Execution of Will Need Not Be Proved With Mathematical Certainty — Satisfaction of a Prudent Mind Is the Test: Kerala High Court Upholds Will Excluding Daughter from Inheritance

“No Suspicious Circumstances; Scribe’s Testimony and Registration Sufficient to Prove Due Execution of Will Under Section 69 Evidence Act” – Kerala High Court comprising Justice Sathish Ninan and Justice P. Krishna Kumar addressing the legal validity of a registered Will excluding the appellant—a daughter—from inheritance of a family residential property.

Rejecting the appellant’s claims of coercion, lack of testamentary capacity, and suspicious circumstances, the Court held that the Will executed by the mother of the parties in 1988 was validly executed and proved in accordance with Section 69 of the Indian Evidence Act, as both attesting witnesses were found to be deceased. Accordingly, the Court upheld the trial court's judgment excluding the residential property from partition.

The appellant, Dr. K.R. Leela Devi, filed a partition suit seeking division of properties left behind by her late mother, Smt. P. Bhavani, and her brother K.R. Jayasanker. While there was no dispute regarding the partibility of agricultural lands (plaint A schedule), the core dispute concerned a residential building and 14.875 cents of land (plaint B schedule). The appellant claimed that her mother died intestate, and thus, the property was jointly inherited by all legal heirs.

However, the first defendant, her elder brother K.R. Rajaram, asserted that plaint B schedule property was bequeathed to him under a registered Will dated 6 April 1988, and hence not available for partition. The Will, allegedly executed at the Sub-Registrar's office, had not been probated.

The trial court upheld the Will’s validity and excluded the residential plot from partition, prompting the appellant to prefer this Regular First Appeal before the High Court.

The appeal revolved around the genuineness of the Will, and the manner of its proof, especially in the absence of attesting witnesses. The appellant raised several grounds of challenge:

1. Failure to examine attesting witnesses as required under Section 68 of the Indian Evidence Act.

2. Alleged physical and mental incapacity of the testatrix due to illness and old age.

3. Undue influence and coercion by the beneficiary (first defendant).

4. Use of “stock witnesses” for attestation.

5. Absence of summons to the attesting witnesses or proper procedure to establish their death.

However, the Court dismissed these contentions after a detailed reappraisal of the evidence.

Proof of Will Under Section 69 of the Indian Evidence Act

Since both attesting witnesses had died, the propounder relied on Section 69, which permits proof of execution when no attesting witness is available. The scribe of the Will (DW5) gave a detailed account of the execution process: he drafted the Will on the instruction of the testatrix Bhavani, who read and signed the document in the presence of two witnesses, both of whom also signed in her presence.

The Court held: “DW5’s testimony that the Will was signed by the testatrix in his presence, along with the attestation by two witnesses, satisfies the requirement of Section 69 of the Evidence Act.” [Para 24]

The Bench clarified that no specific form of words or mathematical certainty is required to prove a Will:

“It is sufficient that the witness states the document was executed and attested in his presence. That constitutes compliance with Section 69.” [Para 21]

The Court relied on precedents including C.G. Raveendran v. C.G. Gopi (AIR 2015 Ker 250) and Haradhan Mahatha v. Dukhu Mahatha (AIR 1993 Pat 129) to affirm that direct visual confirmation of signature is not mandatory if the Will was executed in the presence of the witness.

Testamentary Capacity Affirmed

The appellant, supported by her brother and sister-in-law (a doctor), alleged that their mother was bedridden, visually impaired, and unable to comprehend the contents of a Will due to a stroke in 1986. However, the Court found no medical evidence was produced to support this claim. Instead, photographs from 1988 and witness testimonies confirmed the mother’s mobility and sound mental state.

“We find no reason to doubt the soundness of mind and the disposing capacity of the testatrix at the time of execution of the Will.” [Para 28]

Suspicious Circumstances Not Made Out

Rejecting allegations of undue influence and “stock witnesses,” the Court relied on V. Kalaivani v. M.R. Elangovan (2024) to observe:

“The mere fact that the witnesses were arranged by the scribe, and frequently participated in such executions, does not by itself affect the validity of the attestation.” [Para 27]

The Court found that the first defendant was not present during execution, and Bhavani was living at her son-in-law’s house (not with the propounder), negating undue influence.

Presumption of Valid Execution from Registration

The Will was registered before the Sub-Registrar, whose endorsement was produced in evidence. The Court reaffirmed the presumption under Section 114 of the Evidence Act and held:

“Though registration does not itself prove execution, it lends credibility to the document when supported by reliable testimony.” [Para 32]

Also relevant was the fact that the first defendant had mutated the property in 1991 and produced the Will in court as early as 1992 in tenant eviction proceedings—facts which negated the theory of fabrication or secrecy.

Delay in Filing Suit Undermines Challenge

The suit was filed in 2011, 21 years after Bhavani's death in 1990, and long after the property was mutated in the first defendant’s name. The Court held that such delay, combined with prior knowledge of the Will, supports its genuineness.

“The institution of the suit 21 years after Bhavani’s death is only a speculative challenge.” [Para 5, 33]

The Kerala High Court dismissed the appeal, holding that the Will executed by late Smt. P. Bhavani in 1988 was validly executed, attested, and registered, satisfying the requirements of Sections 63(c) of the Indian Succession Act and 68/69 of the Indian Evidence Act. The Court confirmed that there were no suspicious circumstances, and that the scribe’s consistent and credible testimony, along with corroborating evidence, justified exclusion of the residential property from partition.

“The evidence on record, along with the circumstances arising therefrom, compels us to conclude that Ext. B2 Will is genuine.” [Para 36]

Date of Decision: 29 May 2025