Or 39 CPC | Unregistered Will With Single Attesting Witness Cannot Confer Absolute Title: Delhi High Court Grants Injunction

“Will Falsely Declaring Testator Childless and Attested by Only One Witness Prima Facie Invalid” –  In a pivotal ruling Delhi High Court held that an unregistered Will that was attested by only one witness and which falsely declared the testator to be childless could not, even prima facie, confer absolute title in immovable property. Justice Amit Bansal, while deciding competing interim applications under Order 39 Rules 1, 2 and 4 of the Code of Civil Procedure, confirmed a status quo order on title and possession, restraining further alienation of the disputed property.

The Court concluded that the Will relied upon by the defendants failed to satisfy the mandatory requirements under Section 63 of the Indian Succession Act, 1925, and thus the sale deed executed by the plaintiff’s mother, based on that Will, was prima facie invalid, tainting all subsequent transfers based on it.

“Substantive Right in Property Cannot Be Neutralised by an Indemnity Bond” – Delhi HC Rejects Plea to Permit Further Sale

The dispute concerns a 160-square-yard residential property in Rajouri Garden, New Delhi, originally owned by the plaintiff's late father, Madan Gopal Madhok, who passed away intestate in 1981. The plaintiff, Manmohan Kumar, claims to be the sole legal heir and alleges that he remained in constructive possession of the property, even after moving out in 1986 due to family discord. He became aware of an alleged sale deed only in 2021, when attempting to retrieve ownership documents.

The defendants trace their title to a sale deed dated 19.09.1986 executed by the plaintiff’s mother, Radha Rani, in favour of one Chander Mohan Nayyar. The foundation of the defendants’ case rests on a purported Will dated 10.01.1981, allegedly executed by the plaintiff’s father in favour of his wife.

However, Justice Bansal found multiple legal infirmities with the Will:

“In the Will, it has been stated that the testator did not have any children… this cannot be true as it is an admitted position that the plaintiff was borne out of the wedlock… Therefore, on a prima facie view, the Will appears to have been executed under suspicious circumstances.” [Para 18]

Further, the Court noted that: “Apart from being unregistered, the said Will only bears the signature of one attesting witness… In terms of Section 63 of the Indian Succession Act, 1925, there is a mandatory requirement that a Will has to be attested by at least two attesting witnesses.” [Para 19]

On this basis, the Court held that “the Will does not appear to be a genuine and valid document”, rendering the mother incapable of conveying absolute title via the 1986 sale deed.

Subsequent Sale Deeds and GPA Transfers Held Tainted; Trial Needed to Examine Title and Limitation Issues

The High Court underscored that the 1986 sale deed was the foundational document for multiple subsequent transactions, including a General Power of Attorney (GPA), agreement to sell, and registered sale deeds executed by various parties including alleged legal heirs of Mr. Nayyar. The Court found that these transactions, based on a document already under a cloud, were prima facie tainted:

“Once a doubt has been created on the genuineness and validity of the Will, all the subsequent sale/purchase documents qua the suit property would also be prima facie invalid.” [Para 22]

Moreover, the Court refused to entertain the defence argument that the suit was barred by limitation. It held that the plaintiff’s claim of discovering the impugned sale deed only in 2021 could not be dismissed at the interim stage:

“Nothing has been placed on record… to show that the plaintiff was aware of the impugned sale deed before January 2021. This aspect can only be established in trial.” [Para 31]

Likewise, on the issue of possession, the Court noted the plaintiff's claim of constructive possession, supported by the water connection still being in the name of the deceased father:

“Whether plaintiff was in possession of the suit property or not would have to be established in trial.” [Para 34]

Balance of Convenience and Irreparable Injury Favour Plaintiff; Injunction Confirmed

Having found a strong prima facie case and unresolved questions of title and possession, the Court concluded that “irreparable loss and injury would be caused to the plaintiff if further title and interest is created in the suit property.” [Para 35]

The Court rejected the defendant’s offer to submit an indemnity bond to enable sale of constructed portions, declaring:

“Substantive rights in immovable property cannot be neutralized by indemnity; creation of third-party rights impermissible during pendency of suit.” [Para 36]

Accordingly, the status quo order originally granted on 07.11.2023 was confirmed until final adjudication.

Strict Compliance With Succession Law is Crucial for Valid Transfer of Immovable Property

This decision reinforces well-established principles under Indian succession and civil procedure law:

1. A Will must satisfy Section 63 of the Succession Act – requiring attestation by two witnesses – failing which it cannot be used to convey title.

2. An unregistered Will with suspicious content, such as a false declaration that the testator had no children, raises serious doubts about its authenticity.

3. All derivative transfers based on a suspect title document stand tainted and their validity must await trial.

4. Interim injunctions may be granted to prevent alienation and dispossession if the plaintiff demonstrates a prima facie case, balance of convenience, and irreparable harm.

5. Courts will not accept indemnity bonds as substitutes for substantive property rights in disputes over title.

Date of Decision: January 21, 2026