The Delhi High Court affirmed the probate of a Will executed in 1984, holding that an attesting witness’s statement that she signed at the advocate’s behest does not negate the requirement of signing in the testator’s presence under Section 63 of the Indian Succession Act, 1925, and that unexplained delay in filing probate proceedings is not fatal absent a statutory limitation period.
Background & Facts
The Dispute
The appellant, Anil Prashar, challenged the probate of a Will dated 09.11.1984 executed by his father, Manohar Lal Sharma, alleging forged signatures, lack of testamentary capacity, and undue delay in filing the probate petition. The respondents, Satish Kumar Sharma and Anoop Kumar Sharma (sons of the testator), sought probate of the Will under Section 276 of the Succession Act, claiming it was genuine and duly executed.
Key Facts
- The testator executed the Will on 09.11.1984, bequeathing specific portions of his property at CB-17, Hari Nagar, Clock Tower, New Delhi - 110064 to his three sons, with the widow and daughter receiving no bequest.
- The testator died on 20.12.1984; his widow, Smt. Kamla Devi, survived until 29.02.2004.
- During the testator’s lifetime, his three sons took exclusive possession of their respective demarcated portions of the property in conformity with the Will.
- A family settlement dated 29.11.2002, signed by the brothers and accompanied by a No Objection Certificate from their sister, acknowledged the Will.
- In August 2003, the appellant admitted the existence and validity of the Will in mutation proceedings before the Municipal Corporation of Delhi (MCD).
- The respondents filed the probate petition in Probate Case No. 71/2006 (Old Case No. 342/2004) after the widow’s death.
- The Probate Court, vide judgment dated 02.09.2008, granted probate, finding the Will duly executed and the testator of sound disposing mind.
- The appellant filed the present appeal (FAO 148/2009) assailing the Probate Court’s judgment.
Procedural History
- 09.11.1984: Execution of the Will by Manohar Lal Sharma.
- 20.12.1984: Death of the testator.
- 29.11.2002: Family settlement acknowledging the Will.
- August 2003: Appellant’s admission of the Will’s validity in MCD mutation proceedings.
- 29.02.2004: Death of the widow, Smt. Kamla Devi.
- Date of probate petition filing: Not explicitly stated; the probate case is numbered 71/2006 (Old Case 342/2004), indicating filing circa 2004-2006.
- 02.09.2008: Judgment of the Probate Court granting probate.
- 04.08.2008: Probate Court’s order rejecting the appellant’s application to summon a handwriting expert and additional documents.
- 2009: Filing of the present appeal (FAO 148/2009) under Section 299 of the Succession Act.
- 23.07.2026: Date of reservation of the appeal.
- 18.09.2026: Date of pronouncement of the judgment.
Relief Sought
The appellant sought to set aside the Probate Court’s order dated 02.09.2008, to have the Will declared forged and invalid, and to be declared the sole heir intestate, with consequent relief of property partition and costs.
The Legal Issue
The central question was whether the Will dated 09.11.1984 was duly executed under Section 63 of the Indian Succession Act, 1925, given the attesting witness’s testimony that she was asked to sign by an advocate rather than by the testator, and whether the delay in filing the probate petition defeated the claim for probate in the absence of any statutory limitation period for such proceedings.
Arguments Presented
For the Appellant/Petitioner
The appellant contended that the requirements of Section 63(c) of the Succession Act were not satisfied because the surviving attesting witness, PW-3 (Capt. Uma Rani Kaushik), deposed that an advocate had asked her to sign the Will, not the testator. He alleged that the signatures of the testator and Smt. Kamla Devi were forged, that the testator suffered from asthmatic ailments and lacked testamentary capacity, and that the distribution of property under the Will was disproportionate and suspicious. He further argued that the delay of about twenty years between execution and filing of the probate petition raised suspicion, especially since the respondents’ explanation - that probate was deferred during the widow’s lifetime out of reverence - was untenable because the widow herself had attested the Will and was aware of its contents.
For the Respondent/State
The respondents supported the genuineness of the Will, relying on the testimony of PW-3, who stated that the testator first signed the Will in her presence, followed by Smt. Kamla Devi and then herself, thereby fulfilling Section 63(c). They explained the delay as a family consensus to avoid causing anxiety to the widow during her lifetime, noting that the widow was aware of the Will and had attested it. They highlighted the appellant’s own admission of the Will’s validity in MCD mutation proceedings in August 2003 and the family settlement of 29.11.2002, which acknowledged the Will. They argued that the appellant’s conduct during probate proceedings - including blanket denials of his own signatures and documents - undermined his bona fides, and that the absence of a limitation period for probate petitions rendered the delay immaterial.
The Court's Analysis
The Court began by noting that the burden of proving due execution of a Will lies on the propounder, and that attesting witnesses are competent to prove execution under Section 68 of the Evidence Act if they sign in the presence of the testator. It examined Section 63(c) of the Succession Act, which requires each attesting witness to sign the Will in the presence of the testator. The Court quoted PW-3’s testimony: “the testator first signed the Will in her presence, followed by Smt. Kamla Devi and the witness signing it thereafter.” The Court observed that even though PW-3 stated that she was asked to sign by the advocate, this did not affect the fact that she signed in the testator’s presence. The relevant passage is:
“The fact that PW -3 stated that she was asked to sign the Will by the advocate, rather than by the testator, does not take away from the fact that she signed the Will in the presence of the testator.”
Accordingly, the Court held that the attestation complied with Section 63(c). Turning to the allegation of forged signatures, the Court noted that the appellant had admitted the testator’s signature on a letter dated 15.12.1984 (five days before death) and on a 1964 sale deed, and that no expert evidence was produced to support the forgery claim. The appellant’s cross-examination conduct - denying his own signatures on vakalatnama, affidavits and written statements - further weakened his credibility.
On testamentary capacity, the Court relied on the contemporaneous letter of 15.12.1984, which showed the testator’s clear and sound disposing mind, and noted that asthmatic ailments alone do not impair capacity. The absence of a medical fitness certificate was deemed insufficient to displace PW-3’s positive testimony about the testator’s stability during morning rounds at the Army Hospital.
Regarding the delay, the Court emphasized that the Succession Act prescribes no limitation period for filing a probate petition. It accepted the respondents’ explanation that the family deferred probate out of reverence for the widow during her lifetime, a stance corroborated by the widow’s own attestation and awareness of the Will. The Court also pointed out that the appellant’s own actions - taking possession of his bequeathed portion, admitting the Will’s validity in mutation proceedings, and participating in the family settlement - estopped him from later challenging the Will’s genuineness.
Finally, the Court considered the allegation of disproportionate distribution. It held that the absence of a bequest to the widow or daughter does not, by itself, render the distribution suspicious, especially when the testator had made adequate provision for his sons and the family had acted in accordance with the Will during his lifetime. The Court concluded that the Probate Court’s judgment suffered from no infirmity and upheld it, dismissing the appeal.
The Verdict
The appeal was dismissed; no relief was granted, and each party bore its own costs. The Probate Court’s order dated 02.09.2008 granting probate of the Will dated 09.11.1984 was affirmed.
What This Means For Similar Cases
Attestation Validity Turns on Presence, Not Prompting
Practitioners must focus on whether an attesting witness signed in the testator’s presence rather than who prompted the signing. A witness’s statement that she signed at the advocate’s behest does not invalidate the attestation if the signing occurred in the testator’s presence under Section 63(c) of the Succession Act.
Delay in Probate Is Not Fatal Absent Statutory Limitation
Because the Succession Act prescribes no limitation period for filing a probate petition, mere delay - even of two decades - does not defeat a claim for probate if the Will is otherwise duly executed. Families may defer probate out of reverence for a surviving widow without losing the right to seek probate thereafter.
Admissions and Conduct Can Estop a Party from Challenging a Will
- A party’s admission of a Will’s validity in mutation proceedings or family settlements can estop him from later denying its genuineness.
- Blanket denials of one’s own signatures and documents during litigation undermine credibility and bolster the propounder’s case.
