In the State of Delhi, Wills do not mandatorily require a probate. A valid Will can be acted upon by the beneficiaries, if there is no dispute with respect to its genuineness. The transmission of title in the estate of the deceased testator takes effect in favour of the beneficiaries, immediately upon the death of the testator. The requirement for proof of the genuineness of the Will arises only when a dispute is raised by one of the legal heirs.

Headnote:
WILL - PROBATE - REGISTRATION - [KEYWORD] - In the State of Delhi, Wills do not mandatorily require a probate. A valid Will can be acted upon by the beneficiaries, if there is no dispute with respect to its genuineness. The transmission of title in the estate of the deceased testator takes effect in favour of the beneficiaries, immediately upon the death of the testator. The requirement for proof of the genuineness of the Will arises only when a dispute is raised by one of the legal heirs.
Fact of the Case:

The present second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’) impugns the judgment dated 28.02.2023 passed by ASCJ, Patiala House Courts, New Delhi (‘First Appellate Court’) in RCA No. 5/2017, titled as Azad Singh & Ors. v. Krishna Devi & Ors., whereby the First Appellate Court dismissed the appeal filed against the judgment dated 20.04.2015 passed by Civil Judge, Central (09), Tis Hazari Courts, Delhi (‘Trial Court’) in CS No. 72/2011 (1st Suit), titled as Krishna Devi & Ors. v. Azad Singh & Ors., whereby the 1st suit filed by the plaintiffs on 17.11.2001 for perpetual and mandatory injunction was decreed in favour of plaintiffs.
Finding of the Court:

The Courts below have returned concurrent findings of fact holding that:i.That late Sh. Sisram was the owner of the entire property bearing No. WZ-134, Naraina Village, New Delhi (‘entire property’).ii.That the genuineness of the registered Will dated 15.10.1987 (Exhibit PW-1/1) executed by late Sh. Sisram has been duly proved by producing the original and leading evidence of the attesting witness, Sh. Jeet Singh (PW-2).iii.That late Sh. Sisram bequeathed separate and distinct portions of the entire property in favour of his four (4) sons. The said portions were duly marked and identified in the coloured site plan annexed to the registered Will dated 15.10.1987.iv.That the four (4) sons of late Sh. Sisram have acted upon the registered Will dated 15.10.1987 and are in occupation of the different portions of the entire property in accordance with the bequest made under the said Will.v.The dispute has arisen limited to the suit property. The suit property was bequeathed to late Sh. Jagdish Prasad under the registered Will dated 15.10.1987 and he became the exclusive owner of the suit property by operation of the said Will.vi.The Respondents herein are the Class-I legal heirs of late Sh. Jagdish Prasad and therefore are owners of the suit property.vii.The photocopy of the unregistered ‘Bhai Faisla’ dated 20.12.1987 has not been proved by Appellants in accordance with law and therefore it has not been admitted in evidence. The defendants failed to lead evidence of the attesting witness and lead secondary evidence in accordance with law. The said document requires to be compulsorily registered as per Section 17 of the Registration Act and on account of its non-registration and non-stamping it is even otherwise inadmissible in law.
Ratio Decidendi: The Courts below have returned concurrent findings of fact that the photocopy of unregistered ‘Bhai Faisla’ dated 20.12.1987 has not been proved by the Appellants. The Courts below have also held that the said ‘Bhai Faisla’ dated 20.12.1987 cannot be admitted in evidence as it is a mere photocopy and the Appellants could not satisfy the Court with respect to the custody of original document. Consequently, the ‘Bhai Faisla’ was not given an exhibit mark and has not been admitted in evidence.
Final Decision: This second appeal is accordingly dismissed and the order of the First Appellate Court is upheld.

J U D G M E N T

MANMEET PRITAM SINGH ARORA, J (ORAL):

RSA 154/2023, CM APPL. 42164/2023, CM APPL. 42165/2023, CM

APPL. 45434/2023 & CM APPL. 48701/2023

1. The present second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’) impugns the judgment dated 28.02.2023 passed by

ASCJ, Patiala House Courts, New Delhi (‘First Appellate Court’) in RCA No. 5/2017, titled as Azad Singh & Ors. v. Krishna Devi & Ors., whereby the First Appellate Court dismissed the appeal filed against the judgment dated 20.04.2015 passed by Civil Judge, Central (09), Tis Hazari Courts, Delhi (‘Trial Court’) in CS No. 72/2011 (1st Suit), titled as Krishna Devi & Ors. v. Azad Singh & Ors., whereby the 1st suit filed by the plaintiffs on 17.11.2001

for perpetual and mandatory injunction was decreed in favour of plaintiffs.

1.1 The Appellants herein were defendants and the Respondents herein were plaintiffs before the Trial Court.

1.2 The Civil Suit No. 72/2011 (1st Suit) was filed by the Respondents on 17.11.2001, seeking relief of perpetual and mandatory injunction thereby praying that the Appellants and their agents be directed to vacate one (1) room, verandah on the ground floor and they be restrained from interfering in the possession and occupation of the Respondents over the second floor of the premises bearing no. WZ-134, Naraina Village, New Delhi (‘suit property’)

as shown in red colour in the site plan annexed with the plaint.

1.3 In the said suit it was averred by the Respondents that late Sh. Jagdish Prasad is the rightful owner of the suit property, which devolved upon him through the registered Will dated 15.10.1987; and late Sh. Jagdish Prasad had given one (1) room and verandah on the ground floor of the suit property to the Appellant No.1 herein on leave and license basis, which license was eventually revoked during the lifetime of the late Sh. Jagdish Prasad.

1.4 The said registered Will was executed by Sh. Sisram, the father of late Sh. Jagdish Prasad and Appellant No.1 herein. Sh. Sisram was the owner of the property WZ-134, Naraina Village, New Delhi.

1.5 The Respondents are the surviving Class-I legal heirs of late Shri Jagdish Prasad. Appellant No. 1 and Appellant No. 2 are the real brother and sister-in-law, respectively of late Sh. Jagdish Prasad.

1.6 The Appellants filed joint written statement in the said suit and averred that the Respondents have filed a false and frivolous suit. It was stated that the suit property was given to Appellants by late Sh. Jagdish Prasad as recorded in the unregistered ‘Bhai Faisla’ dated 20.12.1987. The Appellants claimed ownership of the suit property on the basis of the said ‘Bhai Faisla’. 1.7 The Trial Court vide judgment dated 20.04.2015 has decreed the suit in favour of the Respondents and held that the Respondents have established that the suit property was owned by late Sh. Jagdish Prasad qua the registered Will dated 15.10.1987; and after his demise on 07.10.2001 the same was owned by the Respondents. The Trial Court further held that the Appellants were permitted to occupy the suit property on leave and license basis, which stood terminated after the demise of late Sh. Jagdish Prasad.

1.8 The judgment dated 20.04.2015 of the Trial Court was challenged before the First Appellate Court in RCA No. 5/2017, wherein the First Appellate Court upheld the findings of the Trial Court and dismissed the appeal vide the impugned judgment dated 28.02.2023.

1.9 Both, the Trial Court and First Appellate Court concluded that the photocopy of unregistered ‘Bhai Faisla’ dated 20.12.1987 has not been proved by the Appellants and is inadmissible in evidence.

Arguments of Appellants

2. The learned counsel for the Appellants states that both the Courts below have erred in returning a finding that the registered Will dated 15.10.1987, made by late Sh. Sisram was valid and proved in accordance with law.

2.1 He states that the Appellants have filed on record a photocopy of the unregistered ‘Bhai Faisla’ dated 2

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