delhi high court

Delhi High Court: While deliberating over the instant case pertaining to an appeal regarding the probate petition, which was dismissed by a Single Judge on the grounds of non-compliance with the Succession Act, 1925 (‘Act’) and various other controversies, the Division Bench, comprising Najmi Waziri* and Vikas Mahajan, JJ., set aside the impugned order and granted the probate in favour of the testator, Late Raja Bahadur Sardar Singh of Khetri and held that as it was unquestionably established that the Will was executed by Late Raja Bahadur Sardar Sahib in the presence of two attesting witnesses.


The testator, Late Raja Bahadur Sardar Singh of Khetri, being conscious of the fact that he had no legal heirs (‘LRs’), deliberated with qualified persons, who got the will drafted and got it executed in the presence of two attesting witnesses, namely, P.N. Khanna (PW1) and R.K. Singh (RW8), and the same was presented in a sealed envelope to the Registrar. The testator willed his entire estate, movable and immovable assets as appeared from his Wealth Tax Returns, upon a Trust called ‘Khetri Trust’. The bequeathed assets were to vest in the Khetri Trust and were to be used for educational research and scientific purposes. The trustees were also vested with the right to seek sanctions from the High Court to enhance their remuneration beyond Rs.3,000/- per month, for their services to the Trust. Subsequent to the execution of the Will, the testator also executed a Codicil in the presence of the same two witnesses. A petition seeking the grant of probate of the Will and the Testament was filed under section 276 of the Act by the three of the Executors appointed under the Will and Testament. In the succeeding years, three of the Executors and Trustees appointed under the Will and Testament passed away The State of Rajasthan challenged the grant of probate on the grounds of non-compliance with the requirements of Section 276 and 283(3) of the Act. Moreover, seven people filed their objections to the grant of probate. Four of these objectors passed away during the proceedings and the remaining three objections were eventually withdrawn.

Analysis, Law, and Decision

The probate petition was dismissed by the Single Judge on the ground inter alia that it was not proven that: (a) the testator and the attesting witnesses had signed the Will and at the same time in the presence of each other, (b) that there were surrounding suspicious circumstances established in view of the testimony of R.K. Singh (RW8), who had deposed that he had not seen the testator sign the Will and (c) that personal assistant of the testator was not summoned as a witness. This Court found that it was established by the testimony of PW1 that the testator signed the Will as well as the Codicil in his presence as well as in the presence of RW8. The Court opined that by the testimony of PW1, the requirements of Section 68 of the Evidence Act, 1872 stood complied with as far as proving the Will and the Codicil were concerned. The Court also specifically rejected the contention that the Will might have been fabricated or forged on blank papers by PW2, who was a trustee and executor of the Will and Testament. The testimony of a person from the Office of the Registrar clearly reflected that the Will was executed and was deposited in the office of the Registrar in the manner prescribed under Sections 42 and 43 of the Registration Act, 1908.

The Court further opined that the contention apropos the non-summoning of personal assistant of the testator, could hardly be a ground of suspicion because making of a Will was a confidential exercise and the testator might not want the Personal Assistant to be informed of it, for reasons best known to the testator, because disclosure to or knowledge of the same by other unrelated persons could have spread to many persons, who might have had an eye on the estate or have nursed a hope to inherit or otherwise obtain a part of the same. The Court stated that ss regards the answer in the affirmative by Danial Latifi, who was a friend of the testator, to the query that he had signed the original Will, the appellant submitted that Danial Latifi had entered the witness box only to prove the bill raised by him on the testator. The Court opined that “the reference in Danial Latifi’s answer was undoubtedly to the bill and not to the Will. It was quite likely that Danial Latifi misheard the word ‘Will’ as ‘Bill’ possibly due to his age or ambient noise. Alternatively, due to typographical error the word Will got typed instead of Bill and continued through in the testimony and in the order”. The Court relied on Inder Singh & Surender Singh v. State, 1977 SCC OnLine Del 143, wherein it was held that “discrepancies could and do occur in the statement of any truthful witness. Given the imperfections of the human mind it would be strange if they did not. Hence, the mere existence of some discrepancies is not in itself sufficient to discredit a witness”. The Court further opined that even if it was assumed that there was a counterpart of the Will which was signed by Danial Latifi, it would not affect the grant of probate of a Will produced from the office of the Registrar of Assurances. Moreover, his presence at the Tis Hazari Court Complex, Delhi had nothing to do with the basic issue about execution and attestation of the Will by two witnesses.

Another contention pertaining to the duplicity of the Will was clarified by the Court by stating that since the Original Will was lying enclosed in a sealed cover with the Registrar, it was merely to produce before the Court that a Will with the same content in a sealed cover was deposited to the Registrar. As was apparent, much of the impugned order derived its sustenance from the testimony of PW8. Moreover, the attesting of his signatures could not have happened unless the text was written and signed by or on behalf of the testator. Furthermore, the Registrar would not have signed it unless the testator had been identified to him by the witnesses. The record from the Registrar office showed that he was present in the office of the Registrar. He was a lawyer and was expected to have known the document he was signing.

The Court opined that the plausibility of a trustee and executor manipulating the testator was highly unlikely if not implausible because the latter had been a Member of the Constituent Assembly, had assisted in the drafting of the Indian Constitution, had been a Member of Parliament, had been a diplomat as India’s Ambassador to Laos, was well educated, and had the benefit of advice and assistance of Senior legal professional and a leading Chartered Accountant, the latter was also Director of the Reserve Bank of India and on the board of many other business and charitable organizations. The Court relied on Murthy v. C. Saradambal, (2022) 3 SCC 209 and opined that the non-assigning of reasons by the objectors to withdraw their objections could not constitute a suspicious circumstance because prudence, good sense and truth could dawn upon an individual at any time. Indeed, sometimes, with passage of time, things appear in an altered perspective, and it was possible that the objectors found good reason not to pursue their objections to the probate petition.

Thus, this Court held that the Will was executed at Tis Hazari by the testator in the presence of two attesting witnesses. Thus, compliance with Section 63 of the Act was proved. The said document was sealed in an envelope and presented to the Registrar with the endorsement that it contained the last Will and Testament of the testator identified by the two witnesses. The envelope also bore the signatures of the testator and the Registrar. This was a clear declaration that the envelope contained the said document, and the testator had been identified to the Registrar by two witnesses. This also ensured compliance with Section 68 of the Evidence Act, 1872 in proving the Will. Thus, it was clearly established that the Will was executed by the testator, Late Raja Bahadur Sardar Sahib, and it stood duly proven, and thus, the impugned order was set aside, and probate was granted.

[Ajit Singh v. State, 2023 SCC OnLine Del 4011, decided on 11-7-2023]

*Judgment authored by: Justice Najmi Waziri

Advocates who appeared in this case:

For the Appellants: Paras Kuhad, Sandeep Sethi, T.K. Ganju, Dr. Manish Singhvi, Senior Advocates; Prateek K. Chadha, AAG; Manu Aggarwal, Jitin Chaturvedi, Shouib Hussain, Shubham Budhiraja, Kirtiman Singh, Shreya Mehra, Fareha A. Khan, Niyati Kohli, Rishabh Parikh, Sreekar Aechuri, Arpit Prakash, Vrishank Singhania, Advocates;

For the Respondents: Rishikesh Kumar, Tushar Sannu, ASC; T.K. Ganju, Dr. Manish Singhvi, Sandeep Sethi, Senior Advocates; Prateek K. Chadha, AAG, State of Rajasthan; Aditya Raj, Muhammad Zaid, Sudhir Kumar Shukla, Sheenu Priya, Sreekar Aechuri, Arpit Prakash, Vrishank Singhania, Fareha A. Khan, Niyati Kohli, Rishabh Parikh, Devendra Raghav, Rajeshwavi, Advocates.

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