Admission Of 'Making' A Will Not An Admission Of Its 'Genuineness': Delhi High Court Refuses Partition Decree Based On Counsel's Statement

"What emerges from the above clear expositions is that the admission qua making of Will is distinct from the admission with regard to the genuineness of the Will. Even if the existence or the making of Will has been accepted, the same cannot be construed as an admission qua the genuineness or legality of the Will." Delhi High Court, in a significant ruling, held that a decree for partition under Order XII Rule 6 CPC cannot be granted based on a counsel's statement accepting the existence of a Will if its genuineness is later contested through allegations of suspicious circumstances.

A bench of Justice Vikas Mahajan observed that the admission of the "making" of a Will is legally distinct from admitting its "validity," especially when pleadings raise issues of coercion and lack of testamentary capacity.

The case originated from a partition suit filed by Gouri Sarkar and another regarding a property in Chittaranjan Park, New Delhi, initially owned by their late father. While the suit was pending, the plaintiffs relied on a 2016 Will executed by their mother, Smt. Kalyani Roy, which the defendant’s counsel had initially "accepted" in a recorded court statement. However, the defendants later filed written statements alleging that the Will was manufactured in collusion with a builder and that the testatrix lacked proficiency in English, the language of the document.

The primary question before the court was whether a counsel’s statement accepting a Will constitutes an "unequivocal admission" sufficient to bypass a trial under Order XII Rule 6 CPC. The court was also called upon to determine whether the admission of a Will’s execution dispenses with the mandatory requirement of proving its genuineness under Section 68 of the Evidence Act when suspicious circumstances are pleaded.

Distinction Between Execution And Genuineness Of A Will

The court emphasized that the law treats the "making" of a Will and its "genuineness" as two separate legal categories. Relying on the Supreme Court's decision in S.R. Srinivasa v. S. Padmavathamma (2010), the bench noted that an admission regarding the writing of a Will does not automatically translate into an admission of its legality or the sound disposing state of the testator's mind.

Court Explains Scope Of Order XII Rule 6 CPC

Justice Mahajan observed that for a decree to be passed on admissions, such admissions must be clear, unequivocal, and unambiguous. In the present case, while the counsel for Defendant No. 1 had stated that his client "accepts" the Will, the court found that this isolated statement could not override the detailed contest raised in the subsequent written statements.

"In the absence of clear, unequivocal and unambiguous admission with regard to the genuineness of the Will, the plaintiffs cannot be absolved from proving the valid execution of the Will," the Court held.

Mandatory Requirement Of Proving Will Under Section 68 Evidence Act

Referencing Ramesh Chand v. Suresh Chand (2025) and Savithri v. Karthyayani Amma (2007), the court reiterated that the mandate of Section 68 of the Evidence Act is absolute. Even if the opposite party does not specifically deny the execution, the propounder is legally bound to examine at least one attesting witness to prove the document's validity.

"The mandate of Section 68 of the Evidence Act for proving the Will has to be complied with, even in a case where the opposite party does not specifically deny the execution of the documents in the written statement," the bench observed.

Suspicious Circumstances Necessitate Full Trial

The Court took serious note of the "suspicious circumstances" pleaded by the defendants, including the mother’s frail health and her alleged lack of English proficiency. The bench held that when such allegations are on record, the onus shifts heavily to the propounder to explain them to the satisfaction of the court through a full-scale trial.

"In case the circumstances alleging the Will being surrounded by suspicious circumstances have been pleaded, the onus would be on the propounder to explain the same to the satisfaction of the Court before the Will can be accepted as genuine," the Court noted.

Dismissing the application for a judgment on admissions, the court concluded that the plaintiffs must prove the Will dated March 30, 2016, in accordance with the law. The bench held that since the defendant had raised doubts about the manufacture of the Will and the coercion of the testatrix, the matter could not be decided summarily without the recording of evidence.

Date of Decision: 07 July 2026