Will | Both Attestation And Testator's Signature Need Not Be Established By Same Witness; Beneficiary Competent To Identify Handwriting: Madras High Court

"Section 69 requires proof of two distinct facts: that the attestation of at least one attesting witness is in that witness’s handwriting, and that the executant’s signature is in the executant’s handwriting. It does not require both facts to be established by the same witness." Madras High Court, in a significant ruling delivered on October 26, 2026, held that Section 69 of the Indian Evidence Act, 1872 does not mandate that the handwriting of the attesting witness and the signature of the executant must be established by one and the same witness.

Dr. Justice A.D. Maria Clete observed that the two statutory limbs of Section 69 can be proved through separate and distinct witnesses, clarifying that a beneficiary under the Will is not disqualified from identifying the testator's signature. The Court made these observations while granting Letters of Administration with the Will annexed in a testamentary suit that had been contested for nearly two decades.

The proceedings originated from an Original Petition filed under Sections 222 and 276 of the Indian Succession Act, 1925 by two sons seeking probate of a registered Will dated March 5, 1980 executed by their mother, late Mrs. T. Kannammal. The petition was converted into a Testamentary Original Suit after the testatrix’s daughter entered a caveat alleging that the Will was forged, executed in English without explanation to the Tamil-speaking testatrix, and barred by an unexplained delay of nearly twenty years. Both original petitioner-executors passed away during the prolonged litigation, prompting their legal representatives to come on record.

The primary questions before the Court were whether the registered Will dated March 5, 1980 executed by late T. Kannammal was genuine, valid, and duly proved in accordance with Section 69 of the Indian Evidence Act, 1872. The Court was also called upon to determine whether the legal representatives of deceased executors were entitled to probate under Section 222 of the Indian Succession Act, 1925 or an alternate testamentary grant.

Scope And Dual Requirements Of Section 69 Evidence Act

The Court observed that where one attesting witness has passed away and the whereabouts of the other cannot be traced despite reasonable diligence, the propounder is fully entitled to invoke Section 69 of the Indian Evidence Act, 1872. The bench highlighted that this provision requires two distinct factual elements to be proved: firstly, that the attestation of at least one attesting witness is in that witness's handwriting, and secondly, that the signature of the executant is in the handwriting of the executant.

The Court held that Section 69 contains no statutory mandate requiring a single identification witness to prove both the attestation and the testator's signature. In the present case, the son of the deceased attesting witness was examined as P.W.2 to identify his father’s signature, while the surviving son of the testatrix was examined as P.W.1 to identify the signature of his mother. The bench ruled that this mode of bifurcated proof is entirely valid and compliant with statutory requirements.

Beneficiary Is Not Disqualified From Identifying Testator's Signature

Addressing the evidentiary competence of the beneficiary to establish the executant's signature, the Court firmly rejected the proposition that a propounder or beneficiary is legally barred from identifying the handwriting of the executant. The bench ruled that the acceptance of each identification depends strictly upon the witness's demonstrated acquaintance with the signature and overall credibility.

"Nor is P.W.1 disqualified from identifying her signature merely because he is a beneficiary. The acceptance of each identification depends upon the witness’s demonstrated acquaintance with the relevant signature and the credibility of his evidence."

Examining the Supreme Court’s ruling in V. Kalyanaswamy v. L. Bakthavatsalam (2021) 16 SCC 543, the bench observed that the apex court recognized the assessment of evidence from different sources to fulfill Section 69. The Court affirmed that while judicial caution is necessary, the testimony of a beneficiary identifying a parent's signature cannot be discarded on an assumption of bias when it remains unshaken in cross-examination.

Minor Discrepancy In Attester's Name Does Not Discredit Identification

The Court analyzed the testimony of P.W.2, who had produced a subsequent registered settlement deed, family card, Aadhaar card, and legal heirship certificates to demonstrate his relationship with the deceased attesting witness. The defendant had contended that the attester was named as "V. Nagalinga Chettiar" in the Will but as "V. Nagalingam" in the subsequent settlement deed of 2002.

Rejecting this contention, the Court held that the omission of the caste suffix "Chettiar" in subsequent documents does not impeach the witness's identification when the signatures are visibly similar and residential addresses perfectly correspond. The Court noted that the consistent identification particulars corroborated P.W.2’s testimony, satisfactorily establishing the attesting witness's identity and handwriting.

Precedents On Suspicious Circumstances Distinguished

The bench meticulously distinguished a series of landmark judgments relied upon by the defendant, including Jaswant Kaur v. Amrit Kaur (1977) 1 SCC 369, Kashibai v. Parwatibai (1995) 6 SCC 213, Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91, and K. Laxmanan v. Thekkayil Padmini (2009) 1 SCC 354. The Court clarified that while Jaswant Kaur mandates the removal of legitimate suspicions by cogent proof, it nowhere lays down that a single identification witness must prove both signatures.

Similarly, the Court held that Janki Narayan Bhoir dealt with a scenario where one attesting witness turned hostile and the other available witness was deliberately not examined, which prevented resort to Section 71. Here, because one attesting witness was deceased and the other untraceable, Section 69 was legitimately engaged. The bench held that the failure of an identification witness to speak about the testatrix’s signature cannot be equated with an attesting witness failing to prove execution.

Will Drawn In English Not Invalid Merely Because Executant Signed In Tamil

The Court rejected the defendant's objection that the testatrix could not have understood the Will because it was drafted in English while she executed it by signing in Tamil. The Court observed that the primary enquiry is whether the testatrix understood and approved the dispositions made thereunder.

The bench placed weight on the fact that the underlying purchase deed of the property, dated November 30, 1974, was also written in English and had been accepted and acted upon by the testatrix as purchaser. The Court held that drawing up a testamentary document in English does not, by itself, generate a fatal suspicious circumstance when the testatrix has routinely transacted through English documents during her lifetime.

Delay In Seeking Probate And Exclusion Of Married Daughters Explained

The Court observed that the delay of nearly nineteen years in seeking probate was sufficiently explained by the fact that the sons discovered the Will only in 2006 when their elder sister handed it over following partition notices, after which financial constraints impeded earlier filing. The Court observed that mere delay does not justify the refusal of a grant when execution is otherwise proved.

Addressing the exclusion of the two daughters, the bench noted that the Will itself assigned explicit reasons, noting that both daughters were married and well settled in their respective marital homes. The Court held that the exclusion of legal heirs is the very purpose of testamentary succession and cannot, without more, invalidate an otherwise genuine instrument, particularly when the eldest daughter had filed an affidavit consenting to the grant.

Probate Court Cannot Adjudicate Title Or Ancestral Ownership Disputes

The Court firmly reiterated that the jurisdiction of a testamentary court is strictly circumscribed to examining the due execution, attestation, and genuineness of the Will. It cannot enter into disputes regarding whether the testatrix had absolute title or whether the property was acquired from the sale proceeds of ancestral joint family assets.

The bench ruled that the non-joinder of the third-party owner of the underlying land, over which the testatrix held leasehold superstructure rights, did not vitiate the proceedings. A testamentary grant neither enlarges the testatrix's title nor determines competing ownership claims, leaving collateral title disputes to be adjudicated in independent civil suits.

> "Under Section 222 of the Act, probate can be granted only to an executor appointed by the Will. The office of executor does not devolve upon the executor’s legal heirs merely by succession."

Death Of Named Executors Bars Probate But Permits Letters Of Administration

On the question of the ultimate relief, the Court highlighted the mandatory statutory restriction contained in Section 222 of the Indian Succession Act, 1925, which dictates that probate can be granted solely to an executor appointed under the instrument. Because both original named executors had died during the pendency of the suit, probate could not be granted to their substituted legal heirs.

The Court held that the office of an executor does not devolve by succession upon legal heirs. Nevertheless, the bench ruled that the death of the named executors does not defeat the action or preclude the Court from granting Letters of Administration with the Will annexed under the Act to persons who are beneficially entitled to the estate through the deceased executors.

Decreeing the testamentary suit with costs, the High Court directed the issuance of Letters of Administration with the Will annexed in favour of the legal representatives of the deceased sons, subject to executing requisite security bonds and rendering inventory and accounts. The decision settles vital principles of testamentary practice, reinforcing that Section 69 of the Evidence Act permits dual-source handwriting identification and that legal representatives of deceased executors are entitled to seek Letters of Administration with the Will annexed.

Date of Decision: October 26, 2026