Mr. Rajat Wadhwa, Mr. Gurpreet Singh, Ms. Anisha Rastogi, Advs. alongwith v. THE STATE OF NCT OF DELHI & ORS

Judgment

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 FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 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 FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 (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 that the deceased-testator/Kulbir Singh Dhingra remained in the Hospital from 24.01.2010 to 03.02.2010 as per the medical documents Ex.RW5/A (colly. 119 pages). He further deposed that the patient remained admitted on various occasions from

03.09.2009 to 11.09.2009, from 14.10.2009 to 16.10.2009, from FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13

03.11.2009 to 28.11.2009 and from 24.01.2010 to 03.02.2010 but the medical records pertaining to the year 2009 was destroyed. 8. Likewise, in another petition filed by Mrs. Ravinder Kaur bearing PC No. 15933/2016, the following issues were framed: “(1). Whether the Will dated 16.03.2005 executed by Late Sh. Kulbir Singh S/o Late Sh. Dhian Singh is his last genuine, legal, valid Will and duly executed in his sound disposing mind? 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 written respondent/ objector no.4 statement/objection? OPR ( 4). Relief.”

9. In order to prove their case, the petitioner/Mrs. Ravinder Kaur examined herself as PW-1; PW-5 was Mr. Jaswinder Singh/respondent No.2; PW-2 was Ms. Pooja Vanjani from Delhi Heart and Lungs Institute; PW-3 was Alic Masih, Junior Medical Officer; and PW-4 was Sunil Kumar from the office of Sub-Registrar, Pitampura, who produced the copy of the Will Ex.PW-4/A executed by Mr. Kulbir Singh Dhingra and registered in the official records. 10. On the other hand, respondent No.4 i.e. the appellant before this Court deposed as RW-1. IMPUGNED JUDGMENT: 11. Suffice to state that learned Probate Court dismissed the petition bearing PC No. 15976/2016 filed by the appellant Ms. Inder Pal Kaur holding that although PW-2/Mr. Rajbir Singh and PW-3/Mr. Dalip Rawat deposed without any blemish that the second Will had been FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 signed in their presence by the deceased-testator, however, considering that the petitioner/appellant was an attesting witness to the first registered Will dated 16.03.2005, a doubt arose about the validity and genuineness of the second Will dated 02.08.2009 as the signatures of her brother S. Jaswinder Singh as well as mother Mrs. Ravinder Kaur were not taken on the second Will so as to prove by way of preponderance of probabilities that the first registered Will dated

16.03.2005 had been revoked. As a necessary corollary, the second petition bearing PC No. 15933/2016 instituted by Mrs. Ravinder Kaur, the mother of the parties, was decided in her favour holding that the same was the genuine, last and final Will of the deceased-testator. LEGAL SUBMISSIONS: 12. Learned counsel for the appellant invited the attention of this Court to the testimony of PW-2/Mr. Rajbir Singh and PW-3/Mr. Dalip Rawat and it was urged that both the witnesses cogently proved the attestation and execution of the second Will dated 02.08.2009 by the deceased-testator at the residence of the respondents, who were present all the time. While, on the other hand, the first Will dated 16.03.2005 has not been validly proved as only respondent No.3/S. Jaswinder Singh was examined, who failed to depose that his deceased father had executed and signed the Will in his presence. It was vehemently urged that the testimony of PW-5/S. Jaswinder Singh was not in accordance with Section 63 of the Indian Evidence Act, 1872 and reliance in this regard was placed on the decisions in Pentakota Satyanarayana v. FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 Pentakota Seetharatnam1; Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh2; and Jagdish Chand Sharma v. Narain Singh Saini (Dead) through Legal Representatives3. 13. Per contra, learned counsel for the respondents urged that there was no necessity to prove the execution of the registered Will dated

16.03.2005 strictly in terms of Section 63 of the Indian Evidence Act read with Section 68 of the Indian Evidence Act, 1872 since the petitioner/appellant Ms. Inder Pal Kaur was an attesting witness to the first Will, who admitted that she appeared before the Sub-Registrar at the time of execution of the Will by her father. It was also pointed out that the second Will dated 02.08.2009 had not specifically revoked the first Will dated 16.03.2005, and lastly, it was submitted that the appellant failed to address the suspicious circumstances with regard to the execution of the alleged second Will dated 02.08.2009 inasmuch as during the relevant time the deceased-testator was suffering from serious mental issues. It was urged that the case laws cited by the learned counsel for the appellant are distinguishable and do not support the case of the appellant. ANALYSIS AND DECISION 14. I have given my thoughtful consideration to the submissions advanced by learned counsels for the parties at the Bar and I have gone through the documentary evidence on the record of the case including

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 FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 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 FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 (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 that the deceased-testator/Kulbir Singh Dhingra remained in the Hospital from 24.01.2010 to 03.02.2010 as per the medical documents Ex.RW5/A (colly. 119 pages). He further deposed that the patient remained admitted on various occasions from

03.09.2009 to 11.09.2009, from 14.10.2009 to 16.10.2009, from FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13

03.11.2009 to 28.11.2009 and from 24.01.2010 to 03.02.2010 but the medical records pertaining to the year 2009 was destroyed. 8. Likewise, in another petition filed by Mrs. Ravinder Kaur bearing PC No. 15933/2016, the following issues were framed: “(1). Whether the Will dated 16.03.2005 executed by Late Sh. Kulbir Singh S/o Late Sh. Dhian Singh is his last genuine, legal, valid Will and duly executed in his sound disposing mind? 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 written respondent/ objector no.4 statement/objection? OPR ( 4). Relief.”

9. In order to prove their case, the petitioner/Mrs. Ravinder Kaur examined herself as PW-1; PW-5 was Mr. Jaswinder Singh/respondent No.2; PW-2 was Ms. Pooja Vanjani from Delhi Heart and Lungs Institute; PW-3 was Alic Masih, Junior Medical Officer; and PW-4 was Sunil Kumar from the office of Sub-Registrar, Pitampura, who produced the copy of the Will Ex.PW-4/A executed by Mr. Kulbir Singh Dhingra and registered in the official records. 10. On the other hand, respondent No.4 i.e. the appellant before this Court deposed as RW-1. IMPUGNED JUDGMENT: 11. Suffice to state that learned Probate Court dismissed the petition bearing PC No. 15976/2016 filed by the appellant Ms. Inder Pal Kaur holding that although PW-2/Mr. Rajbir Singh and PW-3/Mr. Dalip Rawat deposed without any blemish that the second Will had been FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 signed in their presence by the deceased-testator, however, considering that the petitioner/appellant was an attesting witness to the first registered Will dated 16.03.2005, a doubt arose about the validity and genuineness of the second Will dated 02.08.2009 as the signatures of her brother S. Jaswinder Singh as well as mother Mrs. Ravinder Kaur were not taken on the second Will so as to prove by way of preponderance of probabilities that the first registered Will dated

16.03.2005 had been revoked. As a necessary corollary, the second petition bearing PC No. 15933/2016 instituted by Mrs. Ravinder Kaur, the mother of the parties, was decided in her favour holding that the same was the genuine, last and final Will of the deceased-testator. LEGAL SUBMISSIONS: 12. Learned counsel for the appellant invited the attention of this Court to the testimony of PW-2/Mr. Rajbir Singh and PW-3/Mr. Dalip Rawat and it was urged that both the witnesses cogently proved the attestation and execution of the second Will dated 02.08.2009 by the deceased-testator at the residence of the respondents, who were present all the time. While, on the other hand, the first Will dated 16.03.2005 has not been validly proved as only respondent No.3/S. Jaswinder Singh was examined, who failed to depose that his deceased father had executed and signed the Will in his presence. It was vehemently urged that the testimony of PW-5/S. Jaswinder Singh was not in accordance with Section 63 of the Indian Evidence Act, 1872 and reliance in this regard was placed on the decisions in Pentakota Satyanarayana v. FAO-215/2021 & FAO 216/2021 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:27.03.2025 15:07:13 Pentakota Seetharatnam1; Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh2; and Jagdish Chand Sharma v. Narain Singh Saini (Dead) through Legal Representatives3. 13. Per contra, learned counsel for the respondents urged that there was no necessity to prove the execution of the registered Will dated

16.03.2005 strictly in terms of Section 63 of the Indian Evidence Act read with Section 68 of the Indian Evidence Act, 1872 since the petitioner/appellant Ms. Inder Pal Kaur was an attesting witness to the first Will, who admitted that she appeared before the Sub-Registrar at the time of execution of the Will by her father. It was also pointed out that the second Will dated 02.08.2009 had not specifically revoked the first Will dated 16.03.2005, and lastly, it was submitted that the appellant failed to address the suspicious circumstances with regard to the execution of the alleged second Will dated 02.08.2009 inasmuch as during the relevant time the deceased-testator was suffering from serious mental issues. It was urged that the case laws cited by the learned counsel for the appellant are distinguishable and do not support the case of the appellant. ANALYSIS AND DECISION 14. I have given my thoughtful consideration to the submissions advanced by learned counsels for the parties at the Bar and I have gone through the documentary evidence on the record of the case including