CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 1 of 30

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 4

th

December 2025

Judgment pronounced on: 6

th

January 2026

+ CS(OS) 2159/2002 & I.A. 36924/2024

KANTA SETHI .....Plaintiff

Through: Mr. Pradeep Kumar Verma, Advocate.

versus

HANS RAJ AND ORS. .....Defendants

Through: Ms. Shellen Bajaj & Mr. Manak

Budhiraja, Advocates.

+ TEST.CAS. 90/2014

SUDESH GULATI & ANR .....Petitioners

Through: Ms. Shellen Bajaj & Mr. Manak

Budhiraja, Advocates.

versus

STATE & ORS. .....Respondents

Through: Mr. Abhinav Garg, Panel Counsel for

GNCTD with Ms. Pallavi Raj,

Advocate.

Mr. Pradeep Kumar Verma, Advocate.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

AMIT BANSAL, J.

1.By way of this judgment, I shall decide the following:

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 2 of 30

i.CS(OS) 2159/2002 seeking partition of the immovable properties

forming part of the estate of Late Smt. Krishna Wanti and Late Sh.

Hans Raj Gulati, along with other ancillary reliefs.

ii.TEST.CAS.90/2014 seeking the grant of probate of the registered

Will dated 30

th

May 2003, executed by Sh. Hans Raj Gulati.

PLEADINGS IN CS(OS) 2159/2002

2.In the plaint, it has been pleaded as under:

i.The plaintiff is one of the daughters of the Late Smt. Krishna Wanti

and Late Sh. Hans Raj Gulati (defendant no.1). The defendant no.2,

Sh. Sudesh Gulati is the brother of the plaintiff and the defendant

no.3, Sh. Sanjay Gulati is the son of the defendant no.2.

ii.The mother of the plaintiff, Late Smt. Krishna Wanti was the owner

of theshop No. 39, along with first floor, and 2nd Floor, Krishna

Market, Kalkaji, New Delhi- 110019.

iii.The plaintiff’s mother gave her exclusive possession of the entire

second floor of the aforesaid property for her consultancy business,

with the defendants’ acquiescence.

iv.The defendants no.1 and 2 were living on the first floor of the suit

property. The mother of the plaintiff was living on the first floor till

her death on 30

th

September 2002. The mother of the plaintiff

expired intestate.

v.The plaintiff lived on the second floor of the aforesaid property up

to 21

st

November 2002, after desertion by her husband.

vi.On 21

st

November 2002, the plaintiff reported threats by defendant

no.2’s wife, who had begun harassing her, and on 25

th

December

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 3 of 30

2002, the defendant no.2 and his wife broke in and physically

assaulted the plaintiff in the suit property.

vii.The plaintiff locked the flat on the 2

nd

floor of the aforesaid property

and lodged a police complaint on 16

th

December 2002.

3.The plaintiff, under the fear of dispossession by the defendants, filed

the instant suit on 20

th

December 2002, claiming the following reliefs:

“a) That the preliminary decree for declaring the share of the plaintiff in

the properties of her deceased mother and father may kindly be declared

and possession be given to the plaintiff;

b) Cost of the proceedings may kindly be granted in favour of the plaintiff;

c) Any other relief which this Hon’ble Court may deem fit and proper also

kindly be granted in favour of the plaintiff;”

4.Summons in the suit were issued on 6

th

January 2003, on which date

the defendants were directed to maintainstatus quowith respect to the

premises occupied by the plaintiff in the aforesaid property.

5.The defendants contested the present suit by filing a common written

statement, in which it has been pleaded as under:

i.The deceased mother of the plaintiff during her lifetime executed a

Will dated 12

th

October 2001, and by virtue of that said Will,

bequeathed her entire movable and immovable property in favour

of her husband,i.e.late Sh. Hans Raj Gulati (defendant no.1).

ii.Consequent thereto, upon the death of Smt. Krishna Wanti (mother

of the plaintiff), in September 2002, the entire estate vested in Sh.

Hans Raj Gulati as the sole beneficiary.

iii.Sh. Hans Raj Gulati (father of the plaintiff/defendant no.1), in turn,

executed his own Will dated 30

th

May 2003, bequeathing his estate

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 4 of 30

in favour of his son Sh. Sudesh Gulati (defendant no.2) and

grandson, Sh. Sanjay Gulati (defendant no.3).

iv.The plaintiff concealed the fact that Smt. Krishna Wanti executed a

Will dated 12

th

October 2001, devising all her property to her

husband (defendant no.1), and that the defendant no.1 himself

executed a Will on 30

th

May 2003 in favour of the defendants no.2

and 3.

v.The plaintiff never lived on the disputed premises at any material

time and instead she resided with her husband in her matrimonial

house atT-74/B, Geetanjali Apartments, Khirki Extension, Malviya

Nagar.

vi.The question of the plaintiff's mother giving the second floor, or

any other portion of the property inKrishna Market, to the plaintiff

does not arise, as the said portion was under tenancy and in

occupation of a tenant.

vii.The present suit has not been properly valued for the purpose of

court fees, as the plaintiff was not in possession of any portion of

the aforesaid property. The suit is unsustainable on the ground of

non-joinder of all the heirs and legal representatives of the late Smt.

Krishna Wanti (mother of the plaintiff).

6.The father of the plaintiff, Sh. Hans Raj Gulati (defendant no.1) expired

on 21

st

December 2005, during the pendency of the present suit. In these

circumstances, the plaintiff filed an application under Order VI Rule 17 of the

Civil Procedure Code, 1908, seeking amendment of the plaint on 30

th

January

2009. The said application was allowedvideorder dated 27

th

August 2009. As

per the amended plaint, the plaintiff claimed a share in her mother’s property

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 5 of 30

bearingshop No. 39, along with first floor, and 2nd Floor, Krishna Market,

Kalkaji, New Delhi- 110019as well as property belonging to the plaintiff’s

father/defendant no.1 bearing no.H-61, Kalkaji, New Delhi-110019

(hereinafter collectively referred to as ‘suit properties’).

7.The amended Written Statement was filed by the defendants on 23

rd

March 2010. In the said Written Statement, the defendants propounded a Will

dated 30

th

May 2003 executed by Sh. Hansraj Gulati in favour of the

defendants no.2 and 3.

8.In the replication, the plaintiff reaffirmed the assertions made in the

plaint and also claimed that the Will dated 12

th

October 2001, executed by

Smt. Krishna Wanti in favour of her husband/defendant no.1 was invalid on

the ground of false attestation. The plaintiff also denied the existence of the

Will dated 30

th

May 2003 in her amended replication.

ISSUES IN THE SUIT

9.Issues in the captioned suit were framed on 2

nd

August 2010 and further

modified on 15

th

April 2013. The following issues have been framed in CS

(OS) 2159/2002:

(i) Whether the suit is bad for non-joinder of necessary parties?

~OPD

(ii) Whether the suit has been properly valued for the purpose of

court fee and appropriate court fees has been paid?~OPP

(iii) Whether the Will dated 12.10.2001 purported to be made by

Smt. Krishna Wanti is genuine and valid Will, if so, to what effect?

~OPD

(iv) Whether the Will dated 30.5.2003, purported to be made by

Sh.Hans Raj Gulati, deceased defendant no.1 is genuine and valid,

if so, to what effect? ~OPD

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 6 of 30

(v). Whether the suit properties bearing Shop No. 39, Krishna

Market, Kalkaji, New Delhi-19 and House No. H-61, Kalkaji, New

Delhi-19 are liable to partition, if so, to what effect?~OPP

(vi) If issue no. (v) is decided in affirmative, what is the share of the

plaintiff in the aforesaid properties? ~OPP

(vii) Relief.

PLEADINGS IN PROBATE CASE

10.During the pendency of the present suit, a probate petition, being PC

No.18 of 2012, was filed before the Saket Courts, New Delhi, on 30

th

January

2012, by Sh. Sudesh Gulati (son of Late Sh. Hans Raj Gulati) and Sh. Sanjay

Gulati (grandson of Late Sh. Hans Raj Gulati), seeking probate/letters of

administration in respect of the registered Will dated 30

th

May 2003, executed

by the Late Sh. Hansraj Gulati (hereinafter ‘testator’) in their favour. The

petitioners are the principal beneficiaries under the aforesaid Will, the testator

having bequeathed his movable and immovable properties, including the suit

properties,in their favour.

11.It is pleaded that the testator had become the absolute owner of the

property bearingshop No. 39, along with first floor, and 2nd Floor, Krishna

Market, Kalkaji, New Delhi- 110019, upon the demise of his wife, Smt.

Krishna Wanti, who had, by her Will dated 12

th

October 2001, bequeathed all

her estate in favour of the testator.

12.The petition was initially contested by the respondents no.2 to 7, who

are the legal heirs/daughters of the testator, including Smt. Kanta Sethi

(respondent no.5/plaintiff), who filed their objections to the grant of probate.

The respondents no.3, 4, 6 and 7 filed a common reply/objections to the

Probate petition and the respondents no.2 and 5 filed their separate objections.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 7 of 30

13.Videorder dated 2

nd

March 2021, the ‘No Objection’ to the grant of

probate of the aforesaid Will, as filed by the respondents no.2 and 7, were

taken on record.

14.The following objections have been raised by the objectors to the grant

of probate:

i.The probate petition has been filed after a delay of seven (7) years

from the date of death of the testator,i.e.21

st

December 2005.

ii.The Will was executed under suspicious circumstances. The

testator, being about 92 years of age and in a deteriorated health

condition, was not in a sound state of mind at the time of execution

of his Will.

iii.The testator was not a well-educated man and the Will was written

in English. The Will does not mention that the contents of the Will

were explained to the testator.

iv.Out of the four (4) properties mentioned in the Will, two (2)

properties had already been sold by the testator during his lifetime.

v.The testator could not have bequeathed the suit property belonging

to his wife, Late Smt. Krishna Wanti, since the said property was

the subject matter of the Will dated 12

th

October 2001 of the Late

Smt. Krishna Wanti, whose execution and attestation is yet to be

proved.

vi.The last Will of the testator was allegedly torn by Sh. Sudesh Gulati

in front of all the daughters of the testator during the Barsi

ceremony of the testator, and thus, the authenticity of the 2003 Will

is doubtful.

ISSUES IN PROBATE CASE

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 8 of 30

15.The following issues in the probate case were framed on 24

th

January

2013 by the District Court:

i.Whether petitioners are entitled for letter of

administration/probate of WILL. dated 30.05.2003 executed by

Late Shri Hans Raj Gulati? ~OPP

ii.Whether the objections filed on behalf of

objectors/respondents no. 2 to 7 are valid and maintainable?

~OPD

iii.Whether Will dated 30.05.2003 executed by Late Shri Hans

Raj Gulati is his last and final testament?~OPP

iv.Relief.

16.The following additional issues were framed by order dated 26

th

February 2014:

3A. Whether there was another Will of Hansraj Gulati(other than

the privileged Will), if so, which date, month and year or the name

of the legatee executed by him? ~OPR 3,5&7

3B. Whether the Will referred in issue no.3A was torn in the family

ceremony in the presence of daughters of Shri Hans Raj Gulati, if

so its consequences? ~OPR 3,5 &7

17.TR.P.(C) 33/2012 was filed by the plaintiff in the CS (OS) 2159/2002,

seeking transfer of the Probate Case No.18 of 2012 from the Saket Courts,

and consolidating with the suit before this Court. By order dated 21

st

May

2013, the Probate Case was directed to be withdrawn from the Court of ADJ,

Saket Courts, after recording of the evidence and consolidating with CS (OS)

2159/2002.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 9 of 30

18.Videorder dated 16

th

May 2014, the Probate Case No.18 of 2012 was

withdrawn from the District Court and was directed to be tried along with the

CS (OS) 2159/2002.

19.The Probate Case was registered as TEST. CAS. 90/2014 in this Court.

20.Videorder dated 16

th

September 2014, the statement of the

petitioners/defendants was recorded to the effect that the evidence recorded

in PC No. 18 of 2012 on behalf of the petitioners may be read as evidence on

behalf of the defendants in CS (OS) 2159/2002.

21.The evidence was concluded before this Court on 2

nd

May 2018.

22.Arguments were heard on 6

th

August 2025, 21

st

August 2025, 18

th

September 2025, 27

th

November 2025 and 4

th

December 2025, after which the

judgment was reserved.

23.My issue-wise findings in the suit and the probate petition are as under:

Issue no.(i): Whether the suit is bad for non-joinder of necessary

parties?~OPD

24.It is the defendants’ submission that the suit is eclipsed on account of

non-impleadment of necessary and proper parties. In a suit for partition based

on intestate succession, all the legal heirs of the deceased must be impleaded

to ascertain the exact share of the plaintiff.

25.It is an admitted position that Late Smt. Krishna Wanti and Late Sh.

Hansraj Gulati were survived by six (6) daughters and one (1) son. The

plaintiff is one of the daughters claiming share in the suit properties on the

basis of intestate succession and the defendant no.2 is the son, being the other

legal heir. However, the plaintiff has not impleaded her remaining siblings,

i.e.the other five (5) daughters, being: i) Smt. Raj Rani Arora, ii) Smt. Soma

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 10 of 30

@ Sunita Dua, iii) Smt. Veeran @ Varsha Khera, iv) Smt. Madhu Dhawan

and v) Smt. Alka Dhall.

26.The plaintiff has not given any explanation as to why the aforesaid legal

heirs have not been impleaded in the present suit.

27.Reference may be made to the judgment of the Supreme Court in

Kanakarathanammalv.V.S. Loganatha Mudaliar and Ors.

1

,wherein the

appellant/plaintiff’s appeal against the decree passed by the High Court in a

suit for partition of her mother’s property was dismissed on the grounds of

non-joinder of necessary parties,i.e.the brothers of the plaintiff, even though

the Court found that the property belonged to the mother and the plaintiff was

one of the three (3) legal heirs. The relevant paragraph of the said judgment

is set out below:

“15. It is unfortunate that theappellant's claim has to be rejected

on the ground that she failed to implead her two brothers to her

suit, though on the merits we have found that the property claimed

by her in her present suit belonged to her mother and she is one of

the three heirs on whom the said property devolves by succession

under s. 12 of the Act.That, in fact, is the conclusion which the trial

Court had reached and yet no action was taken by the appellant to

bring the necessary parties on the record. It is true that under O. 1

r. 9 of the Code of Civil Procedure no suit shall be defeated by reason

of the misjoinder or non-joinder of parties; butthere can be no doubt

that if the parties who are not joined are not only proper but also

necessary parties to it, the infirmity in the suit is bound to be fatal.

Even in such cases, the Court can under O. 1 r. 10, sub-rule 2 direct

the necessary parties to be joined, but all this can and should be done

at the stage of trial and that too without prejudice to the said parties'

plea of limitation. Once it is held that the appellant's two brothers

are co-heirs with her in respect of the properties left intestate by their

1

MANU/SC/0244/1963

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 11 of 30

mother, the appellant suit filed by the appellant partakes of the

character of a suit for partition, andin such a suit clearly the

appellant alone would not be entitled to claim any relief against the

respondents. The estate can be represented only when all the three

heirs are before the Court. If the appellant persisted in proceeding

with the suit on the basis that she was exclusively entitled to the suit

property, she took the risk and it is now too late to allow her to

rectify the mistake.”

28.The aforesaid decision of the Supreme Court was followed by a

Coordinate Bench of this Court inSheetal Suriv.Sukhdev Singh

2

, wherein

the suit for partition as filed by the plaintiff was dismissed for non-joinder of

the necessary parties. It was held that in partition suits, all co-sharers are

necessary parties and their non-inclusion in the suit would render the suit as

not maintainable.

29.In the instant suit, the plaintiff has failed to implead the other legal

heirs, being the daughters of Smt. Krishna Wanti and Sh. Hansraj Gulati.

Therefore, the present suit is bad for the non-joinder of necessary parties.

30.Accordingly, this issue is decided in favour of the defendants and

against the plaintiff.

Issue no.(ii): Whether the suit has been properly valued for the

purpose of court fee and appropriate court fees has been paid?~OPP

31.It is the plaintiff’s submission that the suit is properly valued and

appropriate court fees have been paid. It is further submitted that the

defendants, who are also the petitioners in the Probate Case, have also

valued the property in question at the same price.

2

2025 SCC OnLine Del 4719

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 12 of 30

32.It is the defendants’ case that the suit properties are not properly

valued. The market value of the aforesaid suit properties, as per paragraph

no.20 of the amended plaint, is Rs. 45,00,000/-, which is incorrect.

33.It is stated that the plaintiff cannot reduce the market valuation of

the properties, especially when initially one of the suit properties was

valued at Rs.1,50,00,000/- by the plaintiff in the original plaint.

Resultantly, the plaintiff has not paid the proper court fee on account of

the undervaluation of the suit properties.

34.When the plaintiff filed the present suit in 2002, the property

bearingshop No. 39, along with first floor, and 2nd Floor, Krishna

Market, Kalkaji, New Delhi- 110019,was valued at Rs.1,50,00,000/- for

the purpose of jurisdiction. After the plaint was amended in 2009, the

plaintiff additionally sought partition of the property bearing no.H-61,

Kalkaji, New Delhi-110019. However, the amended plaint was valued at

Rs.45,00,000/- for the purposes of jurisdiction, for which a court fee of

Rs.37,000/- has been paid by the plaintiff.

35.In my view, the suit properties have not been valued properly by the

plaintiff. Subsequent addition of the property in respect of which the

plaintiff seeks partition would increase the valuation of the suit. In the

instant case, the plaintiff has reduced the valuation of the suit properties

in the amended plaint. Therefore, it is held that the plaintiff has failed to

value the suit properly and has failed to pay the appropriate court fees.

36.Hence, this issue is decided in favour of the defendants and against

the plaintiff.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 13 of 30

Issue no. (iii): Whether the Will dated 12.10.2001 purported to be made

by Smt. Krishna Wanti is genuine and valid Will, if so, to what effect?

~OPD

37.The onus of proving this issue is on the defendants. The issue pertains

to the genuineness and validity of the Will dated 12

th

October 2001

(hereinafter ‘Will’), executed by Smt. Krishna Wanti (hereinafter ‘testatrix’),

bequeathing her entire estate in favour of her husband, Sh. Hansraj Gulati.

38.To prove the Will (Ex.DW-1/2), the defendants have relied on the

evidence of DW-1,i.e.Sh. Sudesh Gulati, who is also the son of the testatrix

and the defendant no.1 in the present suit. DW-1, in his evidence by way of

affidavit, has deposed that the testatrix died on 30

th

September 2002 (death

certificate exhibited as Ex. DW-1/3) and that the testatrix had executed a Will

dated 30

th

September 2001 (Ex.DW-1/2).

39.DW-1 has deposed that the testatrix was the sole and absolute owner of

the property bearingShop No. 39, Krishna Market, Kalkaji, New Delhi.The

said property was purchased from the funds of the husband of the testatrix,

i.e.defendant no.1. By virtue of the said Will, the testatrix bequeathed the

aforesaid property in favour of her husband,i.e.the defendant no.1. Therefore,

on the demise of the testatrix, the defendant no.1 became the owner of the said

property.

40.DW-1 has further deposed that the Will had been drafted on the

instructions of the testatrix and the same was explained to her in Hindi

language by her husband/defendant no.1. Thereafter, the testatrix signed the

Will at Points ‘A’ and ‘B’ on the said Will in the presence of DW-1. After

signing the Will, the testatrix handed over the Will to DW-1 for his signature.

DW-1, being one of the attesting witnesses to the said Will, has signed at Point

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 14 of 30

‘B’. Thereafter, the Will was also signed by Mr. Nandlal Dua, the second

attesting witness, at Point ‘C’.

41.DW-1 has also deposed that the testatrix was in good health and sound

mind at the time of execution of the said Will.

42.The plaintiff has challenged the aforesaid Will on the ground that there

is an anomaly in the mode of attestation adopted by the testatrix. It is the

plaintiff’s contention that the Will bears the signatures of the testatrix in

Hindi, whereas she could not write in Hindi. In a civil suit filed by the testatrix

in the court of Senior Civil Judge, Delhi Civil, being Suit No.598 of 2002, the

testatrix has filed documents that bear her thumb impression. Further, the

plaintiffs have contended that at the time of execution of the Will, the testatrix

was 83-84 years old and had been completely bedridden for a substantial

period of time. Therefore, she was not mentally fit.

43.The plaintiff, in her cross-examination, has denied the existence of the

Will executed by the testatrix. PW-1 has denied that signatures on the Will

dated 12

th

October 2001 are of the testatrix, as the testatrix used to affix her

thumb impression since 1991. Prior to 1991, she used to sign. However, the

plaintiff admits that she has no document after 1991 in her possession that

bears the thumb impression of her mother/testatrix.

44.It is further argued on behalf of the plaintiff that the second attesting

witness to the Will has neither been called for evidence nor has any affidavit

been filed on his behalf to show that the Will was signed by the testatrix in

the presence of the said attesting witnesses.

45.In his cross-examination (recorded in TEST. CAS. 90/2014 as PW-1),

Sh. Sudesh Gulati has stated that, at the time of execution of the Will, the

testatrix was able to speak, write and her vision was intact. It is also stated

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 15 of 30

that the testatrix was able to read and write Hindi and was able to sign

documents.

46.Sh. Sudesh Gulati (DW-1/PW-1 in TEST CAS.90/2014) has deposed

in his cross-examination that the Will was signed in his presence and was

signed on the same day when it was prepared. According to his testimony,

none of the daughters of the testatrix were present at the time of execution of

the Will.

47.In terms of the Will dated 12

th

October 2001, the testatrix had

bequeathed and devised the property bearingShop No. 39, Krishna Market,

Kalkaji, New Delhi, to and in favour of her husband/the defendant no.1 (since

deceased), absolutely and exclusively.

48.A hip bone fracture suffered by the testatrix may imply a lack of

physical fitness but cannot imply that the testatrix was not in a sound state of

mind at the time of execution of the Will. The plaintiff’s submission that the

testatrix was not in a sound state of mind at the time of execution of the Will

has not been supported with any medical evidence. In view of the aforesaid,

it cannot be stated that at the time of the execution of the Will, the testatrix

was not in a sound state of mind.

49.No evidence has been placed on record to show that the testatrix used

to put her thumb impression as a mode of attestation after 1991, nor has any

document been placed to show that the testatrix used to affix her signature

prior to 1991. In fact, PW-1 in her cross-examination has admitted that there

is no document to show that the testatrix used to affix her signature prior to

1991.

50.The subject Will, which bears the signatures of the testatrix, was

executed on 12

th

October 2001. It has already come in DW1’s evidence that

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 16 of 30

the testatrix was able to read and write Hindi and was able to sign documents.

The testimony of DW-1 remains unrebutted. The civil suit filed by the

testatrix was attested using her thumb impression on 6

th

September 2002,

about three (3) weeks before her death on 30

th

September 2002. It is possible

that the testatrix might not have been able to put her signature in the aforesaid

civil suit just three (3) weeks before her death. Therefore, it cannot be

conclusively said that the testatrix always used to put her thumb impression

and not her signature. In view of the aforesaid, the plaintiff’s submission with

regard to the anomaly in the mode of attestation of the Will is rejected.

51.As regards the contention of the plaintiff that the second attesting

witness to the said Will was not called for his evidence in the present suit

raises suspicious circumstances surrounding the execution of the Will, I am

unable to accept the same. Under Section 68, Indian Evidence Act, 1872, only

one (1) attesting witness is required to be examined, which has been satisfied

in the present case as Sh. Sudesh Gulati, being one of the attesting witnesses

to the aforesaid Will, has been examined.

52.In my view, the Will dated 12

th

October 2001, executed by Smt.

Krishna Wanti has been duly proved in terms of Section 63 of the Indian

Succession Act, 1925, read with Section 68, Indian Evidence Act, 1872.

53.The testatrix has bequeathed the propertyShop No. 39, Krishna

Market, Kalkaji, New Delhi, to her husband in terms of the Will executed by

her. The Will specifically states that the property was purchased by the

husband of the testatrix,i.e.Sh Hansraj Gulati, in her name. It is also stated

that the testatrix has six (6) daughters and one (1) son, who are married and

living a happy life in their matrimonial home.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 17 of 30

54.There is nothing unnatural in the bequest made by the testatrix in favour

of her husband to the exclusion of the plaintiff. Exclusion of the children, by

itself, does not constitute a suspicious circumstance. It is not the plaintiff’s

case that the testatrix was estranged from her husband or that the disposition

defied ordinary human conduct. In fact, it has come in evidence that the

property that was the subject matter of the Will had been purchased from the

funds of her husband. The bequest, viewed in the context of familial

relationships, appears natural, rational, and consistent with normal human

behaviour.

55.Reference may be made to the judgment of this Court inKhazan Singh

v.State

3

, wherein it was held that it is not unnatural or unusual for a spouse

to bequeath his/her whole property to his/her partner to the exclusion of their

progeny or other Class I legal heirs.

“21. In so far as the exclusion of close relatives and Class-I heirs of

the testatrix is concerned, a Will in favour of husband or vice-versa

to the exclusion of others, stands on a different footing as compared

to a Will in favour of other heirs or strangers. The concept of Will

itself envisages preference to one over the other.In our society it is

not unnatural or unusual for husband or wife to bequeath his/her

whole property to each other to the exclusion of their progeny. It is

often resorted to keep up amity in the family and sometimes to

ensure proper care, status and respect to the living spouse after the

demise of the other.Furthermore in the instant case, although

contesting respondent has set up a case that the Will is not genuine,

he has not produced any evidence in support thereof. In our opinion,

therefore, the stated circumstance is not suspicious. In our view,

facts in the instant case are clearly distinguishable from the facts

prevailing in Kalyan Singh v. Chhoti (supra) and Ram Pyari v.

3

1991 SCC OnLine Del 494

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 18 of 30

Bhagwant (supra) relied upon the learned counsel for the

respondent.”

[emphasis supplied]

56.In the present case, after examining the entire evidence on record, no

suspicious circumstances surrounding the Will have been made out by the

plaintiff. The defendants, being the propounders of the Will, have been able

to prove the same in accordance with Sections 63 and 68 of the Indian

Evidence Act, 1872

57.Hence, issue no.3 in the suit is decided in the defendants’ favour and

against the plaintiff.

Issue no.(iv): Whether the Will dated 30.5.2003, purported to be made

by Sh. Hans Raj Gulati, deceased defendant no.l is genuine and valid,

if so, to what effect?~OPD

Issue no.(ii) in TEST CAS.90/2014: Whether the objections filed on

behalf of objectors/respondents no. 2 to 7 are valid and maintainable?

~OPD

Issue no.(iii) in TEST CAS.90/2014: Whether Will dated 30.05.2003

executed by Late Shri Hans Raj Gulati is his last and final

testament?~OPP

58.The onus to prove the due execution of the Will dated 30

th

May 2003,

executed by Late Sh. Hans Raj Gulati (hereinafter ‘testator’) rests upon the

defendants, being the propounders of the Will.

59.To prove the subject Will (Ex. PW-2/1), the defendants examined Sh.

Sudesh Gulati (PW-1 in TEST. CAS. 90/2014), who is the son of the testator

and also one of the principal beneficiaries under the said Will, as well as Smt.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 19 of 30

Man Mohini (PW-2), one of the attesting witnesses. The defendants have also

examined the Sub-Registrar (PW-3), before whom the said Will was

registered.

60.In his evidence by way of affidavit, PW-1 has stated that the testator

died on 21

st

December 2005 (death certificate is exhibited as Ex.PW-1/1).

PW-1 has admitted that the subject Will bears the signature of the testator and

the attesting witness, which are appended at points A to C.

61.Sh. Sudesh Gulati (PW-1) has deposed that the testator was in good

health and sound mind at the time of execution of the said Will. PW-1 has

also stated that the said Will is the last Will of the testator and he has not

executed any other Will thereafter.

62.Sh. Sudesh Gulati (PW-1) has stated in his testimony that after the filing

of the present suit, the relations between the plaintiff and the testator had

become strained.

63.Sh. Sudesh Gulati (PW-1), in his cross-examination, has stated that the

testator was able to read and write English, Hindi and Urdu without any aid.

64.In her evidence, PW-2, who is one of the attesting witnesses to the

subject Will, has stated that she knew the testator for a long time and the

testator treated her like his daughter. It is stated that on 30

th

May 2003, PW-2

visited the residence of the testator when the said Will had already been typed.

When she reached there, PW-2 was introduced to one Mr. Nandlal Dua, who

is a family friend of the testator and also the second attesting witness.

65.PW-2 has further deposed that the testator informed her that he got the

subject Will typed after understanding its contents. Thereupon, PW-2 read the

said Will to the testator in the presence of Mr Nand Lal Dua.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 20 of 30

66.PW-2 has clearly stated that the subject Will was signed by the testator

at point ‘A’ on each page in the presence of PW-2 and Mr. Nand Lal Dua,i.e.

the second attesting witness. PW-2 signed the said Will at point ‘B’ in the

presence of the testator and the second attesting witness. Sh. Nand Lal Dua

also affixed his signature at point ‘C’ in the presence of PW-2 and the testator.

PW-2 has identified the original Will as Ex. PW-2/1.

67.PW-2 has also deposed that she, along with the second attesting

witness, accompanied the testator to the office of the Sub-Registrar, Asaf Ali

Road, New Delhi, for the registration of the aforesaid Will.

68.PW-2 has withstood the test of cross-examination, wherein she has

affirmed the contents of her evidence affidavit.

69.PW-3, who is the Sub-Registrar before whom the subject Will was

registered, brought the summoned record in respect of the said Will. The

record brought by him matches with the Ex.PW-2/1, as exhibited in the

judicial file. He has stated that the said Will was registered on 12

th

June 2003.

70.In his cross-examination, PW-3 has confirmed that both the attesting

witnesses to the said Will and the testator were present on the date of

registration of the said Will.

71.The respondents no.3 to 5 have filed their objections to the Probate

Case. The main objection is with regard to the delay in filing the Probate Case

after seven (7) years from the date of death of the testator on 12

th

December

2005. It is further contended that the aforesaid Will was executed at a stage

when the testator was 92 years of age and was not in a sound state of mind.

Further, it is alleged that the said Will was written in English, however, the

testator only knew Urdu and could not read, write or understand English. It is

submitted that the subject Will mentions about four (4) properties in his Will,

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 21 of 30

out of which two (2) properties had already been sold by the testator during

his lifetime.

72.In the evidence affidavit of PW-1, Ms. Kanta Sethi,i.e.the

plaintiff/respondent no.5, it is stated that the testator was weak and frail during

the years immediately preceding his death.

73.In her cross-examination, PW1 has denied the execution of the Will by

the testator in favour of the defendant no.2.

74.The objectors have relied upon the evidence of R3W1 (Ms. Sunita Dua,

respondent no.3 in TEST CAS 90/2014). In her evidence affidavit, it is stated

that the probate in respect of the Will was filed by the petitioners after a delay

of seven (7) years from the death of the testator. It is stated that the testator

was an old man suffering from physical and mental illness and this had

affected his eyesight and also his capacity to hear clearly. The condition had

worsened immensely after the death of the testator’s wife. It is stated that the

Will has been executed by the testator at a time when his mental faculty and

memory were quite feeble. It is further stated that the testator was not a well-

educated person and the Will is prepared in English. It is not mentioned

anywhere that the testator understood the contents of the Will. It is also stated

that out of the four (4) properties bequeathed by the testator, two (2) properties

had already been sold by the testator during her lifetime.

75.In her cross-examination, R3W1 has admitted that she does not have

any medical records to show that the testator was not physically and mentally

fit.

76.In the evidence affidavit of R3W2 (Mr. Ramesh Dua, who is the

husband of the respondent no.3 in TEST. CAS. 90/2014), it has been stated

that the agricultural land in Meham, District Rohtak and the property in

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 22 of 30

Malviya Nagar, being two (2) of the properties bequeathed by the testator

through his Will, had already been sold by the testator during his lifetime and

there was no reason for the said properties to have been mentioned in the Will.

77.However, in his cross-examination, R3W2 has admitted that he does

not have any proof/document to confirm the sale of the said properties.

78.First, I shall deal with the objection raised by the respondents in the

Probate Case with respect to the delay of seven (7) years in filing the probate

petition.

79.It is the respondents’ contention that the testator expired on 21

st

December 2005 and the petitioners filed the Probate Case in 2012,i.e.after

seven (7) years from the death of the testator, therefore, the same is barred by

limitation.

80.The petitioners have submitted that the probate petition has been filed

within three (3) years from the date of amendment of the plaint in 2009.

81.The Indian Succession Act, 1925, prescribes no period of limitation

for the grant of probate and letters of administration, and thus the residuary

provision of Article 137 of Schedule to the Limitation Act, 1963 would apply.

Article 137 is set out below:

82.CS (OS) 2159/2002 was filed in 2002 and the plaint was amended in

2009 by the plaintiff to claim a share in her father’s property. The defendants

filed the amended written statement wherein they have propounded a Will

dated 30

th

May 2003 executed by Sh. Hansraj Gulati. The plaintiff has denied

the existence of the said Will in her amended replication. Therefore, the three

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 23 of 30

(3) year period would begin from the date the amendment in the plaint was

allowed,i.e.27

th

August 2009. The present probate petition has been filed in

January 2012, which is within three (3) years.

83.Reference may be made to the judgment of the Supreme Court in

Kunvarjeet Singh Khandpurv.Kirandeep Kaur

4

,wherein it was upheld that

a legal duty created by a Will is a continuous right which can be exercised

any time after the death of the deceased, as long as the right to do so survives.

In the facts of the present case, the petitioners filed the probate case within

three (3) years from the date of the amended plaint and therefore the same is

not barred by limitation.

84.The aforesaid decision has been followed by the Division Bench of this

Court inSanjeev Chadhav.D.P. Sachdeva

5

, holding that the right to apply

would accrue when it becomes necessary to apply which may not necessarily

be within three (3) years from the death of the deceased death, and such right

is a continuous right which can be exercised any time after the death of the

deceased.

85.In view of the aforesaid position of law, in my view, the right to apply

would accrue from the date when the plaint was amended in 2009.

Accordingly, in terms of Article 137, Limitation Act, 1963, the probate

petition has been filed within three (3) years from the time when ‘right to

apply accrues’.

86.The Objectors have not placed any medical evidence/document to show

that the testator was not in a sound state of mind at the time of execution of

the Will in 2003. It is evident from the evidence affidavit of PW-2, who is one

4

(2008) 8 SCC 463

5

2025 SCC OnLine Del 6522

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 24 of 30

of the attesting witnesses to the subject Will, that the testator was of sound

disposing mind and in good health at the time of signing the said Will.

87.The objection with respect to the testator not being a well-educated man

cannot imply that the testator was not able to understand English. None of the

objectors have placed any document to show that the testator could not

understand English. In his statement, Sh. Sudesh Gulati (PW-1, who is also

the son of the testator) has stated that the testator was able read and write

English, Hindi and Urdu without any aid. In my view, this objection cannot

be sustained in the absence of any evidence on record to support the same.

88.As regards the objections of the respondents with regard to the

inclusion of four (4) properties in the said Will, despite the testator having

sold two (2) out of those properties in his lifetime, the respondents have failed

to place on record any documents to show that two (2) out of the four (4)

properties, had been sold by the testator before the execution of the Will in

2003. It is possible that the testator had sold the aforesaid two (2) properties

after the execution of the said Will, but before his death in 2005. The testator,

being the owner of the aforesaid self-acquired properties, was fully competent

to have sold such properties in his lifetime. However, in the absence of any

evidence in this regard, this submission on behalf of the objectors is rejected.

89.On the basis of evidence on record, I conclude that the Will dated 30

th

May 2003, executed by Sh. Hansraj Gulati is valid and genuine. In my view,

no suspicious circumstances surrounding the said Will have been made out.

90.The exclusion of the daughters of the testator and the execution of the

Will for the sole benefit of two (2) of the legal heirs,i.e.the petitioners, by

itself, is not a suspicious circumstance.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 25 of 30

91.The testator has specifically mentioned in the said Will that he did not

wish to bequeath any of his properties in favour of his daughters. The relevant

clause of the said Will is set out below:

“AND whereas I have spent reasonably sufficient amount on the

marriages of my above-named daughters and have been living with

their respective husbands, and therefore, I do not wish to bequeath

or devise any of my properties, moveable or immoveable/assets, to

them in any manner whatsoever;”

92.Reference may be made to the judgment of the Division Bench of this

Court inHari Singh and Ors.v.The State and Ors.

6

,wherein the

disinheritance of a daughter was held to be not a suspicious circumstance and

the bequest made in favour of the nephews of the testator, to the exclusion of

the daughter of the testator, was held to be natural.

“31.Courts are not expected to be satisfied that a bequeathal is

rational or not; what has to be considered is whether the bequest

was so unnatural that the Testator could not have made it.It is the

admitted position that the nephews were working together with their

uncles and that they had been looked after by the uncles only. Indian

society has traditionally been a patriarchal, where the succession

to property by males had been in vogue to the detriment of females.

It is only recently that legislative reforms, together with a social

paradigm, shift in favour of the right of women has gained

recognition. However, we have to be mindful of the fact that the

Courts have to uphold the wishes expressed and not the wisdom

behind the same. The Court cannot infuse its own value system on

the testator.The Privy Council in Motibai Harmusjee Kanga -

vsJamsetjee Harmoonji Kanga, MANU/PR/0093/1923 : AIR 1924

PC 28 observed that "a man may act foolishly and even heartlessly;

if he acts with full comprehension of what he is doing, the Court will

not interfere with the exercise of his volition".For these reasons, we

6

MANU/DE/3341/2010

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 26 of 30

do not find the disinheritance of the Daughter/Objector as a

suspicious circumstance.”

[emphasis supplied]

93.In the matter of appreciating the genuineness of execution of a Will,

there is no place for the Court to see whether the distribution made by the

testator was fair and equitable to all of his children.

94.In my view, the Will dated 30

th

May 2003, executed by Sh. Hansraj

Gulati has been proved in accordance with Section 63 of the Indian

Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.

95.Hence, issue no. (iv) is decided in favour of the defendants and against

the defendants.

96.In view of the findings above, it is held that:

a)The objections filed by the respondents no.2 to 7 cannot be

sustained. Therefore, Issue no. (ii) in the Probate Case is decided in

favour of the petitioners.

b)The Will dated 30

th

May 2003, executed by Sh. Hans Raj Gulati has

been duly proved as his last Will. Accordingly, the issue no.(iii) in

the Probate Case is decided in favour of the petitioners.

Issue no. 3A. in TEST CAS.90/2014: Whether there was another Will

of Hansraj Gulati(other than the privileged Will), if so, which date,

month and year or the name of the legatee executed by him? ~OPR

3,5&7

Issue No. 3B. in TEST CAS.90/2014: Whether the Will referred in

issue no.3A was torn in the family ceremony in the presence of

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 27 of 30

daughters of Shri Hans Raj Gulati, if so its consequences?~OPR 3,5

&7

97.The onus of proving the said issues was on the respondents/objectors.

The contention of the objectors is that there was a subsequent Will executed

by Sh. Hansraj Gulati, bequeathing his properties equally among his children.

The original of the said Will of the testator was torn by Sh. Sudesh Gulati

(petitioner no. 1), during the Barsi Ceremony of the testator on 21

st

November

2006.

98.R3W1, in her cross-examination, has stated that she did not see the torn

Will and that she does not have any documentary evidence regarding the torn

Will.

99.Smt. Kanta Sethi (respondent no.5 in TEST. CAS.90/2014) has

deposed that she came to know from her sisters that the testator had made a

new Will giving shares to all his children and the same was witnessed by the

plaintiff and her sisters, who were present at the Barsi ceremony.

100.However, this contention is unsupported by any evidence. None of the

respondents/objectors, who are the family members of the testator, lodged any

complaint or took any legal step in this regard.

101.None of the objectors/respondents have seen or read the Will that was

allegedly torn by Sh. Sudesh Gulati. The objectors have not even disclosed

the date, month and year of execution of the torn Will. The respondent no.5

has deposed that she got to know about the torn Will from the other sisters,

which is hearsay and therefore inadmissible. R3W1, in her cross-examination,

has deposed that she did not see the torn Will. Since none of the objectors

have seen or read the torn Will, the contents of the torn Will could not have

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 28 of 30

been ascertained. Therefore, the objectors cannot say that under the Will,

properties were bequeathed by the testator equally in favour of all his children.

102.In my view, the respondents/objectors have failed to prove the

existence of any torn Will.

103.Hence, the additional issues, being Issue no.3A and Issue no.3B in the

Probate Case, are decided in favour of the petitioners and against the

respondents.

Issue no. (v):Whether the suit properties bearing Shop No. 39, Krishna

Market, Kalkaji, New Delhi-19 and House No. H-61, Kalkaji, New Delhi-

19, are liable to partition, if so, to what effect?~OPP

104.In terms of the Will dated 12

th

October 2001, executed by Smt. Krishna

Want, the property bearingshop No. 39, along with first floor, and 2nd Floor,

Krishna Market, Kalkaji, New Delhi- 110019was bequeathed by the testatrix

(plaintiff’s mother) in favour of her husband, Sh. Hansraj Gulati. The said

Will stands proved in view of my findings above in Issue no.3.

105.In terms of the Will dated 30

th

May 2003 executed by Sh. Hansraj

Gulati, the property bearingHouse No. H-61, Kalkaji, New Delhi-19, and the

aforesaid property inKrishna Markethave been bequeathed by the testator

(plaintiff’s father) in favour of the defendants no.2 and 3,i.e.Sh. Sudesh

Gulati and Sh. Sanjay Gulati.

106.Both the aforesaid properties are the subject matter of the Will executed

by Sh. Hansraj Gulati. The said Will stands validly proved in view of my

findings above in issue no.(iv).

107.Accordingly, the properties which are the subject matter of the Will of

Sh. Hansraj Gulati, including the suit properties, are not liable to be

partitioned and shall devolve upon the beneficiaries to the said Will.

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 29 of 30

108.Hence, this issue is decided in favour of the defendants and against the

plaintiff.

Issue no.(vi): If issue no. (v) is decided in affirmative, what is the share of

the plaintiff in the aforesaid properties?~OPP

109.In view of the findings in issue no.(v) above, the plaintiff does not have

any share in the aforesaid properties.

Issue no.(i) in TEST CAS.90/2014: Whether petitioners are entitled for

letter of administration/probate of WILL dated 30.05.2003 executed by

Late Shri Hans Raj Gulati?~OPP

110.In view of the findings above, the objections filed by the

objectors/respondents no.3, 4 and 5 are not sustainable. The petitioners, in the

Probate Case, have made out a case for the grant of probate/letters of

administration in respect of the Will dated 30

th

May 2003 executed by Sh.

Hans Raj Gulati.

111.Accordingly, this issue is decided in favour of the petitioners and

against the respondents.

RELIEF

112.In view of the discussion above, CS (OS) 2159/2002 is dismissed.

113.No order as to costs.

114.Decree sheet be drawn up.

115.TEST. CAS. 90/2014 is allowed.

116.The petitioners shall furnish Administrative Bond with one Surety to

the satisfaction of the Registrar General of this Court.

117.Subject to the petitioner filing the requisite court fees and complying

the aforesaid formalities, let the probate/letters of administration be issued

CS(OS) 2159/2002 & TEST.CAS. 90/2014 Page 30 of 30

upon the petitioners in respect of the Will dated 30

th

May 2003 executed by

Late Sh. Hans Raj Gulati.

AMIT BANSAL

(JUDGE)

JANUARY 06, 2026

at