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

The Kerala High Court has clarified the procedure to be followed for providing proof of execution of documents required by law to be attested, including wills. According to the Court, Section 68 of the Evidence Act lays down the mode to be followed. Section 69 provides an alternative procedure when Section 68 cannot be resorted to.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.FactsA 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/plaintiffThe 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 defendantThe 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.FindingThe 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 propounderThe 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 mindThe 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 suspensionThe 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 deadThe 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...

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

K. Salma Jennath

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