Court Must Step into Testator’s Shoes, Not Substitute His Intent: Supreme Court Upholds Will Excluding One Daughter

"Leading Questions in Cross-Examination Are Not Without Probative Value", On 17 December 2025, the Supreme Court of India delivered a significant judgment on the evidentiary standards required to prove the due execution of a will under Section 63(c) of the Indian Succession Act, 1925, read with Section 68 of the Indian Evidence Act, 1872. The Bench comprising Justices Ahsanuddin Amanullah and K. Vinod Chandran allowed the civil appeals, set aside the concurrent findings of the Trial Court and the High Court, and upheld the validity of a will that excluded one daughter — the plaintiff — from inheritance, citing the testator's clear intention.

The decision underscores the legal principle that when a will meets the formal requirements of execution and attestation, and no suspicious circumstances cloud the testamentary act, judicial conscience must give effect to the testator’s desire — even when it results in the exclusion of a legal heir.

“We Cannot Put the Testator in Our Shoes, We Must Step into His” – Apex Court on Judicial Scrutiny of Wills

The Court's judgment began by addressing the core legal issue: whether the will executed by one N.S. Sreedharan in 1988 — excluding one of his nine children due to her inter-community marriage — was validly attested and proved. Both the Trial Court and the High Court had held the will not proved, on the ground that the sole surviving attesting witness (DW-2) failed to depose clearly about the attestation by the second witness, who was deceased.

However, the Supreme Court found this conclusion to be factually and legally unsustainable.

Will Was Attested in Presence of Testator and Both Witnesses – Cross-Examination Clarifies Chief Examination Ambiguity

The pivotal evidence came from DW-2, the only surviving attesting witness, whose cross-examination proved decisive. While his chief examination only affirmed his own attestation and the signature of the testator, his cross-examination revealed that both attesting witnesses and the testator were present and signed the will together.

The Court categorically held:

“What was lacking in the examination-in-chief was brought out in the cross-examination by way of a positive suggestion. Leading questions are permitted in cross-examinations, and the response elicited cannot be said to have lesser probative value, as held by the High Court.”

It added that Section 68 of the Evidence Act only requires the examination of one attesting witness, who must testify to both the execution and the attestation of the will by both witnesses.

No Suspicious Circumstances or Mental Incapacity – Plaintiff Failed to Plead or Prove Any Grounds to Invalidate the Will

The Court found no evidence of undue influence, coercion, or fraud. It noted that the testator was mentally sound, and the physical health concerns (slight oedema in the legs) were inconsequential to his testamentary capacity. Crucially, the plaintiff did not deny the will in the plaint, did not allege suspicious circumstances, and chose not to testify or produce any evidence in support of her claim.

Quoting from H. Venkatachala Iyengar v. B.N. Thimmajamma, the Court reminded that:

“The propounder has to prove the due and valid execution of the will, and if there are any suspicious circumstances surrounding the execution, they must be removed... The court must be fully satisfied that it has been validly executed by the testator who is no longer alive.”

The Court also held that minor inconsistencies in witness recollection after 24 years cannot be exaggerated into “suspicious circumstances.”

Prior Injunction Suit Did Not Bar Partition Claim, But Delay and Conduct of Plaintiff Were Material

The plaintiff had knowledge of the will as early as 1990, when a suit for injunction had been filed against her by the defendants, accompanied by a copy of the will. Although res judicata was found inapplicable (since title was not in issue in the earlier suit), the Court found that the plaintiff’s delay of 21 years in filing the partition suit, without even mentioning the will in her plaint, reflected an absence of bona fides.

The Court noted:

“Despite knowledge, the plaintiff pleaded no suspicious circumstances and did not even mention the will in the plaint. The plaintiff also did not mount the box, and none were examined on her side.”

The Exclusion of One Heir Justified by Testator’s Intention – Judicial Conscience Fully Satisfied

The Supreme Court emphasized that courts must not interfere with the intention of the testator if the will is otherwise duly proved:

“We cannot put the testator in our shoes, and we should step into his. We cannot substitute our opinions in place of that of the testator; his desire prompted by his own justifications.”

The Court clarified that the “rule of prudence” regarding exclusion of heirs does not mean that courts may question the rationale of such exclusion, especially when the testator’s intent is clearly recorded and voluntarily executed.

Will Held Valid – Suit for Partition Dismissed

Finding the attestation to be valid, the testator’s mental capacity unimpaired, and the exclusion of the plaintiff deliberate and explained, the Court set aside the judgments of both the High Court and the Trial Court.

“There can be no interference to the will which stands proved unequivocally. The plaintiff is found to have no partible claim over the properties of her father, which by a will have been bequeathed to the other siblings.”

The Court rejected the plea for equitable relief, observing that the wishes of the testator override considerations of equity when a will is lawfully proved.

This decision strengthens the legal principle that due execution and clear testamentary intent must be respected, even if they result in the exclusion of natural heirs. The Supreme Court’s nuanced reading of Sections 63 and 68, coupled with its reaffirmation of long-standing precedent, sets a clear benchmark on how to approach the proof of wills, particularly in cases where the sole attesting witness is subjected to leading questions during cross-examination.

Date of Decision: 17 December 2025