Suspicion Alone Cannot Demolish a Will Otherwise Proven — But Signature Must Be Proved to Be That of the Testatrix: Delhi High Court

“Fulfilment of First Condition Under Section 69 Does Not Presume Fulfilment of the Second” —  Delhi High Court, presided over by Justice Tejas Karia, dismissed a review application seeking reconsideration of a judgment which had earlier denied probate of a Will to the petitioner. High Court reiterated that both conditions under Section 69 of the Indian Evidence Act, 1872 must be independently fulfilled for proving a Will where no attesting witness is available.

The Court clarified that “suspicion, however strong, cannot take the place of legal proof”, and that a witness claiming that a Will was executed must specifically affirm that the signature on the Will is in the handwriting of the testatrix, which had not been done in this case.

The matter stems from a Will dated 20.09.1972, executed by the deceased mother of the applicant, Ranjan Rattan Vadhera, who sought probate of the Will. The Will allegedly excluded the applicant’s sister (Respondent No. 3) from inheritance.

Originally, the applicant had failed to establish the execution and attestation of the Will in probate proceedings. The Court, in its judgment dated 25.06.2025, dismissed the appeal, holding that the essential elements for proving a Will were not satisfied, especially in the absence of the testatrix's signature being proved to be in her own handwriting.

A review application was thereafter filed, claiming oversight of crucial legal issues and arguing that the absence of objections, the presumption under Section 90, and the lack of cross-examination should suffice to validate the Will.

The applicant urged that:

• There was no objection by Respondent No. 3 to the Will.

• Section 90 of the Evidence Act allows presumption in favour of thirty-year-old documents.

• As the attesting witness’s signature had been proved, the Will should be presumed genuine.

• The absence of cross-examination amounted to unrebutted evidence.

However, the Court categorically held: “Suspicion alone cannot form the foundation of a judicial verdict — positive or negative.”

Justice Karia noted that while the attestation might have been proven, the second condition under Section 69 — proving that the signature on the Will was that of the testatrix — was not fulfilled.

“It must be proved that the signature of the person executing the document is in the handwriting of that person.”

The Court highlighted that the applicant admitted in cross-examination that he was not present at the time of execution of the Will and that his affidavit did not state that the signature was in his mother’s handwriting.

The Court emphasized that the scope of review is not for re-arguing the case, but to address errors apparent on the face of the record.

“Where an alleged error is far from self-evident and has to be detected by a process of reasoning after lengthy and complicated arguments, it can hardly be said to be an error apparent on the face of the record.”

It held that the applicant’s contentions — including the claim under Section 90 — were raised for the first time in review and amounted to an appeal in disguise.

Regarding Section 90, the Court clarified:

“The probate case was filed in the year 2000 and, therefore, the Will was not a thirty-year old document at the time of filing... The argument is an afterthought and cannot be considered.”

It further rejected reliance on case law that misconstrued the applicability of Section 69:

“Fulfilment of the first condition [attesting witness’s signature] cannot be presumed to be fulfilling the second [testatrix’s signature].”

Judicial Caution on Cross-Examination:

The applicant relied heavily on the absence of cross-examination to argue that the execution of the Will stood unchallenged. However, the Court, referring to Madhukar D. Shende v. Tarabai Aba Shedage (2002) 2 SCC 85, reiterated:

“The law of evidence does not permit conjecture or suspicion having the place of legal proof… Suspicion alone cannot demolish a fact otherwise proved by legal and convincing evidence.”

It ruled that failure to cross-examine does not automatically prove the facts stated, particularly in the context of proving a Will, where strict compliance with statutory requirements is mandatory.

The Delhi High Court’s judgment reaffirms the stringent evidentiary standards required in probate matters, especially under Sections 68 and 69 of the Indian Evidence Act. Where attesting witnesses are unavailable, the propounder of a Will must separately prove both the attestation and the testatrix's handwriting. The Court made it clear:

“There cannot be any presumption with regard to the requirement of proving that the signature on the Will is in the handwriting of the Testatrix by proving the signature of the attesting witness.”

The attempt to convert a review into a second appeal was firmly rebuffed, and the application was dismissed with a reminder that:

“A review cannot be allowed to become an appeal in disguise.”

Date of Decision: 22 August 2025