Supreme Court Restores Partition Decree After Holding Disputed Will Not Proved Under Sections 68 and 69
A bench of Justices Sanjay Karol and Nongmeikapam Kotiswar Singh held that a registered Will fails if attesting witness unavailability is not proved before invoking Section 69 of the Evidence Act.
The Supreme Court on 13 August 2026 set aside a 2008 Madras High Court decree that had upheld a disputed registered Will and granted permanent injunction to the respondent branch of a Tamil Nadu family. Restoring the Trial Court's 1991 partition decree, a division bench held that Will (Ex.B-13) dated 15 December 1976 was not proved in the manner required by law. The core finding was that the respondents failed to establish the death or unavailability of one of the two named attesting witnesses before attempting to invoke the exceptional mode of proof under Section 69 of the Evidence Act. Nine suspicious circumstances, assessed cumulatively, also went unrebutted. The properties will now devolve under Section 15(2)(b) of the Hindu Succession Act, 1956, giving the appellant branches a combined two-thirds share.
How the Dispute Reached the Supreme Court
The dispute centres on agricultural lands and a house property in Coimbatore that originally belonged to one Vaiyapuri Gounder. He had three wives. His first wife, Mottaiammal, and his second wife, Pappammal, predeceased him. When Vaiyapuri Gounder died around 1925, only his third wife, Arukkaniammal, survived him. She was childless and became absolutely entitled to the suit properties.
Mottaiammal had two daughters, Ramathal and Chellammal, whose descendants are the appellants. Pappammal had one daughter, Alamathal, whose sons — Ramaswami Gounder, Palaniswami Gounder, Nataraja Gounder and Aruchami Gounder — are the contesting respondents.
Arukkaniammal died on 18 September 1985. The appellant branch immediately filed O.S. No. 665 of 1985 before the Additional Subordinate Judge-III, Coimbatore, seeking partition and 2/3 share. Their case was that Arukkaniammal died issueless and intestate, so Section 15(2)(b) of the Hindu Succession Act operated to revert the properties to the heirs of her husband. The Mottaiammal branch would hold 2/3 and the Pappammal branch 1/3.
The respondent branch answered with two documents. The first was a registered lease deed dated 10 April 1943 in favour of Nanjappa Gounder, Alamathal's husband. The second was the registered Will (Ex.B-13) dated 15 December 1976, said to have been executed by Arukkaniammal bequeathing the A-schedule agricultural lands to the four sons of Alamathal absolutely. The respondents then filed O.S. No. 1344 of 1990 for permanent injunction restraining the appellant branch from entering the property.
The Trial Court tried both suits together. By a common judgment on 22 January 1991, it held the Will not proved, granted a preliminary partition decree giving the appellant branches 2/3 share, and dismissed the injunction suit. The respondents appealed. The Madras High Court, by its common judgment on 28 October 2008 in A.S. No. 231 of 1991 and Tr. A.S. No. 503 of 2002, reversed those findings, upheld the Will, and decreed permanent injunction. Leave was granted by the Supreme Court on 1 November 2013, giving rise to Civil Appeal Nos. 10169-10170 of 2013.
What the Will Said and Who Was Called to Prove It
Will (Ex.B-13) stated that Arukkaniammal was old, had no male issue, and that after her lifetime her “grandsons” — the four sons of Alamathal — shall derive absolute title. The document bore her left thumb impression and named Marappa Gounder and Avanashi Gounder, both of Karacheri, as attesting witnesses. K.S. Srinivasa Rao was recorded as scribe.
Neither attesting witness entered the witness box. The respondents examined three witnesses: D.W.1 Ramaswami Gounder (beneficiary under the Will), D.W.2 K.S. Srinivasa Rao (the scribe), and D.W.3 Mylasami (son of attesting witness Marappa Gounder and brother-in-law of beneficiary Nataraja Gounder).
D.W.1 stated that both attesting witnesses were dead. D.W.2 described the preparation and execution but admitted in cross-examination that he signed only as scribe, writing “written by,” and not as a witness. D.W.3 identified his father Marappa Gounder's signatures on the document but had never seen the Will before the day he gave evidence and could not speak to the actual ceremony of execution.
Section 68 of the Evidence Act: Attestation Not Proved
The Court held that Will (Ex.B-13) was plainly not proved through the ordinary mode in Section 68 of the Evidence Act. That provision requires at least one attesting witness to be called where such a witness is alive, available and capable of giving evidence. Here, neither Marappa Gounder nor Avanashi Gounder was examined.
The respondents sought to use D.W.2, the scribe, as a substitute. The Court rejected this. Drawing on M.L. Abdul Jabbar Sahib v. H.V. Venkata Sastri & Sons, (1969) 1 SCC 573, it held that valid attestation requires animus attestandi — the intent to bear witness to the executant's signature or acknowledgment. D.W.2's own evidence negated that intent. He had signed to certify his authorship, not to attest. The Will itself distinguished between its scribe and its two named attesting witnesses.
D.W.3's evidence was equally insufficient under Section 68. He was not present at execution, saw the document for the first time in court, and could speak only to his recognition of his father's signature. The Court applied Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91, which requires that the one attesting witness examined must be in a position to prove the entire ceremony of attestation, including the participation of both witnesses in the manner contemplated by Section 63(c) of the Indian Succession Act, 1925. D.W.3 could do none of that.
The Court also reiterated that registration of a Will does not dispense with proof of testamentary execution and attestation. The proviso to Section 68 carves out registered documents other than Wills from the requirement of attesting witness examination; Wills remain fully subject to the provision.
Section 69 of the Evidence Act: Gateway Not Crossed
The Court then considered whether the respondents could rely on the exceptional mode in Section 69 of the Evidence Act, which applies only when “no such attesting witness can be found.” It held that this gateway is a condition precedent, not an alternative freely available to a propounder.
As to Marappa Gounder: D.W.3, his son, stated that his father had died about ten years earlier. Being his son, D.W.3 was a natural witness on this point. The Court accepted that Marappa Gounder's death was sufficiently established despite the absence of a death certificate.
As to Avanashi Gounder: the position was materially different. Only D.W.1 — an interested beneficiary — stated generally that both witnesses were dead. He gave no detail of when or where Avanashi died, how he knew, or whether any enquiry had been made. Crucially, D.W.3 himself resided in Karacheri, the same village as Avanashi Gounder, yet he did not say Avanashi was dead; he said he did not even know whether Avanashi had left any legal heirs. A witness from Avanashi's own village, called by the respondents, neither confirmed the death nor corroborated any search. No resident of Karacheri was called; no public record was produced.
The High Court had held that the absence of cross-examination on D.W.1's assertion shifted the burden. The Supreme Court rejected that reasoning. Relying on Babu Singh v. Ram Sahai alias Ram Singh, (2008) 14 SCC 754, the Court held that the propounder must first establish the reason for non-examination before the statutory relaxation operates. The appellants were not required to prove that Avanashi was alive before the respondents produced reliable evidence of his death or other unavailability. As long as one named attesting witness might still be alive and capable of being produced, Section 69 could not be invoked.
The Court nonetheless went on to assess whether, if Section 69 were assumed to apply, its two formal requirements were met. It found that D.W.3's evidence was capable of proving Marappa Gounder's handwriting under Section 47 of the Evidence Act, and that D.W.2's direct account of seeing the thumb impression affixed was capable of proving the testatrix's mark under Section 67. But it was clear that this alternative analysis could not cure the anterior failure to establish Avanashi Gounder's unavailability.
Nine Suspicious Circumstances Assessed Cumulatively
The Court agreed with the Trial Court that the Will was surrounded by suspicious circumstances which the propounders failed to remove. It found that the High Court had erred by examining each circumstance in isolation rather than assessing their combined weight.
The nine circumstances identified were: first, the Will described the property as self-acquired when it had come to Arukkaniammal from her husband, and D.W.2 admitted he did not know the source of her title; second, the Will referred to Alamathal as “my daughter” though she was the daughter of the second wife, and the social explanation was never established by Alamathal herself; third, the Will gave the entire A-schedule to one branch and excluded two other branches without stating any reason; fourth, one attesting witness, Marappa Gounder, was the father-in-law of a beneficiary, Nataraja Gounder; fifth, both attesting witnesses came from Karacheri rather than the testatrix's village, yet no independent local person was produced; sixth, the respondent branch, already in possession under the 1943 lease, was in a position of proximity and practical control, calling for clearer independent proof; seventh, Alamathal — the person best placed to explain the relationship of care and the reasons for the bequest — was not examined despite D.W.1 admitting she was around 75 years old and capable of appearing; eighth, the Will was said to have been delivered to the four beneficiaries only four months before Arukkaniammal's death, about nine years after its execution, with no independent witness to the delivery and no explanation for where it had been kept; and ninth, the failure to satisfactorily establish Avanashi Gounder's unavailability meant the respondents could not draw additional assurance from Section 69 of the Evidence Act.
The Court held that the cumulative effect of these circumstances was substantial and that the evidence fell short of demonstrating that Arukkaniammal herself understood and freely adopted the exact disposition made by the Will.
Outcome
The Supreme Court allowed Civil Appeal Nos. 10169-10170 of 2013. The common judgment and decree dated 28 October 2008 of the Madras High Court in A.S. No. 231 of 1991 and Tr. A.S. No. 503 of 2002 were set aside.
The common judgment and decree dated 22 January 1991 of the Additional Subordinate Judge-III, Coimbatore, in O.S. No. 665 of 1985 and O.S. No. 1344 of 1990 were restored. The preliminary partition decree declaring the appellant branches collectively entitled to 2/3 share in both A and B schedule properties stands revived. Will (Ex.B-13) having failed, Section 15(2)(b) of the Hindu Succession Act governs succession: the Ramathal line is entitled to 1/3, the Chellammal line to 1/3, and the Alamathal line to 1/3. O.S. No. 1344 of 1990 for permanent injunction stands dismissed. The parties may work out final division, possession and consequential equities in final-decree proceedings. No order as to costs was made.