Will Duly Proved Even If Witnesses Forget Details After Eight Years: Madras High Court Validates Bequest, Sets Aside Partition Decree

“Compliance With Section 63(c) Of Succession Act And Section 68 Of Evidence Act Sufficient – Minor Inconsistencies After Time Lapse Not Fatal,” In a significant judgment on the evidentiary standard required to prove a Will, the Madras High Court reversed a trial court’s decree of partition  and holding that a registered Will executed by the father of the parties in 2003 had been validly proved under law. The Division Bench comprising Justice C.V. Karthikeyan and Justice K. Kumaresh Babu allowed the appeal filed under Order XLI Rule 1 read with Section 96 CPC, setting aside the preliminary decree for partition passed in 2011.

The core legal issue revolved around the validity and due execution of a Will dated 08.05.2003, which was rejected by the trial court despite being a registered document and supported by attesting witnesses. The High Court, however, reappreciated the evidence of the attesting witnesses and scribe and concluded that the Will was duly proved in accordance with Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.

“Testator Signed In Sound Mind, Will Was Attested In His Presence” – Court Upholds Will’s Validity Despite Minor Lapses

At the heart of the dispute was a residential property in Cuddalore, claimed by two sisters (respondents) as part of their father’s intestate estate. They sought partition on the premise that their father died without executing a Will. The defendants, their brothers, countered this by producing Ex.B-1, a registered Will dated 08.05.2003, bequeathing the property solely to them.

The trial court had discarded the Will on the basis that it had not been proved in a manner known to law. The High Court disagreed, noting:

“Though the evidence of DW-2 cannot be said to inspire confidence to the fullest extent… still the witness had denied the suggestion that the signature in Ex.B-1 was not that of Subramania Mudaliar… Some leverage should therefore be granted to the witnesses for not remembering minute details surrounding the execution of the Will.”

The Court took into account the eight-year time gap between the Will’s execution and the cross-examination of witnesses and noted that DW-3 and DW-4 had clearly supported the execution and attestation of the Will in the presence of the testator.

Registration Creates Presumption of Genuineness Unless Suspicious Circumstances Are Shown

Importantly, the High Court emphasized that although registration alone does not prove a Will, it creates a presumption of genuineness, citing the Supreme Court's ruling in Metpalli Lasum Bai v. Metapalli Muthaih, Civil Appeal No. 5921 of 2015:

“As the Will is a registered document, the burden would lie on the party, who disputed its existence, to establish that it was not executed in the manner as alleged or that there were suspicious circumstances which made the same doubtful.”

In the present case, the plaintiffs failed to raise any legitimate suspicion:

“Except for stating that there was an earlier Will in the year 1997 about which there was no mention in the plaint… no other suspicious circumstances had been raised by the respondents.”

The Court found that the Will’s bequest—excluding the daughters—was supported by reasons recorded in the document itself, such as the fact that the daughters were already married and had been provided for.

Failure To Disclose Earlier Will Shows Plaintiffs Came With “Unclean Hands”

Strikingly, the High Court also noted the contradictory conduct of the plaintiffs, who initially claimed their father died intestate but then introduced an earlier Will dated 03.06.1997 (Ex.A-6) only during cross-examination. The Court held:

“Having filed a suit claiming their father died intestate, and still producing Ex.A-6 Will… would only show that the respondents/plaintiffs have approached the Court with unclean hands.”

This aspect further bolstered the appellants’ claim and undermined the credibility of the plaintiffs’ partition suit.

Legal Compliance Under Section 63(c) And Section 68 Satisfied

Reiterating the legal framework, the Court stressed that Section 63(c) of the Indian Succession Act requires attestation by two witnesses in the presence of the testator, and Section 68 of the Evidence Act mandates that at least one attesting witness be examined to prove execution. Citing Meena Pradhan v. Kamla Pradhan, Civil Appeal No. 3351 of 2014, the Court reaffirmed that:

“Even if one witness speaks to the proper attestation and execution of the Will, such evidence would be sufficient.”

In this case, both attesting witnesses and the scribe had been examined, and their testimony, though not flawless, met the statutory threshold.

Appeal Allowed, Partition Decree Set Aside

The High Court concluded that the trial court had erred in rejecting the Will and granting the plaintiffs a preliminary decree for partition. It held:

“The learned Trial Judge had misdirected himself regarding the evidence adduced relating to the proof of the Will and should not have rejected Ex.B-1 as not having been proved in manner known to law.”

Accordingly, the Court allowed the appeal, set aside the judgment and decree of the trial court in O.S. No. 149 of 2008, and held that the Will dated 08.05.2003 was duly proved. No costs were awarded.

Date of Decision: 08th December 2025