Isabella Mariam

The High Court of Delhi, Single Bench  of Justice Dharmesh Sharma dismissed an appeal under Section 299 of the Indian Succession Act, 1925. The appeal contested the refusal by the learned Additional District Judge-05, West District, Tis Hazari Courts, Delhi to grant probate for a Will dated October 4, 2004. The court held that the execution of the Will was not proven in accordance with the requirements under Section 63 of the Act.

The court refused to permit additional evidence at the appellate stage, rejecting an application filed to summon the second attesting witness who was unavailable during trial. The Bench recorded, "the appellant cannot be allowed to fill up the lacunae in his evidence at a belated stage" and stated that granting such a request would result in "a de novo trial at great public costs."

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The appellant, Smt. Parmeshwari Devi (deceased), widow of Shri Sube Singh, had applied for probate of a Will allegedly executed by her late husband on October 4, 2004. Sube Singh had three children from his first marriage to Smt. Angrej Kaur and four children, including the appellant's daughter Miss Kaushalya Devi, from his second marriage to the appellant.

According to the appellant, Shri Sube Singh was the sole owner of agricultural land in Village Alipur, Delhi, and also had monetary assets. The Will bequeathed his property solely to the appellant, assigning her the responsibility of solemnizing their daughter's marriage.

The Will was registered and bore the testator's thumb impression and signature in Urdu. It was typed in English. The appellant contended that the Will was validly executed while the testator was of sound mind, supported by testimony from attesting witness PW-3 Zile Singh.

However, the learned Probate Court rejected the petition on several grounds. Firstly, it noted the absence of medical evidence to disprove the testator's mental soundness, but also remarked that the registration of the Will did not eliminate doubts about its due execution.

Key objections included the failure to examine the second attesting witness, Mr. R.S. Beniwal, and insufficient evidence to demonstrate that the testator had understood the Will's contents, which were in English. Moreover, PW-3 confirmed that the Will was typed before his arrival at the Sub-Registrar's office, and he was unaware of when the second witness signed it. The Probate Court held that PW-3's testimony did not satisfy the legal requirement of proving attestation by two witnesses.

An appeal was filed alongside applications (CM APPL. 13585/2010 and CM APPL. 33941/2017) seeking to introduce additional evidence by examining Mr. R.S. Beniwal, citing his prior unavailability due to illness. The High Court held that the appellant did not take diligent steps to ensure the witness's examination during trial and that the situation did not fall within any permissible grounds under Order XLI Rule 27 of the CPC.

Justice Sharma reiterated that "registration of the Will itself is not sufficient to prove that it was duly executed as per requirements of Section 63 of the Act" and "registration and due execution of the Will are two different things."

The court reviewed PW-3's testimony and found that "attestation of the Will by one witness is established by the petitioner but she has failed to prove how and in which manner the second witness signed on it." It further observed that "PW-3 even did not know when and where the second witness signed on it."

Citing precedent from the Supreme Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam, the court reiterated, "the attesting witness examined must also through his deposition prove the attestation of the Will by himself as well as by the second witness." The lack of such proof rendered the execution unverified.

The court noted additional suspicion as the Will was typed in English while the testator only signed in Urdu, and there was no evidence showing the testator understood the content. The absence of any mention regarding the exclusion of other family members from inheritance also cast doubt on the Will’s authenticity.

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It further referred to Smt. Jaswant Kaur v. Smt. Amrit Kaur, stating, "the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator."

The High Court rejected both applications seeking permission to introduce additional evidence. It held that none of the conditions under Order XLI Rule 27 of the CPC were satisfied. The court further concluded that the appeal itself was devoid of merit.

Justice Sharma stated: "the impugned judgment passed by the learned Probate Court does not suffer from any illegality, perversity or any incorrect approach in law." The appeal was dismissed accordingly.

Advocates Representing the Parties:

For the Appellant: Mr. Shailender Dahiya, Advocate: Mr. B.S. Yadav,

For the Respondents: Mr. B.S. Yadav, Advocate

Case Title: Smt. Parmeshwari Devi (Deceased) through LRs v. The State & Ors.

Neutral Citation: 2025: DHC:2862

Case Number: FAO 21/2009 & CM APPL. 13585/2010, CM APPL. 33941/2017

Bench: Justice Dharmesh Sharma

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