1

$-

* IN THE HIGH COURT OF DELHI AT NEW DELHI

BEFORE

HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

+ TEST.CAS. 32/2018

LIPIKA SUD

WIFE OF HEMANT SUD

DAUGHTER OF S.N. MAJUMDAR

W-26, GROUND FLOOR

GREATER KAILASH - II

NEW DELHI 110048

....PETITIONER

(Through: Mr. Rajesh Yadav, Sr. Advocate with Mr. Mohd. Umar,

Advocate along with Petitioner in person.)

Versus

1. STATE

THROUGH SDM

CHITTARANJAN PARK

GNCT OF DELHI

2. HEMANT SUD

SON OF LATE H.L. SUD

W-26, SECOND FLOOR

GREATER KAILASH - II

NEW DELHI 110048

....RESPONDENTS

(Through: Mr Samman Vardhan Gautam, Ms Khushi Sharma,

Mr.Priyam Tiwari, Ms Anshika Priyadarshini and Ms Pooja Sharma

Advocates for Respondent no. 2)

2

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% Reserved on: 09.03.2026

Pronounced on: 16.04.2026

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JUDGMENT

The present petition has been instituted by the petitioner, Mrs. Lipika

Sud, seeking the grant of probate under Section 276, read with Sections 278

and 234 of the Indian Succession Act, 1925 (hereinafter “the Act”) of the

Will dated 08.08.2012 (hereinafter “Will”), stated to have been executed by

her deceased mother-in-law, Late Smt. Suraksha Sud (hereinafter "the

testatrix"). Respondent No. 2, Hemant Sud, is the adopted son of the

testatrix and the husband of the petitioner.

2. The testatrix left for her heavenly abode on 25.08.2012, following an

ailment of sepsis and food poisoning. Under the purported Will, the testatrix

bequeathed a residential plot measuring 500 sq. yds. situated at Saraswati

Kunj, Gurgaon, and Flat No. 503, 5

th

Floor, Kanchanjunga Building,

Barakhamba Road, along with two commercial car parking spaces, in favour

of her granddaughters, Ms. Sanjana Sud and Ms. Shreya Sud, who are the

daughters of the petitioner and respondent No. 2. The property bearing No.

W-26, Greater Kailash-II, New Delhi (hereinafter "the GK Property") was

bequeathed in equal shares to the petitioner, as the daughter-in-law of the

testatrix, and to respondent No. 2. Additionally, all bank balances and

investments were bequeathed to respondent No. 2, the jewellery to the

granddaughters, and a sum of INR 10,00,000/- to the testatrix's niece, Kanta

Sood.

3

3. The GK Property was originally allotted to Late Sh. H.L. Sud and the

Testatrix, who had together adopted respondent No. 2. The petitioner

married respondent No. 2 on 26.01.1989 and has since been residing at the

GK Property. Two daughters were born from the wedlock, namely Ms.

Sanjana Sud and Ms. Shreya Sud. Upon the demise of Sh. H.L. Sud on

22.01.2009, his entire share in the GK Property devolved upon the testatrix

by virtue of a Will executed by him, whereafter she became the absolute

owner thereof.

4. It is the petitioner's case that she shared cordial relations with her in-

laws. In the year 2012, during a family trip to Goa organised to celebrate the

birthday of the testatrix, the petitioner disclosed to her mother-in-law certain

alleged financial irregularities committed by respondent No. 2 in relation to

the affairs of the company run by the petitioner, including alleged siphoning

of company funds and the opening of bank accounts and loans in the

petitioner's name without her knowledge. It is stated that upon being so

apprised, the testatrix expressed apprehension regarding the security of the

family after her demise, disclosed that she had earlier signed certain blank

papers at the instance of respondent No. 2, and informed the petitioner that

she had made arrangements in her estate to safeguard the future of the

petitioner and her granddaughters.

5. Thereafter, disputes arose between the petitioner and respondent No.

2. Consequent to the same, the petitioner instituted proceedings under the

Protection of Women from Domestic Violence Act, 2005 (hereinafter “the

DV Act”) on 28.08.2014 seeking protection of her right to reside in the GK

Property, in addition to various civil proceedings seeking redressal of her

grievances against respondent No. 2.

4

6. As per the petition, in May 2018, certain persons allegedly brought by

Respondent No. 2 began residing in the GK Property, on account of which

the petitioner decided to vacate the premises owing to safety concerns.

While in the process of packing her belongings, the petitioner claims to have

discovered the original of the purported Will dated 08.08.2012 in a leather

bag belonging to the deceased testatrix, from the ground floor of the GK

Property where the testatrix had resided until her demise.

7. The purported Will bears the signatures of the testatrix and two

attesting witnesses, namely Mr. Raju Sahni and Mr. Shamsher Kalra. Mr.

Raju Sahni, described as a family friend, is stated to have passed away prior

to the filing of the present petition. The surviving attesting witness, Mr.

Shamsher Kalra, has filed an affidavit before this Court in support of the due

execution of the purported Will. On the aforesaid basis, the petitioner seeks

the grant of probate of the purported Will.

8. Notice was issued in the petition on 24.05.2018, and subsequently on

28.11.2018, the Court framed the following issues: -

i) Whether late Smt. Suraksha Sud legally and validly executed the Will

dated 8

th

August, 2012? OPP til

ii) Whether Will dated 8 August, 2012, propounded by the petitioner, is a

forged and fabricated Will? OPR-2

iii) Relief.

9. In order to discharge the onus of proof for the aforenoted issues, the

parties examined the following witnesses: -

S.No Witness Description

1. PW-1 Mrs. Lipika Sud (Petitioner)

5

2. PW-2 Samarendra Nath Majumdar (father of Petitioner),

3.

PW-3 Debashish Majumdar (brother of Petitioner),

4. PW-4 Mrs. Durgesh Nandini (Notary Public),

5. PW-5 Dr. Sarita Sharma (Senior Scientific Assistant, FSL),

6. PW-6 Vivek Seigell (childhood friend of Petitioner),

7. PW-7 Mr. Shamsher Kalra (attesting witness to the alleged Will).

8. DW-1 DW-1 Mr. Hemant Sud (Respondent No. 2),

9. DW-2 DW-2 Mr. Devak Ram Sharma (Forensic Document and

Fingerprint Expert, former Assistant Director, FSL Delhi).

10. Further, the parties also exhibited various documents that tabulated as under

S.No Witness Description

1. Ex. PW-1/1 Will dated 08.08.2012

2. Ex. PW-1/2 to

PW-1/8

Photographs from the Goa trip

3. Ex. PW-1/9 Mobile picture of admission register of Talwar Nursing

Home,

4. Ex. PW-1/10 Complaint under Section 12 of the Protection of Women

from Domestic Violence Act, 2005

5. Ex. PW-1/11 Order dated 28.08.2014 passed in the domestic violence

complaint,

6. Ex. PW-1/12 Reply filed by Respondent No. 2 in the domestic violence

proceedings

7. Ex. PW-1/13 Order dated 05.06.2015,

8. Ex. PW-1/14 Order dated 18.06.2015

9. Ex. PW-1/15 Plaint in CS(OS) No. 1441/2015,

10. Ex. PW-1/16 Written Statement in CS(OS) No. 1441/201

6

11. Ex. PW-1/17 Copy of Plaint in CS(OS) No. 681/2017

12. Ex. PW-1/18 FIR No. 284/2015 under Sections 420/467/468/471 IPC

registered at PS Chitaranjan Park

13. Ex. PW-1/19 Status Report dated 04.04.2019 submitted by the

Investigating Officer

14. Ex. DW-1/1 Registered Relinquishment Deed dated 01.02.200924

15. Ex. DW-1/2 Allotment Letter dated 14.06.1990 for Farm Houses No.

10A and 10B, Bagicha Farms Complex

16. Ex. DW-1/3 Registered Will of Late Sh. H.L. Sud dated 29.05.2003

17. Ex. DW-1/4 Sale Deed dated 19.01.2007

18. Ex. DW-1/5 Trust Deed dated 12.05.2011 executed by the testatrix

19. Ex. DW-1/7 Report of Sh. Devak Ram Sharma, Asst. Director (Retd.),

FSL Delhi

20. Ex. DW-1/8 Criminal Complaints dated 14.05.2015, 23.08.2015 and

MLC of Shreya dated 21.08.2015

21. Ex. DW-1/9 FIR No. 55/2018, PS CR Park

22. Mark A Email communications between the testatrix and M/s

Warmond Trustees & Executors Pvt. Ltd.

Submissions

11. Mr. Rajesh Yadav, learned senior counsel appearing on behalf of the

petitioner, has advanced the following submissions: -

a. The Will has been executed in conformity with Section 63 of

the Act. The testatrix affixed her signature in the simultaneous

presence of two attesting witnesses, namely Mr. Raju Sahni,

since deceased prior to the filing of the Petition, and Mr.

Shamsher Kalra (PW-7), who in turn attested the Will in the

presence of the testatrix and of each other. In the affidavit of

PW-7 sworn before this Court, he categorically deposed that he

was present and witnessed the testatrix affixing her signature,

7

that he, thereafter, signed the Will in the presence of the

testatrix and the other attesting witness. Although PW-7 was

declared hostile during the course of trial, the law is well-

settled that the testimony of a hostile witness is not to be

entirely discarded.

b. Furthermore, the testimony of Smt. Durgesh Nandini, Notary

Public (PW-4), lends material corroboration to the due

execution of the Will. PW-4 deposed that the Will was

presented before her, that the testatrix signed it in her presence,

and that she attested the document on 08.08.2012 in her official

capacity, with her signatures appearing at Point 'Z' of the Will.

Though the Notary Public is distinct from an attesting witness

under Section 63(c) of the Act, her evidence is nonetheless

relevant and admissible to establish the circumstances attending

the execution, particularly in light of the death of one attesting

witness and the hostile turn taken by the other.

c. The evidence of DW-2, Mr. Devak Ram Sharma, the

handwriting expert examined on behalf of respondent No. 2, is

rendered unreliable by his own admissions in cross-

examination. Specifically, DW-2 admitted that he relied upon

photocopies rather than original documents for the purpose of

signature comparison, and that the passport used by him for

comparison was neither furnished by its holder nor by any

family member, thereby fundamentally undermining the

foundation of the respondent's case on this aspect.

8

d. Reliance is placed upon M.B. Ramesh v. K.M. Veeraje Urs,

1

,

Janki Narayan Bhoir v. Narayan Namdeo Kadam,

2

Ajay

Kumar v. The State and Ors.

3

, and Khujji v. State of M.P

4

.

12. Per contra, Mr. Samman Vardhan Gautam, learned counsel appearing

on behalf of respondent No. 2, submitted as under: -

a. The Will is surrounded by several glaring suspicious

circumstances. Primary among them being that despite the

petitioner having instituted more than five legal proceedings

prior to the instant petition, there is no whisper about the Will

in any of these proceedings. It is further submitted that the Will

was not entrusted to the custody of any person and surfaced

only after nearly six years of its execution, allegedly just

seventeen days before the death of the testatrix.

b. It was also brought on record the fact that the testatrix had

already created H.L. Sud Family Trust and had executed a

Registered Relinquishment Deed dated 01.02.2009,

relinquishing her 50% share in the GK Property in favour of

respondent No. 2, and therefore could not have bequeathed the

said property in the manner alleged. Emphasis is placed on the

testimony of PW-7, the sole surviving attesting witness, who

during examination-in-chief denied having seen the testatrix

sign the Will and denied having any acquaintance with the

testatrix at any point of time. Thus, as per respondent no.2’s

1

(2013) 7 SCC 490

2

(2003) 2 SCC 91

3

2017 SCC OnLine Del 8973

4

(1991) 3 SCC 627.

9

case, the petitioner has failed in demonstrating that the

mandatory requirements of Section 63 of the Act have been

complied with. Further, the expert report of DW-2 categorically

establishes that the signatures of the testatrix are forged and that

the signature of the attesting witness Mr. Raju Sahni has been

traced from his passport.

c. Reliance is placed upon H. Venkatachala Iyengar v. B.N.

Thimmajamma,

5

, Kavita Kanwar v. Pamela Mehta &

Others,

6

Dhaniram (Died) through LRs & Ors. v. Shiv

Kumar,

7

13. I have heard learned counsel appearing for the parties and have

perused the record.

Analysis

14. Before proceeding to examine the facts of the present case, it would

be apposite to set out the legal framework governing the standard of proof of

testamentary instruments and the doctrine of suspicious circumstances, as

enunciated by the Supreme Court in a catena of judgements.

15. The law governing the proof of a Will is no longer res integra. A

Will, unlike other documents, speaks after the death of the testator, at which

point the testator is no longer available to confirm or deny its contents. The

very nature of a testamentary document, therefore, demands that the Court

apply a higher degree of scrutiny before acting upon it. At the same time, the

5

AIR 1959 SC 443;

6

(2021) 11 SCC 209

7

2023 SCC Online SC 1263

10

standard of proof required is not that of proof beyond reasonable doubt as

applicable in criminal proceedings, but rather the satisfaction of the prudent

mind, which is the civil standard of proof on a preponderance of

probabilities. The propounder of a Will is not required to prove it with

mathematical precision, but must bring on record sufficient material to

satisfy the judicial conscience that the Will is genuine and was executed by

the testator in accordance with law.

16. The foundational requirements for the valid execution of a Will are

contained in Section 63 of the Act which mandates that the testator shall

sign or affix his mark to the Will, or shall cause some other person to sign it

in his presence and by his direction, and that such signature or mark shall be

so placed that it shall appear that it was intended to give effect to the writing

as a Will. Most importantly, Section 63(c) of the Act requires that 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, and each of the

witnesses shall sign the Will in the presence of the testator. Section 68 of the

Indian Evidence Act, 1872 (hereinafter “Evidence Act”) further provides

that if a document is required by law to be attested, it shall not be used as

evidence until at least one attesting witness has been called for the purpose

of proving its execution. The combined effect of these provisions is that the

examination of at least one attesting witness is a condition precedent to the

grant of probate, and no amount of other evidence can substitute for this

mandatory requirement.

17. The initial burden of proving a Will lies on its propounder. This

burden is discharged upon proof of the essential facts, namely that the

11

testator had testamentary capacity at the time of execution, that the Will was

executed and attested in the manner prescribed by law, and that the testator

knew and approved of its contents. Once this primary burden is discharged,

the burden shifts to those who oppose the grant. However, the nature and

weight of the burden on the propounder undergoes a significant

transformation when the Will is surrounded by suspicious circumstances.

18. In the aforesaid regard, the law has been authoritatively stated by the

Supreme Court in H. Venkatachala Iyengar wherein, it was held that if a

Will is surrounded by suspicious circumstances, the propounder must

remove all legitimate suspicions before the document can be accepted as the

last Will of the testator. The onus on the propounder, in such a case, is not

merely to prove the formal requirements of execution but to satisfy the

Court by cogent, convincing, and reliable evidence that the document

represents the free, voluntary, and genuine expression of the testamentary

intent of the testator.

19. In Kavita Kanwar v. Pamela Mehta & Others,

8

the Supreme Court

emphasised that in a case where the only attesting witness examined either

fails to support the execution of the Will or turns hostile, the Court is

entitled to take an adverse view of the matter, and the mandatory

requirements of Section 63 of the Act and Section 68 of the Evidence Act

must be treated as not satisfied. The Court reiterated that the examination of

an attesting witness is not a mere formality but goes to the root of the matter,

and the failure of an attesting witness to depose to the due execution of a

Will is a circumstance of the most serious consequence.

8

(2021) 11 SCC 209

12

20. In Shivkumar v. Sharanabasappa,

9

the Supreme Court further held

that the test of satisfaction of the judicial conscience is the operative

standard in all cases involving suspicious circumstances, and that this test is

more demanding than the ordinary civil standard of proof. The Court is

required to be fully satisfied, upon a careful and circumspect consideration

of all the evidence, that the Will propounded is genuine and represents the

free and uninfluenced testamentary intention of the testator.

21. In Janki Narayan Bhoir, the Supreme Court laid down with great

precision the requirements of valid attestation under Section 63 of the Act,

holding that the attesting witness must have been present at the time of

execution and must have seen the testator sign the Will, and that without

this, the requirements of attestation are not fulfilled. The Court held that

attestation is not a mere formality but a substantive requirement, the absence

of which is fatal to the grant of probate.

22. The doctrine of suspicious circumstances received its most

comprehensive and authoritative exposition by the Supreme Court in Meena

Pradhan & Ors. v. Kamla Pradhan & Ors.,

10

wherein the Court undertook

an exhaustive survey of the entire body of law on the subject and crystallised

the governing principles with admirable clarity. In Meena Pradhan, the

Supreme Court held that suspicious circumstances are not a term of art and

do not admit of a rigid or exhaustive definition. The Court reiterated that to

qualify as a suspicious circumstance, there must exist a real, cogent, and

genuine reason for doubt, not merely a circumstance manufactured for the

sake of argument or speculation. The Court further held that the following

9

(2021) 8 SCC 578

10

(2023) 4 SCC 768

13

circumstances, amongst others, may give rise to suspicion warranting

heightened scrutiny: a shaky or doubtful signature of the testator; a feeble or

uncertain mind of the testator at the time of execution; an unfair and unjust

disposition of the testator's estate; the exclusion of natural and dependent

heirs without cogent explanation; the active and leading role of the

beneficiary in the preparation and execution of the Will; the execution of the

Will in the vicinity of death without satisfactory explanation; the non-

disclosure of the Will for an inordinately long period after the testator's

death; the execution of a Will in a manner wholly inconsistent with the

testator's established habits and practice; and the propounding of a Will by a

person who stands to gain substantially therefrom, in suspicious

circumstances pointing to fabrication.

23. In Meena Pradhan, the Supreme Court also emphasised that the

doctrine of suspicious circumstances must be applied holistically and not

piecemeal. Individual circumstances, each of which might appear explicable

in isolation, may in their totality create a cumulative effect of suspicion so

overwhelming as to disentitle the propounder from the grant of probate. The

Court further clarified that once suspicious circumstances are established,

the burden on the propounder is a heavy one and cannot be discharged by

mere formal proof of execution or by calling upon the Court to extend

benefit of the doubt.

24. If upon the anvil of the aforesaid comprehensive delineation of law

the Will is examined, it is seen that the same is surrounded by grave,

compelling, and significant suspicious circumstances, which make it

difficult for the judicial conscience of this Court to grant probate in favour

14

of the petitioner. This Court proceeds to examine each circumstance as

under:-

I. Execution in Proximity to Death

25. The testatrix is stated to have passed away on 25.08.2012. As per the

petitioner’s own case, the Will bears the date 08.08.2012, which means it

was purportedly executed a mere seventeen days before the testatrix’s death.

It is stated by the petitioner herself that the testatrix had fallen gravely ill on

12.08.2012 after consuming contaminated prasad at the Arya Samaj Mandir

in Greater Kailash-II, had suffered a collapse, and was admitted to Talwar

Nursing Home, from where she was shifted to Pushpawati Singhania

Research Institute where she was diagnosed as a terminal case. She was

thereafter, brought home and passed away on 25.08.2012.

26. The medical trajectory of the testatrix in the last weeks of her life

raises serious doubts about her physical and mental condition at the time of

the alleged execution of the Will on 08.08.2012, which is merely four days

before the recorded date of her falling ill on 12.08.2012. The Petitioner has

not placed on record any medical evidence to establish that the testatrix was

in good health and sound testamentary capacity on 08.08.2012. As held by

the Supreme Court in Meena Pradhan, execution of a Will in close

proximity to death, without satisfactory explanation, is a circumstance of

grave suspicion.

II. Inordinate Delay in Propounding the Will and Conspicuous

Silence Across Multiple Proceedings

15

27. The testatrix passed away on 25.08.2012. The present petition was

filed only in 2018, nearly six years after the death of the testatrix. The

Petitioner's case is that the Will was discovered only in May 2018. However,

the Petitioner's own evidence, as well as the testimony of PW-3, Sh.

Samarendra Nath Majumdar, establishes that the Petitioner was aware of the

existence of the Will and its contents well prior to the alleged discovery. The

Petitioner had, during this period of nearly six years, instituted no fewer than

five judicial proceedings across various forums, lodged an FIR bearing No.

284/2015 under Sections 420/467/468/471 IPC at PS Chitaranjan Park,

executed a Settlement Deed dated 02.02.2015, and filed a complaint under

Section 12 of the DV Act, 2005. In not a single one of these proceedings,

including the FIR which specifically alleged forgery of a Will, did the

Petitioner make any reference whatsoever to the existence of the alleged

Will dated 08.08.2012. The Civil Suit CS(OS) No. 1441/2015 filed by the

petitioner herself specifically sought a declaration that the Will dated

10.02.2012 and the H.L. Sud Family Trust were void, and yet even in this

suit there is not a whisper of any other Will. The Settlement Deed dated

02.02.2015 executed by the Petitioner herself mentions only the Will dated

10.02.2012, without any reference to any other Will.

28. This Court finds it wholly inconceivable that a person who is aware of

a Will executed in her favour, and who is simultaneously engaged in

litigation with the very person against whom the Will operates, involving the

very property bequeathed under the Will, would not breathe a single word

about the existence of that Will across all these proceedings over a period of

nearly six years. The non-disclosure of a Will for an inordinately long

period, particularly by a person engaged in active litigation over the very

16

subject matter of the Will, is a circumstance of the gravest suspicion. The

Petitioner's explanation that she was aware of the existence of the Will but

had not physically traced the document is wholly unsatisfactory. If she was

aware of its existence and contents, nothing prevented her from taking the

position across her various proceedings that a Will existed in her favour and

that she was in the process of tracing the original. Her deliberate and

complete silence across all proceedings is entirely inconsistent with the

conduct of a genuine and bona fide beneficiary.

III. The Inherently Improbable Discovery Narrative

29. The story of the discovery of the Will is, upon careful examination,

inherently improbable and unworthy of credence. The Petitioner claims to

have discovered the original Will in May 2018 in a leatherette bag belonging

to the testatrix, allegedly kept undisturbed in the ground floor of the GK

Property since the death of the testatrix in August 2012. The Petitioner

herself was residing in the very same premises throughout this period. The

leatherette bag was not hidden in any locked or inaccessible location, but

was present in the room of the testatrix on the ground floor. The Petitioner's

own evidence discloses that the bag contained daily use articles of the

testatrix, including daily jewellery, a Nivea cream, keys, expired passports,

and a debit card. The photograph of the bag, which has been exhibited on

record, confirms this. This Court finds it wholly incredible that a bag

containing such valuable daily use articles of a recently deceased family

member, including jewellery and financial instruments, would have been left

entirely undisturbed and unopened by any member of the household for a

period of nearly six years. This is not the conduct of a prudent person, nor is

17

it consistent with any normal human experience. Any person of ordinary

prudence would have sorted through the belongings of a recently deceased

family member within a reasonable time of her death, particularly when

those belongings included daily use jewellery and financial documents. The

improbability of this narrative is so palpable as to warrant the inference that

the discovery story has been fabricated to explain the belated propounding

of the Will.

IV. Failure of Attesting Witness Evidence and Non-Compliance

with Section 63 of the Indian Succession Act, 1925

30. As noted above, the mandatory requirements of Section 63 of the Act

demand that the Will be attested by two or more witnesses, each of whom

must have seen the testator sign the Will. Section 68 of the Indian Evidence

Act further requires that at least one attesting witness be called to prove the

execution of the Will. In the present case, one of the two attesting witnesses,

Mr. Raju Sahni, had predeceased the filing of the petition, making it

impossible to examine him. The sole surviving attesting witness, Mr.

Shamsher Kalra (PW-7), was accordingly examined before this Court and

his testimony is the most critical piece of evidence on record.

31. PW-7's evidence is, in its totality, wholly destructive of the

Petitioner's case. In his examination-in-chief, PW-7 stated that while he

identified his own signature on the Will, he could not identify the signatures

of the testatrix and did not know whether Mr. Raju Sahni had signed the

Will. When PW-7 failed to support the Petitioner's case, he was declared

hostile by the Petitioner's own counsel. Upon further cross-examination at

the instance of the Respondent's counsel, PW-7 made the following

18

devastating admissions: that he had never met the testatrix at any point of

time; that he had never seen the testatrix sign the alleged Will in his

presence; and that he had no acquaintance whatsoever with the other

attesting witness, Mr. Raju Sahni. These are not merely admissions of a

faded memory or a want of recollection; they are categorical, positive, and

unequivocal denials of the very factual foundation upon which the alleged

Will rests.

32. The Petitioner's learned Senior Counsel has sought to urge that

notwithstanding PW-7's hostility, certain portions of his testimony,

specifically his identification of his own signature on the Will, constitute a

dependable part of his evidence and are sufficient to prove due execution.

This Court is unable to accept this submission. The principle in Khujji, upon

which reliance is placed by Mr. Yadav, is that the testimony of a hostile

witness may be accepted to the extent it is found to be credible upon careful

scrutiny. However, the portions of PW-7's testimony that the petitioner seeks

to rely upon, namely, his identification of his own signature cannot by

themselves establish due execution under Section 63 of the Act. The

statutory requirement is not merely that the attesting witness signed the Will,

but that he did so having seen the testator sign the Will in his presence. PW-

7 has expressly and categorically denied having seen the testatrix sign the

Will and has denied ever having met the testatrix at all. This positive denial,

elicited upon cross-examination, is a part of PW-7's testimony that is

entirely credible, consistent, and unshaken, and this Court is bound to act

upon it. As held by the Supreme Court in Janki Narayan Bhoir, due

attestation requires the attesting witness to have been present at the time of

execution and to have seen the testator sign the Will. In the absence of such

19

evidence, and in the face of a positive denial by the attesting witness, the

mandatory requirements of Section 63 of the Act must be treated as not

satisfied. Moreover, the evidence of PW-4, the Notary Public, cannot

substitute for the evidence of an attesting witness, as her role is entirely

distinct and does not satisfy the requirements of Section 63(c) of the Act.

Her evidence at best establishes that a document was presented before her

for notarisation, which is a far cry from establishing that the testatrix signed

the Will in the presence of two attesting witnesses in compliance with

Section 63 of the Act.

V. The Forensic Evidence Establishing Forgery

33. Respondent No. 2 took timely and appropriate steps to challenge the

authenticity of the signatures on the alleged Will by filing an application for

de-sealing of the Will and seeking permission to have it forensically

examined. This Court vide order dated 20.08.2018 permitted the same, and

DW-2, Mr. Devak Ram Sharma, former Assistant Director (Retd.) of the

Forensic Science Laboratory, Delhi, examined the original Will and

prepared a detailed expert report, exhibited as Ex. DW-1/7. The said report,

which has been placed on record and proved through the oral evidence of

DW-2, categorically opines that the signatures of the testatrix on the alleged

Will are forged and fabricated, and that the signature of the deceased

attesting witness, Mr. Raju Sahni, appearing on the Will has been traced

from his passport. The petitioner has sought to undermine the credibility of

DW-2 by pointing to his admission in cross-examination that he relied upon

photocopies for certain comparisons, and that the passport of Mr. Raju Sahni

used for comparison was not furnished by his family. While these are valid

20

points of criticism going to the weight to be attached to the expert opinion,

they do not entirely neutralise its value. The expert evidence of DW-2 must

be read in the context of the totality of the suspicious circumstances on

record. Thus, this Court accordingly finds that the forensic evidence, read

alongside the other circumstances enumerated herein, lends further and

compelling support to the conclusion that the Will is under grave suspicion.

34. In view of the foregoing analysis and findings, it is seen that the

petitioner has failed to prove the due and valid execution of the Will by the

testatrix.

35. Accordingly, the instant petition stands dismissed. No order as to

costs.

(PURUSHAINDRA KUMAR KAURAV)

JUDGE

APRIL 16, 2026

Nc