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The Supreme Court has held that Section 69 of the Indian Evidence Act, 1872 cannot be invoked as an alternative to the ordinary mode of proving a Will under Section 68. The Court said that ordinarily a Will must be proved under Section 68, it can only be proved under Section 69 once the propounder establishes that no attesting witness can be found for proving a Will under Section 68.

“Section 69 of the Evidence Act is, therefore, not an alternative which the propounder may freely choose, but it is an exceptional mode available only when proof through an attesting witness has become impossible (under Section 68).”, observed a bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh, while setting aside the Madras High Court's judgment which had upheld the validity of a Will by directly invoking Section 69 of the Evidence Act, bypassing the requirement under Section 68. The Court clarified that before a Will can be proved under Section 69, it must first be established that neither of the two attesting witnesses can be found.

Section 68 of the Evidence Act prescribes the ordinary statutory method of proving a Will. The propounder ordinarily has to examine at least one attesting witness for proving the Will. Section 69 provides a mechanism for proving execution when the normal attesting-witness evidence under Section 68 has become impossible. As per Section 69, a propounder of a Will must prove that at least one attestation is in the witness's handwriting and the maker's signature is in their own handwriting. Section 69 is comparatively an easier mode of proving a Will than Section 68.

In essence, the judgment says that Section 69 doesn't present an alternative remedy for proving a Will; rather, it is an exceptional remedy which can only be availed when proving a Will by way of an ordinary mechanism under Section 68 becomes impossible.

Background

The dispute concerned a registered Will allegedly executed by one-Arukkaniammal on in 1976. The Will purportedly bequeathed agricultural properties to the branch of Alamathal.

Neither of the two named attesting witnesses, Marappa Gounder and Avanashi Gounder, was examined before the Court.

While the death of Marappa Gounder was established through evidence of his son, the respondents failed to satisfactorily establish that Avanashi Gounder was dead or otherwise unavailable.

The trial court found the Will to be unproved under Section 69 because of the failure to fulfil the mandate under Section 68 as no acceptable evidence had been produced regarding the death or unavailability of the other attesting witness, Avanashi Gounder.

The High Court, however, reversed the trial court's finding, and accepted the Respondent's reliance on Section 69, without requiring the fulfilment of Section 68 mandate. In other words, the High Court treated both the attesting witness to be dead, requiring the proving of Will directly under Section 69.

Decision

Setting aside the High Court's judgment, the judgment authored by Justice Kotiswar Singh held that the High Court erred in bypassing the requirement of Section 68 of the Evidence Act. According to the Court, Section 69 is not an alternative mechanism of proving Will, rather it is an exceptional mechanism which only gets attracted when none of the attesting witness can be found. This means, without first satisfying whether both the attesting witness cannot be found, a Will cannot be proved under Section 69.

“Section 69 of the Evidence Act was not properly invoked because the Respondents failed to satisfactorily establish the death or other unavailability of Avanashi Gounder.”, the Court observed, pointing out that Section 69 was wrongly invoked despite there was an uncertainty regarding the death of another attesting witness i.e., Avanashi Gounder, as the oral evidence regarding his death was not supported by a man belonging to Gounder's village.

“We accordingly hold that the statutory gateway between Sections 68 and 69 of the Evidence Act was not satisfactorily crossed. Marappa Gounder's death was proved, but Avanashi Gounder's death or other unavailability was not. As long as the possibility remained that one named attesting witness was alive and capable of being produced, the respondents could not bypass Section 68 and proceed directly under Section 69 of the Evidence Act.”, the Court held.

Accordingly, the appeal was allowed, thereby restoring the judgment of the trial court.

Cause Title: PAZHANATHAL (DEAD) THROUGH LRS. & ORS. VERSUS ALAMATHAL (DEAD) THROUGH LRS.

Citation : 2026 LiveLaw (SC) 813

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Appearance:

For Appellant(s) : Mr. S Nagamuthu, Sr. Adv. Mr. N. L. Ganapathi, AOR Mr. Sidhant Garg, Adv.

For Respondent(s) :Mr. Sathyanarayanan, Sr. Adv. Mr. B.Karunakaran, Adv. Mr. Bhaskaran, Adv. Ms. Pooja Lakshmi, Adv. Mr. Lakshman Raja, Adv. Mr. S. Gowthaman, AOR Dr. Pooja Jha, Adv. Dr. R. Prakash, Adv. Ms. Nandita Jha, Adv. Mr. Mukesh Kumar, Adv. Mr. Akash, Adv. Mr. Vishwa Pal Singh, AOR

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