Section 69 Evidence Act Cannot Bypass Section 68 Without Proving Unavailability of Attesting Witnesses
Case Commentary: PAZHANATHAL (D) THR. LRS. v. ALAMATHAL (D) THR.LRS.
Citation: 2026 INSC 860
Court: Supreme Court of India
Date: 13 August 2026
Bench: Sanjay Karol J. and Nongmeikapam Kotiswar Singh J.
1. Introduction
This decision concerns a family succession and partition dispute arising from the estate of
Vaiyapuri Gounder. The central controversy was whether a registered Will dated
15 December 1976, marked as Ex.B-13, allegedly executed by
Arukkaniammal, the issueless third wife of Vaiyapuri Gounder, was validly proved.
If the Will was valid, the respondent branch, representing the line of the second wife,
would take the A-schedule agricultural properties. If the Will failed, the property inherited
by Arukkaniammal from her husband would devolve under Section 15(2)(b) of the Hindu
Succession Act, 1956 upon the heirs of her husband, thereby entitling the appellant
branch to partition.
The Supreme Court was therefore required to examine the distinction between:
- the testator’s power to make a Will;
- formal execution and attestation of a Will;
- proof of a Will under Sections 68 and 69 of the Evidence Act;
- testamentary capacity and knowledge of contents; and
- removal of suspicious circumstances surrounding the Will.
2. Summary of the Judgment
The Supreme Court allowed the appeals, set aside the judgment of the Madras High Court,
and restored the Trial Court’s preliminary decree for partition.
The Court held that Ex.B-13 was not proved as the lawful last Will and testament of
Arukkaniammal. The respondents failed to prove due attestation under
Section 63(c) of the Indian Succession Act, 1925 read with
Section 68 of the Evidence Act. They also failed to properly invoke
Section 69 of the Evidence Act, because the death or unavailability of one
attesting witness, Avanashi Gounder, was not satisfactorily established.
The Court further found that several suspicious circumstances surrounding the Will were not
removed. These included incorrect recitals regarding the property being self-acquired,
description of a step-daughter as a daughter, exclusion of other branches without explanation,
relationship of one attesting witness with a beneficiary, non-examination of the crucial witness
Alamathal, and uncertainty regarding custody and disclosure of the Will.
Consequently, Arukkaniammal was treated as having died intestate. Since the properties had
come to her from her husband, succession was governed by Section 15(2)(b) of the Hindu
Succession Act. The appellants were held entitled to a collective two-thirds share
in the A and B schedule properties, while the respondent branch was entitled to one-third.
3. Analysis
3.1 Precedents Cited
The Court relied on this case for the principle that the onus probandi, or burden of
proof, lies on the propounder of a Will. The propounder must satisfy the conscience of the
Court that the document is the last Will of a free and capable testator.
This precedent was especially important because the respondents attempted to rely on the
scribe’s evidence. The Supreme Court reiterated that a scribe is not automatically an attesting
witness. Unless the scribe signed with animus attestandi, meaning an intention to attest
the execution, his signature cannot be treated as attestation.
This case clarified that proving the testator’s signature is not enough. A Will must be proved
as having been attested by at least two witnesses in the manner required by Section 63(c) of
the Indian Succession Act.
The Court applied this principle to hold that the evidence of D.W.3, who merely identified
his father’s signature, was insufficient to prove due attestation. He had not witnessed the
execution and could not speak to the actual statutory ceremony of attestation.
M.L. Abdul Jabbar Sahib v. H.V. Venkata Sastri & Sons, (1969) 1 SCC 573
This precedent was cited to explain animus attestandi. A person who signs a document
as a scribe, identifier, or registering officer does not become an attesting witness unless he
signed for the purpose of bearing witness to execution.
The scribe in the present case expressly admitted that he signed only as the writer of the
document and not as a witness. Therefore, his signature could not cure the absence of proof
through attesting witnesses.
Babu Singh v. Ram Sahai alias Ram Singh, (2008) 14 SCC 754
This case governed the use of Section 69 of the Evidence Act. Section 69 applies only
when no attesting witness can be found, such as where the witness is dead, untraceable,
outside jurisdiction, incapable of giving evidence, or kept away by the opposite party.
The Supreme Court applied this rule strictly. It held that the respondents had proved the death
of one attesting witness, Marappa Gounder, through his son. However, they failed to prove the
death or unavailability of the other attesting witness, Avanashi Gounder. A bare statement by
an interested beneficiary was not enough.
H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443
This foundational decision was used to restate the special solemnity attached to proof of Wills.
Since the testator is no longer alive to confirm or deny the Will, the Court must be satisfied
that the testator signed the Will, had a sound disposing mind, understood the nature and effect
of the dispositions, and acted voluntarily.
The Court used this precedent to hold that formal proof of a thumb impression did not by
itself establish that Arukkaniammal understood and freely adopted the contents of Ex.B-13.
Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687
This case supplied an illustrative list of suspicious circumstances in Will cases, including
unnatural exclusion of heirs, incorrect recitals, weak mental condition, prominent role of
beneficiaries, and delayed disclosure of the Will.
The Supreme Court emphasized that suspicious circumstances must be assessed cumulatively.
The High Court erred by treating each circumstance separately and minimizing its significance.
3.2 Legal Reasoning
A. Testamentary Power Is Different from Proof of a Will
The Court accepted that Arukkaniammal was the absolute owner of the property and had the
legal power to bequeath it. However, the existence of testamentary power did not prove that
Ex.B-13 was validly executed.
This distinction is central: a person may have power to make a Will, but the document relied
upon must still be proved according to statutory requirements.
B. Section 68 Evidence Act Was Not Satisfied
A Will is a document required by law to be attested. Under Section 68 of the Evidence Act,
at least one attesting witness must be examined if alive, available, and capable of giving
evidence.
Neither of the two attesting witnesses, Marappa Gounder and Avanashi Gounder, was examined.
The scribe could not be treated as an attesting witness because he admitted that he signed only
as the writer. D.W.3 only identified his father’s signature and did not prove the execution
ceremony.
C. Section 69 Evidence Act Was Improperly Invoked
Section 69 is an exceptional mode of proof. It applies only when no attesting witness can be
found. The respondents proved the death of Marappa Gounder, but not of Avanashi Gounder.
No death certificate, relative, village witness, or credible evidence was produced to establish
that Avanashi was dead or unavailable.
The High Court wrongly treated lack of cross-examination on D.W.1’s general statement as
sufficient. The Supreme Court held that the statutory burden remained on the propounders.
D. Suspicious Circumstances Were Not Removed
The Court identified several suspicious circumstances:
- the Will wrongly described the property as self-acquired;
- it described Alamathal as Arukkaniammal’s daughter, though she was a step-daughter;
- it excluded two branches of heirs without explanation;
- one attesting witness was related to a beneficiary;
- both attesting witnesses were from another village;
- the beneficiary branch was already in possession and in a position of influence;
- Alamathal, the most important witness to explain the relationship and care, was not examined;
- custody and disclosure of the Will were not clearly explained.
The Court clarified that none of these factors alone would necessarily invalidate the Will.
However, their cumulative effect required cogent explanation, which the respondents failed
to provide.
E. Consequence Under Section 15(2)(b) Hindu Succession Act
Since the Will failed, Arukkaniammal was treated as having died intestate. The property had
come to her from her husband and she died without issue. Therefore, under Section 15(2)(b),
the property devolved upon the heirs of her husband, not under the general line of succession.
3.3 Impact of the Judgment
This judgment reinforces strict standards for proving Wills, especially where the testator is
illiterate, elderly, or dependent on the beneficiary branch.
-
For Will propounders: They must prove not only signature or thumb impression, but
statutory attestation, testamentary capacity, knowledge of contents, and absence of suspicious
circumstances.
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For registered Wills: Registration is relevant but not conclusive. A registered Will
still requires proof under Sections 63, 68, and, where applicable, 69.
-
For Section 69 Evidence Act: Courts must first be satisfied that no attesting witness
can be found. This gateway cannot be crossed by vague or interested assertions.
-
For succession to female Hindus’ inherited property: The judgment highlights the
continuing importance of Section 15(2)(b), which returns property inherited from the husband
to the husband’s heirs where the female Hindu dies issueless and intestate.
4. Complex Concepts Simplified
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Attestation: A formal act where witnesses sign a Will to confirm that the testator
signed or acknowledged it in their presence.
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Animus attestandi: The intention to sign as a witness. A scribe who signs only as
writer does not become an attesting witness.
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Propounder: The person who presents and relies upon the Will in court.
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Suspicious circumstances: Facts that make the Court doubt whether the Will truly
represents the free and informed act of the testator.
-
Testamentary capacity: The mental ability of a person to understand that they are
making a Will, what property they have, and who will benefit.
-
Section 15(2)(b) Hindu Succession Act: A special rule that property inherited by a
female Hindu from her husband returns to the husband’s heirs if she dies without children
and without a valid Will.
5. Conclusion
The Supreme Court’s ruling is significant because it reaffirms that proof of a Will is a solemn
and strict judicial exercise. A registered Will bearing a thumb impression is not automatically
valid. The propounder must prove due attestation, satisfy the statutory conditions for any
substituted mode of proof, and remove all legitimate suspicious circumstances.
By restoring the Trial Court’s partition decree, the Court held that Ex.B-13 could not defeat
the statutory succession under Section 15(2)(b) of the Hindu Succession Act. The judgment
therefore strengthens evidentiary safeguards in testamentary disputes and protects succession
rights where a Will is not proved with the required legal certainty.