Registration Cannot Rescue an Unproved Will: Supreme Court Restores Partition After Propounders Fail to Prove Attestation and Remove Suspicious Circumstances
Case Name: Pazhanathal (Dead) Through Legal Representatives & Others v. Alamathal (Dead) Through Legal Representatives & Others
Date of Judgment: 13 August 2026
Citation: 2026 INSC 860
Bench: Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh
Held: The Supreme Court held that a registered Will cannot be accepted merely because it bears the testatrix’s thumb impression, was registered or was supported by the testimony of its scribe. A Will must be proved in strict conformity with Section 63(c) of the Indian Succession Act, 1925, read with Sections 68 and 69 of the Indian Evidence Act, 1872. Where no attesting witness is examined, Section 69 can be invoked only after the propounder satisfactorily proves that no attesting witness is alive, available or traceable despite diligent efforts. This foundational condition cannot be presumed or established merely because an interested beneficiary makes an unparticularised statement that both witnesses have died.
The Court further held that a scribe does not become an attesting witness merely because he was present when the document was executed. Unless he signed with the intention to attest, or animus attestandi, his evidence cannot substitute the testimony of a statutorily required attesting witness under Section 68. Even where the limited formal requirements of Section 69 are proved, the propounder must independently establish that the testatrix possessed testamentary capacity, understood and approved the dispositions and executed the Will voluntarily. All legitimate suspicious circumstances must be considered cumulatively and removed through cogent and independent evidence.
Summary: The dispute concerned agricultural and residential properties originally owned by Vaiyapuri Gounder. He had three wives. After his death, the properties devolved upon his surviving third wife, Arukkaniammal, who was issueless. The appellants represented the branches of the first wife, Mottaiammal, while the respondents represented the branch of the second wife, Pappammal. The central dispute was whether Arukkaniammal had validly executed a registered Will dated 15 December 1976 in favour of the four sons of Alamathal, the daughter of the second wife.
The appellants sought partition and claimed a collective two-thirds share in the properties. They contended that Arukkaniammal had died intestate and that the property inherited by her from her husband consequently devolved upon the heirs of the husband under Section 15(2)(b) of the Hindu Succession Act, 1956. The respondents resisted partition by relying upon the registered Will, under which the entire agricultural property was allegedly bequeathed to Alamathal’s four sons. They also instituted a suit seeking a permanent injunction based on their alleged exclusive possession and title under the Will.
The Trial Court found that the Will had not been validly proved. It granted a preliminary decree declaring the appellants entitled to a collective two-thirds share in the agricultural and residential properties and dismissed the respondents’ injunction suit. The Madras High Court reversed that determination. It accepted the evidence of the scribe and the son of one attesting witness, held that Section 69 of the Evidence Act had been satisfied, upheld the Will and granted a permanent injunction in favour of the respondents.
Reversing the High Court, the Supreme Court explained that the execution, attestation and proof of a Will are distinct legal requirements. The Will named Marappa Gounder and Avanashi Gounder as its two attesting witnesses. Neither was examined. The scribe expressly admitted that he had signed only as the writer of the document and not as a witness. His signature therefore lacked animus attestandi and could not be treated as a third attestation or as a substitute for either named witness.
The son of Marappa Gounder was competent to identify his father’s signature, but he had not witnessed the execution of the Will and could not prove that the testatrix affixed her thumb impression in the presence of the attesting witnesses or that the witnesses signed in her presence. His evidence could, at most, establish the handwriting of one attesting witness for the limited purposes of Section 69. It did not prove attestation through the ordinary mode prescribed by Section 68.
The Court found that Marappa Gounder’s death had been satisfactorily established through the evidence of his son. However, the death or unavailability of the second attesting witness, Avanashi Gounder, had not been proved. The only assertion regarding his death came from an interested beneficiary who did not explain when or where Avanashi died, how he acquired knowledge of the death or whether any effort had been made to trace him. No relative, village resident or public record was produced to confirm his death. As long as one named attesting witness could possibly have been alive and available, the respondents could not bypass Section 68 and directly resort to Section 69.
The Supreme Court clarified that failure to cross-examine a witness on an unparticularised assertion does not discharge or reverse the statutory burden resting upon the propounder. Section 69 is an exceptional mode of proof, not an alternative that a propounder may freely choose. The propounder must first establish the impossibility of producing an attesting witness; only thereafter can proof of the handwriting of an attestor and the signature or mark of the testator become relevant.
The Court also examined whether Arukkaniammal understood and voluntarily adopted the Will. It did not find sufficient evidence to affirmatively establish testamentary incapacity, fraud, coercion or undue influence. Nevertheless, this did not relieve the respondents of their independent obligation to prove that the disputed Will was the informed and voluntary testamentary act of an elderly, illiterate testatrix who affixed a thumb impression.
Several circumstances required a convincing explanation. The Will inaccurately described the inherited property as Arukkaniammal’s self-acquired property; described her stepdaughter Alamathal as her daughter and Alamathal’s sons as her grandsons without explaining the actual relationship; excluded two of the three branches of her husband’s heirs without giving any reason; involved an attesting witness related to one beneficiary; and benefited the branch already in possession and practical control of the property. The respondents also failed to examine Alamathal, although she was alive, capable of testifying and the most natural witness to explain the testatrix’s relationship with the beneficiaries, state of health and alleged intention to prefer that branch.
The original Will was allegedly delivered to the beneficiaries approximately four months before the testatrix’s death, nearly nine years after its execution, but no independent witness to the delivery was examined, nor was its custody during the intervening period explained. The Court held that none of these circumstances might individually invalidate the Will, but their cumulative effect created legitimate doubts that the respondents failed to remove through cogent and independent evidence. Registration by itself neither proves a Will nor cures non-compliance with the statutory requirements governing its execution and attestation.
Decision: The Supreme Court allowed the appeals and set aside the Madras High Court’s common judgment and decree dated 28 October 2008. It held that the registered Will dated 15 December 1976 had not been proved as the lawful last Will and testament of Arukkaniammal under Section 63(c) of the Indian Succession Act read with Sections 68 and 69 of the Evidence Act.
Consequently, Arukkaniammal was treated as having died intestate in respect of the suit properties. Since she had inherited the properties from her husband and died without issue, succession was governed by Section 15(2)(b) of the Hindu Succession Act. The property therefore devolved upon the heirs of her husband, Vaiyapuri Gounder. The appellants, representing two of the three lines of succession, were collectively entitled to a two-thirds share.
The Trial Court’s preliminary partition decree concerning both the agricultural and residential properties was restored, while the respondents’ suit for permanent injunction was dismissed. The parties were permitted to work out the final division, possession and consequential equities in the final-decree proceedings. There was no order as to costs.