This judgment does not decide who ultimately owns the compensation amount or any other property, and does not hold that the will was forged; it holds only that probate could not be granted on the evidence led.
- Case
- Jagbir Singh v. Satish Kumar and Others
- Court
- High Court of Delhi
- Decision
- Citation
- 2026:DHC:9900
- Bench
- Manoj Kumar Ohri
- Judgment by
- Manoj Kumar Ohri
- Case numbers
- FAO 3/2008
- Outcome
- Appeal under Section 299 of the Indian Succession Act, 1925 against a probate court judgment dated 20 November 2007 dismissing a petition for probate of a registered will dated 16 April 2003 dismissed; probate court's judgment sustained.
Probate refused, appeal dismissed
The Delhi High Court has dismissed Jagbir Singh's appeal against the refusal of probate for a registered will said to have been executed by the late Chhanno Devi @ Chhan Kaur on 16 April 2003. Justice Manoj Kumar Ohri held that the appellant had failed to prove due execution and attestation of the will as required by Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872, and had failed to dispel the suspicious circumstances surrounding it.
The practical effect is that the probate court's judgment stands and no probate issues on this will. The Court found no infirmity in the probate court's reasoning and dismissed the appeal.
A will, a compensation sum, and a dismissed probate petition
The testatrix was the widow of Jot Ram, who died in January 1988; the couple had no children. After her husband's death she was brought on record as his legal heir in land acquisition proceedings concerning his lands at villages Palam and Mirzapur in Delhi, and she died on 20 December 2004. The subject matter of the probate petition was a compensation amount of Rs 7,39,558 relating to those lands.
Jagbir Singh, the appellant, sought probate under Section 276 of the Indian Succession Act. The citation was published in Dainik Jagran and no objection was received from the general public, but objections were filed by respondent No. 11 and separately by respondent Nos. 2 to 10, alleging that the will was forged and fabricated and the result of fraud played on the testatrix; respondent No. 1 and respondent Nos. 12 to 15 gave no objection. Issues were framed in September 2006 and the appellant led evidence. The probate court dismissed the petition by its judgment dated 20 November 2007, and the appeal under Section 299 of the Act followed.
The attesting witness's evidence collapsed in cross-examination
The will named two attesting witnesses, but only one, examined as PW-3, gave evidence. In his evidence affidavit, PW-3 stated that the testatrix was known to him, that she had put her thumb impression in his presence, that he had then attested the will, and that the other witness had also signed in his presence. In cross-examination, that account fell apart: PW-3 admitted that the affidavit had been brought to his residence by the appellant for his signature, that he had not appeared before any oath commissioner, and that he did not know what the affidavit contained.
The cross-examination also defeated attestation on its own terms. PW-3 said he signed in the presence of Naresh Kumar, the second attesting witness, but admitted that Naresh Kumar had not signed in his presence, and there was no evidence that Naresh Kumar had seen the testatrix affix her thumb impression or had signed in her presence. Section 63(c) of the Act requires attestation by two witnesses, and the attestation by the second witness therefore remained wholly unproved. The Court noted that, following the Supreme Court's decision in Janki Narayan Bhoir, the appellant needed to call Naresh Kumar to complete the proof, but he had closed his evidence without examining him.
An illiterate testatrix, an English will, and a beneficiary who knew nothing
Quite apart from attestation, the record disclosed suspicious circumstances that the appellant left unexplained. In his own cross-examination, the appellant deposed that the testatrix was illiterate, could not read, write or understand any language other than the villagers' language she spoke, and that the will was written in English, a language she could not read, write or understand. He professed complete ignorance of the will's execution, said he did not know who had drafted it, and said no scribe had been examined and the contents had never been shown to have been read over or explained to the testatrix in a language she understood.
The difficulty was compounded by the appellant's own role. Although he claimed ignorance of the execution, his own witness deposed that the appellant had brought the testatrix to Janakpuri, had brought the witness there to sign, and was present when the witness signed. The appellant was the sole beneficiary under the will. His active participation, coupled with his attempt to distance himself from the execution, was precisely the kind of suspicious circumstance that a propounder must dispel, following the Supreme Court's decisions in H. Venkatachala Iyengar and Kavita Kanwar. The Court added that its discretionary power to put questions to a witness could not be used to fill gaps in the propounder's evidence.
BANTHRY ANALYSISProbate is a matter for the court's conscience
The judgment restates a distinctive feature of probate proceedings: they are not merely disputes between parties, and they can lead to a judgment in rem. Even where the general public does not object, and even though some respondents gave no objection, probate does not follow automatically; and here the appeal in any event remained contested. The propounder must satisfy the conscience of the court by proving the will and removing suspicious circumstances, and the failure or non-filing of objections by others is of no effect on that burden.
That is why the two failures in this case were each fatal on their own. The attestation failure meant the formal requirements of Section 63(c) were not met, and the suspicious-circumstances failure meant the Court could not be satisfied that the thumb impression represented the testatrix's informed wishes. Either failure alone would have justified refusal; together, they left no room for probate.
BANTHRY ANALYSISFor law students
Three points are worth remembering. First, attestation is not a formality: each attesting witness must be shown to have signed in the testator's presence and, where the statute requires it, to have seen the testator sign or acknowledge the signature. Second, an evidence affidavit that the deponent admits he never read and never swore before an oath commissioner carries no evidentiary value, however helpful its contents. Third, suspicious circumstances are not a free-standing ground for invalidating a will, but they shift a practical burden: once they appear, the propounder must explain them away with evidence, and a beneficiary who both stage-managed execution and denied knowledge of it will rarely succeed.
READING PROMPTSQuestions for a closer reading
- What must a propounder prove about each attesting witness under Section 63(c) of the Indian Succession Act, and where did the proof fail here?
- Why did the Court hold that the attesting witness's evidence affidavit could not be relied upon?
- How did the beneficiary's own evidence about the testatrix's literacy and his role in execution create suspicious circumstances?
