2025 DJ-01, Central,
THC, Delhi
Digitally
signed by
SACHIN SACHIN
Date:
SOOD
SOOD 2025.08.19
16:44:36
+0530
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