The review court emphasized that a review cannot serve as a second appeal and stressed the necessity of meeting statutory evidential requirements to establish the authenticity of a will under the Indian Evidence Act.

JUDGMENT :

TEJAS KARIA, J.

CM APPL. 44515/2025

1. The Appellant / Applicant has filed the present Review Application (“Application”) praying for review of the Judgment dated 25.06.2025 (“Judgment”) passed by this Court in FAO No.203/2008.

2. The Appellant / Applicant has filed the present Application on the ground that certain issues and pertinent questions of law have either been inadvertently overlooked or not taken note of while passing the Judgment.

3. The Appellant / Applicant has submitted that the Judgment is required to be reviewed as:

i. There was no objection from any Respondents with respect to the execution of the Will. As the factum of attestation of the Will has been proved, the probate ought to have been granted in favour of the Petitioner / Applicant. Respondent No.2 had submitted written objections and Respondent No. 3 did not object to grant of probate in favour of the Petitioner / Applicant.

ii. There is a presumption in law in favour of the Appellant / Applicant regarding the genuineness attached to the signatures of the Testatrix as the signature of one of the attesting witnesses was duly proved. Unless the signature of Testatrix is rebutted by any cogent evidence, the Court ought to have accepted her signature on the Will.

iii. The circumstantial evidence, which was the best possible evidence that was available and in the absence of any cogent evidence being produced by the other legal heirs to object, there was a presumption under law regarding the genuineness and authenticity of the Will and the signatures thereon.

iv. The Will dated 20.09.1972 being a more than thirty-year old document, as per Section 90 of the Indian Evidence Act, 1872 (“Act”), the same is presumed to be authentic, genuine and duly executed by the Testatrix as well as the attesting witnesses in absence of any cogent evidence in support of the objection for grant of the probate.

SUBMISSIONS ON BEHALF OF THE APPELLANT / APPLICANT:

4. The learned counsel for the Appellant / Applicant submitted that the evidence produced before the learned Trial Court established the complete chain in respect of a reasonable conclusion in favour of validity and execution of the Will by the Testatrix supported by corroborating evidence, which remained uncontroverted. As there was no cross-examination either in respect of the execution of the Will, there exists a strong presumption in law in favour of the Appellant / Applicant regarding the signature of the Testatrix and the execution and attestation of the Will.

5. It was submitted that originally, Respondent No.2, i.e., the husband of Testatrix and father of the Appellant / Applicant, had filed objection opposing the grant of probate, however, Respondent No.2 died on 06.01.2009. Respondent No. 3, i.e., sister of the Appellant / Applicant and daughter of the Testatrix did not originally file any objections for grant of probate before the learned Trial Court and in the present Appeal. The Judgment inadvertently does not observe that Respondent No. 3, having not objected, had lost all her rights to object to grant of probate.

6. In the absence of any objections and in view of the testimony of the Appellant / Applicant before the learned Trial Court, wherein it was stated that the Will was, in fact, executed by the Testatrix and as there was no cross-examination of the Appellant / Applicant on this aspect, the execution of the Will was proved by the Appellant / Applicant.

7. The learned Counsel for the Appellant / Applicant relied upon the decision of this Court in Chanchal Dhingra v. Raj Gopal Mehra 2013 SCC OnLine Del 3753 and State of U.P. v.