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Delhi High Court
Harminder Singh Bakshi vs State & Ors on 10 December, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 05.12.2025
Judgment pronounced on:10.12.2025
+ FAO 593/2016 & CM APPLs. 46938/2016, 2810/2023
HARMINDER SINGH BAKSHI .....Appellant
Through: Mr. Peeyoosh Kalra, Mr. Yashwant
Singh Baghel and Ms. Meghna Nair,
Advocates
versus
STATE & ORS .....Respondents
Through: Mr. Sanjeev Kumar Dubey, Sr.
Advocate with Mr. Amit Bhatia, Mr.
Shahrukh Khan, Ms. Tanya Verma
and Mr. Sushil Gupta, Advocates for
Respondent No.2
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. The present appeal under Section 299 of the Indian
Succession Act, 1925 (the ISA), read with Section 151 of the Code
of Civil Procedure, 1908 (the CPC) has been filed by the second
respondent in P.C. No.6/15/05 on the file of the Additional District
Judge, Tis Hazari Courts, Delhi, aggrieved by the judgment dated
01.10.2016 by which Exhibit PW-1/1 Will executed by his late
mother, Sujan Kaur, was held to be valid and genuine.
2. In this appeal, the parties herein will be referred to in the
same rank as described in the original petition.
3. The essential facts emerging from the records necessary
for the adjudication of the appeal are as follows: - Late Sujan Kaur
was the absolute owner of the residential property bearing No.
WZ-620, Gali No.19, Shiv Nagar Extension, Jail Road, New
Delhi. She was survived by her husband, the petitioner herein, and
two sons, namely, late Jasbir Singh, survived by his wife and
children, namely, respondents' nos. 3 to 5, and Harminder Singh,
the second respondent. The petitioner's case is that his wife
executed a Will dated 22.01.1996 bequeathing her entire property
exclusively in his favour. The will was attested by four persons,
namely, Bakshi Sunder Singh, Ajmer Singh and their sons, late
Jasbir Singh and Harminder Singh/respondent no. 2. Along with
the petition for probate filed in May 2005, only a xerox copy of the
will was produced. According to the petitioner, the original will
had been stolen by his son Harminder Singh, the second
respondent/objector. However, during the lifetime of his wife itself
xerox copies of the will had been made. Hence, probate was
sought on the basis of a xerox copy of the original will.
4. All the respondents except the second respondent reported
no objection.
5. The second respondent/objector filed objections denying
the execution and validity of the Will. He contended that he had
never attested any such will in the year 1996; that the xerox copy
of the will produced along with the petition was a fabricated one,
and that the allegation of theft of the will was a falsehood and the
entire case had been concocted by the petitioner, his father, for
depriving him of his rightful 1/3rd share in the property. He had, in
fact, filed a suit for partition in which the petitioner, his father, had
contended that he had already sold the property to a third person.
Hence, the petition for probate is not maintainable.
6. Replication was filed by the petitioner reiterating his
allegations in the petition that his wife had, in fact, executed the
will in his favour and that the original of the same had been stolen
by the second respondent. According to him, the testatrix had
taken xerox copies of the will during her lifetime itself. It was also
alleged that the petitioner had filed a complaint against his son, the
second respondent, for the theft of the will and that the same was
pending consideration. He admitted that the property had been
sold. According to him, the sale was of no consequence as the
petition was confined to the question of due execution of the will.
7. The parties went to trial on the basis of the aforesaid
pleadings. Necessary issues were framed by the trial court. On
behalf of the petitioner PW-1 to PW-6 were examined and Ex.
PW-1/1, Ex. PW-2/1 to Ex. PW-2/3, Ex. PW-3/1, Ex. PW-3/A, Ex.
PW-5/1, Ex. PW-7/1 to Ex. PW-7/3 were marked on the side of the
petitioner. The second respondent examined himself as RW-2/W-1
and his wife as RW-2/W-2 and Exhibits R2W/1, R2W-1/A,
R2W1/P-1, R2W2/A were marked. Before the trial was over, the
original petitioner passed away. An application under Order 22
Rule 10 CPC was filed by one Sirjan Pal Singh for substituting
him in the place of the petitioner, alleging to be the purchaser of
the property in question on the basis of a sale deed dated
19.05.2005 executed by the latter in his favour. The trial court vide
order dated 19.09.2008 dismissed the application. FAO 286/2012
preferred against the order dated 19.09.2008 was allowed by this
Court, and by order dated 16.01.2014, Sirjan Pal Singh was
substituted in the place of the petitioner.
8. The trial court on consideration of the oral and
documentary evidence and after hearing both sides found the will
to have been executed by late Sujan Kaur and held the will to be
genuine. However, the application for probate was dismissed
holding that the original petitioner after filing the petition for
probate sold the property in question to the substituted petitioner
and had suppressed and concealed material facts while the matter
was pending consideration before the Court. Aggrieved, the second
respondent/objector has come up in a appeal.
9. It was submitted by the learned counsel for respondent
No.2/objector/the appellant that the impugned judgment is
inconsistent as it dismisses the probate petition, yet declares the
will to have been proved. A probate judgment is one in rem, and
therefore a finding regarding the genuineness of a will cannot co-
exist with dismissal of the probate petition. It was submitted that
the propounder relies solely upon a xerox copy of the will and has
failed to satisfy the mandatory requirements of Section 65 of the
Evidence Act governing admissibility of secondary evidence.
There is no explanation for the non-production of the original will.
No evidence has also been led by the petitioner to substantiate his
case of loss/destruction of the will. It was further submitted that
the propounder has failed to meet the strict requirements of Section
237 of the ISA which permits probate of a copy or a draft only
when the original will is shown to have existed and the same has
been lost or destroyed by accident or other unintentional means.
Reliance was placed on the dictum in Ashwini Kumar Agarwal
vs. B.K. Mittal 211 (2014) Delhi Law Times 524, wherein this
Court held that probate of a copy cannot be granted unless the
conditions contained in Section 237 of the ISA are fulfilled and
that Courts are hesitant to grant probate of copies given that
revocation of a will can be effected simply by destroying the
original of the will.
10. Per contra, it was submitted by the learned senior
counsel for the petitioner that the second respondent/objector had
admitted to the existence of the will executed by his late mother as
he is an attesting witness in a will of the year 2004 executed by his
father in favour of his children. In the said will, the wife of the
second respondent/objector is also an attesting witness. It was
argued that this demonstrated implicit recognition/admission of the
will of the year 1996 executed by his late mother. It was further
submitted that the case fell within Section 65(c) of the Evidence
Act as one of loss and not destruction of the will and therefore
secondary evidence was permissible. Exhibit PW-1/1, a copy of
the will dated 22.01.1996 executed by late Sujan Kaur has been
proved in accordance with law and therefore the trial court was
right in holding that the will as genuine and valid. No infirmity has
been committed by the trial court calling for interference by this
Court, argued the learned senior counsel.
11. Heard both sides.
12. I briefly refer to the evidence adduced by both sides in
this case. PW-1 in the affidavit filed in lieu of chief examination
has stated that the testatrix is his bhabhi, that is, his brother's wife;
that he went to her house on 22.01.1996 on which day she
requested him to be an attesting witness to the will by which she
intended to bequeath property bearing no.WZ/620 Gali No.19,
Shiv Nagar Delhi Road in favour of her husband, Bakshi Prahlad
Singh (the original petitioner). He agreed to the request of his
bhabhi and he signed the will as an attesting witness. Thereafter,
two of her sons, namely, Jasbir Singh and Harminder Singh
(respondent no.2/objector) also signed as attesting witnesses. He
identified the signature of the attesting witnesses as well as the
signature of late Sujan Kaur, the testatrix. The copy of the will was
marked as exhibit PW-1/1. PW-1 is also seen to have filed an
additional affidavit in lieu of chief examination in which he has
averred that the testatrix was of sound disposing mind at the time
of execution of the will and that the will had been executed
voluntarily by the testatrix out of her free will and without any sort
of pressure from any quarter. In the cross examination, PW-1
deposed that he does not know from where and who had got
Exhibit PW-1/1 will typed or drafted. He reiterated that at the time
of the attestation of the will Ajmer Singh, the brother of the
testatrix and her two sons Harminder Singh and Jasbir Singh were
also present. He denied the suggestion that he was deposing in
favour of the petitioner as the latter had made him a nominee in
two post office savings account. He denied the suggestion that
Exhibit PW-1/1 was a forged and fabricated document, created
after the death of Sujan Kaur by the petitioner in connivance with
others.
12.1. The petitioner when examined as PW-2 stands by the
case in his petition. He deposed that he had lodged a complaint
against his son, the second respondent/objector, as the latter had
stolen the original will and that the complaint had been given to
Hari Nagar Police Station. He denied the suggestion that he had
misled his son into believing the existence of Exhibit PW-1/1 will
and that without showing him the original will had executed
another will dated 13.05.2004 in favour of the sons of the second
respondent. He also denied that his son Harminder Singh on
13.05.2004 had repeatedly requested him to show the original of
Exhibit PW-1/1 will. PW-2 admitted that he had sold the property
on 16.05.2005. He admitted that he had opened two postal savings
accounts on 21.05.2005 and 25.05.2025, but does not remember
whether he had made PW-1 the sole nominee of the said accounts.
12.2. PW-3 record officer of the Sub-Registrar 2 Basai
Dharapur, Delhi was examined to prove the registration of will
dated 13.05.2004 executed by the petitioner in favour of his grand
sons, that is, the sons of the second respondent/objector. The
original of the will was produced by him and the copy of the same
was marked as Ext. PW3/A.
12.3. PW-4 an official of Hari Nagar Police Station deposed
that the complaint dated 31.01.2005 filed by Bakshi Prahalad
Singh (the petitioner) was destroyed in terms of order dated
25.09.2014 of ACP, Head quarters and Exhibit X is the copy of the
said order.
12.4. PW-5 Assistant Health Inspector, West Zone, Rajouri
Garden, New Delhi was examined to prove Exhibit PW-5/1, the
death certificate of Sujan Kaur.
12.5. PW-6 Ahlmad, Court of Metropolitan Magistrate, Tis
Hazari Courts, Delhi was unable to produce the records relating to
the complaint filed by the petitioner. PW-7 deposed that Complaint
case no.186/1/05 was dismissed for default on 10.01.2007 as per
Exhibit PW-7/2 order.
12.6 Now coming to the evidence let in by the second
respondent/objector, who examined himself as R2W1. He deposed
that he is the person in actual possession of the property in
question; that on 13.05.2004 his father had convinced him that the
latter had become the owner of the property by virtue of a will left
by his mother; that no such will had been shown by his father; that
he believed the statement of his father who expressed his intention
to execute a will in favour of his children stating that the same was
the last wish of his mother; that his father executed the will dated
13.05.2004 in favour of his children; that he and his wife attested
the will believing the words of his father; that at the time of the
execution of the will he had no reasons to disbelieve his father;
that his father secretly cancelled the will dated 13.05.2004
executed in his favour of his children; that he came to know about
the cancellation of the will sometime in April 2005; that he
realized that his father had fooled him while persuading him to be
an attesting witness in the will dated 13.05.2004; that his mother
had left no will in respect of the property in question; that he had
approached his father to discuss about the cancellation of the will
of the year 2004, however his father was adamant and hence he
had to file a suit for partition, that is, Suit no 29/2005, which is
pending consideration before the Court. He further deposed that in
the suit for partition his father had filed written statement
admitting the execution of the will dated 13.05.2004 and that he
had sold the property to another person; that the sale by his father
is illegal and was done to defeat his legitimate right in the
property. The suit for partition filed by him was dismissed by
judgment dated 28.09.2007, against which he has preferred regular
first appeal 13/2008 which is pending consideration before the
court. He further deposed that the substituted petitioner, Sirjan Pal
Singh, a relative of one of his neighbours, coming to know that
there were disputes between the father and sons, took advantage of
the situation, influenced his old and ailing father to execute a sale
deed in respect of the property in his favour. His father executed
the sale deed dated 16.05.2005 fully knowing that he had no right
to do so. However, possession has not been handed to Sirjan Pal
Singh, on the other hand, he continues to be in the possession of
the property. He asserted that the will relied on by his father is a
forged and fabricated one, created by his father for depriving him
of his rightful share in his mother's property. In the cross-
examination RW2W1 admitted that he had not lodged any
complaint before the police or filed any case before any Court of
law regarding his case of forgery by his father. He admitted that he
had gone through the draft of the Exhibit PW-3/1 will dated
13.05.2004 executed by his father in favour of his children. He
admitted that his wife had also gone through the contents of
Exhibit PW-3/1 will before attesting the same. He further admitted
his signature in Exhibit PW-3/1. He denied the suggestion that he
had removed the original will dated 22.01.1996 from the almirah
of his father, against which his father had given a police complaint.
12.7 Amarjeet Kaur, wife of the second respondent/objector,
examined as R2W3 supports the case of her husband. In the cross-
examination she admitted her signature in Exhibit PW-3/1 will.
13. In this context it would be apposite to refer to section 237
of the ISA which reads-
"Probate of copy or draft of lost will.--When a will has been
lost or mislaid since the testator's death, or has been destroyed by
wrong or accident and not by any act of the testator, and a copy or
the draft of the will has been preserved, probate may .be granted of
such copy or draft, limited until the original or a properly
authenticated copy of it is produced".
14. It is also necessary to refer to the relevant paragraph in
the petition which reads:-
"That the original of the said will has been stolen
away by S. Harminder singh i.e the son of the testatrix.
However, during her lifetime, the testatrix has got the
photocopies of the said WILL made and the photocopy
appended herewith is the true copy of the original of the said
WILL and in the said circumstances the probate is being
sought on the said photocopy of the original WILL."
15. Therefore the specific case of the petitioner is that the
original will had been stolen by the second respondent/objector
and not that it was destroyed at any point of time by the testatrix.
Here it is also necessary to refer to Section 65 of the Evidence Act
which reads-
65. Cases in which secondary evidence relating to
documents may be given.--Secondary evidence may be
given of the existence, condition, or contents of a document
in the following cases: --
(a) when the original is shown or appears to be in the
possession or power -- of the person against whom the
document is sought to be proved, or of any person out of
reach of, or not subject to, the process of the Court, or of any
person legally bound to produce it, and when, after the notice
mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the
original have been proved to be admitted in writing by the
person against whom it is proved or by his representative in
interest;
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents cannot, for
any other reason not arising from his own default or neglect,
produce it in reasonable time;
(d) when the original is of such a nature as not to be
easily movable;
(e) when the original is a public document within the
meaning of section 74;
(f) when the original is a document of which a
certified copy is permitted by this Act, or by any other law in
force in [India] to be given in evidence;
(g) when the originals consist of numerous accounts
or other documents which cannot conveniently be examined
in Court, and the fact to be proved is the general result of the
whole collection.
In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but
no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has examined
them, and who is skilled in the examination of such
documents."
(Emphasis Supplied)
16. Going by the case in the petition, this is a case where
Section 65(c) is applicable and not 65 (a) as submitted on behalf of
the petitioner.
17. The fact that the original petitioner had moved a
complaint against the theft is borne out by the records in the case.
It is true that the said complaint was later on dismissed for default.
However, one aspect that needs to be noticed is that the petitioner
had executed Exhibit PW-3/1 will asserting that he was the owner
of the property based on Exhibit PW-1/1 will executed by his late
wife, and claiming so, he bequeathed the property in favour of his
grand sons, namely, the children of the second respondent/the
objector. In Exhibit PW-3/1 will, the second respondent/objector
as well as his wife are attesters. This fact is admitted by both the
second respondent and his wife. In the replication, the petitioner
had also referred to the execution of Exhibit PW-3/1 will in favour
of his grandsons. According to him, after Exhibit PW-3/1 will had
been executed, the second respondent and his family ill treated and
also went to the extent of physically abusing him. This appears to
be the reason which prompted him to revoke Exhibit PW-3/1 will.
This conduct of the second respondent in being an attesting
witness in Exhibit PW-3/1 will executed by his father substantiates
the allegation of execution of Exhibit PW-1/1 will by his late
mother in the year 1996. As long as the father had bequeathed the
property to his sons, the second respondent/objector seemed to
have no complaints against the same. But as soon as his father
cancelled Exhibit PW-3/1 will, the second respondent comes with
a case of forgery and fabrication of Exhibit PW-1/1 will by his
father. The testimony of PW-1, the attesting witness, has not been
discredited in any way. No reasons have been shown to disbelieve
the testimony of the attesting witness. The second
respondent/objector has no case that his mother was not in a sound
disposing state of mind when Exhibit PW-1/1 will was executed.
PW-1 is admittedly his paternal uncle. The second
respondent/objector has no case that PW-1 had deliberately
deposed falsehood against him.
18. Admittedly, during the pendency of the proceedings, the
property had been sold by the original petitioner the substituted
petitioner without informing the court. This prompted the trial
court to dismiss the probate petition on the ground that the original
petitioner had concealed material facts. This dismissal had not
been challenged by the substituted petitioner. Therefore, I find no
reasons to interfere with the said finding of the trial court. The
materials on record prove the execution of Exhibit PW-1/1 will
and therefore I find no infirmity in the impugned order calling for
an interference by this court
19. In the result, the appeal sans merits is dismissed.
20. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
DECEMBER 10, 2025
MJ/NP
