[Cites 2, Cited by 0]
Delhi High Court
Jawaharlal Malhotra & Anr vs State & Ors on 20 December, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 16.12.2025
Judgment pronounced on:20.12.2025
+ FAO 48/2014
JAWAHARLAL MALHOTRA & ANR .....Appellants
Through: Mr. Rajeev Saxena, Sr. Advocate
along with Mr. K.K. Srivastava, Ms.
Megha Saxena, Ms. Shreya
Bhatnagar, Advocates.
versus
STATE & ORS .....Respondents
Through: Ms. Shobhana Takiar along with Mr.
Kuljeet Singh and Mr. Shivam Takiar,
Advocates.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. This is an appeal under Section 299 of the Indian
Succession Act, 1925 (the ISA) filed by respondent no. 4, 10 & 11
in Probate Case no. 20 of 2003 on the file of Learned ADJ, Central
District, Delhi aggrieved by the order dated 29.10.2013 by which
the probate petition was allowed and a letter of administration
granted to the petitioner. Respondent no. 4 and 10 died during the
pendency of the proceedings and hence their legal
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representatives/heirs have been brought on record.
2. In this appeal, unless otherwise specified, the parties will
be referred to as described in the original petition.
3. The facts relevant to the present appeal are as follow: Late
Jugal Kishore, son of late Lajja Ram, was the owner of property
bearing no. 2271, Gali No. 69, Naiwala, Karol Bagh, New Delhi.
He died on 04.01.1997. Jugal Kishore was survived by four sons,
i.e., respondents 3 to 5 and the original petitioner, namely,
Ajudhya Prakash and three daughters, that is, respondents 6 to 8.
3.1. The probate petition was instituted on 02.06.1998 by one
of his sons, Ajudhya Prakash, alleging that his father had executed
a Will dated 18.09.1995, which was registered on 05.02.1996
before the Sub-Registrar Office, Delhi. He claimed to be a
beneficiary under the aforesaid Will and asserted that the Will had
been executed by the testator in a sound and disposing state of
mind and in accordance with law.
3.2. During the pendency of the proceedings, the original
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petitioner, Ajudhya Prakash, died and hence by order dated
20.01.2001, respondent no. 9, his son, was ordered to be
transposed as the petitioner by the trial court.
4. Respondent no. 4 along with his sons respondent nos. 10
and 11, vide their reply contended that the Will dated 18.09.1995
was forged and fabricated and that it had not been executed by late
Jugal Kishore, who was about 90 years of age, suffering from
several ailments, and was not in a sound and disposing state of
mind at the relevant time. The respondents further contended that
late Jugal Kishore had earlier executed a registered Will dated
22.04.1994 in favour of Prem Lata, wife of respondent no. 4 and
their sons, which represented the true testamentary intention of the
former. It was contended that the property bequeathed to them had
been mutated in their favour.
4.1. It was further contended that execution of the Will dated
18.09.1995 was surrounded by several suspicious circumstances,
including the strained relations between Jugal Kishore and the
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petitionerwhen the Will is alleged to have come into existence.
Jugal Kishore had issued a "Pharkhati" disowning the petitioner,
which was published in a daily newspaper on 29.05.1987. Jugal
Kishore had issued a legal notice dated 12.10.1987 to the petitioner
calling upon him to vacate the portion of the property in his
occupation. It was also contended that Jugal Kishore had moved
applications dated 28.09.1995 and 07.08.1996 in a civil suit
pending before the court of a Civil Judge at Delhi, alleging
violation of an injunction order by the petitioner and his son
Madan Mohan and that the former had also lodged a complaint
dated 16.07.1996 with the Station House Officer, Karol Bagh,
against the latter.
4.2 It was further contended that on 02.12.1996, Jugal
Kishore had instituted a civil suit against the petitioner seeking
possession and recovery of damages. According to the
respondents, had Jugal Kishore executed the Will relied upon by
the petitioner, he would not have initiated the aforesaid
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proceedings, issued the notice to vacate, or filed a suit for
possession against the latter.
4.3. The respondents also contended that the Will was drafted
and attested by advocates who had been appearing against Jugal
Kishore and was registered at a Sub Registrar office far away from
his residence, thereby casting serious doubts on its genuineness. It
was contended that as per the Will propounded by the petitioner, a
portion alleged to be in the occupation of one M. B. Singh was
shown as bequeathed to the son of the petitioner, namely, Madan
Mohan. In fact Jugal Kishore had instituted a suit against the
aforesaid M.B. Singh and, after the demise of the latter, had
obtained possession of the said portion through court. Thereafter,
the said portion had been let out by Jugal Kishore to M s N. N. and
Company in the year 1993 as per a written rental agreement, which
agreement had been placed on record in the earlier proceedings.
Hence, M. B. Singh was not in possession of any portion of the
premises on the date of the execution of the alleged Will and that
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the recitals therein to the said effect are factually incorrect, which
is also a ground to suspect the Will.
4.4. The signatures and thumb impression appearing on the
Will were disputed and contended to be forged and fabricated. The
respondents contended that in the written statement filed by the
petitionerin an earlier suit, it was pleaded that the latter had
contributed 50% of the consideration for purchase of the property.
This assertion was specifically denied by Jugal Kishore in his
replication dated 30.05.1996, filed much after the execution of the
alleged Will.
4.5. Respondent no. 4 and his sons, i.e. respondent no. 12 &
13 filed reply contending that the Will relied on by the petitioner
was not a valid or legally enforceable testament. According to
them, the property in question had been acquired by Jugal Kishore
out of the custodian funds belonging to the family members and
therefore, Jugal Kishore did not have unfettered rights to dispose
of the same by way of a Will.
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4.6. It was further contended that the alleged Will dated
18.09.1995, stated to have been registered on 05.02.1996, was not
executed or registered in accordance with law. The petition has
been filed concealing material facts relating to disownment of the
petitioner by Jugal Kishore, prior disputes, and pending litigation
concerning the property in question. It was contended that such
concealment vitiated the probate proceedings.
4.7. Respondent no. 5 & his son respondent no. 14 filed their
objection disputing the execution of the Will. Jugal Kishore had
never executed any Will in favour of the petitioner and that the
document relied on was forged and fabricated with the intent to
deprive the other legal heirs of their lawful rights. It was further
contended that Jugal Kishore during his lifetime had disowned and
disinherited the petitioner from all his movable and immovable
properties by way of a public notice published in a daily
newspaper named "Statesman" in the year 1987, which
disownment was never withdrawn till his death and that in view of
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such disownment, there was no occasion for execution of any Will
in favour of the petitioner.
5. In the rejoinder filed to the objection of respondents no. 4,
10 & 11 and in the replication to the objections raised in the
written statement of respondent no. 5 & 14, the petitioner denied
all the contentions of forgery, fabrication, lack of testamentary
capacity, and suspicious circumstances, and asserted that Jugal
Kishore was in a sound and disposing state of mind at the time of
execution of the Will. The plea regarding existence of the earlier
Wills dated 18.11.1986 & 22.04.1994 was specifically denied and
it was stated that the said documents were forged and suspicious,
having excluded the natural heirs from the bequest. The petitioner
also denied the contention that Jugal Kishore had issued any
"Pharkhati" disowning him or that any such notice was published
in the newspaper. With respect to the pending and prior litigations,
it was contended that some suits were either withdrawn or
dismissed, while others were not instituted with the consent or
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instructions of Jugal Kishore, who was seriously ill at the relevant
time.
6. Respondents no. 6 and 8, the daughters of Jugal Kishore
remained ex-parte. Respondent no. 7, another daughter, died
during the pendency of the proceedings and so her legal
representatives were impleaded, who adopted the reply filed by
respondents no. 4, 10 and 11.
7. On completion of pleadings, necessary issues were raised
by the trial court. The parties went to trial on the basis of the above
said pleadings. On behalf of the petitioner, PW-1 to PW-4 were
examined, and exhibits PW-4/1 to PW-4/2, PW-1/R-1 to PW-1/R-
8&PW-3/A were marked. The respondents/objectors examined
RW-1 to RW-3 and exhibits RW-1/1 to RW-1/22 and RW-2/1 to
RW-2/28were marked.
8. On a consideration of the oral and documentary evidence
and after hearing both sides, the trial court allowed the petition.
Aggrieved, respondents no. 4, 10 and 11 have come up in appeal.
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9. It was submitted by the learned senior counsel
appearing for the appellants/respondents no. 4, 10 and 11/
objectors (hereinafter referred to as the respondents) that there are
several suspicious circumstances surrounding the execution of the
Will which have not been cleared by the petitioner and hence, the
trial court went wrong in allowing the petition for probate. Per
contra, it was submitted by the learned counsel appearing for the
petitioner that there are no suspicious circumstances surrounding
the execution of the Will and all those which have been raised by
the respondents have been clarified in the examination of the
petitioner's witnesses. The testimony of PW-1 and the testimony
of the attesting witnesses examined as PW-4 has not been
discredited in any way and, therefore, the trial court was right in
allowing the petition. There is no infirmity calling for an
interference by this Court, goes the argument.
10. Heard both sides and perused the materials on record.
11. Before going into the merits of the case, I briefly refer to
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the evidence on record. PW-1, the substituted petitioner, in his
chief examination reiterated his case in the petition. PW-1 when
cross examined deposed that he has been residing at property No.
2271/68-69, Naiwala, Karol Bagh, New Delhi, for over 40 years
and that relations between his father (the original petitioner) and
his grandfather (Jugal Kishore) were cordial. He denied any
knowledge of the public notice of disinheritance or 'Pharkhatis'.
PW1 admitted that his grandmother executed a Will dated
23.09.1973 in favour of his father but denied the authenticity of the
subsequent Will dated 18.11.1986 executed by her. He disputed
the genuineness of the Will dated 22.04.1994 in favour of Prem
Lata and her sons, stating that it was forged. PW-1 admitted that
Advocate Sunil Mittal (PW-4), his father's counsel, is the second
attesting witness to the Will. PW-1 confirmed filing suits for
possession and declaration against family members and the
objectors, including objections to mutations with DDA.
11.1. PW-2, Record Clerk, Sub Registrar, Seelampur,
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deposed that the Will dated 18.09.1995 of late Jugal Kishore
Malhotra was registered on 05.02.1996 vide registration no. 5042,
though the office copy could not be produced as the record was not
traceable.
11.2. PW-3, Clerk, office of Sub Registrar IV, Nandnagri,
Delhi, produced the Peshi Register for the period 09.01.1996 to
07.02.1996 and deposed that the Will dated 05.02.1996 of late J.K.
Malhotra was registered vide registration no. 5048 dated
05.02.1996. He deposed that the office copy of the Will was not
traceable as it had not been incorporated in the register concerned.
He confirmed that the particulars of registration on the original
Will marked X tallied with the entries in the Peshi Register, the
relevant extract of which was marked as Ex. PW-3/A.
11.3. PW-4, Advocate Sunil Mittal, one of the attesting
witnesses, deposed that on receiving a telephonic request from
Ajodhya Prakash, (the original petitioner) he reached the office of
Sub Registrar, Seelampur, where late Jugal Kishore Malhotra,
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Ajodhya Prakash, and one Tara Dutt were present. He deposed that
by the time he reached the office, the Will had already been
prepared and signed by Jugal Kishore and the other attesting
witness, namely, Tara Dutt. The copy of the Will was marked as
Ex. PW-4/1.He admitted that he had filed the present probate
petition and attested its verification, which was marked as Ex. PW-
4/2.PW-4 admitted that he had been appearing as counsel for
Ajodhya Prakash and Madan Mohan Malhotra but denied any
collusion, manipulation, or fabrication of the Will. He denied that
Tara Dutt was his clerk or that Advocate Manoj Kumar, who
drafted the Will, was his junior. According to him, although one
Manoj Kumar had earlier worked as his junior, the said person was
different from the advocate who drafted the Will and signed it.
PW-4 further deposed that the photograph affixed on the Will was
of Jugal Kishore and that the person whose photograph was affixed
had signed the Will at points A and B in his presence. He denied
noticing any discrepancy in the signatures of Jugal Kishore on the
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Will.
11.4. PW-4 further denied the suggestions that the Will was
forged; that registration was deliberately conducted at Sub
Registrar, Seelampur to facilitate manipulation; or that any record
was removed or tampered with after registration. PW-4 denied any
knowledge of the Will dated 22.04.1994 or of any disinheritance of
Ajodhya Prakash by public notice. He maintained that he was
never counsel for late Jugal Kishore and denied all allegations of
conspiracy, forgery, or false deposition.
12. Respondent no. 10, the son of respondent no. 4 was
examined as RW-1. RW-1 deposed that the original petitioner had
filed a petition for probate for the same Will and that exhibit PW-
4/R-1 is the certified copy of the said probate petition. The said
petition was dismissed as withdrawn by the petitioner. According
to RW-1, the relations between Jugal Kishore and his son, Ajodhya
Prakash were not cordial and that Jugal Kishore had given
'Parkhati' to Ajodhya Prakash and that exhibit RW-1/2 public
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notice was given to the said effect in the 'Statesman' newspaper
dated 29.05.1987. Jugal Kishore had issued exhibit RW-1/3 notice
dated 12.10.1987 to Ajodhya Prakash calling upon him to vacate
the portion of the building in his occupation. RW-1 further
deposed that Roop Rani, wife of Jugal Kishore and mother of
Ajodhya Prakash, who was the owner of building no. 2051-56,
Kinari Bazar, Delhi had initially executed a will dated 23.09.1973,
the copy of which is exhibit PW-1/4. However, this Will was
cancelled by her by way of exhibit RW-1/5 Will dated 13.11.1986
due to the quarrelsome behaviour of her son, Ajodhya Prakash.
Both the Wills were registered in the office of Sub-Registrar,
Kashmiri Gate, Delhi. The original petitioner as well as
respondents 4 and 5 filed probate petitions in respect of the
aforesaid Wills. Probate case no. 122/08/91 in respect of Will
dated 23.09.1973 was dismissed and Probate case no. 121/08/02 in
respect of Will dated 18.11.1986 was allowed by exhibit RW1/6,
judgment dated 17.11.2008. Jugal Kishore filed his no objection,
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that is, exhibit RW-1/7, regarding Will dated 18.11.1986. Exhibit
RW-1/8 is the objection of Jugal Kishore relating to Will dated
23.09.1973.
12.1. RW-1 further deposed that Jugal Kishore had filed a
suit for permanent prohibitory injuction against the petitioner and
his son on 30.08.1991 before this Court in respect of the property
in question. Exhibit RW-1/9 is the written statement of Ajodhya
Prakash and his son Madan Mohan and Exhibit PW-1/R-5 is the
replication of Jugal Kishore. According to RW-1, Ajodhya Prakash
had contended in his written statement that 50 % of the sale
consideration for the property had been contributed by him, which
contention was denied by Jugal Kishore in the replication filed by
him in the aforesaid suit. The replication was filed on 03.05.1996,
much after the execution of the alleged Will on 18.09.1995, which
fact itself would show that the Will dated 18.09.1995 is forged and
fabricated. RW-1 further deposed that Jugal Kishore had moved
exhibit PW-1/R-6 and PW-1/R-7 applications dated 29.09.1995
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and 07.08.1996 respectively alleging violations of the injunction
order by Ajodhya Prakash and Madan Mohan. Jugal Kishore had
also given exhibit RW-1/10 complaint dated 16.07.1996 to SHO,
Karol Bagh Police Station, New Delhi against Madan Mohan. In
the aforesaid suit, after the death of Jugal Kishore, exhibit RW-
1/11 application for substitution based on the Will dated
22.04.1994 was moved by the beneficiaries. The said application
was allowed by exhibit RW-1/12 order dated 14.07.1998. Neither
the application nor the substitution was objected by Ajodhya
Prakash nor was the existence of the Will in question dated
18.09.1995 ever set up in the said proceedings.
12.2. RW-1 further deposed that Jugal Kishore had executed
a Will dated 22.04.1994 duly registered with the Sub-Registrar
office, Kashmiri Gate, Delhi bequeathing the property in question
to Prem Lata, the wife of the fourth respondent as well as to their
sons, that is, himself and respondent no. 11. The copy of the Will
was marked as exhibit RW-1/13. Thereafter, the property was
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mutated in their names by DDA on 18.06.1988 and by the MCD
on 25.08.1988 as per exhibits RW-1/14 and RW-1/15 respectively.
No objection was filed by Ajodhya Prakash when mutation was
effected. Further, Jugal Kishore had served exhibit RW-1/16 notice
on Ajodhya Prakash calling upon him to vacate the premises and
RW-1/17 is the acknowledgment card. But Ajodhya Prakash did
not vacate. Hence, on 02.12.1996, Jugal Kishore filed suit no.
315/2/97 for recovery of possession and damages against Ajodhya
Prakash and his son, which was decreed on 21.01.2003. An
application dated 08.10.2003 for setting aside the said ex-parte
decree filed by Madan Mohan was dismissed by order dated
29.10.2004, against which an appeal was filed. PW-1/R-8 is the
appeal memorandum in the said case. The said appeal was
dismissed on 18.09.2007. Civil Misc. (Main) no. 1329/2007 filed
before this Court against the said order was never admitted.
12.3. The Will dated 18.09.1995 relied on by the petitioner
according to RW-1, is forged and fabricated by Madan Mohan in
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collusion with Advocate Sunil Kumar Mittal (PW-4), Advocate
Manoj Kumar, their Munshi, Tara Dutt and Dr. S.C. Parikh.
Advocate P.C. Mittal was conducting the cases on behalf of Jugal
Kishore. Thereafter, Jugal Kishore engaged the services of
Advocate B.K. Choudhary in his various pending cases. Advocate
S.K. Mittal (PW-4), son of P.C. Mittal then started appearing for
Ajodhya Prakash and Madan Mohan on the demise of his father.
Advocate Manoj Kumar, who is seen to have prepared the Will,
had appeared on behalf of Advocate S.K. Mittal in the cases
pending between the parties herein. Exhibit RW-1/18 is the copy
of the order sheets showing the appearance of Advocate Manoj
Kumar on behalf of Advocate S.K. Mittal (PW-4). The Will in
question is purported to have been drafted by Advocate Manoj
Kumar, witnessed by Advocate S.K. Mittal, the counsel who was
appearing against Jugal Kishore. In such circumstances, Jugal
Kishore would not have got the Will drafted by Advocates
appearing for his adversaries. RW-1 further deposed that Advocate
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Sunil Mittal had also issued exhibit RW-1/19 notice dated
24.12.1990 to Jugal Kishore on behalf of Madan Mohan.
12.4. RW-1 further deposed that the inordinate delay in filing
the original Will despite the repeated directions and orders of the
court, would also show that the Will in question is forged and the
petitioner was avoiding placing on record a forged and fabricated
document fearing prosecution. Though the petition for probate was
filed on 02.06.1998 with a xerox copy of the Will, the original was
produced before the court only on 08.08.2001, that too, after
repeated directions by the court.
12.5. RW-1 also deposed that Jugal Kishore was about 90
years old at the time of the execution of the disputed will, at which
time he was staying in Karol Bagh. However, the Will in question
was registered at Seelampur situated more than 10 kms away from
his residence. The person who is alleged to have drafted the Will
and the attesting witness are from Mori Gate and Tis Hazari Court
and so in the ordinary course, the Will would have been registered
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at Kashmiri Gate or at Asaf Ali road, New Delhi. The fact that it
was registered at Seelampur also raises suspicion
12.6. According to RW-1, Jugal Kishore was paralysed in the
year 1994 and thereafter, he remained confined to bed. Jugal
Kishore was seriously ill on 27.01.1996 and was being treated by
Dr. R.K. Singhal, who used to visit the former's house. On the
advise of the doctor, Jugal Kishore was admitted in R.S. Seth Jessa
Ram and Brothers Charitable Hospital on 06.02.1996 in a serious
condition, where he remained for about 4 to 5 days. Exhibit RW-
1/20 (colly) are the medical records. In such circumstances,
registration of exhibit PW-4/1 Will by Jugal Kishore was not
possible. Dr. S.C. Parikh had not examined Jugal Kishore on
05.02.1996 or on any other date. RW-1 also deposed that after the
will in question was forged and manipulated, Madan Mohan (the
substituted petitioner) in collusion with Advocate Sunil Mittal
(PW-4) and Manoj Kumar as well as their Munshi Tara Dutta
removed and replaced the record from the office of the Sub-
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Registrar, Seelampur.
12.7. RW-1 denied the signatures and thumb impression
stated to be that of Jugal Kishore in PW-4/1 Will. According to
him, the said signatures had been forged by Madan Mohan. It was
further deposed that Madan Mohan had filed civil suit no.
461/1996 on 08.07.1996 seeking injunction against Jugal Kishore
and others and exhibit RW-1/21 is the certified copy of the plaint
in the said case. Jugal Kishore contested the suit and filed an
application for rejection of the plaint. This would show that at least
till July 1996, the relationship between Jugal Kishore and Ajodhya
Prakash and his son Madan Mohan were quite strained. In such
circumstances, execution of a Will in their favour would never
arise. It was also deposed that Madan Mohan had sent exhibit PW-
1/R-4, legal notice dated 01.08.1991 calling upon Jugal Kishore to
remove a shed and scrap materials in the ground floor of the
building, as the said part of the building had been given to him as
per a family settlement dated 01.04.1991. According to RW-1,
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there was no such family settlement.
12.8. In the cross-examination, RW-1 deposed that he being
one of the members of the family of Jugal Kishore, was well aware
of the strained relationship between Jugal Kishore and Ajodhya
Prakash and his son Madan Mohan from 1984-85. According to
him, the relationship was not cordial till the death of Jugal
Kishore. He further deposed that at the time of the death of Jugal
Kishore, the latter was living on the second floor of the house at
Karol Bagh. He was also living on the second floor and Ajodhya
Prakash was living in a portion of the ground floor of the house.
RW-1 deposed that he cannot recollect whether Jugal Kishore was
admitted in Jessa Ram Hospital on. 05.12.1996 and shifted to
I.C.U on 27.12.1996.
13. RW-2, a hand writing and finger print expert deposed
that he had examined the disputed thumb impressions as well as
signatures of Jugal Kishore on exhibit PW-4/1 and compared them
with the admitted signatures of Jugal Kishore in ext. RW-1/21,
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rental agreement. According to RW-2, the disputed thumb
impressions do not tally with the admitted thumb impressions of
Jugal Kishore. His report has been marked as Ext. RW-2/1 and the
photographs and negatives were marked as Ext. RW-2/2 to RW-
2/27 and RW-2/28 respectively.
14. Respondent no. 3 examined as RW-3 deposed that he had
been residing at Balbir Nagar for the past 10 to 12 years, while his
father was residing at Naiwala, Karol Bagh, whom he used to meet
frequently. He stated that in December 1996 his father fell
seriously ill and, when he reached Naiwala, his father had already
been shifted to the hospital by his brother Jawahar Lal. He
thereafter visited his father in the hospital after about four days and
found him in a critical condition, though conscious and admitted in
a private room and not in the ICU.RW-3 further deposed that
during this period he had spoken to his father, who informed him
that he had given half share of property no. 2271/68-69, Naiwala,
Karol Bagh, to his wife, a fact which was not known to him earlier.
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He stated that his father did not mention anything about giving
jewellery to him or his wife. He admitted that he did not lodge any
police complaint regarding the Will dated 22.04.1994, which he
claimed as stolen by the petitioner.
15. Going by the pleadings in the petition for probate, the
relevant portion relating to the Will is contained in paragraph 3
which reads thus:-
"3. That the photostat copy of the Will dated
5.2.1996 annexed herewith is the last Will and
testament made by deceased Shri Jugal Kishore."
(Emphasis supplied)
16. Along with the petition for probate, only a copy of the
Will, that is, Ext. PW-4/1 alleged to have been executed by Jugal
Kishore, was produced. As per the copy produced, the Will is
dated 18.09.1995. Nowhere in the petition there is any reference
to the original Will. No reasons have also been given as to why
only a xerox copy of the Will was produced along with the
petition. No pleadings were also there explaining the difference in
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the date referred to in the pleadings and in the copy of the Will
produced.The respondents disputed the genuineness of the Will
and contended in their objections that it is a forged and fabricated
document. In the rejoinder filed by the petitioner, the allegation
reads thus:-
"1. .......The probate being sought for is with regard to Will
dated 18.9.1995 and registered on 5.2.1996 and the original of
which has been filed before this Hon'ble Court and which is
being propounded. In the probate petition, it has been
inadvertently mentioned that the Will is dated 5.2.1996,
however, nothing turns around the same as the original Will
for which the probate is being sought is before this Hon'ble
Court......."
(Emphasis Supplied)
17. This rejoinder is seen filed before the trial court on
28.05.2005. As noticed earlier, along with the petition only a
xerox copy of the Will was produced. It is not clear from the
materials on record the date on which the original of the Will was
produced before the trial court. However, going by the testimony
of RW-1, it was produced on 08.08.2001, much after the petition
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for probate was filed in the year 1998, for which delay no reasons
have been furnished.
18. The materials on record show that Jugal Kishore and his
son the original petitioner, were not on cordial terms. According to
the respondents, Jugal Kishore had disowned the petitioner by
publishing a notice in the newspaper "Statesman" on 29.05.1987,
the copy of which is Ext. RW-1/2 which reads thus:-
"My client, Shri Jugal Kishore Malhotra, son of Late Shri
Lajja Ram Malhotra, resident of 2271/69 Naiwala, Karol Bagh,
New Delhi hereby informs all concerned that he has disowned
dis-inherited his son, Shri Ajodhya Prakash Malhotra. Any
person dealing with him shall do so at his own risk. My client
and other members of his family shall not be liable or
answerable for any activities of his said son. The said son of my
client shall have no title, right of interest in any movable or
immovable properties of my client for all times to come."
(Emphasis supplied)
19. This notice dated 25.09.1987 is also much before the
filing of the petition. The trial court was not inclined to rely on this
document holding that it is only a copy of the notice and not the
Signed By:KOMAL FAO 48/2014 Page 27
original. On going through the materials on record, it is evident
that neither the petitioner nor the substituted petitioner has a case
that the respondents had manipulated the notice. On the other
hand, their case appears to be a case of ignorance of the notice.
Even assuming for argument sake that the said document cannot be
relied on, there are yet other aspects which raise doubts regarding
the case forward by the petitioner. The materials on record reveal
that suits and counter-suits were filed between Jugal Kishore and
the petitioner as well as between Jugal Kishore and his grandson,
the substituted petitioner. The documents brought in evidence
through the testimony of RW-1 to which I have referred to in
detail, shows that disputes and cases were going on even during
the period 1995-96 when Ext. PW-4/1 Will is alleged to have been
executed and registered. I have already referred to the said
documents when reference was made to the testimony of RW-1,
whose testimony has not been discredited in any way. In the
background of the cases filed by Jugal Kishore against the
Signed By:KOMAL FAO 48/2014 Page 28
petitioner as well as his grandson, it appears improbable for the
former to have executed Ext. PW-4/1 Will as alleged by the
petitioner.
20. Further, the testimony of PW-4, one of the alleged
attesting witness also raises doubts in the mind of the Court. At
the risk of repetition, I again refer to the testimony of PW-4 who
deposed that he had received a phone call from Ajodhya Prakash
(the petitioner) who told him that his father wanted to execute a
Will. Hence, he proceeded to the office of the Sub-Registrar,
Seelampur where he found the petitioner; Jugal Kishore and a
person named Tara Dutt. His further testimony reads thus:-
"...Shri Ajodhya Prakash requested me to sign on the
Will, which was already prepared. I signed on the Will. The
Will is Ex. PW-4/1 and bears my signatures at point A. The
Will was already signed by Shri Jugal Kishore and the other
person Tara Dutt, who was present there. Jugal Kishore signed
on the back side of Will at point A and B, in my presence. I
filed the present petition and attested the verification of petition
and my attestation is Ex. PW-4/2, which bears my signatures at
point A."
Signed By:KOMAL FAO 48/2014 Page 29
(Emphasis Supplied)
21. Going by the testimony of PW-4, he had not seen Jugal
Kishore affixing his signatures on the Will. Here I refer to Section
63 of the ISA which reads -
"63. Execution of unprivileged wills.--Every testator, not
being a soldier employed in an expedition or engaged in actual
warfare,or an airman so employed or engaged,or a mariner at
sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it
shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the writing as a
will.
(c) The will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the will or
has seen some other person sign the will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the witnesses shall
sign the will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary."
Signed By:KOMAL FAO 48/2014 Page 30
(Emphasis Supplied)
22. It is true that it is not necessary that the testator must sign
or affix his signatures in the Will in the presence of the attesting
witnesses. But in such circumstances, it is necessary for the
testator to acknowledge his signatures in the Will. PW-4 has no
case that he received from Jugal Kishore a personal
acknowledgement of the latter's signature(s) or mark in the Will.
Therefore, there is non-compliance of Clause (c) of Section 63 of
the ISA. Further, it was not Jugal Kishore who asked PW-4 to
attest the Will. On the other hand, it was the original petitioner,
Ajodhya Prakash, who asked him to attest the will.
23. It has further come out in the testimony of PW- 4 that he
was the lawyer who appeared for the original petitioner as well as
the substituted petitioner in the various litigations against Jugal
Kishore. In such circumstances, it is highly improbable for Jugal
Kishore to have requested the lawyer of his adversary to be an
attesting witness.
Signed By:KOMAL FAO 48/2014 Page 31
24. Further, the respondents also contend that Ext. PW-4/1
Will was drafted by Advocate Manoj Kumar, the junior of PW-4.
But according to PW-4, he had a junior by name Manoj Kumar,
but the Manoj Kumar who had drafted the Will, was not his junior.
He also denied the suggestion that Tara Dutt Sutholia, who had
signed the Will as witness no. 1 was his clerk. However, PW-4
admitted that his office functions at 2855, Mori Gate, Delhi. The
address of Tara Dutt Sutholia given in Ext. PW-4/1 Will is the
same address given by PW-4 as his office address.
25. Another quite interesting aspect that needs to be noticed
is the certification that is seen made by one Dr. S.J. Parikh, in Ext.
PW-1/4 which reads thus:-
"I have examined today Sh. Jugal Kishore and
found in perfect disposing mind and good health."
What was the necessity for making such an endorsement in
the Will is not clear. So, was Jugal Kishore that sick or laid up
which required a certification of his health by a doctor? The
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respondents have also contended that Jugal Kishore was not in a
sound disposing state of mind. This certification does raise doubts
regarding the state of mind and health of Jugal Kishore.
Moreover, the said doctor was also not examined for which no
reason(s) have been furnished.
26. It is no doubt true that the burden to prove the execution
of the Will is on the propounder and only when the initial burden
is discharged, the onus would shift to the respondents. The
aforesaid grounds raise suspicions regarding the execution of the
Will, which have not been dispelled by the petitioner.
27. It was submitted by the learned counsel for the petitioner
that there is no reason to disbelieve the Will as an equitable
distribution of the assets of Jugal Kishore has been made in the
Will. Equitable distribution of the estate of the deceased can be
taken as one of the grounds in support of a Will when no
suspicious circumstances are brought out. In the case on hand,
when the execution of the Will is riddled with suspicious
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circumstances, merely because the Will refers to an equitable
distribution of the assets is no ground to hold the Will to be
genuine or the last wish of the testator.
28. The trial court has rejected all the aforesaid suspicious
circumstances and concluded that despite the hostility between the
father and the son revealed by the materials on record, it was
possible/probable that the relationship between the father and the
son had improved/ repaired and that the father had bequeathed the
property in question to his son. On going through the pleadings
and evidence, I find that none of the parties have such a case.
Therefore, the trial court obviously went wrong in rejecting the
suspicious circumstances pointed out by the respondents and
concluding that the petitioner had succeeded in establishing the
genuineness of the Will. In these circumstances, I find that the
trial court went wrong in appreciating the evidence on record and
arriving at its conclusions. So, an interference by this Court is
called for and hence, I do so.
Signed By:KOMAL FAO 48/2014 Page 34
29. In the result, the appeal is allowed and the impugned
order is set aside.
30. Application(s), if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
DECEMBER 20, 2025
RS/ABP
Signed By:KOMAL FAO 48/2014 Page 35
