Objector appealed against grant of probate of a Will executed in 1996 by a testatrix bequeathing her property to her niece. The court found the expert report inadmissible, no pleaded basis for forgery claims, and testamentary capacity proved; dismissed the appeal and upheld probate.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
% Judgment Reserved on: 08.12.2025 Judgment pronounced on: 12.12.2025
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.
the learned Additional District Judge, South District, Saket Courts,
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Delhi, aggrieved by the order dated 30.11.2011 by which the petition was allowed.
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
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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.
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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 the by 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
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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.
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
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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.
led by both the parties, the trial court granted probate in favour of
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the petitioner. Aggrieved by the impugned order, the
objector/respondent no. 12 has come up in appeal.
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
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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
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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.
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interference by this Court
appeal is whether the trial court has erred in granting probate to the petitioner for the Will dated 30.03.1996.
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(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.
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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
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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
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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
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the objectors/respondents.
“ 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-
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……………………. ”
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.
“ 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
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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
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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.
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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.
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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
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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.
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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.
“ It is incorrect to suggest that I had taken the possession of
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Will , documents and a diary after the death of my mausi forcefully. Vol. the children had given the same to me .”
(Emphasis Supplied)
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.
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Application(s), , if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA (JUDGE)
DECEMBER 12, 2025
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2 issues framed by the court
Whether the trial court erred in granting probate for the Will dated 30.03.1996.
Whether an unproved private expert report could establish forgery of the Will.
Colour shows how this judgement treated each authority
Nirmal Batla & Ors. v. StateRelied on¶15
2025:DHC:10881
Gordhandas Nathlal Patel v. Bai SurajRelied on¶15
AIR 1921 Bom 193 · Who else cites this
Chhanga Singh v. Dharam SinghRelied on¶15
AIR 1965 P&H 204 · Who else cites this
Har Narain v. BudhramRelied on¶15
1991 SCC OnLine Del 351 · Who else cites this
6 provisions across 3 enactments
Prabha Devi
State
Respondent No. 2 (LRs of)
Chandrasekharan Sudha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
