Delhi High Court Refuses to Divide Property Based on Admission of a Will, Holds the Will Must Still Be Proved in Court
Delhi High Court Says Admission of Will’s Existence Is Not Admission of Its Genuineness, Refuses Partition Decree Without Trial
Facts
The plaintiffs, Gouri Sarkar and Amitabh Roy, filed an application under Order XII Rule 6 CPC seeking a preliminary as well as final decree of partition in respect of property bearing No. D-603, Chittaranjan Park, New Delhi.
The suit property originally belonged to late S.C. Roy, who died on 30 January 1991. He was survived by his wife Kalyani Roy and four children, including the plaintiffs and defendant no. 1 Sanjay Roy. One son, Partha Sarathi Roy, had been missing since 7 October 1999.
S.C. Roy had executed a registered Will dated 15 March 1988, under which the property was bequeathed to his wife Kalyani Roy. On the basis of that Will and confirmatory affidavits, the property was mutated in Kalyani Roy’s name and later converted from leasehold to freehold through a conveyance deed dated 7 December 2001.
Kalyani Roy later executed a Collaboration Agreement dated 9 August 2016 with a builder, Sandeep Soni. She died on 19 January 2017, leaving behind a Will dated 30 March 2016. Under that Will, she bequeathed the property equally among her four children, with a stipulation that if Partha Sarathi Roy did not return within one year of her death, his 1/4th share would devolve upon her four grandchildren.
Disputes arose regarding the Collaboration Agreement. An arbitral award held that Kalyani Roy had only a life interest in the property and lacked competence to enter into the Collaboration Agreement. However, the Delhi High Court later set aside that award and held that Kalyani Roy had inherited absolute ownership under S.C. Roy’s Will. The Division Bench and the Supreme Court also refused to interfere.
During the suit proceedings, counsel for defendant no. 1 stated before the Court on 9 February 2022 that his client accepted Kalyani Roy’s Will dated 30 March 2016. Defendant no. 1 later attempted to withdraw or modify that statement, but the Court rejected the modification application on 24 March 2022.
The plaintiffs then amended the suit to base their partition claim on Kalyani Roy’s Will dated 30 March 2016 and sought a decree on admission under Order XII Rule 6 CPC.
Issues
- Whether a decree under Order XII Rule 6 CPC could be passed merely because defendant no. 1’s counsel had stated that his client accepted the Will dated 30 March 2016.
- Whether admission of the existence or making of a Will amounts to admission of its genuineness and valid execution.
- Whether the plaintiffs could be relieved from proving the Will in accordance with Section 68 of the Evidence Act and the Indian Succession Act.
- Whether suspicious circumstances pleaded by the defendants regarding the Will required trial.
- Whether the plaintiffs were entitled to a preliminary and final decree of partition at this stage.
Petitioner’s/Plaintiffs’ Arguments
The plaintiffs argued that defendant no. 1 had clearly accepted the Will dated 30 March 2016 in the order dated 9 February 2022.
They submitted that the defendant’s later attempt to withdraw from that admission was rejected by the Court on 24 March 2022. Therefore, according to them, the admission had attained finality.
The plaintiffs contended that once the High Court, Division Bench and Supreme Court proceedings had concluded that Kalyani Roy had absolute ownership in the property, her testamentary capacity to execute the Will dated 30 March 2016 stood validated.
They argued that defendant no. 1 and his daughters, defendant nos. 4 and 5, were merely trying to resile from a solemn admission and delay the suit.
The plaintiffs also submitted that defendant nos. 4 and 5 derived their alleged locus only from the Will dated 30 March 2016. Therefore, they could not simultaneously deny the Will and still contest the suit.
On this basis, the plaintiffs argued that no triable issue survived and that they were entitled to a decree of partition under Order XII Rule 6 CPC.
Respondent’s/Defendants’ Arguments
Defendant nos. 1, 4 and 5 opposed the application.
They argued that there was no clear, categorical or unequivocal admission that could justify a decree under Order XII Rule 6 CPC.
They submitted that a family settlement dated 21 October 2016 had been entered into between the family members, under which plaintiff no. 1 had allegedly relinquished her rights in the suit property after receiving the sale consideration from another industrial plot.
The defendants also argued that the Will dated 30 March 2016 had not been proved in accordance with law and no probate proceedings had been filed.
They contended that the earlier statement recorded on 9 February 2022 could not be treated as a binding admission of the genuineness and valid execution of the Will.
The defendants alleged suspicious circumstances around the Will. They claimed that the Will was in English, whereas Kalyani Roy did not know English; that her physical condition was poor; that she was allegedly staying under the influence or control of plaintiff no. 1; and that the Will was allegedly manufactured in collusion with the builder.
They also argued that the share of Partha Sarathi Roy could not be distributed unless his death was legally declared.
Analysis of the Law
The Court held that the central question was whether a partition decree could be passed solely on the basis of the statement made by counsel for defendant no. 1 accepting the Will dated 30 March 2016.
The Court drew a clear distinction between admission of the existence or making of a Will and admission of its genuineness, validity and due execution.
It held that even if a party accepts that a Will exists or was made, that does not automatically mean that the party admits that the Will was validly executed, genuine, free from suspicious circumstances and legally enforceable.
The Court emphasised that a Will must be proved in accordance with Section 68 of the Evidence Act and the Indian Succession Act. At least one attesting witness must be examined, and the propounder must show that the testator signed the Will voluntarily, while being in a sound disposing state of mind and understanding the nature and effect of the disposition.
The Court further held that where suspicious circumstances are pleaded, the propounder of the Will must explain them to the satisfaction of the Court.
Since the defendants had specifically pleaded suspicious circumstances regarding Kalyani Roy’s Will, the plaintiffs could not bypass trial by relying only on an alleged admission.
Precedent Analysis
The Court relied on Savithri v. Karthyayani Amma, where the Supreme Court held that the onus of proving a Will lies on the propounder and that the Will must be proved in accordance with the Succession Act and the Evidence Act.
The Court also relied on Ramesh Verma v. Lajesh Saxena, where the Supreme Court held that the requirement of Section 68 of the Evidence Act applies even where the opposite party does not specifically deny execution of the Will in the written statement.
The Court referred to S.R. Srinivasa v. S. Padmavathamma, where the Supreme Court held that admission about the making of a Will is not the same as admission about the genuineness or legality of the Will.
The Court further relied on Ramesh Chand v. Suresh Chand, where the Supreme Court reiterated that at least one attesting witness must be examined to prove a Will and that registration of a Will does not by itself establish its validity, especially where suspicious circumstances exist.
Court’s Reasoning
The Court noted that the statement recorded on 9 February 2022 showed that defendant no. 1 accepted the Will dated 30 March 2016. However, the Court held that this statement could at best be treated as an acceptance of the existence or making of the Will.
The Court found that there was no clear, unequivocal and unambiguous admission by defendant no. 1 regarding the genuineness, legality and valid execution of the Will.
The Court also examined the written statement filed by defendant no. 1 after amendment of the plaint. It found that although execution of the Will was referred to as a matter of record, the defendant had expressly alleged that the Will was manufactured in collusion with the builder and surrounded by suspicious circumstances.
The defendant had also pleaded that the Will was in English though Kalyani Roy did not know English, that her physical condition was poor, and that she was allegedly forced to stay with plaintiff no. 1 during the relevant period.
The Court held that these pleadings raised triable issues regarding the genuineness of the Will.
Therefore, the plaintiffs could not be exempted from proving the Will through proper evidence. The Court held that Order XII Rule 6 CPC could not be invoked where the admission relied upon was not clear and where the validity of the Will still required proof.
Conclusion
The Delhi High Court dismissed the plaintiffs’ application under Order XII Rule 6 CPC.
The Court held that admission of the existence or making of a Will does not amount to admission of its genuineness, legality or valid execution.
Since the defendants had raised suspicious circumstances regarding the Will dated 30 March 2016, the plaintiffs were required to prove the Will in accordance with law.
The Court therefore refused to pass a preliminary or final decree of partition at this stage.
Other submissions were kept open to be decided at the appropriate stage.
Case Details
Case: Gouri Sarkar & Anr. v. Sanjay Roy & Ors.
Court: Delhi High Court
Case Number: CS(OS) 143 of 2021; I.A. 34708 of 2024
Judge: Justice Vikas Mahajan
Date: 07 July 2026
Result: Application under Order XII Rule 6 CPC dismissed; plaintiffs directed to prove the Will in accordance with law before claiming partition decree.
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