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Supreme Court Clarifies Section 69 Evidence Act Cannot Bypass Attestation Proof for Wills
The has delivered a significant ruling on the proof of wills under the , holding that Section 69 cannot be invoked as a convenient alternative to the ordinary attestation requirement under Section 68. A bench of Justice Sanjay Karol and Justice Nongmeikapam Kotiswar Singh set aside a judgment that had upheld a disputed will by directly applying Section 69 without first establishing that no attesting witness could be found.
The case arose from a family succession dispute over agricultural properties originally owned by Vaiyapuri Gounder. The central question was whether a registered will dated , allegedly executed by Arukkaniammal (the issueless third wife of Vaiyapuri Gounder), was valid. If proven, the property would go to the branch of Alamathal (the second wife's daughter). If not, the property would devolve under , back to the heirs of the husband, benefiting both the appellant and respondent branches.
The trial court had found the will surrounded by multiple suspicious circumstances—including an incorrect description of the property as self-acquired, the exclusion of two branches without explanation, and the non-examination of Alamathal despite her availability. It held that the respondents failed to prove the death or unavailability of one attesting witness, Avanashi Gounder, thereby failing to satisfy the foundational condition for Section 69. The trial court decreed partition in favour of the appellants.
The High Court reversed, accepting the respondents' reliance on Section 69 and treating the scribe's evidence as sufficient. The Supreme Court disagreed, emphasising that Section 69 is an exceptional mode of proof that becomes available only when proof through an attesting witness under Section 68 has become impossible.
"The statutory gateway between Sections 68 and 69 of the Evidence Act was not satisfactorily crossed,"
the Court observed.
"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."
The Court analysed the evidence in detail. Both attesting witnesses were not examined. The scribe, D.W.2 K.S. Srinivasa Rao, admitted he did not sign as an attesting witness; he lacked . The son of one attesting witness, D.W.3, could only identify his father's signature but could not speak to the execution ceremony. Crucially, no independent evidence proved that Avanashi Gounder was dead or that any diligent search had been made for him.
The Court also examined suspicious circumstances cumulatively. These included the inaccurate recital of the property as self-acquired, the description of Alamathal as "my daughter" without qualifying the step-relationship, the exclusion of two branches, the relationship of one attesting witness to a beneficiary, the unexplained custody of the will for nine years, and the non-examination of Alamathal—the person best placed to explain the testatrix's intentions.
"The legitimate doubts were not satisfactorily removed,"
the Court concluded, noting that the High Court erred by dealing with each circumstance in isolation rather than assessing their combined weight.
The judgment reinforces settled principles from H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) and N. Kamalam v. Ayyasamy (2001) 7 SCC 503. The propounder must not only prove the testatrix's signature and attestation but also remove any suspicious circumstances shrouding the will. Here, the respondents failed to discharge that burden.
Consequently, the Supreme Court restored the trial court's preliminary decree for partition, granting the appellants (heirs of the first wife) a two-thirds share in both the A-schedule agricultural lands and the B-schedule house property. The respondents' suit for permanent injunction was dismissed. The order directs the parties to work out final division and other equities in final decree proceedings.
This ruling sends a clear message: the relaxed proof under Section 69 requires a strict foundation. Propounders of wills cannot shortcut the ordinary requirement of Section 68 unless they first demonstrate, with credible evidence, that no attesting witness remains available to testify.
