Will Can Be Proved By Establishing That Signatures Of Executant, Witness Are In Their Handwritings If Attesting Witness Is Dead: Kerala HC

The judgment was passed by a Division Bench comprising Justice Satish Ninan and Justice P. Krishna Kumar while considering a Regular First Appeal (RFA) that challenged the validity of a Will.

Facts

A suit for partition of plaint schedule properties A and B was filed by the plaintiff (appellant) against her brothers and children of deceased siblings. The eldest brother of the plaintiff, the first defendant (respondent) challenged the suit.

The first defendant claimed that plaint B schedule property belonged to him by virtue of a Will executed by their mother. Plaint B schedule property had devolved upon the mother after the death of her son, i.e., brother of the plaintiff and defendants. There were no disputes regarding the partibility of plaint A schedule property.

The first defendant stated that he only had a photocopy of the Will and could not trace out the original one. According to him, all the legal heirs knew about the execution of the Will. He had also mutated the property in his name after the death of their mother. He also brought in the scribe of the Will (DW5) as a witness and examined him before the trial court. DW5, who had arranged for the attesting witnesses, deposed that the said witnesses are no more.

The plaintiff, on the other hand, stated that she was unaware of the execution of the Will. It was also stated that their mother lacked the physical and mental capacity at the time. The Will was not executed out of free will but due to the coercion and undue influence of the first defendant.

The trial court decreed the suit in part, excluding plaint B schedule property. An appeal is preferred against the decision to exclude the said item.

Arguments of the appellant/plaintiff

The Will was challenged on many grounds: there was no mention of the other legal heirs in the Will or the reason for excluding them; the attestors of the Will were not examined in accordance with law; the attestors of the Will brought in by DW5 were stock witness; and the first defendant did not successfully remove the doubts regarding the execution of the Will.

Reliance was placed on many decisions of the Supreme Court, including Lilian Coelho v. Myra Philomena Coalho (2025), and Murthy v. C. Saradambal (2021).

Arguments of the respondent/first defendant

The counsel for the first defendant contended that registration of the Will was strong evidence in support of its registration and that there is a presumption of regularity by virtue of registration. Many other arguments were also put forth, including that the institution of suit by the plaintiff 21 years after their mother's death was 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 support his arguments.

Finding

The key question that was considered by the Court was whether the Will was genuine and valid. The Court looked in detail into the provisions of the Indian Evidence Act, 1872 and the Indian Succession Act to arrive at its decision.

Mere registration does not absolve propounder

The Court was of the opinion that factum of registration cannot be determined solely on the evidence brought in by the propounder of the Will.

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 opined that mathematical certainty is impossible in the matter of execution and registration of the Will. The test to be applied should be that of the satisfaction of a prudent mind.

Propounder has the duty to dispel suspension

The Court stated that the propounder of a Will has a duty to dispel suspicions regarding the same and also to prove it in accordance with the procedure laid own 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 looked in detail into Sections 67, 68 and 69 of the Evidence Act.

According to Section 67, in order to prove that a document is alleged to be signed by someone, it must be proved that the signature on the document is in the handwriting of the said person. As per the requirements under Section 68, 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 procedure to be followed when the attesting witnesses cannot be examined. Regarding the 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…”

The Court read the provisions under Sections 68 and 69, and observed as follows:

“Reading Sections 68 and 69 of the Evidence Act together, it is clear that 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

The Court cited the decision in C.G. Raveendran v. C.G. Gopi (2015) to observe that a witness brought in to prove a Will under Section 69 need not 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.

It observed:

“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

The Court observed:

“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 noted that sufficient evidence was brought in prove that attesting witnesses were deceased. This, according to the Court, was enough to invoke the alternative mode under Section 69.

In accordance with the Section, the scribe of the Will (DW5) was examined before the trial court. DW5 had deposed that after he prepared the document, the executant and attestors of the Will signed in his presence; thus, satisfying the requirement under Section 69.

The Court also looked into the issues regarding stock witnesses and absence of free will of testator. Regarding the former issue, the decision in V. Kalaivani v. M.R. Elangovan (2024) was relied to reach the finding that presence of stock witnesses does not, by itself, affect the validity of the attestation.

Regarding the latter issue, the Court noted that no medical evidence was brought in to prove that the executant of the Will was having incapacity or that the propounder of the Will was involved in the execution of the Will.

The Court held that the first defendant succeeded in proving the execution and registration of the Will.

Thus, the Court dismissed the appeal and affirmed the judgment of the trial court.

Case No: RFA No. 715 of 2015

Case Title: Dr. K.R. Leela Devi v. K.R. Rajaram and Ors.

Citation: 2025 LiveLaw (Ker) 367

Counsel for the Appellant: R. Lakshmi Narayan, R. Ranjanie

Counsel for the Respondents: Nirmal S., Veena Hari, K.C. Eldho, S. Bijilal, Almajitha Fathima, Hima Joseph

Click to Read/Download Judgment