Kerala High Court.
Will Can Be Proved Even When Attesting Witness Is Dead: Kerala High Court: Kochi, India – The Kerala High Court has issued a crucial clarification regarding the procedure for proving the execution of documents that legally require attestation, specifically focusing on Wills. The Court highlighted that while Section 68 of the Evidence Act outlines the primary mode of proof, Section 69 provides an essential alternative when the former cannot be applied.
A Division Bench comprising Justice Satish Ninan and Justice P. Krishna Kumar delivered this judgment while deliberating on a Regular First Appeal (RFA) that questioned the validity of a Will.
Brief Facts of the Case
The case originated from a partition suit filed by the plaintiff (appellant) against her brothers and the children of deceased siblings, seeking division of properties A and B. The plaintiff’s eldest brother, the first defendant (respondent), contested the suit.
The first defendant asserted ownership of plaint B schedule property based on a Will executed by their mother. This property had devolved upon the mother following the death of her son, who was the brother of both the plaintiff and the defendants. The partibility of plaint A schedule property was not disputed.
The first defendant presented a photocopy of the Will, stating that the original could not be traced. He claimed that all legal heirs were aware of the Will’s execution and that he had mutated the property in his name after their mother’s demise. He also brought the scribe of the Will (DW5) as a witness, who testified before the trial court that the attesting witnesses were no longer alive.
Conversely, the plaintiff denied any knowledge of the Will’s execution and contended that their mother lacked the physical and mental capacity at the time of its creation. She further alleged that the Will was not executed out of free will but due to coercion and undue influence exerted by the first defendant.
The trial court partially decreed the suit, excluding plaint B schedule property. The current appeal was filed against this exclusion.
Plaintiff’s Arguments
The Will was challenged on several grounds: the absence of any mention of other legal heirs or reasons for their exclusion; the non-examination of the attestors in accordance with the law; the claim that the attestors brought by DW5 were “stock witnesses”; and the first defendant’s alleged failure to dispel doubts surrounding the Will’s execution.
The plaintiff’s counsel cited various Supreme Court decisions, including Lilian Coelho v. Myra Philomena Coalho (2025) and Murthy v. C. Saradambal (2021), to support their arguments.
Arguments on Behalf of the Defendant
The counsel for the first defendant argued that the registration of the Will served as strong evidence of its regularity, implying a presumption of validity due to registration. Other arguments included that the plaintiff’s suit, filed 21 years after their mother’s death, constituted a speculative challenge.
The counsel relied on the decisions of Pentakota Satyanarayana v. Pentakota Seetharatnam (2005) and V. Kalaivani v. M.R. Elangovan (2024) to bolster their contentions.
Findings of the High Court
The central question before the Court was the genuineness and validity of the Will. The Court meticulously examined the provisions of the Indian Evidence Act, 1872, and the Indian Succession Act to reach its decision.
Mere Registration Does Not Absolve Propounder
The Court opined that the mere fact of registration cannot solely determine the validity of the Will based on the evidence presented by the propounder. It observed:
“In addition to oral and documentary evidence, the court must consider the surrounding circumstances, inherent improbabilities, and the nature and contents of the document. Mere registration of the Will does not absolve the propounder from the obligation to prove the Will as required by law.”
Test to Be Applied Should Be That of the Satisfaction of a Prudent Mind
The Court noted that achieving mathematical certainty in the execution and registration of a Will is often impossible. Therefore, the test to be applied should be that of the satisfaction of a prudent mind.
Propounder Has the Duty to Dispel Suspicion
The Court reiterated that the propounder of a Will has a duty to dispel any suspicions surrounding it and to prove its execution in accordance with the procedure laid down in Section 68 of the Evidence Act.
“It is also his duty to dispel all suspicious circumstances related to the execution of the Will, besides showing that at the relevant point of time, the testator was of sound disposing state of mind and that the testator had signed the Will understanding the effect of the dispositions in it, and that the Will was attested by at least two witnesses,” the Court observed.
When Attesting Witness Cannot Be Found or Are Dead
The Court delved into Sections 67, 68, and 69 of the Evidence Act. Section 67 mandates that to prove a document signed by someone, the signature must be proved to be in that person’s handwriting. Section 68 requires that a Will cannot be used as evidence until at least one attesting witness is examined to prove its execution, provided such a witness is available.
Section 69 provides the alternative procedure when attesting witnesses cannot be examined. Regarding this provision, the Court made the following observation:
“Thus, when no attesting witness can be found, it must be proved that the attestation by at least one attesting witness is in his handwriting and that the signature of the person executing the document is in that person’s handwriting.”
Reading Sections 68 and 69 together, the Court clarified:
“If the propounder succeeds in proving that the attesting witnesses are dead, the Will can be proved by establishing that the signature of the executant and the attestation by at least one witness are in their respective handwritings.”
Sufficient to Prove the Signatures of Executants and Attesting Witnesses
Citing C.G. Raveendran v. C.G. Gopi (2015), the Court observed that a witness brought in to prove a Will under Section 69 does not necessarily need to have seen the executant and attesting witnesses affixing their signatures. It is sufficient to prove that the signatures were in the handwriting of the respective persons.
“In a case where the witness cited to prove the Will under Section 69 of the Evidence Act establishes that he had witnessed the testator and the witnesses signing the Will, it is sufficient proof that the attestation by the attesting witnesses is in their handwriting and that the signature of the testator is in that person’s handwriting. It constitutes sufficient compliance with Section 69.”
Section 68 is the Rule and Section 69 is the Alternative Mode of Proof
“While Section 68 of the Evidence Act deals with the mode of proof of execution of documents required by law to be attested, Section 69 provides an alternative procedure for proving such a document when the mode provided in Section 68 cannot be resorted to in certain circumstances. Nevertheless, Section 69 can be invoked only on satisfaction of the condition mentioned therein. Once the document is proved in the manner provided in Section 69, it amounts to the proof of due execution and attestation of that document.”
In the present case, the Court found that sufficient evidence was presented to prove that the attesting witnesses were deceased, thereby allowing the invocation of the alternative mode under Section 69. The scribe of the Will (DW5) was examined, and he deposed that the executant and attestors signed in his presence after he prepared the document, satisfying the requirements of Section 69.
The Court also addressed concerns regarding “stock witnesses” and the testator’s alleged lack of free will. Relying on V. Kalaivani v. M.R. Elangovan (2024), the Court found that the mere presence of stock witnesses does not, by itself, invalidate the attestation. Regarding the testator’s free will, the Court noted the absence of medical evidence to prove incapacity or the propounder’s involvement in the Will’s execution.
Ultimately, the Court held that the first defendant successfully proved the execution and registration of the Will.
Consequently, the Court dismissed the appeal, affirming the judgment of the trial court.
The case, RFA No. 715 of 2013, titled Dr. K.R. Leela Devi v. K.R. Rajaram and Ors., was cited as 2025 LiveLaw (Ker) 367. Counsel for the Appellant included R. Lakshmi Narayan and R. Ranjanie, while Counsel for the Respondents included Nirmal S., Veena Hari, K.C. Eldho, S. Bijilal, Almajitha Fathima, and Hima Joseph.
