[Cites 11, Cited by 0]

Delhi High Court

Prabha Devi vs State & Ors on 12 December, 2025

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  %                      Judgment Reserved on: 08.12.2025
                                                         Judgment pronounced on: 12.12.2025

                          +      FAO 165/2012 & CM APPLs. 6680/2012, 1841/2013, 4447/2017,
                                 4448/2017, 8796/2022, 8797/2022, 8798/2022 & 17973/2024

                                 PRABHA DEVI                                  .....Appellant
                                                Through:     Mr. Munish Kr. Singh, Advocate

                                                versus

                                 STATE & ORS                                  .....Respondents
                                                Through:     Mr. Vidit Gupta, Mr. Rajesh Bansal,
                                                             Mr. Navin Bainsla and Mr. Trivesh
                                                             Sharma, Advocates for LRs. of
                                                             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) has been filed by the

objector/respondent no. 12 in the probate petition P.C. No.

69/2011 filed under Section 276 and 278 of the ISA on the file of

the learned Additional District Judge, South District, Saket Courts,

Delhi, aggrieved by the order dated 30.11.2011 by which the

petition was allowed.

2. In this appeal, the parties herein shall be referred to in the

same rank as they were arrayed in the original probate petition.

3. Brief facts borne out by the record are: Late Ms. Lakhmi

Devi (the testatrix), an unmarried Hindu woman, died on

29.04.1996 at her residence situated, at House No. 1/40498,

Village Mochi Bagh, New Delhi. The property comprised of three

rooms and appurtenant portions standing on a plot measuring 77

square yards. The testatrix was a teacher in a School of the

Municipal Corporation of Delhi.

3.1. The petitioner, being the niece (bhanji) of the testatrix,

alleged that the testatrix, being her mausi was in a sound disposing

state of mind and of her own volition, had executed her last Will

dated 30.03.1996 bequeathing her immovable property at Mochi

Bagh, her savings account in Punjab National Bank, her General

Provident Fund (GPF) account bearing no. T.T. 37680, and her

National Savings Certificate exclusively in favour of the petitioner.

The said Will has recorded that the testatrix had great love and

affection for the petitioner and that the latter was the only one,

who cared for her. The Will bears the signature of two attesting

witnesses, namely, Sh. Mool Chand and Smt. Maimo Devi.

3.2. The petitioner also asserted that the testatrix had handed

over the original copy of the Will in dispute to the petitioner along

with the original documents of her property about 20 to 22 days

prior to her death. According to the petitioner, after the death of

the testatrix, the respondents, who are her close relatives, had no

independent place to live and hence on their request, permitted

their continued residence in the Mochi Bagh property. The

petitioner permitted objectors/respondent nos. 11, 12, and 13 to

remain therein as caretakers on humanitarian grounds.

Subsequently, disputes arose and hence the probate petition.

3.3. The objectors/respondents 6, 7, 12 and 13 raised

objections that the petition was founded on concocted and

distorted facts and that the Will dated 30.03.1996 was forged,

fabricated and surrounded by suspicious circumstances. The Will

does not disclose the place of its execution, and that the parentage

and the addresses of the attesting witnesses were not mentioned.

The petitioner, after remaining silent for nearly 15 years after the

death of the testatrix, has forged and fabricated the Will. They also

contended that the petitioner was acting in collusion with

respondent nos. 2 to 5 to grab the property of the testatrix.

3.4. According to the objectors/respondents the petitioner has

never been close to the testatrix and denied any sort of love and

affection between them. It was contended by the

objectors/respondents that, it was not the petitioner, who

performed the last rites of the testatrix, rather it was respondent no.

13, Kishore, who had performed the kriya and the other

ceremonies as he had been treated by the testatrix as her real son. It

was also their case that respondent No. 13 had been orally adopted

by the testatrix when the former was aged five years, with the

permission of respondent nos. 6 and 7, and has been raised by the

testatrix in Delhi since then. On the said basis, the

objectors/respondents claimed rights over the estate of the

testatrix.

3.5. The objectors/respondents also contended that they have

been in lawful possession of the Mochi Bagh property right from

the beginning and that still they continue to be in lawful possession

of the same. They denied the allegation of the petitioner that the

latter had permitted them to stay in the property as caretakers.

4. On completion of pleadings, necessary issues were formed

by the trial court. Parties went to trial on the basis of the aforesaid

pleadings. Evidence was led by both the parties wherein the

petitioner examined herself as PW-1 and the attesting witness

Mool Chand was examined as PW-2. Maimo Devi, the other

attesting witness passed away before the commencement of the

trial. Respondent no. 7, Pratap Singh, the nephew of the testatrix

was examined as DW-1, Respondent No. 13, Kishore @ Guddu,

contended to be the adopted son of the testatrix was examined as

DW-2. Respondent No. 12, Prabha Devi, (the appellant herein),

was examined as DW-3. Evidence by way of affidavits were

marked as PW1/A, PW2/A, DW1/A, DW2/A and DW3/A.

Exhibits were marked as Exhibits P1 to P-5, the death certificate of

the testatrix was marked as Exhibit PW1/1, the Original will was

marked as Exhibit PW1/2, the receipt of wood purchased for the

cremation of the testatrix was marked as Exhibit PW1/3, Copy of

the original diary pages of the testatrix was marked as Exhibit

PW1/4 and the personal memoranda of the testatrix, as PW1/5.

5. After perusing the records and appreciating the evidence

led by both the parties, the trial court granted probate in favour of

the petitioner. Aggrieved by the impugned order, the

objector/respondent no. 12 has come up in appeal.

6. It is submitted by the learned counsel for the

objector/respondent no. 12 that the Will dated 30.03.1996 is a

forged and fabricated document. The learned counsel would place

reliance on the Annexure A-8 Report of an Expert, , who opines

that the Will is fabricated.

6.1 It was also urged by the learned counsel that there are

multiple suspicious circumstances on the face of the Will, which

the trial court failed to appreciate, including the Will does not

record the place of its execution; that it contains inconsistent

particulars regarding the date of the purchase of the property,

inasmuch as the testatrix herself states in the Will that the property

was purchased on 15.1.1984, whereas the petitioner in the probate

petitioner asserts that the purchase took place on 20.09.1984; and

that the Will also omits the names and particulars of the attesting

witnesses.

6.2 The learned counsel also submitted that the testatrix

treated the objector/respondent no. 12 and respondent no. 13 as her

children , and hence, the last rites of the testatrix was performed by

respondent no. 13. The learned counsel urged that this close

familial relationship makes it unlikely that the testatrix would have

excluded them from her estate, thereby requiring the Will in favour

of the petitioner to be examined with greater scrutiny.

6.3 It was further submitted that the testatrix was not in a

sound disposing state of mind, when the Will was executed.

Reliance was placed on the xerox copy of a medical certificate to

contend that the testatrix was not in a good state of health. The

learned counsel would also rely on certain pages of PW1/4

personal diary of the testatrix to submit that her mental condition

was deteriorating.

6.4. The learned counsel would also contend that the

testatrix's affection for the petitioner had diminished over time. It

was urged that the petitioner has selectively relied upon favourable

entries in the diary while suppressing others, and that the diary as a

whole does not support the petitioner's case.

7. Per contra, the learned counsel for the petitioner submitted

that the expert opinion relied upon by the objector/respondent no.

12 is inadmissible and cannot be looked into, because the expert

report was obtained after the impugned order was delivered. It was

also emphasised that the expert report has been merely placed as

Annexure-8 of the appeal, which was never formally exhibited or

proved before the trial court. The learned counsel would also urge

that this Court rejected the application dated 14.04.2023 moved by

the objector/respondent no. 12 under Order XXVI Rule 10A CPC

for appointment of an expert vide order dated 30.04.2025. Hence,

the expert report is not admissible. It was also submitted that the

impugned order suffers from no infirmity calling for an

interference by this Court

8. Heard both sides and perused the records.

9. The principal issue that falls for consideration in this

appeal is whether the trial court has erred in granting probate to the

petitioner for the Will dated 30.03.1996.

10. Before I proceed to analyse whether due execution and

testamentary capacity stand proved, it is necessary to briefly notice

the depositions of the material witnesses. PW-1, the petitioner,

deposed that she is the niece of the testatrix and that the latter had

executed the Will dated 30.03.1996 of her free volition. She

deposed that the testatrix handed over the Will and other

documents to her 20 to 22 days prior to her death. She identified

the testatrix's signatures on the Will (Ex. PW-1/2) and denied the

suggestion that the Will was forged or prepared after the death of

the testatrix. She also deposed that the diary (Ex. PW-1/5) was

recovered from the testatrix's box after her death and that Kishore

(respondent no. 13) and Prabha (the objector/respondent no. 12)

have been residing with the testatrix since childhood.

10.1. PW-2, the surviving attesting witness, deposed that the

testatrix, his sister-in-law, had read over the contents of the Will to

him on 30.03.1996 and thereafter signed it in his presence,

followed by the signatures of the second attesting witness, Maimo

Devi, and then himself. He stated that only the three of them were

present at the time of execution, and that the petitioner was not

present. He affirmed that the testatrix was hale and hearty at the

time of execution and expressly denied the suggestion that the

signatures of the testatrix were obtained on a blank paper later

filled in.

10.2. DW-1, Shri Pratap Singh, nephew of the testatrix,

deposed that he had lived with her for several years and that he had

purchased the suit property in her name by contributing part of the

sale consideration. He stated that his son Kishore (respondent no.

13) lived with the testatrix from childhood and was treated by her

as an adopted son, though he admitted that no formal adoption ever

took place. He also acknowledged that official records continued

to show him as Kishore's father. He denied the allegation that the

Will was genuine and asserted that the petitioner had prepared a

forged document.

10.3. Respondent no. 13, when examined as, DW-2, deposed

that he resided with the testatrix from childhood and regarded

himself as her adopted son, although he admitted that all official

records name Pratap Singh as his father (DW-1) and no document

records the testatrix as his mother. He denied knowledge of the

number of documents that were taken after the testatrix's death and

deposed that the petitioner had removed certain papers. He claimed

to have performed the testatrix's last rites. He accepted that the

Will mentions "New Delhi" as the place of execution, but denied

its genuineness. He conceded that the testatrix had deep affection

for the petitioner.

10.4. DW-3, respondent no. 12, the appellant herein, deposed

that she and respondent no. 13, Kishore (DW-2) were raised by the

testatrix as her adopted children and lived with her at the suit

property, though she admitted that no documentary proof of

adoption exists and that all her official records name her biological

father, Shri Kanta Prasad. She stated that the testatrix supported

their studies and daily needs and denied that the petitioner

permitted them to stay as caretakers. She acknowledged that the

testatrix and petitioner shared affection, but denied that the Will

was ever executed, asserting that it was forged and fabricated by

the petitioner after the testatrix's death.

10.5. As noticed earlier, the only contention in the objections

filed is that Exhibit PW-1/2, the Will, is forged and fabricated; and

that the testatrix had no love or affection for the petitioner.

According to the objectors/respondents nos. 12 and 13, they were

adopted by the testatrix and are, therefore, entitled to succeed to

her estate. However, insofar as the contention of forgery and

fabrication is concerned, there are no specific pleadings to that

effect. There was no case set up that the signature of the testatrix

on the Will was forged, or that her signature had been obtained on

a blank sheet of paper and thereafter fabricated into a Will.

Notwithstanding the absence of such pleadings, the suggestion put

to PW-2, the attesting witness, during cross examination reads

thus:-

".............It is wrong to suggest that the signature of the

deceased were obtained on a blank paper and the contents were

written thereafter.............."

10.6. Therefore, what emerges is that the case that is seen to

be developed at the evidence stage is that the blank signed papers

of the testatrix was converted/fabricated into a Will after her death.

However, no such plea was ever taken in the objections filed by

the objectors/respondents.

11. To substantiate the case of forgery and fabrication,

reliance was placed on Annexure A-8, stated to be the 'Report' of

an expert. A rather striking aspect of this document is, a very

interesting query posed to the expert namely: "Whether the

execution of the aforesaid Will is genuine or not?" The expert has

concluded thus:-

"I made a very careful examination of the 'Will' with the aid

of the magnifying lenses and the flash magnifiers as well as with

the supplied photostate and with it's enlarged photograph taken

with digital camera by me is being submitted after due marking

with this Report............"

"After due scientific comparison and examination, I am of

the opinion that the execution of the 'Will ' is not genuine as is

executed/typed over a already/prior signed paper. My this opinion

is based on the force of the following scientific reasons-

........................."

11.1. Thereafter, the 'expert' goes on to give reasons for his

conclusion. The learned counsel for the objector/respondent No.12

was unable to explain the provision of law under which such a

report could be rendered admissible in evidence.

12. Here I refer to Section 45 of the Evidence Act, 1872 (the

Evidence Act), which reads as follows:-

"45. Opinions of experts.--When the Court has to form an

opinion upon a point of foreign law or of science, or art, or as to

identity of handwriting or finger impressions, the opinions upon

that point of persons specially skilled in such foreign law, science

or art, or in questions as to identity of handwriting or finger

impressions are relevant facts.

Such persons are called experts."

(Emphasis Supplied)

12.1. A reading of the aforesaid provision makes it clear that

the opinion of an expert is sought when the Court is required to

form an opinion upon a point of foreign law, science, art, or

regarding the identity of handwriting or finger impressions. The

query that has been posed to the 'expert' does not fall within the

ambit of Section 45 of the Evidence Act. As noticed earlier, the

objector/respondent No.12 does not have a case in the

counter/objections that the petitioner had forged or fabricated the

signature of the testatrix appearing on the Will. The expert was

never asked to compare the signature in the disputed Will with that

of any admitted signature(s) of the testatrix to ascertain whether

the signature on the Will is genuine or not. Instead, the expert was

asked to opine on: "whether the Will is genuine or not". That does

not fall within the domain of an expert. The said question needs to

be decided by this Court on the basis of the evidence on record.

12.2. It must also be noted that this Court, vide order dated

30.04.2025, dismissed the application dated 14.04.2023 moved by

the objector/respondent no. 12 under Order XXVI Rule 10A CPC

seeking appointment of an expert for examination of the Will.

Annexure A-8 report appears to have been obtained by the

objector/respondent no. 12 on her own. For the aforesaid reasons,

the report cannot be looked into.

13. In the objections filed, there is only a vague and

unsubstantiated plea that the Will is forged and fabricated. There is

no assertion therein that blank paper(s) bearing the signature of the

testatrix was subsequently fabricated into a Will by the petitioner

after the death of the former. Significantly, when the petitioner

entered into the witness box and examined herselfas PW-1, no

such case was put to her by the objectors/respondents. Not even a

suggestion was put to her that she had forged the signature of the

testatrix. The only suggestion put to her were general allegations

with respect to forgery and fabrication. It is only at the stage when

PW-2, the attesting witness, was in the box, a new story emerged

that it was a blank signed paper which was converted into the Will

in question. It is well settled that no amount of evidence can be

looked into a plea never put forward. In the present case, there are

neither pleadings nor the evidence to show that the Will was

forged or fabricated in a blank signed paper of the testatrix.

14. It is true that the Will is of the year 1996 and the probate

petition came to be filed in the year 2011, that is, after a lapse of

nearly 15 years. However, the petitioner has given an explanation

for the delay. According to her, the respondents were permitted to

reside in the property as caretakers and that initially there were no

issues. Thereafter, quarrels and disputes arose between the parties

which resulted in the filing of the probate petition. On the facts

and circumstances, the explanations furnished by the petitioner

appears quite plausible.

15. Further, there is no specific or definite plea in the

objections that the testatrix was not in a sound disposing state of

mind. It is only stated that she had several ailments. What exactly

were the ailments, has not been pleaded or proved. The only

medical material relied upon is a xerox copy of a certificate

showing that the testatrix was admitted to hospital with routine

ailments relatable to age. The certificate does not record any

cognitive impairment, nor was the doctor examined to establish

mental incapacity. Mere illness, physical weakness or emotional

distress cannot, in law, negate a person's sound disposing state of

mind. This Court, in Nirmal Batla & Ors. v. State,

2025:DHC:10881, has reiterated that a testator need not be in

perfect health for a Will to be valid; physical frailty does not

eclipse testamentary competence so long as the testator

comprehends the nature of the act and the disposition intended.

The decision in GordhandasNathlal Patel v. Bai Suraj,AIR

1921 Bom 193; Chhanga Singh v. Dharam Singh, AIR 1965

P&H 204; and Har Narain v. Budhram, 1991 SCC OnLine Del

351 likewise affirm that even a testator suffering from serious

physical limitations may execute a valid Will if he/she is in a

sound disposing state of mind. In the present case, PW-2, the

attesting witness, categorically affirmed that the testatrix was fully

conscious, aware, and had voluntarily executed the Will, and his

testimony remained unshaken in cross-examination. Once the

statutory witness attests to a competent, conscious execution,

unsubstantiated contentions of ill health cannot be elevated to

suspicious circumstances.

16. The diary (Ex. PW-1/5) was introduced by the petitioner

herself and contains both affectionate and frustrated expressions of

the testatrix. Respondent no. 12/the appellant selectively relies on

entries where the testatrix appears distressed or disheartened in her

interpersonal relationships. The absence of confrontation of these

diary extracts to PW-1 during trial fatally undermines their

probative worth against the petitioner. A diary is an introspective

record, and occasional disappointment or emotional fluctuation

does not amount to a deterioration of testamentary capacity nor

establish hostility towards the petitioner. Indeed, nothing in the

diary is inconsistent with the testatrix retaining affection for the

petitioner, much less with the voluntariness of executing the Will.

17. The alleged adoption of respondent no. 13 and

respondent no. 12/the appellant is unsupported by any document,

ceremony, or contemporaneous record. Official documentation

uniformly shows respondent no. 7, Pratap Singh (DW-1) as the

biological father of DW-2 (respondent no. 13), and respondent no.

12/the appellant as the daughter of Kanta Prasad. The contention

that Respondent No. 13 performed the last rites also does not aid

respondent no. 12/the appellant. Further, it is also apposite to note

that the objector/respondent no. 12's cross-examination of PW-1

contained a crucial suggestion, which reads thus:

"It is incorrect to suggest that I had taken the possession of

Will, documents and a diary after the death of my mausi

forcefully. Vol. the children had given the same to me."

(Emphasis Supplied)

17.1. This suggestion, emanating from the

respondent/objectors, presupposes that a Will already existed at the

time of the death of the testatrix. Such a suggestion irreconcilably

contradicts the foundational allegation that the Will was fabricated

by typing matter over a pre-signed blank sheet after the death of

the testatrix. The appellant's own evidence thereby destroys her

core plea.

18. In view of the aforesaid circumstances, the Will in

question stands proved in accordance with Section 63(c) of the

ISA and Section 68 of the Evidence Act. The trial court rightly

appreciated the materials on record and found no suspicious