Section 69 IEA | Onus On Propounder To Lead Secondary Evidence & Remove Suspicious Circumstances If Attesting Witnesses Are Dead: Telangana High Court

"In the event of death, non-availability of attesting witnesses, and the propounder not in a position to call the attesting witnesses, he has to plead secondary evidence to prove the genuineness of the will and discharge his onus of proving the will," Telangana High Court, in a significant ruling, held that when all attesting witnesses to a Will are deceased, the propounder must lead secondary evidence under Section 69 of the Evidence Act to prove the testator's handwriting and the attestation of at least one witness.

A bench of Justice K. Lakshman and Justice B.R. Madhusudhan Rao observed that even when the signature of a deceased witness is identified, the court must still be satisfied that the Will is free from suspicious circumstances. The court emphasized that the reliability of the evidence and the credibility of the witnesses remain matters for judicial scrutiny regardless of the statutory relaxation in the mode of proof.

The appellant filed a suit for declaration of ownership and recovery of possession based on an unregistered Will allegedly executed by his father in 1964. He claimed the document was discovered in a sealed cover inside an almirah twenty years after his father's death and after his mother's demise in 1999. The respondents, who were the appellant's sisters, challenged the Will as a forged document and denied its execution. The trial court dismissed the suit, leading to the present appeal where the High Court examined the requirements of proving a Will when the original attestors are no longer alive.

The primary question before the court was whether the plaintiff successfully proved the execution of the 1964 Will in terms of Section 69 of the Indian Evidence Act, given that all three attesting witnesses had died. The court was also called upon to determine whether the delay in tracing the Will and the exclusion of one of the daughters from the document constituted suspicious circumstances that invalidated the testamentary disposition.

Court Explains Legal Framework For Proving Wills With Deceased Witnesses

The court conducted an extensive analysis of the interplay between Section 63 of the Indian Succession Act and Sections 68 and 69 of the Indian Evidence Act. It noted that while Section 68 generally requires the examination of at least one attesting witness, Section 69 provides an exception when no such witness can be found. In such cases, the law requires proof that the attestation of at least one attesting witness is in their handwriting and that the signature of the person executing the document is in the handwriting of that person.

Proof Of Handwriting Does Not Automatically Remove Suspicion

The bench observed that the proof of a Will is not a mere formality or a simple "lis" between two parties but is a matter of the court's conscience. Relying on the Supreme Court’s decision in Kalyanaswamy vs. Bakthavatsalam, the court held that while the strict requirements of Section 68 may be relaxed under Section 69, the propounder is not relieved of the duty to remove all legitimate suspicions. The court noted that the judicial mind must remain vigilant and circumspect when the testator is no longer alive to confirm the document.

"The propounder of the Will has to remove all suspicious circumstances to satisfy that the Will was duly executed by testator, wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered."

Variance In Witness Testimony Weakens The Genuineness Of The Document

Regarding the evidence produced, the plaintiff had summoned the son of one of the deceased attestors to identify the signature. However, the court found significant variances in the names provided in the Will versus the witness's official documents, such as a PAN card. The court noted that the plaintiff failed to examine the legal heirs of the other two attestors or seek an expert opinion under Section 45 of the Evidence Act to verify his father’s signature. This failure to lead comprehensive secondary evidence was viewed as a critical lapse in discharging the burden of proof.

Long Delay In Tracing The Will Viewed As Highly Suspicious

A major factor in the court's decision was the timeline surrounding the Will's discovery. The document was allegedly executed in 1964, the father died in 1979, and the Will was only "found" in 1999 after the mother's death. The court found it "unbelievable" and "suspicious" that a sealed cover would remain unopened in an almirah for twenty years after the testator's death. This delay of 35 years from execution to discovery, coupled with the fact that the father had sold other properties mentioned in the Will during his lifetime, cast doubt on the document's validity.

"Keeping the sealed cover in almirah without opening it for 20 years of long period is a highly suspicious circumstance. Therefore, the contention of the plaintiff that he traced out the will only after death of his mother is unbelievable and it is suspicious."

Presumption Under Section 90 Not Applicable To Wills Not Produced In Time

The appellant had sought the benefit of Section 90 of the Evidence Act, which allows the court to presume the genuineness of documents that are thirty years old. The High Court, however, upheld the trial court's finding that this presumption could not be attracted because the document had not been in the court's custody or produced thirty years prior to the dispute. Furthermore, the court reiterated that even for ancient documents, the initial burden to prove proper custody and the absence of fraud remains with the party relying on the document.

Exclusion Of Natural Heirs Without Explanation Undermines Testamentary Intent

The court noted that the Will mentioned the testator had six daughters but only listed the names of five, excluding the first respondent without any stated reason. Citing various precedents, the bench observed that the unexplained exclusion of a natural heir is a well-recognized suspicious circumstance. The court found that the disposition appeared unnatural and unfair in the light of the strained relations between the siblings, which included criminal complaints filed by the sisters against the brother.

Appellate Court Should Not Lightly Interfere With Trial Court Findings On Fact

In concluding the judgment, the bench emphasized the limited scope of an appellate court in reversing findings of fact. It noted that the trial judge had the advantage of seeing the demeanor of the witnesses and that a reasoned judgment should not be displaced unless there is a special feature that escaped the trial court's notice. Finding no perversity or illegality in the trial court's assessment of the evidence, the High Court determined that the plaintiff failed to make out grounds for interference.

The High Court dismissed the appeal, confirming that the plaintiff failed to prove the genuineness of the Will under the standards required by Section 69 of the Evidence Act. The court held that the cumulative effect of the delay in discovery, the discrepancies in attestation evidence, and the exclusion of a natural heir created a web of suspicion that the propounder failed to clear. Consequently, the claim for declaration of ownership based on the 1964 Will was rejected.

Date of Decision: 08 June 2026