One Attesting Witness is Sufficient if He Proves Execution and Attestation of Will as Required by Law: AP High Court

Later Will Overrides Former, Andhra Pradesh High Court reaffirming key legal principles relating to the proof of Wills and the effect of later testamentary instruments. Justice Venuthurumalli Gopala Krishna Rao allowed the second appeal, setting aside the judgment of the First Appellate Court which had reversed a trial court decree declaring the plaintiff’s title over ancestral property based on an unregistered Will.

The High Court held that the plaintiff had validly proved the Will dated 10.03.2000 (Ex.A-1), in compliance with the mandatory requirements under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The Court emphasized that “suspicious circumstances must be real, not imagined,” and restored the trial court’s decree declaring the plaintiff as the absolute owner of the property, including the disputed Ac.1.05 cents of land.

Court Upholds Genuineness of Unregistered Will, Rejects Appellate Court's "Baseless Suspicion"

The legal battle revolved around the succession rights of two brothers over properties previously held by their mother, Smt. Bhavanamma. The plaintiff claimed exclusive ownership over the property based on an unregistered Will dated 10.03.2000 (Ex.A-1), allegedly executed by his mother in his favour. The First Appellate Court had disbelieved the Will citing "suspicious circumstances," including the fact that both a thumb impression and signature appeared on the document, and only one attesting witness was examined.

However, the High Court categorically rejected these grounds, observing:

“The taking of thumb impression alongside the signature by an 80-year-old testatrix only reinforces the bona fides of the Will, not the reverse. Suspicion on such basis is wholly unfounded.”

The Court clarified that neither the Indian Succession Act nor the Indian Evidence Act requires examination of both attesting witnesses if one sufficiently proves execution and attestation as per the law. “If one attesting witness can establish that the Will was executed and properly attested by two witnesses, the statutory mandate is satisfied,” the Court ruled, relying on the Supreme Court’s authoritative interpretation in Janaki Narayan Bhoir v. Narayan Namdeo Kadam.

Plaintiff Established Legal Title; Defendant’s Sale Transaction Nullified

The facts revealed that the plaintiff’s mother, Bhavanamma, had earlier executed a registered Will in 1995 (Ex.B-2) favouring both sons. However, she subsequently executed a later Will (Ex.A-1) in 2000, solely bequeathing her share of the partitioned property to the plaintiff. This later Will was the crux of the trial court's decree, which was overturned by the appellate court, only to be reinstated now by the High Court.

“Once Ex.A-1 Will is proven to be the valid and final testament, it prevails over the earlier Will dated 1995, irrespective of its registration,” the Court observed.

Critically, the High Court found that Defendant No.1, who had sold a portion of the disputed land (Ac.1.05 cents) to Defendant No.2 after the mother’s death, had no title to transfer. “No one can convey a better title than they possess,” the Court emphasized.

Further, the possession claim by Defendant No.2 failed due to lack of supporting revenue records or independent evidence. The Court noted that mere mention in the Gram Panchayat’s possession certificate (Ex.B-5) without specifying the disputed extent was insufficient.

No Need to Examine Second Attestor if First Attestor’s Testimony Fulfills Section 63 Requirements

The High Court’s core legal finding centres around the evidentiary standard for proving a Will. It reasserted that Section 68 of the Evidence Act permits the proof of execution of a Will by examining only one attesting witness, as long as that witness can testify that both he and the other attesting witness saw the testator sign the Will and that all formalities under Section 63 of the Indian Succession Act were met.

The Court took strong exception to the appellate court's insistence on examining both attestors:

“The appellate court misdirected itself in law by treating the non-examination of the second attesting witness as fatal. P.W.2’s testimony fulfilled all legal requisites of execution and attestation.”

The Court also highlighted that P.W.2 was an independent witness, unrelated to either the plaintiff or the testatrix, and his testimony was not impeached in cross-examination.

Suspicion Cannot Override Proven Compliance with Law

On the broader issue of how courts must approach “suspicious circumstances,” the High Court reiterated the principle laid down by the Supreme Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh and Pentakota Satyanarayana v. Pentakota Seetharatnam that suspicion must be grounded in material evidence.

“The so-called suspicious circumstances cited — lack of reference to earlier Will in Ex.A-1, joint use of signature and thumb impression — are neither material nor persuasive to nullify a validly executed and attested Will.”

Additionally, the Court noted that the brother who was excluded from the Will (Defendant No.1) had not contested it, remained ex-parte, and thus lent further credibility to the plaintiff’s claim.

Title and Possession Restored to Plaintiff, Sale to Defendant No.2 Declared Void

In its conclusive holding, the High Court allowed the second appeal, set aside the appellate court's ruling in A.S. No.121 of 2012, and restored the trial court’s judgment dated 07.08.2012 in O.S. No.205 of 2001. The plaintiff was declared as the absolute owner of the suit schedule property, including the disputed Ac.1.05 cents in Item No.1.

The sale by Defendant No.1 to Defendant No.2 was declared invalid for lack of title, effectively nullifying the transaction.

Date of Decision: December 2, 2025