$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Pronounced on: 11.07.2023
+ FAO(OS) 347/2012 & CM APPLs. 15602/2013, 20920/2022,
47492/2022
AJIT SINGH & ORS ..... Appellants

Through: Mr. Paras Kuhad, Sr. Advocate

with Mr. Manu Aggarwal, Mr.
Jitin Chaturvedi, Mr. Shouib
Hussain and Mr. Shubham
Budhiraja, Advocates.

Mr. Kirtiman Singh and Ms.

Shreya Mehra, Advocates for
the Trustee.

versus

STATE & ORS ..... Respondents

Through: Mr. Rishikesh Kumar, ASC

GNCTD with Mr. Aditya Raj,
Mr. Muhammad Zaid, Mr.
Sudhir Kumar Shukla and Ms.
Sheenu Priya, Advocates.

Mr. T.K. Ganju and Dr. Manish

Singhvi, Sr. Advocates with
Mr. Prateek K. Chadha, AAG,
State of Rajasthan, Mr. Sreekar
Aechuri, Mr. Arpit Prakash and
Mr. Vrishank Singhania,

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 1 of 56

 Advocates for State of
Rajasthan.

Mr. Sandeep Sethi, Sr.

Advocate with Ms. Fareha A.
Khan, Ms. Niyati Kohli and Mr.
Rishabh Parikh, Advocates for
R-3.

Mr. Tushar Sannu, ASC for

GNCTD.

+ FAO(OS) 348/2012, CM APPLs. 46546-47/2022 & 3579/2023

PARMESHWAR PRASHAD (SINCE DECEASED)
... Appellant
Through: Mr. Sandeep Sethi, Sr.
Advocate with Ms. Fareha A.
Khan, Ms. Niyati Kohli and Mr.
Rishabh Parikh, Advocates.

versus

STATE & ORS ..... Respondents

Through: Mr. T.K. Ganju and Dr. Manish

Singhvi, Sr. Advocates with
Mr. Prateek K. Chadha, AAG,
State of Rajasthan, Mr. Sreekar
Aechuri, and Mr. Vrishank
Singhania, Advocates for State
of Rajasthan.

Mr. Devendra Raghav and Ms.

Rajeshwavi, Advocates for
interveners.

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 2 of 56

 Mr. Tushar Sannu, ASC for
GNCTD.

+ FAO(OS) 211/2013

STATE OF RAJASTHAN ..... Appellant

Through: Mr. T.K. Ganju and Dr. Manish

Singhvi, Sr. Advocates with
Mr. Prateek K. Chadha, AAG,
State of Rajasthan, Mr. Sreekar
Aechuri, Mr. Arpit Prakash and
Mr. Vrishank Singhania,
Advocates for State of
Rajasthan.

versus

GAJ SINGH JI OF JODHPUR & ORS. ..... Respondents

Through: Mr. Sandeep Sethi, Sr.

Advocate with Ms. Fareha A.
Khan, Ms. Niyati Kohli and Mr.
Rishabh Parikh, Advocates for
R-5.

CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
HON'BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT

NAJMI WAZIRI, J.
Facts:
1. These three appeals impugn the judgment passed by the learned
Single Judge on 03.07.2012 dismissing the appellant‟s Testamentary

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 3 of 56

Case No. 26/1987 seeking probate of the last Will and Testament
dated 30.10.1985, executed by Late Raja Bahadur Sardar Singh of
Khetri („Testator‟). While FAO(OS) 347/2012 has been filed by the
Trustees of the Khetri Trust, the beneficiary under the Will, FAO(OS)
348/2012 has been filed by the sole surviving Executor of the Will,
both of whom challenge the dismissal of the petition. FAO(OS)
349/2012 filed by the State of Rajasthan impugns the judgement to the
limited extent that the Trustees of the Khetri Trust (Appellants in
FAO(OS)(347/2012)) were permitted to be impleaded.
Background to the dispute
2. The Testator was a well educated man, having studied at
Cambridge University and completed his Bar-at-Law from England.
He was a Member of Parliament (Rajya Sabha) as well as India‟s
Ambassador to Laos. Being conscious of the fact that he had no Legal
Heirs („LRs‟), the Testator deliberated with qualified persons from the
fields of finance and law, about the treatment of his estate after his
demise. Two such professionals were Mr. P.N. Khanna, who was the
Testator‟s Chartered Accountant for many years and the other was Mr.
Danial Latifi, Senior Advocate, a personal friend of the Testator. His
Will was drafted by Mr. Danial Latifi and was executed in two
identical counterparts at Tis Hazari Courts, Delhi on 30.10.1985 in the
presence of two attesting witnesses, namely, Mr. P.N. Khanna (PW1)
and Mr. R.K. Singh (RW8), who put their hands to the Will and the
same was presented in a sealed envelope to the Registrar. On the
sealed envelope, the following text was inscribed with the signatures
of the Testator, Mr. P.N. Khanna, Mr. R.K. Singh and Registrar,

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 4 of 56

Delhi. Its photocopy is reproduced as under:

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 5 of 56

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 6 of 56
Typed Copy of the sealed envelope: (to be replaced)
―Will of Raja Bahadur Sardar Singh of Khetri S/o Raja Bahadur
Amar Singh of Khetri, 5, Sardar Patel Road, Khetri House, New
Delhi.

The Sealed cover of Will deposited by Raja Bahadur Sardar Singh is

identified by Sh. P.N. Khanna S/o L. Bharat Ram R/o 14/15,
Connaught Place, N. Delhi & Sh. R.K. Singh, Advocate.

The sealed cover of Will only and no monogram.

Sd/- Sd/- 30.10.11

(Raja Bahadur Sardar Singh) (G.K. Dikshit)

Sd/-
(P.N. Khanna)

Sd/-
(R.K. Singh)
Advocate‖

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 7 of 56

3. The last Will and Testament dated 30.10.1985 as retrieved from
envelope reads as under:-

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 8 of 56

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 9 of 56
FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 10 of 56
4. The Testator willed his entire estate, movable and immovable
assets as appeared from his Wealth Tax Returns, upon a Trust called
„Khetri Trust‟, created by the Will and Testament dated 30.10.1985
itself, for which he appointed four Executors and Trustees, namely: (i)
Lady Olga Manning of Hampton Court Palace, East Molesey, Surrey;
(ii) Mr. Danial Latifi, Senior Advocate, A-20, Neeti Bagh, New Delhi;
(iii) Mr. Romesh Thapar, Kautilya Marg, New Delhi; and (iv) Mr.
Parmeshwar Prashad, Manager Khetri Investment Corporation (P)
Ltd., 1/9 Rani Jhansi Road, New Delhi. The bequeathed assets were
to vest in the Khetri Trust and were to be used largely for educational
research and scientific purposes. The Trustees were also vested with
the right to seek sanction of the High Court to enhance their
remuneration beyond Rs.3,000/- per month, for their services to the
Trust.
5. Perusal of Recital B of the Will shows that the Testator was
conscious that his property could well be frittered away or otherwise
would lapse to the State by the Law of Escheat, if he were not to
arrange for its use as per his wishes. The Testator was also conscious
of requirement of section 118 of the Indian Succession Act, 1925
(„Succession Act‟) which reads as under:-
“118. Bequest to religious or charitable uses.—No man
having a nephew or niece or any nearer relative shall
have power to bequeath any property to religious or
charitable uses, except by a will executed not less than
twelve months before his death, and deposited within six
months from its execution in some place provided by law
for the safe custody of the wills of living persons:

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 [Provided that nothing in this section shall apply to a
Parsi.]‖
6. It is in this context, that the Testator, evidently upon legal
advice, stated in Recital B of the Will and Testament that ―I have no
relative of the class mentioned in Section 118 of the Indian Succession
Act. Nevertheless, to avoid any false claims, it is my intention to have
this Will deposited in safe custody with the appropriate authority as
provided by law.‖
7. According to the appellant, the Will was executed at the office
of Registrar at Tis Hazari Courts, Delhi on 30.10.1985 in the presence
of two witnesses i.e. Mr. P.N. Khanna (PW1) and Mr. R.K. Singh
(RW8).The latter had worked in the Chamber of Mr. Danial Latifi,
Senior Advocate from 1981 to 1986. Mr. R.K. Singh (RW8) had
passed his law examination in 1974 and was enrolled as an Advocate
in 1977.
8. Subsequent to the execution of the Will, the Testator executed a
Codicil dated 07.11.1985 in two identical counterparts, for the sake of
clarifying certain aspects including the role of the Trustees and
Executors residing in United Kingdom. The Codicil was executed by
the Testator in the presence of the same two attesting witnesses to the
Will and Testament dated 30.10.1985 namely Mr. P.N. Khanna (PW1)
and Mr. R.K. Singh (RW8). The said two witnesses appended their
signatures to the Codicil in the presence of the Testator and each
other. The original Will and Testament was deposited with the
Registrar. The original Duplicate Will and the two duly executed
identical counterparts of the Codicils were handed over to Mr. Latifi

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 12 of 56

by the Testator. The latter passed away on 28.01.1987. A couple of
days later, Mr. Danial Latifi, Senior Advocate, informed Mr. Romesh
Thapar and Mr. Parmeshwar Prashad (PW2), both Trustees and
Executors of the Will and Testament about the Will and handed over
the identical Duplicate counterpart of the Will and Testament along
with the original Codicil to Mr. Romesh Thapar in the presence of Mr.
Parmeshwar Prashad (PW2).

Test Cas. 26/1987

9. A petition (Testamentary Case No. 26/1987) seeking grant of

probate of the Will and Testament was filed under section 276 of the
Succession Act by the three of the Executors appointed under the Will
and Testament (and not merely by Mr. Parmeshwar Prashad (PW2)).
The probate petition was duly supported by the affidavit of one of the
attesting witnesses, i.e. Mr. P.N. Khanna (PW1), in fulfilment of
requirement of section 68 of the Indian Evidence Act, 1872
(„Evidence Act‟). Mr. Danial Latifi, who was appointed as a Trustee
and Executor under the Will, resigned as Executor and Trustee by
letter dated 15.02.1987 addressed to his fellow Executors and
Trustees.
10. In the succeeding years, three of the Executors and Trustees
appointed under the Will and Testament dated 30.10.1985 passed
away on the following dates:-
(i) Lady Olga Manning of Hampton passed away on
17.09.1993;

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 13 of 56

 (ii) Mr. Romesh Thapar passed away in September, 1987; and
(iii) Mr. Parmeshwar Prashad (PW2) passed away on 09.03.2003.
Lord Northbrook, the appellant in FAO(OS) No.348/2012 remained
the only surviving Executor. Therefore, keeping in view the large
estate of the Testator, the Probate court examined Lord Northbrook on
25.09.2004 to ascertain whether he was willing to discharge his legal
obligations as an Executor and recorded his statement in the
affirmative. Lord Northbrook is also a Trustee of Khetri Trust.
11. By an order dated 08.11.1996 in FAO(OS) 166/1996, State of
Rajasthan was added as a party-respondent. The order recorded the
concession of the State of Rajasthan that it will not seek to cross-
examine any of the witnesses, and will make submissions based on
material on record.
12. Though before the learned Single Judge, the State of Rajasthan
had raised an objection as to non-compliance with the requirements of
Sections 276 and 283(3) of the Succession Act, no ground has been
raised by the State of Rajasthan in its appeal challenging the finding of
the impugned order rejecting this contention, nor have submissions
been made in this regard. It appears that the State of Rajasthan has
accepted the findings, and the same is thus not being considered.
13. The fact remains though, that citations were published in the
newspaper „The Statesman‟ dated 23.03.1987 apropos the Testator
having died intestate; seven persons had filed their objections to the
grant of probate. The State of Rajasthan was aware of the pendency of
the probate petition because it had invoked the provisions of Rajasthan
Escheat Regulation Act, 1956 and issued a Notification under section

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 14 of 56

6(1)(b) thereof. Therefore, it had sufficient notice and knowledge
about the pending probate petition and the requirement of the statute
stood met.
14. Four of these objectors passed away during the course of the
proceedings. The remaining three objections were eventually
withdrawn pursuant to liberty granted by the court under Order XXIII
Rule 1 of the Civil Procedure Code, 1908, („CPC‟).

The impugned order

15. The probate petition was dismissed by the learned Single Judge
on the ground inter alia that it was not proven that: i) the Testator and
the attesting witnesses had signed the Will and at the same time in the
presence of each other, ii) that there were surrounding suspicious
circumstances established in view of the testimony of Mr. R.K. Singh
(RW8), who had deposed that he had not seen the Testator sign the
Will and iii) that Gokul Anand, Personal Assistant of the Testator was
not summoned as a witness.
16. The learned Single Judge summarised his conclusions in
paragraph 101 of the judgement, which can be usefully summarised as
below:
a. The petitioners failed to prove the Will and Codicil, since PW1,
Mr. P.N. Khanna‟s testimony is contrary to that of RW8, Mr.
R.K. Singh, who does not stand to gain from lying.
b. Testimony of PW3, Mr. Danial Latifi contradicts testimony of
PW2, Mr. Parmeshwar Prashad (one of the three original

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 15 of 56

 petitioners, since deceased) as to date and place of signing the
Will by Testator and two attesting witnesses.
c. Non-production of Mr. Gokul Anand, the Personal Assistant of
the Testator is curious and suspicious and the reasons given
therefore (that it would delay the proceedings) is not
convincing. He was one of the most important witnesses, and
his testimony would have cleared all doubts as to place of
signing the Will.
d. The Will is incomplete and lacks particulars of what properties
are being bequeathed.
e. The testimony of PW3, Mr. Latifi‟s appears to indicate that he
signed the Will, but no such Will bearing his signatures have
been produced. This lends credence to RW8, Mr. R.K. Singh‟s
testimony that he signed the Will on 29.10.1985 at 5, Sardar
Patel Marg, New Delhi and not on 30.10.1985 at the office of
the Registrar. It further lends credence to the testimony of RW8
that he signed the Will in the presence of PW2 and not the
Testator. On preponderance of probabilities, the Will has not
been proven in terms of Section 63 of the Succession Act read
with Section 68 of Evidence Act.
f. PW1‟s testimony does not disclose the presence of PW3, who
stated that he was present as a friend of the Testator and not in
his professional capacity. PW3‟s testimony is more preferable
to that of PW1. RW8 has inter alia deposed that he has never
seen the Testator. Thus, neither the Will, nor the Codicil could
have been signed by the Testator in the presence of RW8, who

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 is one of the attesting witness.
g. The reasons for withdrawal of the various objectors are
inexplicable, from which it can be inferred that they were
compelled to withdraw.
h. The Will was not produced in original, and was not exhibited
either. The duplicate copy had been produced. The Will, and the
cover in which it was sealed bear signatures of RW8 in different
inks, indicating that they were not signed at the same time. PW1
has deposed that he may have signed more than two copies of
the Will. On preponderance of probabilities, the Will and
Codicil have not been proven.

Contentions of the Parties:

17. The State of Rajasthan defended the impugned order and

submitted inter-alia that the impugned order has rightly dismissed the
testimony because: (i) there is a controversy and suspicion around the
alleged Will; (ii) it is void for uncertainty under Section 89 of the
Succession Act; (iii) Khetri Trust was not registered; (iv) the Will has
not been proven in accordance with section 63 of the Succession Act;
(v) the testimony of Mr. P.N. Khanna cannot be relied upon and the
alleged Will does not stand the test of section 63(c) of the Succession
Act; (vi) adverse inference is to be drawn against the petitioner for not
producing Mr. Gokul Anand; (vii) deposit of Will under section 42 &
43 of the Registration Act, 1908, for registration cannot be an
alternative mode of proof of Will under section 71 of the Evidence

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 17 of 56

Act and the deposit of the Will under aforesaid section cannot create a
presumption for the execution of the Will.
18. In its own appeal, State of Rajasthan challenged the impugned
order to the limited extent of allowing the Application filed by
Trustees seeking to be impleaded as party-respondents. Though
certain grounds had been raised in support thereof, as to whether
Trustees or the Trust could be made a party-respondent in a petition
seeking probate, since the entire impugned order will be set aside on
the appeal of the Executor (FAO(OS) 348/2012), this court deems it
appropriate to not enter upon the issue of whether a Trustee/Trust, i.e
the eventual beneficiary of a Will, is a necessary or proper party in a
petition seeking probate thereof, a fortiori when no objection thereto
is raised by the petitioner.
19. The appellants in FAO(OS) 347/2012 and 348/2012 have both
challenged the impugned order to the extent it dismissed the probate
petition. They contended inter alia that (i) the impugned order failed
to limit itself to assessing whether the Will and Codicils were
executed and proved in terms of the law, instead it proceeded
extensively on the basis of various presuppositions, (ii) the impugned
order was contradictory in its assessment of the various testimonies,
placing undue reliance on that of RW8, despite the unopposed
testimonies of PW1, PW3, and more particularly, that of the office the
learned Registrar which wholly established the execution of the Will
and a case for grant of Probate, (iii) there is sufficient information in
the Will, directly as well as by incorporation, to indicate the assets it
sought to bequeath, therefore, there was nothing vague about the

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 18 of 56

assets or the Executor or about the beneficiary, (iv) PW3 did not
depose that he signed the Will but that he signed the Bill (issued to the
Testator), which appears to have been wrongly transcribed.

EXECUTION AND PROVING THE WILL:

20. The appellant submits that the manner of execution of a Will

and Testament is stipulated in section 63 of the Succession Act which
reads as under:-
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.‖

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 19 of 56

21. The State of Rajasthan contends that the Will has not been
proven in accordance with section 63 of the Succession Act, which
requires that it be attested by at least two witnesses with their
signatures, who have seen the Testator put his signature on the Will or
has received an acknowledgment from the Testator about his signature
on the Will; it is argued that the attesting witness who has signed the
Will must have so signed it with the intention to attest the document,
i.e. animus attestandi, is essential to make it a valid attestation for a
genuine Will.
22. The manner of proving of the Will is contained in section 68 of
the Evidence Act, which read as under:-

68. Proof of execution of document required by law to be

attested.––If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of the
court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting
witness in proof of the execution of any document, not being a
will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom it purports to have
been executed is specifically denied.

23. In FAO(OS) 348/2012 trhe appellant himself filed an

application to summon both the attesting witnesses to the Will and to
the Testament, as well as the Registrar of Assurances, Delhi- to
produce the original Will and Testament. By order dated 05.10.1987,
the High court summoned the aforesaid witnesses, however, Mr. R.K.

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Singh did not appear for deposition. In the hearing held on
12.10.1987, one Ms. Kusum Lata from the Office of the Registrar,
brought a sealed cover containing the original Will and Testament,
which was lying deposited in that office. On the said date, the
appellant also produced in court the original Codicil executed by the
Testator. The probate court by its order dated 12.10.1987 has recorded
that three original documents, namely, (i) the original Will and
Testament (Ex.P-1) lying deposited with the Registrar; (ii) the original
sealed envelope (Ex.P-2) containing the Will and Testament; and (iii)
the original Codicil (Ex.P-3) produced by Mr. Parmeshwar Prashad
(PW2) were seen in original by the parties, and the original will was
re-sealed.
24. It is contended by the appellant that as per provisions of section
68 of the Evidence Act („Evidence Act‟), it is sufficient even if one
attesting witness is called for evidence to prove the execution of the
Will. Accordingly, the appellant produced Mr. P.N. Khanna, who was
a Chartered Accountant and the attesting witness, as PW1 to prove the
execution of the Will and Testament dated 30.10.1985 and had made
the following statement:-
―.....Raja Bahadur Sardar Singh of Khetri had executed a
Will at Tis Hazari, Delhi outside the Registrar‘s office, in
my presence and in presence of Shri R.K. Singh, Advocate
who was the junior of Shri Danial Latifi, Advocate... I
had gone to Tis Hazari Courts on 30th October 1985 and
reached there at 10 a.m. I had gone so at the request of
the Testator. Shri R.K.Singh had also arrived there. The
Testator was having a typed draft of Ex.P1 with him.
This Will was signed by the Testator on portions sidelined
‗C‘ in my presence and thereafter at the request of the

FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 21 of 56

 Testator I had attested it by signing at portions sidelined
‗A‘ on all its pages in presence of the Testator and
similarly, Mr.R.K. Singh, Advocate had seen the Testator
signing this Will at portion sidelined ‗C‘ on all its pages
and had attested it by signing at portions sidelined ‗B‘ on
all its pages. After the Will had been executed, under his
instructions the staff of the Testator put it in a sealed
cover and the Testator deposited it in the office of the
Registrar in my presence and I remained with him
throughout. As far as I remember I had filled in some
form which was required for depositing the Will with the
Registrar. I have also seen the sealed cover Ex.P2. This
was also signed in my presence by the Testator at portion
sidelined ‗C‘. I had also signed it at that time at portion
sidelined ‗A‘ and Shri. R.K.Singh, Advocate signed it at
portion sidelined ‗B‘.
On 7thNovember 1985, at the request of the Testator, I
had gone to his residence where Shri R.K.Singh,
Advocate had also come. The Testator was having a typed
draft of the codicil Ex.P3 and in our presence he signed
the same and after I and Shri R.K. Singh, Advocate had
seen the Testator signing it, at the request of the Testator,
we attested this codicil by signing as attesting witnesses. I
have attested this codicil by signing at portion sideline
‗A‘. Shri R.K.Singh, Advocate attested it by signing it at
portion sidelined ‗B‘ and the Testator had signed it at
portion sidelined ‗C‘.‖

25. Mr. Paras Kuhad, the learned Senior Advocate for the appellant
submits that since Mr. P.N. Khanna (PW1) was not cross examined in
respect of the above, therefore, his testimony, as an attesting witness
to the Will and Testament dated 30.10.1985 stands proven. The cross-
examination on behalf of the various objectors elicits the following
statement as regards signing of the will:
―This is incorrect to suggest that the Will Ex.P1 and the

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 codicil Ex.P3 were got signed by Parmeshwar Prasad
under coercion from the Testator or that I had attested it
on the asking of Parmeshwar Prasad.
***
...Crosses encircled X, X-1 and X-2 on codicil Ex.P3
might have been marked by the person who had prepared
the same. They were not marked by me. They were
already in existence when the Testator, myself and Shri
R.K. Singh, Adv. signed this document. It is incorrect to
suggest that I had not seen the Testator signing the
codicil Ex.P3 or that I had not attested it in the presence
of the deceased or that it had been sent to me and I
signed it later on. The Will Ex.P1 was firstly signed by
the Testator at portioned sidelined ‗C‘ on all its pages
and thereafter at his request I had attested it by signing at
portions sidelined ‗A‘ and thereafter Shri R.K.Singh,
Advocate had attested it by signing it at portions
sidelined ‗B‘
***
Beside the Testator, myself and R.K. Singh Advocate, the
personal assistant of the Testator Mr. Golka Nand and
two members of his staff excluding the driver were
present when Will Ex.P1 was executed at Tis Hazari
Courts, Delhi. I do not know if anybody else was also
present at that time, but as far as I think the above
persons only were present....Except for the Testator,
myself and Shri R.K. Singh, Advocate none else was
present in the bed-cum-sitting room of the Testator when
codicil Ex.P3 was signed.‖

26. In support of his submission, the learned Senior Advocate for

the appellant relied upon the dicta of the Supreme Court in
Muddasani Venkata Narsaiah v. Muddasani Sarojana, 2016 (12)
SCC 288, which held that when the evidence of a witness is not tested
in cross-examination, the evidence of such a witness is to be ordinarily
accepted. Relying on the above, he submits that the requirements of

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Section 68 of the Evidence are complied with, and the Will and
Codicil stand proven, because the testimony remained unaffected even
after cross-examination. Indeed, the clear and categorical testimony of
PW-1 was not even challenged in cross-examination.
27. The court finds merit in this contention. During the course of
trial, it has been established by the testimony of PW1 that (a) the
Testator signed the Will as well as the Codicil in his presence, as well
as in the presence of RW8, (b) PW1 and RW8 signed the Will in the
presence of the Testator, immediately after the Testator had signed the
same, (c) RW8 was present at the Office of the Registrar at Tis Hazari
Courts when the Will was signed and presented to the Registrar, (d)
PW1 and RW8 signed the cover in which the Will was sealed. These
facts also appear to be borne out from the contents of the documents
bearing the signatures of the Testator, PW1 and RW8, which are in
effect corroborated by the testimony of PW1.
28. There appears to be not even a suggestion to PW1 that RW8
was not present when the Will was signed or that RW8 did not sign
the Will, Codicil or the cover/envelope in which the Will was sealed.
Nor was there any suggestion that the Will had been already signed by
the Testator before 30.10.1985.
29. In the court‟s view, by the testimony of PW1 the requirements
of section 68 of the Evidence Act stand complied with as far as
proving the Will and the Codicil are concerned. The impugned order
had recorded some concerns about the reliability of PW1‟s testimony,
based on RW8‟s testimony, which will be dealt with at a more
appropriate juncture in this judgement.

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30. After PW-1, Mr. Parmeshwar Prashad, one of the Executors
was examined as PW-2, to prove the signatures of the Testator on the
Will. He deposed that the custody of the original Will and the
Codicils was handed over by the Testator to Mr. Danial Latifi, Senior
Advocate, who in turn handed over the same to Mr. Romesh Thapar
his presence. PW 2 has deposed that he did not know when and where
the Will and the envelope were signed and executed. Notably, no
suggestion was put to PW2 apropos the manner of execution and
deposit of the Will, neither was any suggestion put to him that Mr.
R.K. Singh (RW8) has put his signatures as an attesting witness on the
Will and Testament, at the instance of PW2 himself or in the absence
of the Testator or PW1. On the basis of the two reliable and
substantive witnesses presented by the appellant, it was evident that
his case for grant of probate stood proven.
31. Seven objectors led eight witnesses in evidence, to oppose the
grant of probate. Notably, none of them denied the testimony of Mr.
P.N. Khanna (PW1) with respect to the execution and deposit of the
Will and Testament on 30.10.1985 in the presence of both the attesting
witnesses. A suspicion was sought to be raised by State of Rajasthan
that since Mr. Parmeshwar Prashad (PW2) purportedly looked after
the affairs of the Testator, he may have obtained the Testator‟s
signatures on the blank papers and thereafter, used it to fabricate the
Will and Testament. Apropos objectors‟ witnesses RW1 and RW3 to
RW6, the learned Single Judge concluded that they were “propped up
witnesses”. He reasoned as under:-
―87. An analysis of these witnesses which have been

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 produced on behalf of the respondents barring RW-2,
Kailash Narain Rawat, Tehsildar, who proved the
attachment of properties of the deceased/Testator and
RW-7, Kusum Lata, who proved the entry of the Will of
Parmeshwar the deceased/Testator in the record of the
Registrar, the remaining witnesses are propped up
witnesses by the objectors. As a matter of fact, one of the
witness is the objector himself. He has withdrawn his
objection; therefore, his testimony is of no consequence....

32. The learned Single Judge specifically rejected the contention

that the Will may have been fabricated or forged on blank papers by
PW2. This court too, finds such a suggestion nothing short of
incredulous, given the educational qualifications, experience, stature,
capability and wisdom of not merely the Testator. The court is also
cognizant of the persons who were advising him on a professional and
personal basis, of the persons who were named as Trustees in the
bequest. The State of Rajasthan has not challenged this finding in its
appeal either.
33. The impugned order, however, proceeded to observe as under:
93. ...Therefore I feel it is too farfetched to allege that the
Will was fabricated or forged by PW-2, Parmeshwar
Prasad, but certainly the fact of the matter remains that
PW-2, Parmeshwar Prasad, must have manipulated
things in such a manner so the formalities of the Will are
sought to be completed at different times without actually
making all the three persons, namely, the
deceased/Testator and the two attesting witnesses to sign
simultaneously because RW-8, R.K. Singh, has
specifically stated that when he went to Sardar Patel
Road, he did not see the deceased/Testator and it was
PW-2, Parmeshwar Prasad, who made him sign the
document in question. To that extent, one can certainly

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 say that this is a suspicious circumstance which goes
against the petitioners.‖

34. The above inference, in our opinion, is not sustainable because

of the abject lack of cross-examination of PW2 in this regard. Barring
a solitary suggestion that the Testator was compelled or manipulated
by PW2 to execute the Will so as to benefit from it, a suggestion was
denied by PW2, there was no basis for such an inference. Instead,
there is considerable evidence in the appellant‟s favour, which appears
to have not been appreciated by the impugned order.
35. Ms. Kusum Lata (RW7) from the Office of the Registrar
confirmed that the Register produced by her from the aforesaid office
bears Entry 335 showing that a Will and Testament of the Testator
was deposited and that Mr. P.N. Khanna (PW1) and Mr. R.K. Singh
(RW8) were witnesses to the Will and Testament. She deposed as
under:-
―I have brought Book No.5 which is maintained in the
office of the Registrar in which entries are made in
respect of the Wills deposited in the office of the
Registrar. There is an entry bearing No.335 in this
register which shows that a will of Raja Bahadur Sardar
Singh son of Raja Bahadur Amar Singh was deposited in
our office on 30th October 1985. It is also mentioned that
the witnesses of the will are Shri P.N. Khanna son of Shri
Barkat Ram and Shri R.K.Singh, Advocate.‖

36. This testimony, especially when taken with that of PW1 and
PW2 is of considerable significance and, in our view, negates and
renders baseless, the inference that PW2 may have ―manipulated
things in such a manner so the formalities of the Will are sought to be

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completed at different times without actually making all the three
persons, namely, the deceased/Testator and the two attesting witnesses
to sign simultaneously‖.
37. The testimony of RW7 clearly shows that the Will was executed
and was deposited in the office of the Registrar in the manner
prescribed under sections 42 and 43 of the Registration Act, 1908,
which read as under:-
―42. Deposit of wills.—Any Testator may, either
personally or by duly authorised agent, deposit with any
Registrar his will in a sealed cover super scribed with the
name of the Testator and that of his agent (if any) and with
a statement of the nature of the document.
43. Procedure on deposit of wills.—
(1) On receiving such cover, the Registrar, if satisfied that
the person presenting the same for deposit is the Testator
or his agent, shall transcribe in his Register-book No. 5 the
superscription aforesaid, and shall note in the same book
and on the said cover the year, month, day and hour of
such presentation and receipt, and the names of any
persons who may testify to the identity of the Testator or
his agent, and any legible inscription which may be on the
seal of the cover.
(2) The Registrar shall then place and retain the sealed
cover in his fire-proof box.‖

38. Rule 20 of the Delhi Registration Rules, 1976 reads as under:-

―.20. Book No. V. -(1) Book V is to be kept only in the
office of Registrar, who alone can receive Wills in
sealed covers for deposit. It shall contain the following
headings:
(1) Serial Number;
(2) Superscription on the sealed cover;
(3) Description on the seal of the cover;

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 (4) Time of presentation and receipt of the sealed cover,
year, month, day and hour;
(5) Name of depositor;
(6) Names of persons testifying to the identity of depositor;
(7) Time of delivery of the sealed cover to applicant for
withdrawal year, month, day and hour;
(8) Names of persons testifying to the identity of the
applicant and the time, of delivery;
(9) Times of opening the sealed cover-
year, month, day, hour.
(2) Columns (1) to (6) shall be filled in when a Will is
first deposited under section 43 of the Act. Columns (7)
and (8) shall be filled up in the event of the Will being
subsequently withdrawn, and column (9) shall be filled
up when a Will is opened after the death of the Testator,
under section 45 or 46 of the Act. All these several
entries must be verified by the signature of the Registrar
for the time being. When a Will had been removed by
order of a court under section 46 (1) of the Act the fact
shall be noted in red ink across the entry and the note
shall be authenticated by the signature of the
Registrar.‖

39. Presumption of facts as envisaged under section 114 of the

Evidence Act and Illustration (e) thereto are reproduced
hereinbelow:-
―Section 114. Court may presume existence of certain
facts:
…
(e) that judicial and official acts have been regularly
performed;
…”

40. In view of the above, the impugned order ought to have

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presumed that the official act of receiving the Will and Testament was
performed by the Registrar, in accordance with law and the contents
on the sealed envelope were accurately recorded by the Registrar,
especially because the Registrar, in terms of provisions of section 43
of the Registration Act, 1908 and the rules applicable thereunder,
satisfied himself that the person presenting the Will and Testament is
the Testator himself and thereafter transcribed in Register Book No. 5
and on the cover of the envelope, the names of the Testator and Mr.
P.N. Khanna (PW1) and Mr. R.K. Singh(RW8) as the persons who
testified to the identity of the Testator. This is all the more so, because
the original Will in the sealed cover has been seen, compared to be
identical to the original Duplicate produced in court with the probate
petition, and the Will and cover/envelope bear the writing and
signatures as set out above.
41. There is a presumption of correctness of a „public document.‟
This presumption has gone un-rebutted, giving us no cause to
disbelieve it. The Will deposited with the Registrar is a „public
document‟ within the meaning of section 74(2) of the Evidence Act.1
42. The Supreme Court has held that an entry made by an officer in
the Birth Register was in discharge of his official duties and, therefore,
there was no requirement to examine the officer.2
43. There is presumption about the validity and regularity of the
official act. The onus to prove the contrary is on the person who seeks

1Bhasin Film Corporation v. M/s Shalimar Cinema, AIR 1983 Del 317
2Harpal Singh and Another vs. State of Himachal Pradesh, 1981 (1) SCC 560

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to rebut the presumption by cogent and relevant material.3
44. The Supreme Court held that once a certified copy of the Will
has been placed on record from the office of the Registrar, the onus to
prove that the registration was not in accordance with law is on the
party alleging so.4
45. In the present case, the envelope containing the original Will
was produced by the Registrar, it was opened in court and seen, as has
been reproduced hereinabove. This is not rebutted by any cogent and
relevant evidence. The envelope of the original Will stands proven and
its contents, i.e. the Will too stand proven. In any event, there is no
basis for the inference drawn in the impugned order, as regards the
role played by PW2 in respect of execution or registration of the Will.
Therefore, that inference and finding cannot be sustained. The impact
of RW8‟s testimony on this inference will be dealt with at a more
appropriate juncture in this judgement.
46. In our view, the testimonies of PW1 and PW2, which have gone
uncontroverted in cross-examination, read with the testimony of RW7,
the Will and the cover in which it was sealed, make it abundantly clear
that the requirements of proving the Will, in terms of Section 68 of the
Evidence Act are complied with, and the requirement of proving that
the Will was executed, in accordance with Section 63 of Succession
Act, was complied with. This, by itself, is sufficient to allow Test Cas
26/1987. However, inasmuch as the impugned order has drawn certain
conclusions that may have a bearing on this, the same are being

3Surendra M. Mittal v. NCDRC,2008 AIR (Del)35

4Smt.Swaran Lata vs. State,2006 AIR (Del) 21

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discussed.
Section 89 of the Succession Act requires the property to be
specified and the Will is bad for not doing so
47. The impugned order held that the Will suffered from ambiguity
since it did not specify what part of the estate of the Testator forms a
part of the bequest.
48. As perused from the Will reproduced hereinabove, the Testator
has specified that he bequeaths ―ALL THOSE my properties, movable
or immovable, anywhere, upon trust as below appears. The name of
the Trust shall be the KHETRI TRUST.‖ The beneficiaries of the Will
had been specified. The words used in the Will are "ALL THOSE my
properties, movable or immovable, anywhere......".
49. Recital (C) of the Will propounded reads as under:-
"I am possessed of immovable and movable assets as
appear from my Wealth Tax Returns."

50. The Will, at para. 3, inter alia, reads as under:-

"I hereby bequeath and give unto and to my said
Executors and Trustees....., ALL THOSE my properties,
movable or immovable, anywhere. upon trust as below
appears.

...The name of the Trust shall be the KHETRI TRUST."

51. Quite clearly, the assets of the Testator, as contained in his

Wealth Tax Returns, i.e. all those of his properties, movable or
immovable that may be anywhere, were bequeathed, to the named
beneficiary i.e. the Khetri Trust. In our view, there was no ambiguity
or uncertainty regarding the property/the subject matter or the

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beneficiary of the bequest.
52. The impugned order felt that use of the term “as below appears”
in para. 3 of the Will must relate to the term “properties movable or
immovable”. To put it differently, the impugned order felt that para.3,
by bequeathing properties movable or immovable as below appears,
introduced an element of uncertainty because the rest of the Will did
not expressly state what those properties were that were to appear
below para.3.
53. However, in our view, this interpretation cannot be sustained.
The term “as below appears” was preceded by the words “upon trust”,
indicating that the term “as below appears” relates to the term “trust”.
To put it differently, the bequest was of “ALL THOSE my properties
movable or immovable”, upon the Trust as appears below. This is
apparent from the fact that para.4 reads ―The name of the Trust shall
be KHETRI TRUST‖.
Non-Summoning of Gokul Anand:
54. The contention of the State of Rajasthan apropos the non-
summoning of Gokul Anand, Personal Assistant of the Testator, can
hardly be a ground of suspicion because making of a Will is a
confidential exercise and the Testator may not want the Personal
Assistant to be informed of it, for reasons best known to the Testator,
because disclosure to or knowledge of the same by other unrelated
persons could have spread to many persons, who may have had an eye
on the estate or have nursed a hope to inherit or otherwise obtain a part
of the same. Unnecessary obstacles could have been created by even
an employee associated with him. Besides the Personal Assistant may

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not necessarily be a trusted confidante.
55. Human nature is fickle and having some wisdom of the world,
the Testator took a call not to disclose the factum or contents of his
Will to anyone, he did not deem necessary. The law does not require a
Testator to inform a person closest to him or her of the making of a
Will. In the circumstances, it can hardly be said that the stand of the
Appellant, that summoning Mr. Anand and subjecting him to
examination would cause undue delay was a baseless or unjustified
contention.
56. In any event, the observation of the impugned order that the
factum of preferring an appeal against the order summoning Mr.
Anand, justifies drawing an inference against the Appellant is wholly
unsustainable. Appeal, once provided in a Statute, is a matter of right,
that cannot be made subject to such considerations, a fortiori when the
Division Bench found merit in the appeal and set aside the order
summoning Mr. Anand.
57. In the circumstances, the learned Single Judge has erred in
inferring against the appellant for not summoning Mr. Gokul Anand.
Contentions apropos signing of the WILL by Mr. Danial Latifi:
58. As regards the answer in the affirmative by Mr. Danial Latifi to
the query that he had signed the original Will, the appellant submitted
that Mr. Danial Latifi had entered the witness box only to prove the
bill raised by him on the Testator, especially regarding the fee paid to
Mr. R.K. Singh (PW8) for the latter‟s assistance in the execution and
registration of the Will dated 30.10.1985. It is neither the case of the
Executor nor of the objector that Mr. Danial Latifi had signed the

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Will. On the contrary, the bill raised by Mr. Danial Latifi on the
Testator was the document in issue, for which he was being examined
and he was referring to his signatures on the original bill and not the
original Will. The two words „bill‟ and „Will‟ are phonetically similar
and it appears to be an apparent inadvertent typographical error. The
same error appears to have continued while typing the cross-
examination of Mr. Danial Latifi.
59. The order dated 04.12.2003 passed in the Probate proceedings
reads as under:-
―….Objector has prayed for an inspection of the bill (sic
Will) dated 30th October, 1985 along with the further
documents which are lying in the sealed cover…..‖

60. Interestingly, no further questions were put to Mr. Danial Latifi

regarding the signature on the Will and Testament or as to who all
were present at the time of signatures.
61. The only reason why Mr. Latifi‟s evidence was led by the
appellants was because a doubt was raised apropos the role of Mr.
R.K. Singh and whether he was paid any money for assistance in
drafting, execution, and presentation of the Will, for deposit with the
Registrar at Tis Hazari Court Complex. Mr. Latifi was not shown the
Will to seek his confirmation as to whether it was the said Will which
was “signed” by him? Nor were any questions asked of him as to
where was the Will which was signed by him. The respondent‟s
argument of a Will being signed by Mr. Latifi is based on an answer in
affirmative to a question “have you signed the original Will”.

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62. In our view, the reference in Mr. Latifi‟s answer was
undoubtedly to the bill and not to the Will. It is quite likely that Mr.
Latifi misheard the word „Will‟ as „Bill‟ possibly due to his age or
ambient noise. Alternatively, due to typographical error the word Will
got typed instead of Bill and continued through in the testimony and in
the order. This, in our view, is at best a minor discrepancy. Apropos
minor discrepancies in recording of evidence a Division Bench of this
court in Inder Singh & Surender Singh vs State 1977 SCC OnLine
Del 143 has held as under:
―…58. Like the Additional Sessions Judge, I think the
discrepancies are too minor. Such discrepancies can and
do occur in the statement of any truthful witness. Given the
imperfections of the human mind it would be strange if they
did not. Hence, the mere existence of some discrepancies is
not of itself sufficient to discredit a witness. There must be
an ‗attempt to appraise their real value and effect‘, and
‗unless there is any good ground to think that they are due
to a deliberate attempt to suppress or depart from the truth
it is unfair to discard the direct testimony of witnesses
merely on account of such discrepancies, when there is
general agreement as to the material circumstances‘: see
Emperor v Muhammad Khan &Anr, AIR 1934 Lahore 710
(47)….‖

63. More importantly, even if it is assumed that there was a

counter-part of the Will which was signed by Mr. Latifi, it would not
affect the grant of probate of a Will produced from the office of the
Registrar of Assurances. Mr. Parmeshwar Prashad‟s evidence
regarding handing-over of the Will to the Registrar has gone

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unrebutted. Therefore, this aspect stands proven. The professional bill
being referred to by Mr. Latifi, which was signed by him, is
reproduced herebelow:

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FAO(OS) 347/2012 , 348/2012 & 211/2013 Page 38 of 56
Apropos Danial Latifi’s presence at Tis Hazari on 30.10.1985:
64. The respondent says that albeit Mr. P.N. Khanna had deposed
that besides the Testator, he himself and Mr. R.K. Singh, Advocate,
the personal assistant of the Testator, Mr. Gokul Anand and two
members of his staff excluding the driver were present when the Will
(Ex. P-1) was executed at Tis Hazari Court Complex, Delhi, outside
the Registrar‟s office, and he did not know if anybody else was also
present at that time but as far as he knows, only the abovesaid persons
were present.
65. Much is sought to be made by the respondent about Mr. P.N.
Khanna not mentioning the presence of Mr. Latifi who in his
testimony in rebuttal, stated that he had gone to Tis Hazari Court
Complex, Delhi with the Testator on 30.10.1985.
66. Not mentioning of Mr. Latifi‟s presence at the Tis Hazari Court
Complex, Delhi has nothing to do with the basic issue about execution
and attestation of the Will by two witnesses. The three essential
persons were the Testator and the two witnesses. They have been
acknowledged to be present there. Two members of the Testator‟s
staff, excluding the driver, have been acknowledged. No suggestion
has been put to Mr. P.N. Khanna to the effect that he was in fact not
present at Tis Hazari Court Complex, on the said date.
67. Neither in Mr. Khanna‟s statement nor of any other party, is it
recorded that Mr. Latifi had gone in a professional capacity, which
would require him to be active in the entire process. He was a Senior
Advocate, who in keeping with his designation, kept a certain degree
of distance and aloofness from the actual process of execution of the

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Will and to its being deposited in a sealed cover with the Registrar.
Nothing adverse can be drawn from his statement that: ―I cannot on
this point admit or say as to who was present at the time of the signing
of the Will by Raja Bahadur Sardar Sahib. I cannot say at what place
this Will was signed by him‖.
68. Mr. Latifi was produced by the appellants as PW-3 to bring his
rebuttal evidence primarily regarding the evidence of Mr. R.K.
Singh‟s testimony that he was not associated with the drafting of the
Will. Since Mr. Latifi was present at the court only as a personal
friend of the Testator, it is not inconceivable that he would have kept
an aloof distance apropos the actual execution and presentation of the
document as of 30.10.1985. This was expected of the Senior
Advocate, who, in any case, was not engaged for the aforesaid
purpose. Surely he was not supposed to be a witness to the signing of
the Will or to keep a track of all who were present at the time of
execution or presentation of the Will. His mere presence at the Tis
Hazari Court Complex, Delhi for the Late Raja Bahadur Sardar Sahib
cannot be assumed that he was necessarily to witness or corroborate
everything what had happened at the site. It can be inferred that the
Testator wanted to be doubly sure that the execution of the Will and
its presentation deposit before the Registrar went through smoothly,
therefore, the executor had both his advisors: legal advisor-Mr. Latifi
and financial advisor and C.A.-Mr. P.N. Khanna, present at the time of
execution and presentation of the Will to the Registrar of Assurances.
Furthermore, aloofness on the said date was also in keeping with the
distance an Executor is required to maintain apropos a Will.

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69. Therefore, the findings of the impugned order in this regard
cannot be sustained.
Duplicate Will cannot be taken as the Original Will:
70. Another objection for not granting probate was that the Will and
Testament marked „Duplicate‟ cannot be taken to be as Original Will
and, therefore, it is not proven in accordance with law.
71. The learned Senior Advocate for the State of Rajasthan submits
that the probate proceedings can be sustained only on the basis of the
Original Will and not on a copy of the Duplicate Will. What was filed
was the latter and not the Original Will. He says that no secondary
evidence can be led unless and until foundation is laid as to why the
primary evidence is not available. The original not having been
produced, the case could not proceed.5
72. This argument is misconceived. It could not be the intent of the
petitioner to propound the original Duplicate annexed to the probate
petition as the Original Will, because the latter was lying enclosed in a
sealed cover with the Registrar.
73. The said duplicate was merely produced to submit to the court
that a Will with the same content has been deposited in a sealed cover
with the Registrar. Doubtless, no certified copy can be produced of a
5
U. Sree vs. U. SrinivasanAIR 2013 SC 415; Benga Behera & Anr. Vs. Braja Kishore Nanda &
ors., 2007 9 SCC 728: “…31. A document upon which a title is based is required to be proved by primary
evidence, and secondary evidence may be given under Section 65(c) of the Evidence Act. The said clause of
Section 65 provides as under:
―65. (c) when the original has been destroyed or lost, or when the party offering evidence of its contents
cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;‖

Loss of the original, therefore, was required to be proved.

32. In a case of this nature, it was obligatory on the part of the first respondent to establish the loss of the
original will beyond all reasonable doubt. His testimony in that behalf remained uncorroborated.…‖

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document deposited in a sealed cover with the Registrar. However, the
sealed cover as well as the document itself could be produced by the
Registrar upon the court calling for it. It is to justify this requirement
that the petitioner had produced the Duplicate with the petition. This is
reinforced by I.A. No. 7618/1987 moved by the appellant seeking
production of the Original Will lying in deposit with the Registrar.
74. As has been noted above, the original Duplicate copy of the
Will was produced with the petition and the Will contained in a sealed
envelope, which was produced from the office of the Registrar,
pursuant to the above order, was opened in the court, seen and then
resealed. It was identical to the Will propounded by the appellant. It
had been kept secured with the Registrar by the Testator as an exercise
in caution and prudence, so that the original would be made available
at the appropriate time.
75. The sealed envelope brought from the office of the Registrar
does not bear the word „Duplicate‟ nor does the Will which came out
of it. The latter was the original Will signed by the Testator, sealed
and deposited. An identical copy of the same marked „Duplicate‟ was
executed and handed over to Mr. Danial Latifi, who upon demise of
the Testator gave it to Mr. Romesh Thapar for appropriate action. If
the original Will had already been kept with the Office of the
Registrar, then only an identical counterpart marked „Duplicate‟ could
have been produced and there could be no suspicion in this regard.
The respondent‟s contention is therefore untenable and is rejected.

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Apropos withdrawal of the objections by the Objectors:
76. Some of the objectors included Mr. Surender Singh and Mr.
Rajinder Singh, purporting to be the cognates/agnates of the Testator
in the Probate Case. During the pendency, they filed applications
under Order XXIII Rule 1 CPC seeking withdrawal of their
objections, which were duly supported by their affidavits, wherein
they admitted and accepted the execution and contents of the same as
the last Will and Testament of Late Raja Bahadur Sardar Singh of
Khetri. The relevant portion of the affidavit, inter alia, reads as
under:-
―6. That in view of the aforesaid admission, the applicant-
objector is not interest in pursuing the objection petition
filed by him in the present probate proceedings on
06.07.87 and the applicant-objector has absolutely no
objection in grant of probate/letters of administration as
the case may be in favour of the present petitioners-
Executors of the probate proceedings.‖

77. The impugned order has found it suspicious that all the
objectors withdrew their objections and that there were some „forces
behind the scene‟. However, these „suspicious forces‟ were never
specified. It ignored the fact that with the passage of time, parties to a
case may have accepted to not pursue the matter or they subsequently
concluded that the probate case was truthful. It is not for the court to
go about looking for ghosts where none exist. Once the applications
seeking unconditional withdrawal were allowed, with no objection
from any party, including the State of Rajasthan, to draw adverse
inference on the basis thereof would not be sustainable.

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Production of Envelope not sufficient:
78. For the first time, in this appeal, the State of Rajasthan had
stated that mere production of the cover of the original envelope
containing the Will is not sufficient to prove the Will having been
executed as per law.
79. The contention, in any event, is misconceived. That the Will has
been executed as per law, i.e. as per the requirements of Section 63 of
the Succession Act, is something already established by
uncontroverted evidence of PW1, PW2, RW7, and even corroborated
by the testimony of PW3. The respondent‟s contention is rejected.
R.K Singh’s Testimony:
80. As is apparent, much of the impugned order derives sustenance
from the testimony of PW8, Mr. R.K. Singh.
81. Firstly, Mr. R.K. Singh has deposed that he never met the
Testator or PW1. This is belied by three pieces of evidence: (i) the
testimony of PW1 that Mr. R.K. Singh was present when the Will and
the Codicil were respectively executed by the Testator, (ii) the
testimony of PW2 to the same effect, and (iii) the testimony of RW7
read with the contents of the Will, and the cover in which it was
sealed.
82. The original cover of the envelope clearly records his signatures
alongside the signatures of Mr. P.N. Khanna and the Testator. Mr.
R.K. Singh had signed the envelope alongside that of Mr. P.N.
Khanna and of the Testator and Mr. G.K. Dixit, Registrar. The
position of the signatures of Mr. R.K. Singh is only after it was written
that it contains Will of Late Raja Sardar Bahadur Singh of Khetri, R/o

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5, Sardar Patel Road, New Delhi, who was identified by Mr. P.N.
Khanna, S/o Mr. Bharat Ram, r/o 14/15 – Connaught Place, New
Delhi and Sh. R.K.Singh, Advocate and then the sealed cover was
deposited by the Testator himself on 30.10.1985 before the Registrar,
Delhi at Tis Hazari. The signatures of the Testator and Mr. G.K. Dixit,
Registrar had been affixed with their designations below the aforesaid
text and the signatures of the two witnesses are on the side of the
sealed cover.
83. Surely, Mr. R.K.Singh (RW8) could not have signed on the side
unless the text was written and signed by or on behalf of the Testator.
Furthermore, the Registrar would not have signed it unless the
Testator had been identified to him by the witnesses. Each of them are
presumed in law, to have been present before the Registrar at the time
of the submission of the sealed cover containing the Testator‟s Will.
84. The record from the Registrar office shows that Mr. R.K. Singh
(RW8) was present in the office of the Registrar. He was a lawyer
and is expected to have known the document he was signing. His
testimony to the contrary becomes more unbelievable when he
responds with a “No” to the question “Do you read any paper before
signing?”
85. The Will bears the signatures of Mr. R.K. Singh on each of
three pages. On each page, the signatures of the Testator had been
underlined possibly by the Testator himself and it is only thereafter
that Mr. R.K. Singh had signed as the second witness on the
document. The document clearly reads as ‗the last Will and
Testament‘ of the Testator. No lawyer would sign a document unless

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he was fully aware as to what is written therein. The court finds Mr.
R.K. Singh‟s deposition apropos his signing the document inspires no
confidence. The said deposition, inter alia, reads as under:

―C.Q. Did you read any paper before signing?

Ans. No‘
***
I was not aware of the nature of the document what I
was signing. I did not make any enquiry as to what
was the nature of the document what I was signing. I
was asked by Mr. Latifi to go to Sardar Patel Marg
and to sign whatever documents I was asked to sign.
C.Q. Did you across your mind that you may be
signing a document which will be used against you?
Ans. No.
86. The testimonies of two witnesses have gone uncontroverted in
cross-examination, as regards the execution and deposit of the Will.
The testimony of Mr. R.K. Singh, an Advocate with a standing of
about 8 years, who was working in the Law Commission of India,
Ministry of Law & Justice, Government of India, two years later as an
Assistant Officer, and who at the relevant time was working as a
Junior Law Officer in the Ministry of Agriculture, Government of
India, inspires absolutely no confidence. Since it is inconceivable that
an advocate would have signed a document and thereafter also sign
the envelope in which the document is sealed, despite not being aware
of its contents, or worse, when the contents of the documents are
purportedly covered/hidden by another person.
87. The statement that he was associated with the person who

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drafted the Will of the Testator and the former had asked him to sign
the same, did not entitle him to say that he did not see the Testator
signing the document, nor as testified by PW1. A lawyer retains his
independence and individuality at all times and is a privileged member
of society. It is inconceivable that a lawyer, with an experience of
about eight years, would append his signature to documents without
knowing what is written in it. The record of the Registrar clearly
shows that the three relevant witnesses, one the Testator and two
witnesses, namely, Mr. P.N. Khanna (PW1) and Mr. R.K. Singh
(RW8) were present before the Registrar. Having established the
same, for Mr. R.K. Singh to resile from his signatures in attestation of
the Will is unusual to say the least. The only thing that can be inferred
is that for reasons best known to Mr. R.K. Singh, who only appeared
upon repeated summons being issued to him is that he was a reluctant
witness. What occasioned his reluctance is not for the court to dwell
upon.
88. Mr. R.K. Singh was a lawyer and had worked with Mr. Latifi,
Senior Advocate of the Supreme Court. The latter had raised a bill in
1985-86 of Rs. 1000 for working on a Will. He specifically worked at
the Law Commission, and was selected as Junior Law Officer in the
Ministry of Agriculture. For a person of his background, it would be
expected that he has a fair legal experience and would not sign blindly
on papers, all the more if he is to present himself before the Registrar
of Assurances.
89. Mr. R.K. Singh‟s testimony is further suspect because though
he deposed that Mr. Latifi did not assign him the drafting of the Will

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and that Mr. Latifi did not pay a sum of Rs. 1000/- to him to draft the
Will, the same is controverted by the presentation of two documents,
i.e. bill of Rs.1,000/- raised by Mr. Latifi upon the Testator apropos
Mr. R.K. Singh‟s assistance, and payment of the said amount to Mr.
R.K. Singh by a cheque. The bill raised on the Testator was a
contemporaneous document and issued before the death of the
Testator. Mr. Latifi had proved that he had paid Mr. R.K. Singh by
cheque for the aforesaid work. His testimony, in this regard, reads as
under:
―…. Q. Did you ask (Mr. R.K. Singh) to help you in
drafting the will of Raja of Khetri Raja Sardar Bahadur
Singh Sahib?
Ans. Yes. I sought his assistance in drafting as well as in
engrossing and in the execution of the will.
Q. When you sent your Bill to Raja of Khetri for the above
work did you include the bill of Mr. R.K. Singh, Advocate?
Ans: Yes. I have. The fee charged was about Rs. 1000/-
which I paid to Mr. R.K. Singh by cheque. I have brought
the counter-foil of my cheque book. It is cheque no. 803827,
dated 12th March, 1986 drawn on United Commercial Bank,
Supreme Court Compound, New Delhi. I have sent the Bill
Ex. RW.8/P-A. It is in my handwriting and bears my
signature. Payment was made by Raja of Khetri against this
bill. I think Mr. R.K. Singh visited Raja of Khetri in
connection with this work. Payment was due to him and he
must have visited him in the normal course…‖

90. Notably, Mr. Latifi was not cross-examined regarding payment

to Mr. R.K. Singh.
91. In the opinion of this Court, Mr. R.K. Singh‟s testimony is
wholly suspect being contrary to all rationale and logic of a reasonable
person. In any event, it cannot be the basis for disbelieving

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uncontroverted evidence both oral and documentary, by both private
as well as official witnesses. Mr. R.K. Singh‟s testimony cannot
controvert matters of record.
92. The impugned order, in our view, has erred in placing undue
reliance on the testimony of Mr. R.K. Singh, and in relying on the
same to wholly nullify testimonies of PW1, PW2 and more
importantly, RW7, all of whose testimonies remain unimpeached in
cross-examination.
Suspicious Circumstances:
93. The impugned order has referred to some alleged suspicious
circumstances. What are these circumstances are not spelt-out
substantially. In Murthy vs. C. Saradambal (2022) 3 SCC 209, the
Supreme Court has held some illustrations of suspicious
circumstances as under:

35. In Bharpur Singh and others v. Shamsher

Singh [2009 (3) SCC 687], at Para 23, this court has
narrated a few suspicious circumstance, as being
illustrative but not exhaustive, in the following
manner:-

"23. Suspicious circumstances like the following may

be found to be surrounded in the execution of the will:

(i) The signature of the Testator may be very shaky and

doubtful or not appear to be his usual signature.

(ii) The condition of the Testator's mind may be very

feeble and debilitated at the relevant time.

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 (iii) The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for the
natural heirs without any reason.

(iv) The dispositions may not appear to be the result of

the Testator's free will and mind.

(v) The propounder takes a prominent part in the

execution of the will.

(vi) The Testator used to sign blank papers.

(vii) The will did not see the light of the day for long.

(viii) Incorrect recitals of essential facts."

37. In Naranjan Umeshchandra Joshi v. Mrudula

Jyoti Rao [(2006) 13 SCC 433], in Paras 34 to 37, this
court has observed as under:-

―34. There are several circumstances which would

have been held to be described by this court as
suspicious circumstances:

(i) when a doubt is created in regard to the condition

of mind of the Testator despite his signature on the
will;

(ii) When the disposition appears to be unnatural or

wholly unfair in the light of the relevant circumstances;

(iii) where propounder himself takes prominent

part in the execution of will which confers on him
substantial benefit….‖

94. What constitutes a suspicious circumstance was considered by a

Court of Appeal in Estate of Lavinia Musgrove (1927) P. 264. The

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case dealt with a Will not being brought to light for nearly 20 years by
the Executor, who was also the mother and sole beneficiary under the
Will. It was not found to be a suspicious circumstance for the
following reasons:

―…
the will was placed in the custody of the mother
and executrix. There is no suspicion attaching
to the will itself, or to its terms. If the will had
been produced immediately upon the death of
Lavinia in 1905, no exception could have been
taken to it.
The suspicion that the judge refers to is a
suspicion as to the conduct of Emma Mercy
Dunmall and her forbearance to put the will
forward. But if the will was once a good will it
cannot be disposed of except in one of the
authorized weays of revocation: see ss. 18, 19
and 20 of the Wills Act.
…
If it was once a will, and as such was handed
over to the custody of the executrix – and no
more effective act could b done by a testatrix in
support of it- it remains her will, and no mere
conduct of the executrix subsequently will stop
its effect. The judge was satisfied that Lavinia
had entirely forgotten the document.
Forgetfulness – even if surprising – may
explain the inaction of Emma Mercy Dunmall.
To import more into this inaction appears to me
to be acting upon a presumption arising from
conjecture only.
…. What of the suspicion? It is not such as
attaches to the document itself in the sense of

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 which Sir James Wilde uses the term in
Guardhouse v. Blackburn, or as it arose in
Tyrrell v. Painton in the preparation of the will.
The wide definition of suspicion stated by
Lindley L.J. in the latter case, that it ―extends
to all cases in which circumstances exist which
excite the suspicion of the court,‖ appears to
have been used in reference to the preparation
of the will, its intrinsic terms, and the
circumstances surrounding its preparation and
execution, and Davey L.J. seems to have had
the same matters in mind. Their judgments
were not intended to later, but to affirm the
principles laid down in cases I have cited.
They do not alter what Lindley L.J. said in
Harris v. Knight.
After carefully considering the authorities and
following the rules stated in Barry v. Butlin and
Guardhouse v. Blackburn, I am of opinion that
the plaintiff is entitled to have the maxim
applied in favour of this document, complete in
form, unexceptional in purpose, about which no
suspicion can be aroused until a later date, and
that not attaching to the will, or to the testatrix,
but to the executrix.
It is a suspicion that there must have been some
condition subsequent, under which a valid
testamentary document ceased to be effective.
The onus of proof of this would appear to lie on
the opponent of the grant of probate, for once
the will has been proved to have been duly
executed, the burden of proving that it was
revoked lies on those who set up the revocation,
and in the absence of evidence proving it,
revocation will not be presumed. That is laid
down by Lord Penzance in Benson v. Benson.
…

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 Now there is nothing in the preparation or
contents of the will to raise a suspicion that it
did not express the mind of the testatrix. The
sole peculiarity is the subsequent fact that for
many years after knowledge of the detah of the
testatrix the executrix did not take any steps to
prove a will which have large benefits to her
daughters. I cannot think that this fact is
analogous to the facts in Tyrrell v. Painton or
the previous similar cases, or that it justifies
such an inference as was drawn there.
The learned judge in attributing the inaction of
the executrix to knowledge of some defeat in the
document was, in my judgment, conjecturing
only….‖
95. The plausibility of Mr. Parmeshwar Prashad manipulating the
Testator is highly unlikely if not implausible because the latter had
been a Member of the Constituent Assembly, had assisted in the
drafting of the Indian Constitution, had been a Member of Parliament,
had been a diplomat as India‟s Ambassador to Laos, was well
educated, and had the benefit of advice and assistance of Senior legal
professional and a leading Chartered Accountant, the latter was also
Director of the Reserve Bank of India and on the board of many other
business and charitable organizations, has already been discussed
hereinabove. It does not create any suspicious circumstance. It has
also been noted above that the non-assigning of reasons by the
objectors to withdraw their objections cannot constitute a suspicious
circumstance because prudence, good sense and truth can dawn upon
an individual at any time. Indeed, sometimes, with passage of time,
things appear in an altered perspective and it is possible that the

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objectors found good reason not to pursue their objections to the
probate petition. It is not for the court to examine as to what the
reasons were.
96. The non-examination of Mr. Gokul Anand did not create a
suspicious circumstance. As noted hereinabove, the objectors had
sought to summon Mr. Gokul Anand as a witness, their request was
allowed by the learned Trial court but was set aside by the Division
Bench in an appeal preferred by the appellants. This conclusively
shows that the non-examination of Mr. Gokul Anand could not be the
basis of any adverse inference or be deemed to be a suspicious
circumstance. Reference to Mr. Gokul Anand is, therefore,
unnecessary and of no consequence. Notably the objectors had not
mentioned Mr. Gokul Anand in the list of witnesses on 24.09.1988. It
is only after the evidence of the appellant had been completed that Mr.
Gokul Anand was sought to be examined. The objector‟s application
was rightly rejected by the Division Bench.

Conclusion:

97. What emanates from the preceding discussion is that a Will was
executed at Tis Hazari on 13.10.1985 by the Testator in the presence
of two attesting witnesses, Mr. P.N. Khanna and Mr. R.K. Singh.
Thus, compliance with Section 63 of the Succession Act is proved.
The said document was sealed in an envelope and presented to the
Registrar with the endorsement on it that it contained the last Will and
Testament of the Testator who had been identified by Mr. P.N.
Khanna and Mr. R.K. Singh. The said envelope also bore the

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signatures of the Testator as well as the Registrar. This is a clear
declaration that the envelope contained the said document and the
Testator has been identified to the Registrar by two witnesses.
This also ensures compliance with Section 68 of Evidence Act in
proving the Will. When the original Will was opened and seen, it also
bore the signatures of the Testator as well as the aforementioned two
witnesses on each of the three pages of the Will. Mr. P.N. Khanna‟s
testimony apropos the execution of the Will in his presence as well as
in the presence of Mr. R.K. Singh at Tis Hazari Court Complex, Delhi
has gone unrebutted. As regards Mr. R.K. Singh, there is a
presumption that he was present at the Office of the Registrar and had
witnessed the entire process of the said execution, and had also
identified the Testator of the Will before the Registrar and in
testimony thereof had signed on the sealed envelope, which was then
deposited with the Registrar.
98. His testimony regarding not receiving money from Mr. Latifi
too stands rebutted by Mr. Latifi‟s testimony and the documents
produced by him. The payment in favour of Mr. R.K. Singh had been
recorded in the counter-foil of the cheque book brought to the court by
Mr. Latifi in his cross-examination.
99. As has been noted hereinabove, the substratum of refusing
probate cannot be the testimony of an unreliable witness, viz Mr. R.K.
Singh. In any event, once compliance with the requirements of Section
63 of Succession Act is proven, and the proof of the Will and Codicil
is in terms of Section 68 of the Evidence Act, there is no bar to this
court allowing Test Cas. No. 26/1987.

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100. From the preceding discussion, it is clearly established that the
Will was executed by Late Raja Bahadur Sardar Sahib and it stands
duly proven. In the circumstances, the impugned order is set aside and
probate is granted to Lord Northbrook. FAO(OS) 348/2012 is allowed
and disposed-off in the above terms.
101. In view of the above, FAO(OS) 347/2012 and FAO(OS)
211/2013 are infructuous and are disposed-off accordingly.
102. In the circumstances, parties shall bear their own costs.

NAJMI WAZIRI, J.

VIKAS MAHAJAN, J.
JULY 11, 2023
KK/SB

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 TM
This is a True Court Copy of the judgment as appearing on the Court website.
Publisher has only added the page para for convenience in referencing.