1 235 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RAM AVTAR AND ORS. SUMITRA AND ANR. CORAM: HON'BLE MR. JUSTICE Present: Mr. Gopal Sharma, Advocate and Mr. Ashutosh Sharma, Advocate for the appellants. Mr. Tapan Kumar Yadav, Advocate and Mr. Sakeel Ahmed, Advocate for respondents. HARKESH MANUJA By way of present appeal challenge has been laid to decision dated 07.04.2016 passed by the Court of learned Addl. District Judge, Rewari whereby, a petition filed under Section 276 of the Indian Succession Act, 1925 seeking grant of probate with respect t 29.04.2009 allegedly executed by late administration in respect of the properties bequeathed by the deceased in the Will dated 29.04.2009 was issued in favour of respondent petitioner. Briefly stating, the Pehlad Singh who happened to be father of the appellants as well as respondent No.1. Based on an alleged unregistered Will dated 29.04.2009 allegedly executed No.1 filed a pet 1925 for grant of probate in her favour. The learned Court below vide its decision dated 07.04.2016 having accepted the valid execution of Will IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: RAM AVTAR AND ORS. Versus SUMITRA AND ANR. HON'BLE MR. JUSTICE HARKESH MANUJA Mr. Gopal Sharma, Advocate and Mr. Ashutosh Sharma, Advocate for the appellants. Mr. Tapan Kumar Yadav, Advocate and Mr. Sakeel Ahmed, Advocate for respondents. **** HARKESH MANUJA, J. (ORAL) By way of present appeal challenge has been laid to decision dated 07.04.2016 passed by the Court of learned Addl. District Judge, Rewari whereby, a petition filed under Section 276 of the Indian Succession Act, 1925 seeking grant of probate with respect t 29.04.2009 allegedly executed by late Sh. Pehlad administration in respect of the properties bequeathed by the deceased in the Will dated 29.04.2009 was issued in favour of respondent Briefly stating, the dispute pertains to estate left by deceased Singh who happened to be father of the appellants as well as respondent No.1. Based on an alleged unregistered Will dated 29.04.2009 allegedly executed by late Sh. Pehlad No.1 filed a petition under Section 276 of the Indian Succession Act, 1925 for grant of probate in her favour. The learned Court below vide its decision dated 07.04.2016 having accepted the valid execution of Will FAO-2389-2016 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO-2389-2016 (O&M) Date of Decision: July 08, 2026 ......Appellants ........Respondents HARKESH MANUJA Mr. Gopal Sharma, Advocate and Mr. Ashutosh Sharma, Advocate for the appellants. Mr. Tapan Kumar Yadav, Advocate and Mr. Sakeel Ahmed, Advocate for respondents. By way of present appeal challenge has been laid to decision dated 07.04.2016 passed by the Court of learned Addl. District Judge, Rewari whereby, a petition filed under Section 276 of the Indian Succession Act, 1925 seeking grant of probate with respect to Will dated Sh. Pehlad Singh, letter of administration in respect of the properties bequeathed by the deceased in the Will dated 29.04.2009 was issued in favour of respondent No.1- ains to estate left by deceased- Singh who happened to be father of the appellants as well as respondent No.1. Based on an alleged unregistered Will dated Sh. Pehlad Singh, respondent ition under Section 276 of the Indian Succession Act, 1925 for grant of probate in her favour. The learned Court below vide its decision dated 07.04.2016 having accepted the valid execution of Will (O&M) July 08, 2026 s By way of present appeal challenge has been laid to decision dated 07.04.2016 passed by the Court of learned Addl. District Judge, Rewari whereby, a petition filed under Section 276 of the Indian o Will dated Singh, letter of administration in respect of the properties bequeathed by the deceased - - Singh who happened to be father of the appellants as well as respondent No.1. Based on an alleged unregistered Will dated Singh, respondent ition under Section 276 of the Indian Succession Act, 1925 for grant of probate in her favour. The learned Court below vide its decision dated 07.04.2016 having accepted the valid execution of Will TEJWINDER SINGH 2026.07.14 16:22 I agree to specified portions of this document 2 FAO-2389-2016 (O&M) dated 29.04.2009 as Ex.P-1 by deceased-Pehlad Singh in favour of respondent No.1 ordered for issuance of letter of administration with respect to estate of late Sh. Pehlad Singh bequeathed in favour of respondent No.1. The relevant paragraph Nos.27 to 29 of decision dated 07.04.2016 passed by learned Addl. District Judge, Rewari is extracted hereunder:- “27. However a perusal of the Will shows that no executor has been appointed by the testator in the said Will. So it would not be possible to grant Probate but a letter of administration in respect of the properties bequeathed by testator as per Will may well be granted to the petitioner under Section 278 of the Indian Succession Act. This issue is decided accordingly in favour of the petitioner and against the respondents. Issue no.2 28. In view of the findings recorded on issue no.1 above, it is held that the present petition is very much maintainable in the present form. Therefore findings on this issue are recorded in favour of the petitioner and against the respondents. Issue no.3 (Relief). 29. In view of the findings recorded on issues above, the present petition is allowed. Let letter of administration in respect of the properties bequeathed by Pehlad Singh son of Sohan Lal as per Will dated 29.4.2009 Ex.P1 be issued in favour of the petitioner to enable her to administer the properties in the manner as recorded in the Will. The letter of administration be issued after completion of necessary formalities viz. the filing of the requisite court fee, administration bond along with one surety bond of the amount of valuation of the properties in accordance with law. The petition stands disposed off accordingly. However the parties are left to bear their own costs. Memo of costs be prepared. File after due compliance be consigned to the record-room.” Aggrieved thereof, the present appeal came to be filed at the instance of appellants-respondent Nos.2 to 4. The only point raised on behalf of the appellants is that the attestation of will dated 29.04.2009 allegedly executed by deceased- TEJWINDER SINGH 2026.07.14 16:22 I agree to specified portions of this document 3 FAO-2389-2016 (O&M) Pehlad Singh in favour of respondent No.1 was not proved on record in terms of Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 and therefore the petition preferred at the instance of respondent No.1 was liable to be dismissed. On the other hand, learned counsel for respondent No.1 submits that Will dated 29.04.2009 was duly proved on record as Ex.P-1 and therefore decision dated 07.04.2016 passed by learned Court below being based on proper appreciation of pleadings and evidence available on record, calls for no interference. I have heard learned counsel for the parties and gone through the paper-book. A perusal of record shows that Will dated 29.04.2004 produced on record as Ex.P-1 was attested by two witnesses namely Mr. Rajnish Kumar, Advocate, Civil Courts, Rewari and Mr. Pawan Kumar Vats, Advocate at District Court Rewari. Both the attesting witnesses appeared as PW-1 and PW-6 respectively. The deposition made by PW- 6 namely, Mr. Pawan Kumar dated 21.07.2014 and 03.09.2014 are reproduced hereunder for reference: 21.07.2014: Affidavit in evidence. I, Pawan Kuamr Vats, Advocate, Distt. Courts Rewari, do hereby solemnly affirm and declare as under:- 1. That on dated 29.04.2009 Late Sh. Pehlad Singh S/o Sh. Sohan Lal R/o Village Jari Khurd Tehsil Farukhnagar, Distt. Gurgaon had executed his Will. I and Rajnish Kumar signed on the same as witnesses. I have seen the original Will today which bears my signature which is Ex. P-1. TEJWINDER SINGH 2026.07.14 16:22 I agree to specified portions of this document 4 FAO-2389-2016 (O&M) Verification: Verified that the above noted contents of this affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed. 03.09.2014: “PW6 Pawan Kumar Vats, Advocate, District Courts Rewari. ON SA Stated that I tender my affidavit Ex. PW6/A in my evidence which may be read as a part of my evidence. (Documents objected to). XXXX By counsel for respondents I do not remember as to whether petitioner Sumitra brought Pehlad Singh at the time of apolication of alleged will. It is correct that alleged will was not written in my presence. Self stated that Pehlad Singh had brought the will duly already written in his hands. It is incorrect to suggest that Sh. Pehlad Singh did not execute the alleged will and there also remained no intention to execute in favour of the petitioner. I had asked him to get registered but I was never called for the purpose getting it registered by Sh. Pehlad Singh for anybody else. Rajneesh was not known to Sh. Pehlad Singh. Sh. Rajneesh Advocate had appended the signatures on my asking. I cannot say as to whether the alleged will was got written by Smt. Sumitra Devi under her domination. It is incorrect to suggest that Pehlad Singh was not physically and mentally fit at the time of alleged execution. It is incorrect to suggest that Pehlad Singh had never executed the alleged will and put my signatures later on to have become a witness. It is incorrect to suggest that I have sworn a false affidavit and deposing falsely in favour of petitioner.” A perusal of the statement made by Mr. Rajnish Kumar, Civil Courts, Rewari (PW-1) shows that the said witness was declared hostile. He never supported the attestation or execution of Will by late Sh. Pehlad Singh in favour of respondent No.1. Moreover, the other attesting witness namely, Mr. Pawan Kumar Vats, District Courts, Rewari who appeared as TEJWINDER SINGH 2026.07.14 16:22 I agree to specified portions of this document 5 FAO-2389-2016 (O&M) PW-6 even did not prove the valid attestation of Will dated 29.04.2009 executed by late Sh. Pehlad Singh in favour of respondent No.1. In his entire statement, he failed to fulfil the essential requirements of attestation as stipulated under Section 63 of the Indian Succession Act as he never deposed to the effect that the testator signed the Will in his presence and he signed the Will as an attesting witness in the presence of the attestator. Furthermore, the testimony did not satisfy the definition of "attested" under Section 3 of the Transfer of Property Act, 1882, rendering the document legally flawed. For reference, Section 63 of the Indian Succession Act, 1925 and relevant portion of Section 3 of the Transfer of Property Act, 1882 are reproduced hereunder : Section 63 of the Indian Succession Act, 1925 “63. Execution of unprivileged Wills.— Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:— (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” TEJWINDER SINGH 2026.07.14 16:22 I agree to specified portions of this document 6 FAO-2389-2016 (O&M) Relevant portion of Section 3 of Transfer of Property Act, 1882: “3. Interpretation clause: …………. “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;……….” Since another witness to the Will i.e. Mr. Rajnish Kumar, Advocate (PW-1) was declared hostile, he was legally burdened to prove the attestation made by him as well. However in his deposition he nowhere deposed to the effect that late Sh. Pehlad Singh signed the Will as testator in the presence of Mr. Rajnish Kumar, Advocate who in turn attested the Will in presence of Pawan Kumar Vats i.e. PW-6 who himself was present at that point in time. In such circumstances, valid attestation of Will dated 29.04.2004 was never proved on record and as such, the petition preferred at the instance of respondent No.1 was liable to be dismissed. Resultantly, order dated 07.04.2016 passed by learned Addl. District Judge, Rewari is set aside and the appeal preferred at the instance of appellants-respondent Nos.2 to 4 is allowed. Pending application(s), if any, shall also stand disposed of. 08.07.2026 (HARKESH MANUJA) Tejwinder JUDGE Whether speaking/reasoned Yes/No Whether reportable Yes/No TEJWINDER SINGH 2026.07.14 16:22 I agree to specified portions of this document