Succession Act | Will Not Validly Executed If Attesting Witness Admits Signing Without Witnessing Testator’s Signature: Madras High Court

"It is not necessary that both attesting witnesses should be present simultaneously, but what is indispensable is the substance of the statutory ceremony, that is the testatrix’s execution or acknowledgment, the witnesses’ awareness of that execution or acknowledgment and their subscription of the instrument in her presence" Madras High Court held that a Will cannot be considered validly executed if the attesting witness admits in cross-examination that they signed the document at the request of a third party without having witnessed the testator signing the instrument.

A bench of Justice P. Velmurugan and Justice GK. Muthukumaar observed that the failure to comply with the mandatory requirements of Section 63 of the Indian Succession Act renders the Will legally unenforceable, thereby granting the testator’s widow, as the sole Class I legal heir, absolute rights to the property.

The appellants, as legal heirs of one Loganathan, sought Letters of Administration based on a Will allegedly executed by the late Purushothaman on September 20, 1997. During the pendency of these proceedings, the appellants also filed a suit challenging the validity of two sale deeds executed by the testator’s widow, P. Ranganayaki, in favour of the respondents. The lower court dismissed both the Testamentary Original Suit and the Civil Suit, leading to the present appeals before the High Court.

The primary question before the court was whether the Will in question was executed and attested in strict accordance with the mandatory requirements of Section 63 of the Indian Succession Act. The court was also tasked with determining whether the sale deeds executed by the widow were valid, contingent upon the validity of the underlying Will.

Mandatory Compliance with Section 63

The court emphasized that for a Will to be valid under Section 63(c) of the Indian Succession Act, it must be attested by at least two witnesses who have seen the testator sign or affix their mark to the Will. Each witness must sign in the presence of the testator, and these acts are strictly mandatory for establishing the genuineness of the document.

Evidence of Attesting Witness is Decisive

The court relied heavily on the testimony of the second attesting witness, P.W.3 S. Rajakumari, who categorically stated during cross-examination that she was not present when the testator signed the document. She further admitted that she signed the Will only upon the request of the testator’s brother, Loganathan, and did not even know the nature of the document she was attesting.

"It is to be noted that the trial Court did not even record any reason for coming to the conclusions as done. No issue was framed regarding the validity of the will. The evidence of P.W.2 does not in any way support the claim of due execution and attestation of the will. On the contrary, it clearly establishes that he did not sign in his presence, he did not know what was the nature of the document."

Exclusion of Attesting Affidavit

The court discarded the attesting affidavit (Ex.P12) filed by the witness, noting that its contents were directly contradicted by her oral evidence in court. The bench observed that the witness had signed the affidavit as a mere legal formality without understanding its contents or legal implications, rendering it devoid of any probative value.

"The contents in Ex.P12 cannot override the mandatory requirement prescribed under Section 63(c). Moreover, Rajakumari in her further cross examination states that the said affidavit was prepared by her Advocate who accompanied her to Court. In such circumstances, Ex.P12 loses all credence."

Consequences of Invalid Execution

Because the Will failed the test of due execution under Section 63 of the Indian Succession Act and Sections 68 and 69 of the Indian Evidence Act, the court held the document to be non-est. Consequently, the testator's widow, as the sole Class I legal heir, possessed an absolute interest in the subject property. This legal status empowered her to alienate the property, validating the sale deeds executed in favour of the respondents.

The High Court dismissed the appeals and affirmed the judgment of the trial court. The court reiterated that the shortfall in meeting statutory requirements for the execution of a Will is fatal to the claims of the propounder. The appellants were denied the Letters of Administration, and the sale deeds were upheld as lawful transactions.

Date of Decision: 15 September 2026