Will forms an important part of one’s history, as it provides for the wish of the deceased pertaining to the manner in which the deceased wanted to devolve his/her properties. While living, the deceased was not able to devolve his properties as per his wishes, he does so by naming the person to who such properties must be devolved, in his last and final Will.

However, seeing the recent trend before the courts, where the validity of the Will used to be challenged on one ground or another, courts across the country have defined various guidelines and rules to be followed by the probate court in determining the validity of the Will.

One such factor was established by the Delhi High Court in the case titled as Narender Singh Chawla alias Narain Singh Chawla v. State & Ors., wherein it was held by the Delhi High Court bench of Justice Valmiki J. Mehta that the first Will would be valid when subsequent Will is held to be invalid.

Facts of the case

What the probate court held?

Decision of the probate court

Question before the Delhi High Court?

Decision

Facts of the case

The facts of the case are that Respondent Nos. 2 and 3, who were the petitioners in the probate suit, filed a suit for grant of probate in respect of the Will of the father of Respondent No. 2 dated 30.10.1982, which was duly registered with the sub-registrar, Delhi.

Objections were filed by the appellant in this case, which was the objector in the probate petition. The main objection raised by the appellant was that the father of Respondent No. 2 subsequently executed a Will  in his favour vide Will dated 06.11.1987 and thus, the subsequent Will had superseded the first Will and therefore, the first Will had no value.

What the probate court held?

Probate court while observing the contentions of the appellant observed that Respondent Nos. 2 and 3 had duly proved the execution of the Will as per the provisions of the Indian Succession Act. In proving the Will, Respondent Nos. 2 and 3 induced the attesting witness to the Will, who deposed before the court that the deceased executed the Will in his presence and signed the Will before the sub-registrar and further identified the signatures of the witness and the deceased. He further deposed that deceased executed the Will without any undue influence or coercion from anyone.  Probate court further observed that appellant in this case, who was the objector in the probate suit had not suggested or elicited any suggestion pertaining to the validity of the Will or any suspicious circumstances surrounding the execution of the Will. Probate Court further observed that the appellant is not denying the execution of the Will, he is rather objecting that the Will in his favour had superseded the first Will.

Thereafter, probate court observed the validity of the alleged Will in favour of the Appellant dated 06.11.1987. Appellant had not filed the original Will, rather had filed the photocopy of the Will. Probate Court further observed that objector, who is the appellant in the present case had not testified any attesting witness to the Will, which is a mandate under Section 68 of the Indian Evidence Act. Probate Court further observed that objector had only bring in cross-examination the son of one of the attesting witness, without giving sufficient cause as to why the attesting witness is not being brought in the witness box.

Probate Court thus, held that objector, who is the appellant in the present case was not able to prove the due execution of the alleged Will in his favour.

Decision of the probate court

Probate Court held that the Will in favour of Respondent Nos. 2 and 3 dated 30.10.1982 is duly proved to be executed while the Will in favour of the Appellant dated 06.11.1987 was not proved by the appellant and thus, probate court upheld the validity of the Will in favour of Respondent nos. 2 and 3.

Question before the Delhi High Court?

The main question before the Delhi High Court was whether the initial Will can be held the be legally sustainable when subsequent Will in favour of another person comes in question before the court?

Decision

Delhi High Court observed that the Appellant had not challenged the validity of the Will in favour of Respondent Nos. 2 and 3, rather had presented a subsequent Will in his favour, which he failed to prove that was duly executed by the deceased. High Court further observed that Appellant failed to present the original Will and rather presented a photocopy of the Will, which cannot be accepted by the Court until and unless the profounder of the Will is able to prove that Will was not destroyed by the testator by a deliberate act.

Delhi High Court therefore held that the first Will in favour of Respondent Nos. 2 and 3 is completely valid and the subsequent Will in favour of the Appellant, not being proved to be duly executed, does not have any value in the eyes of the law and therefore, does not question the authenticity of the first Will.