1. Suit for partition — Challenge to a registered will excluding one child — Proof of execution under the Indian Succession Act and Indian Evidence Act. (Para 2 , 4 , 5 )
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2025 Supreme(SC) 2067
SUPREME COURT OF INDIA
AHSANUDDIN AMANULLAH, K. VINOD CHANDRAN, JJ
K. S. Dinachandran – Appellant
Versus
Shyla Joseph & Ors. – Respondent
Civil Appeal Nos. 14825-14826 of 2025 (@ Special Leave Petition (C) Nos.11057-11058 of 2025, Special Leave Petition (C) No.11639 of 2025
Decided On : 17-12-2025
Advocates appeared:
For the Appellant(s) : Mr. A. Hariprasad, Sr. Adv. Mr. Bijo Mathew Joy, AOR Ms. Gifty Marium Joseph, Adv. Ms. Swathi H. Prasad, Adv. Mr. V. Chitambaresh, Sr. Adv. Mr. Mukund P. Unny, AOR Mr. Sanjay Nair S., Adv.
For the Respondent(s): Mr. P.B. Krishnan, Sr. Adv. Mr. Sarath S. Janardanan, AOR Mrs. Anila Tharakan Thomas, Adv. Mr. Bijo Mathew Joy, AOR
For the Appellant(s) : Mr. A. Hariprasad, Sr. Adv. Mr. Bijo Mathew Joy, AOR Ms. Gifty Marium Joseph, Adv. Ms. Swathi H. Prasad, Adv. Mr. V. Chitambaresh, Sr. Adv. Mr. Mukund P. Unny, AOR Mr. Sanjay Nair S., Adv.
For the Respondent(s): Mr. P.B. Krishnan, Sr. Adv. Mr. Sarath S. Janardanan, AOR Mrs. Anila Tharakan Thomas, Adv. Mr. Bijo Mathew Joy, AOR
IMPORTANT POINT
Proof of execution of Will – There can be no interference to Will which stands proved unequivocally.
Headnote:
Indian Succession Act, 1925 – Section 63(c) – Indian Evidence Act, 1872 – Section 68 – Proof of execution of Will – Suspicious circumstance – Suit was one for injunction simpliciter and there was neither occasion to offer proof of Will nor was there declaration of title sought; which disables claim of res judicata being raised since Will or title was not a matter substantially in issue in said suit – But, despite knowledge, plaintiff pleaded no suspicious circumstances and did not even mention Will in plaint – Only suspicion raised about execution of Will is testamentary capacity of testator, relatable specifically to his physical disposition – Person excluded was one of children of plaintiff, the sole one excluded – Propounders of will are siblings of one excluded – There is reason stated for such exclusion, acceptability of which is not what rule of prudence dictates – Sitting in arm-chair of testator rule of prudence is satisfied for exclusion, which on facts of this case amply satisfies judicial conscience – Testator was also established to be of sound and disposing mind at the time of execution of Will – There can be no interference to Will which stands proved unequivocally – Judgment and decree of High Court and that of Trial Court set aside – Plaintiff is found to have no partible claim over properties of her father, which by a Will have been bequeathed to other siblings of plaintiff – Appeal allowed and partition suit dismissed. (Paras 15, 28, 29 and 31)
Facts of the case:
Concurrent findings; disbelieving a will, excluding one out of nine children, who married out of the community, holding the estate of the testator partible, is challenged in the two appeals filed by two defendants.
Findings of Court:
Court cannot put the testator in our shoes, and we should step into his. We cannot substitute our opinions in place of that of the testator; his desire prompted by his own justifications. As is trite, we would only ensure that, sitting in arm-chair of testator rule of prudence is satisfied for the exclusion; which on the facts of this case amply satisfies the judicial conscience.
Result : Appeals allowed.
Judgement Key Points
The ratio decidendi of the case is that the due execution and validity of a will must adhere strictly to statutory requirements, particularly those concerning attestation and the presence of attesting witnesses. The court emphasized that the burden of proof lies on the propounder to establish that the will was executed in accordance with the law, which includes proper attestation by witnesses who are capable of testifying to the execution and signing of the will by the testator. Suspicious circumstances surrounding the execution, such as discrepancies in the attestation process or doubts about the testamentary capacity, require the propounder to provide clear and satisfactory evidence to dispel such doubts. Failure to meet these evidentiary standards results in the will being disbelieved and declared invalid. The court also highlighted that the assessment of such evidence involves a careful, fact-specific inquiry, and the satisfaction of the court’s conscience is a guiding principle in determining the validity of a will.
Legal Category Hierarchy
Table of Contents
2. Validity of will based on attestation requirements — Probative value of cross-examination testimony — Estoppel due to prior knowledge of the will. (Para 5 , 6 , 7 , 8 )
3. Leading questions in cross-examination can prove attestation — Minor memory lapses after long intervals are natural — Testator's sound mind and intent are established. (Para 15 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 )
4. Proof of attestation under Section 63(c) Succession Act and Section 68 Evidence Act can be established through responses to leading questions in cross-examination. (Para 23 , 24 , 29 )
5. Appeals allowed — Judgments of trial court and High Court set aside — Will held proved — Suit for partition dismissed. (Para 29 , 31 )
6. Can the requirement of attestation under the Succession Act be satisfied through answers to leading questions in cross-examination?
Yes. If a witness affirms the signature of the testator and both attesting witnesses in response to a positive suggestion during cross-examination, it constitutes valid proof. Leading questions are permitted in cross-examinations, and the responses elicited possess probative value. (Para 23 , 24 , 29 )
7. Do minor discrepancies in a witness's recollection of dates or visits, recorded decades after the execution of a will, invalidate the testimony?
No. It is natural for a witness not to remember specific dates or visits with mathematical precision when evidence is recorded many years after the event, especially if they had a close association with the testator. (Para 18 , 27 )
8. How should courts apply the rule of prudence when a will excludes some legal heirs?
Courts must step into the testator's shoes rather than substituting their own opinions. If the testator's desire is prompted by their own justifications, the rule of prudence is satisfied, and the judicial conscience is addressed. (Para 28 )
9. What is the standard for proving a will when only one attesting witness is available for examination?
At least one attesting witness must be examined who speaks to the execution of the will by the testator and the attestation by both witnesses. (Para 15 , 16 )
JUDGMENT :
K. VINOD CHANDRAN, J.
1. Leave granted.
2. Concurrent findings; disbelieving a will, excluding one out of nine children, who married out of the community, holding the estate of the testator partible, is challenged in the two appeals filed by two defendants.
3. The parties are referred to as the plaintiff and the defendants, the first respondent, common in both the appeals, is the plaintiff.
4. The relevant facts to be noticed are that one N.S. Sreedharan, executed Exhibit B2 will dated 26.03.1988 and registered it on the very next day, a Sunday, the Sub-Registrar having come to his house on commission. The will provided for allocation of the properties to the eight (the defendant Nos. 1 to 8) out of the nine children of the testator; the plaintiff having been left out. An injunction suit was filed by the defendant in the year 1990, against the plaintiff, who was the sole defendant therein, to restrain her from interfering with the peaceful possession and enjoyment of the suit property. A copy of the will was produced along with the plaint. The sole defendant therein did not choose to contest the matter. There was an ex parte judgment and decree passed by the Principal Munsif Court of Ernakulam which is produced as Annexure P2. It was later in the year 2011 that the present suit was filed seeking partition of the properties of the father.
5. The first defendant who was examined as DW-1 along with other defendants contested the suit on the strength of the will. There were two attesting witnesses, one of whom was no more at the time of trial and the other was examined as DW-2. The trial court decreed the suit on the ground that DW-2 only spoke of the execution of the will by the testator and his own attestation. Though, the presence of the other attesting witness at the time of execution was spoken of, his attestation was not deposed to by DW-2. It was also argued that the deposition of DW-2 indicated that the testator and he himself affixed their signatures in the presence of the Sub-Registrar, giving rise to an anomaly insofar as the will was dated 26.03.1988, while the registration was on the next day i.e. 27.03.1988, on which day DW2 according to his own testimony had not visited the house of the testator, which argument was not accepted even by the trial court.
6. The High Court found that though in the examination-in-chief, DW-2 did not depose on the attestation by the other witness, in cross-examination to a leading question he answered that all persons signed on the will on the date when DW-2 signed the same. It was held that by the leading question, the answer was put in the mouth of the witness and hence, it lacks probative value and fell short of the mandate under Section 63 (c) of the Indian SUCCESSION ACT , 19251[for short, ‘the SUCCESSION ACT ’] read with Section 68 of the Indian EVIDENCE ACT , 1872 2[ for short, ‘the EVIDENCE ACT ’]. The High Court emphasised the statement of DW-2 in cross examination that after signing the will on the date when it was prepared, he had not gone to the house of the testator till his death. Hence, the attestation by DW-2 itself was found suspicious when DW- 2 also stated that when he reached the house of testator, the Sub-Registrar and the other witness were present there.
7. Mr.V.Chitambaresh and Mr.A.Hariprasad learned Senior Counsel for the appellants contended that the ingredients of Section 68 of the EVIDENCE ACT read with Section 63 of the SUCCESSION ACT , were fully satisfied. DW-2 had not only spoken of the testator having affixed his signature on the will, Exhibit B2, but also spoke of his attestation and his introduction to the other witness by the testator and all of them having signed the will. Statements were taken out of context to disbelieve the will and in any event, the earlier will executed, clearly indicated the mind of the testator insofar as exclusion of the plaintiff. It is also argued that despite the will having come to the notice of the plaintiff in the su
