Registration of a Will Does Not Dispense With Mandatory Proof of Execution and Attestation Under Section 68 of Evidence Act: Supreme Court

"Registration may furnish a supporting circumstance regarding genuineness, but it does not dispense with proof of testamentary execution and attestation." Supreme Court, in a significant ruling dated August 13, 2026, held that a registered Will does not dispense with the mandatory statutory requirements of proof through attesting witnesses under the Indian Succession Act, 1925 and the Indian Evidence Act, 1872.

A bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh observed that the initial burden of proof resting upon the propounder is not discharged merely by establishing the registration of the instrument or the mark of an illiterate testatrix, and that suspicious circumstances surrounding a testamentary disposition must be satisfactorily removed by cogent evidence.

The litigation arose from a family partition suit concerning agricultural lands and a house property originally owned by one Vaiyapuri Gounder, who died around 1925 leaving behind his third wife, Arukkaniammal, as his sole surviving spouse. Following the death of Arukkaniammal issueless and intestate in 1985, legal heirs of the first wife filed a suit for partition claiming a two-thirds share under Section 15(2)(b) of the Hindu Succession Act, 1956. The defendant branch belonging to the second wife resisted the claim by relying on a registered lease deed of 1943 and a registered Will dated December 15, 1976, executed by Arukkaniammal in favour of her four grandsons, which purported to confer absolute title over the A-schedule agricultural properties while excluding other natural heirs.

The primary questions before the court were whether the registered Will was duly executed and attested in accordance with law, whether Section 69 of the Evidence Act was properly invoked, and whether the cumulative suspicious circumstances surrounding the execution of the Will were satisfactorily removed by the propounders. The court was also called upon to determine the legal status of a scribe as an attesting witness and the extent of proof required when ordinary attestation under Section 68 of the Evidence Act cannot be fulfilled.

Strict Interpretation Of Testamentary Proof - Will Must Satisfy Conscience Of Court

Analyzing the statutory framework, the bench emphasized that an unprivileged Will must be executed and proved in strict compliance with Section 63(c) of the Indian Succession Act and Sections 68 and 69 of the Evidence Act. The court reiterated that a Will is not to be proved like an ordinary document, as it speaks from the death of the testator when the author is no longer available to verify its contents.

Registration Does Not Cure Lack Of Attestation

Addressing the evidentiary weight of registration, the court clarified that the proviso to Section 68 of the Evidence Act explicitly excludes wills from documents whose registration dispenses with the necessity of calling an attesting witness. Registration merely furnishes a supporting circumstance regarding genuineness but cannot substitute for the mandatory proof of due execution and attestation by two witnesses.

Scribe Cannot Be Equated With Attesting Witness

The court examined the testimony of the scribe, D.W.2, and reaffirmed that the act of writing and the act of attestation serve distinct legal purposes. Citing landmark precedents including N. Kamalam v. Ayyasamy and M.L. Abdul Jabbar Sahib v. H.V. Venkata Sastri & Sons, the bench held that a scribe does not become an attesting witness unless he signs animo attestandi—with the specific intention of bearing witness to the executant's signature or acknowledgment—which was negated by the scribe's own admission in cross-examination.

Conditions Precedent For Invoking Section 69 - Gateway To Secondary Proof Must Be Established

On the invocation of Section 69 of the Evidence Act, the court ruled that secondary proof through handwriting is an exceptional mode available only when primary proof through an attesting witness has become impossible. The propounder must first establish the foundational condition precedent—such as the proven death or unavailability of the attesting witness—through reliable evidence before shifting to the proof of handwriting and thumb impressions.

Unsubstantiated Death Of Attesting Witness Is Fatal

The bench found that while the death of one attesting witness, Marappa Gounder, was sufficiently proved through his son, the respondents failed to lead acceptable evidence establishing the death or unavailability of the second attesting witness, Avanashi Gounder. A bare statement by an interested beneficiary without supporting village records, family examination, or proof of diligent search was held insufficient to cross the statutory gateway between Sections 68 and 69 of the Evidence Act.

"Cumulative Effect Of Suspicious Circumstances" - Material Recitals And Exclusions Require Cogent Explanation

Evaluating the substantive validity of the Will, the court identified multiple cumulative suspicious circumstances, including the erroneous description of ancestral property as self-acquired, the inaccurate designation of a step-daughter and her sons as biological descendants, the total exclusion of other natural branches without stated reasons, the close family relationship of an attesting witness to a beneficiary, and the non-examination of Alamathal, the central figure in the respondents' case.

"Propounders Failed To Remove Legitimate Doubts"

The bench observed that while the advanced age and illiteracy of the testatrix did not render her legally incapable of executing a Will, the propounders failed to discharge their paramount duty of removing legitimate judicial doubts through independent and cogent evidence. The High Court had erred in evaluating the suspicious circumstances in isolation rather than considering their cumulative impact on the conscience of the court.

Final Orders And Restoration Of Partition Decree

Consequently, the Supreme Court allowed the appeals and set aside the common judgment and decree passed by the Madras High Court. The preliminary decree for partition granted by the Trial Court in O.S. No. 665 of 1985—declaring the plaintiffs entitled to a two-thirds share under Section 15(2)(b) of the Hindu Succession Act—was fully restored, and the respondents' suit for permanent injunction in O.S. No. 1344 of 1990 was ordered to stand dismissed.

Date of Decision: 13 August 2026