Evidence Act | S.69 Can Be Invoked To Prove Will Only If Impossible To Prove Attestation Under S. 68: Supreme Court

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.

Headnote

Indian Succession Act, 1925 — Section 63(c) — Indian Evidence Act, 1872 — Section 68 — Proof of execution and attestation of Will — Dual statutory requirement — Distinction between Scribe and Attesting Witness — Animus Attestandi - Sections 63 of the Indian Succession Act and 68 of the Evidence Act perform related but distinct functions - Section 63 prescribes what must have occurred when the Will was executed, whereas Section 68 prescribes the ordinary manner in which the occurrence of those acts must be proved - Proof of the testatrix's signature or thumb impression alone does not establish due execution unless the statutory attestation by at least two witnesses is proved - The concession in Section 68 permitting examination of only one attesting witness does not dilute the requirement that the witness examined must be capable of proving the complete statutory execution of the Will, including attestation by both witnesses - A scribe who signs the document merely to authenticate authorship and not animo attestandi cannot be treated as an attesting witness, nor can his testimony cure the lack of proof of attestation under Section 68. [Relied on N. Kamalam v. Ayyasamy, (2001) 7 SCC 503; Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91; Paras 50–59, 60–68, 70 71]

Indian Evidence Act, 1872 — Sections 68 & 69 — Invocation of Section 69 — Proof where no attesting witness can be found — Conditions Precedent — Evidentiary Burden - Section 69 is not an alternative which the propounder may freely choose, but an exceptional mode of proof available only when proof through an attesting witness has become impossible - The opening condition "if no such attesting witness can be found" requires strict proof that the witnesses are dead, beyond the jurisdiction, untraceable despite diligent search, or incapable of giving evidence - A bare, unparticularised statement by an interested propounder regarding the death of a witness, unsupported by credible oral or documentary evidence or enquiry, is insufficient to invoke Section 69 - The mere absence of a contrary suggestion in cross-examination cannot reverse the statutory burden or establish the foundational fact required to bypass Section 68 - Even if Section 69 is applicable, proving the handwriting of one attestor and the mark of the testatrix only satisfies the formal limb and does not create a presumption of capacity, free will, or elimination of suspicious circumstances. [Relied on Babu Singh v. Ram Sahai alias Ram Singh, (2008) 14 SCC 754; Paras 72–76, 78–85, 96–98]

Indian Succession Act, 1925 — Sections 59 & 61 — Indian Evidence Act, 1872 — Section 68 — Testamentary Capacity, Sound Disposing Mind, and Cumulative Suspicious Circumstances - Proof of physical execution or thumb impression of an illiterate testatrix does not dispense with the necessity of proving testamentary capacity, sound disposing mind, and conscious approval of the dispositions - Where a registered Will exhibits multiple suspicious circumstances incorrect recital describing ancestral property inherited from the husband as "self-acquired", describing a step-daughter as own daughter without disclosure of true relation, unexplained exclusion of other legal heir branches, attestation by a close relative of a beneficiary, witnesses brought from another village, beneficiary branch in proximate control/possession, unexplained custody, and non-examination of the key surviving person (the step-daughter) best placed to explain the family arrangement—the court must evaluate the cumulative effect - Registration and subsequent survival of the testatrix for years do not by themselves remove legitimate suspicions where independent evidence of informed, free agency is lacking. [Relied on Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687; Paras 99–104, 110–121, 122 134]

Hindu Succession Act, 1956 — Section 15(2)(b) — Devolution of property inherited by female Hindu dying intestate and issueless - Where the Will propounded by one branch fails for lack of legal proof and failure to remove suspicious circumstances, the testatrix is deemed to have died intestate - property inherited by an issueless female Hindu from her husband does not devolve under general rules of Section 15(1), but reverts to the heirs of the husband under Section 15(2)(b) - The heirs representing the branches of the predeceased wives are entitled to their proportionate partition shares accordingly. [Paras 136–139]

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

Citation : 2026 LiveLaw (SC) 813

Click here to download judgment

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