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IN THE HIGH COURT OF DELHI AT NEW DELHI
DHARMESH SHARMA, J.
MS. Inder Pal Kaur - Appellant
versus
The State Of Nct Of Delhi & ORS. – Respondents
FAO 215 of 2021 and CM APPL. 30970 of 2021 STAY, CM APPL. 16580 of 2024 – FOR DELAY OF 10 DAYS IN FILING W/SUBMISSIONS, CM APPL. 5213 of 2025 – SEEKING TRANSFER OF PETITION
Decided on : 27-03-2025
(A) Code of Civil Procedure, 1908 - Order XLIII, Section 104 - Indian Succession Act, 1925 - Section 299 - Appeals against dismissal of Probate Petition for second Will - Probate Court held first Will as genuine and final due to lack of evidence for second Will's revocation - Second Will did not specifically revoke the first Will, raising doubts on its validity. (Paras 1, 11, 15, 20)
(B) Testamentary Capacity - The court emphasized that the testator's mental fitness is crucial for Will execution, noting the testator's medical condition at the time of the second Will's execution. (Paras 19, 20)
(C) Suspicious Circumstances - The court highlighted the need to address suspicious circumstances surrounding the second Will's execution, including lack of attestation by immediate family members. (Paras 16, 17)
Facts of the case:
The appellant claimed the second Will executed by her father bequeathed equal shares of property to her and her siblings, while the respondent mother claimed the first Will was genuine. The Probate Court dismissed the second Will's petition, validating the first Will.
Findings of Court:
The court found the second Will lacked sufficient evidence of revocation of the first Will and that the execution was surrounded by suspicious circumstances.
Issues: The court addressed whether the second Will was valid, whether the appellant was entitled to Probate, and if the petition was barred by limitation.
Ratio Decidendi: The court ruled that the second Will did not explicitly revoke the first Will and that the appellant's failure to clear suspicious circumstances undermined her claim.
Result: Appeals dismissed.
JUDGMENT :
DHARMESH SHARMA, J.
1. This common judgment shall decide the aforesaid appeals preferred by the appellant under Order XLIII read with Section 104 of the Code of Civil Procedure, 1908 [“CPC”] and Section 299 of the Indian Succession Act, 1925 [“Act”] assailing the impugned common Judgment dated 28.07.2021 passed by the learned Additional District Judge-02, West District, Tis Hazari Courts, Delhi [“Probate Court”] whereby the Probate Petition vide PC No. 15976/2016 with regard to the second Will propounded by the appellant dated 02.08.2009 purportedly executed by her deceased father, namely Kulbir Singh Dhingra (hereinafter referred as ‘deceased-testator’) was dismissed and on the other hand the first Will dated 16.03.2005 propounded by her mother in PC No. 15933/2016 was held to be genuine, last and final Will of the deceased-testator.
FACTUAL BACKGROUND
2. Shorn of unnecessary details, the appellant instituted PC No.15976/2016 under Section 278 of the Act on 12.08.2015 claiming that her father i.e. the deceased-testator was the absolute owner of the property bearing No. 9-C, North-West Avenue, Punjabi Bagh, New Delhi-110026 (hereinafter referred as the ‘subject property’) and during his lifetime he executed a Will dated 02.08.2009 (Ex.PW-1/2), whereby the deceased-testator bequeathed right, title and interest in the subject property in equal shares to the appellant as well as her mother i.e. respondent No.2 and brother i.e. respondent No.3/S. Jaswinder Singh and her sister i.e. respondent No.4/Ms. Jasmeen Kaur.
3. It was claimed that the Will dated 02.08.2009 was attested by PW-2/Mr. Rajbir Singh as well as PW-3/Mr. Dalip Rawat and executed in the presence of all the legal heirs including the respondents at their house. On the other hand, the respondent No.2 i.e. petitioner mother in PC No. 15933/2016 instituted on 02.05.2016 sought Probate/Letters of Administration in respect of the same property i.e. the subject property based on the registered Will dated 16.03.2005 (Ex.RW-2/A) (also PW- 4/A) executed by the deceased-testator, which was claimed to have been attested and executed by her son S. Jaswinder Singh (respondent No.2 before the Probate Court) and her daughter Ms. Inder Pal Kaur (respondent No.4 before the Probate Court and the appellant before this Court who also propounded the second Will dated 02.08.2009). The testator had passed away on 03.02.2010.
4. Both cases were clubbed and the following issues were framed in the petition bearing PC No. 15976/2016 filed by the appellant Ms. Inder Pal Kaur:
“1. Whether the deceased Late Sh. Kulbir Singh S/ o Late Sh. Dhian Singh executed a valid, legal and enforceable Will dated 02.08.2009 as claimed by the petitioner? OPP
(2). Whether the petitioner is entitled for Probate/Letter of Administration on the basis of the aforesaid Will, as claimed? OPP
(3). Whether the petition is liable to be dismissed for the objections raised by the respondent/ objector no. 2, 3 & 4 in the written statement/objections? OPD
(4). Whether the petition is barred by limitation? OPD 2, 3 & 4.
(5). Relief.”
5. In order to prove her case, the appellant i.e. the petitioner examined herself as PW-1 and at the cost of repetition two other witnesses were PW-2/Mr. Rajbir Singh and PW-3/Dalip Rawat.
6. On the other hand, the respondents examined 5 witnesses. The respondent No.4/Ms. Jasmine Kaur was examined as RW-1; RW-2 was one Mr. Naveen from the office of Sub-Registrar, Pitampura, who produced the copy of the registered Will dated 16.03.2005 (Ex.RW- 2/A) as found in the official record of the Sub-Registrar. RW-4/Ms. Pooja Vanjani from Delhi Heart and Lungs Institute, who produced the medical record of the deceased-testator to the effect that he was admitted to the Hospital on 08.05.2009 and discharged on 09.05.2009. However, she was unable to produce the entire treatment record for the same having been destroyed.
7. RW-5 was Mr. Alic Masih, Junior Medical Officer from Sir Ganga Ram Hospital, who testified t
The validity of a Will requires clear evidence of revocation of prior Wills and the testator's mental fitness at execution; suspicious circumstances must be adequately addressed.
The mere presence of beneficiaries during will execution is not sufficient to invalidate it; the burden of proving suspicious circumstances lies with the challengers.
The burden of proof for the validity of a Will lies with the propounder, who must dispel any doubts regarding its execution, especially in the presence of suspicious circumstances.
The burden of proving the validity of a contested Will lies with the propounder, and suspicious circumstances surrounding its execution must be satisfactorily explained.
The propounder of a Will must prove its execution and validity, and the presence of suspicious circumstances must be specifically pleaded by the opposing party to shift the burden of proof.
Precise compliance with statutory execution and proof requirements for Wills is necessary, especially when involving Pardanashin individuals; the burden of proof lies on those asserting the validity ....
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