Court’s Decision
The Delhi High Court dismissed the appeal filed against the order of the Trial Court granting Letters of Administration based on an unregistered Will dated 07 January 2008. The Court held that the 2008 Will was duly executed and attested in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The Court found no suspicious circumstances surrounding the Will’s execution and affirmed that the subsequent Will would prevail over an earlier registered Will dated 19 February 2002. It ruled:
“The 2008 Will has been proved in accordance with the law and the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 have been satisfactorily fulfilled.”
Facts
The dispute pertained to a property located in Ashok Nagar, New Delhi, measuring approximately 100 square yards and inherited by the Testator from his father. The Testator passed away in 2008. The appellant, his younger son, challenged the Letters of Administration granted in favour of his elder brother (Respondent No. 2) based on an unregistered 2008 Will. According to this Will, the ground floor portion was bequeathed to the appellant and the first floor along with a shop to the respondent. The appellant relied on a prior registered Will from 2002, which allegedly bequeathed the ground floor jointly to him and their mother.
Before the filing of the Probate Petition in 2016, various legal heirs, including the mother and sisters, had executed registered relinquishment deeds in favour of the appellant. The appellant also filed a civil suit in 2015 asserting ownership based on the 2002 Will, which was dismissed in 2019.
Issues
- Whether the 2008 Will was duly executed and valid under law.
- Whether the delay of 8 years in propounding the Will cast doubt on its genuineness.
- Whether the earlier 2002 registered Will invalidated the subsequent 2008 Will.
- Whether the Trial Court erred in disregarding the handwriting expert’s report.
Petitioner’s Arguments
The appellant contended that the 2008 Will was forged, fabricated, and introduced by the respondent eight years after the Testator’s death. He argued the Will was suspicious due to:
- Sole custody with Respondent No. 2;
- Unfamiliar attesting witnesses;
- Contradictory details such as the Testator’s age being mentioned as 66 instead of 74;
- The Will being written in Hindi, whereas the Testator knew only Urdu;
- The handwriting expert opined that the signature did not match the Testator’s known signatures;
- The Will failed to revoke or even mention the prior 2002 registered Will;
- Multiple legal heirs had relinquished their shares in favour of the appellant based on the 2002 Will;
- The Will was not relied upon by Respondent No. 2 in the earlier civil suit, casting doubt on its authenticity;
- Non-compliance with Section 232 of the Succession Act, as Letters of Administration were granted without annexing the Will.
He also pointed to a public notice from 1998 wherein the Testator allegedly disowned Respondent No. 2, further asserting that the Will’s emergence was an afterthought.
Respondent’s Arguments
The respondent countered that:
- The Will was duly executed in the presence of two attesting witnesses, one of whom, Advocate Gurdeep Singh Dua, was examined and confirmed the execution;
- There was no legal requirement for the witnesses to be family members;
- The Testator had reconciled with him, and the 2008 Will reflected the Testator’s clear intent of dividing the property almost equally;
- The delay in producing the Will was justified as no dispute existed until the appellant filed a civil suit in 2015;
- The appellant’s contradictory positions in earlier suits and reliance on sale documents, GPA and agreement to sell, undermined his credibility;
- The 2002 Will was not the last Will and hence, could not override the 2008 Will;
- The handwriting expert’s opinion was unreliable as it was based on a photocopy of the 2002 Will;
- The relinquishment deeds did not refer to any Will and indicated the appellant as a legal heir by inheritance.
Analysis of the Law
The Court reiterated that testamentary proceedings are proceedings in rem and the Probate Court’s jurisdiction is limited to:
- Determining whether the Will was the last valid testament;
- Ensuring due execution and attestation in accordance with law;
- It does not include adjudication on title, ownership or possession.
Relying on established precedents including Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon and Krishna Kumar Birla v. Rajendra Singh Lodha, the Court emphasized that its role was confined to verifying the genuineness and legal execution of the Will.
Precedent Analysis
- Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon, (2007) 11 SCC 357: Probate Court cannot adjudicate title disputes.
- Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300: Court must only assess whether the Will was executed in sound mind without coercion.
- Suraj Lamp v. State of Haryana, (2012) 1 SCC 656: Sale through GPA, Will, and Agreement to Sell does not convey title.
The Court applied Suraj Lamp to hold that the 2002 Will and accompanying documents (GPA, Agreement to Sell) could not constitute legal transfer of property.
Court’s Reasoning
The Court upheld the Trial Court’s reasoning and findings, including:
- The attestation of the 2008 Will was proven under Section 68 of the Evidence Act;
- One attesting witness was examined and his testimony was credible;
- The delay in propounding the Will was not fatal since the parties were already in possession of respective portions as per the Will;
- The appellant had taken a contradictory position in the earlier civil suit;
- The handwriting expert’s testimony was not reliable due to absence of original for comparison;
- The alleged disownment via newspaper notice was not proved in accordance with law;
- The 2008 Will’s failure to mention the 2002 Will did not affect its validity as the subsequent Will supersedes the prior one;
- No law mandates that attesting witnesses must be family members;
- The incorrect age mentioned in the 2008 Will did not nullify its validity;
- Letters of Administration were properly granted with the Will annexed.
Conclusion
The Delhi High Court found no infirmity in the Trial Court’s order granting Letters of Administration based on the 2008 Will. All objections raised by the appellant were rejected. The Court concluded:
“There is no infirmity with the Impugned Order and, accordingly, the present Appeal is dismissed.”
Implications
- Reaffirms the narrow jurisdiction of probate courts to determine only the validity of Wills, not title or possession disputes.
- Reinforces that a later unregistered Will can override a prior registered Will.
- Establishes that delay in producing a Will is not fatal if circumstances justify it.
- Emphasizes the limited probative value of photocopy-based expert testimony in proving or disproving signatures.
FAQs
1. Can an unregistered Will override a registered Will under Indian law?
Yes. A subsequent Will, even if unregistered, overrides an earlier registered Will if it is proved to be the valid last testament of the Testator.
2. Is delay in producing a Will a valid ground to reject it?
No. Delay alone does not render a Will suspicious. If the Will’s execution and attestation are proved, delay can be justified based on surrounding circumstances.
3. Can handwriting expert opinion be disregarded if based on photocopies?
Yes. Expert opinion loses probative value if the comparison is made using photocopies rather than originals.
