2026 INSC 860

Page 1 of 65

REPORTABLE

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NOS. 10169 -10170 OF 2013

PAZHANATHAL (DEAD) THROUGH LRS.

& ORS …APPELLANTS

VERSUS

ALAMATHAL (DEAD) THROUGH LRS.

& ORS ...RESPONDENTS

J U D G M E N T

NONGMEIKAPAM KOTISWAR SINGH, J.

1. Leave having been granted on 01.11.2013, these civil

appeals arise out of the common judgment and decree dated

28.10.2008 passed by the High Court of Judicature at Madras

in A.S. No. 231 of 1991 and Tr. A.S. No. 503 of 2002. By the

impugned common judgment , the High Court allowed both first

appeals preferred by the Respondents herein and decreed the

Page 2 of 65

Respondents’ suit for permanent injunction by setting aside the

common judgment and decree dated 22.01.1991 passed by the

Trial Court, Additional Subordinate Judge - III, Coimbatore in

O.S. No. 665 of 1985 and O.S. No. 1344 of 1990. The Trial Court

had granted a preliminary decree for partition in favour of the

Appellants in O.S. No. 665 of 1985 and dismissed the

Respondents’ suit for permanent injunction in O.S. No. 1344 of

1990.

2. The dispute is a family succession and partition dispute,

centered on the legal proof, genuineness and effect of a

registered Will dated 15.12.1976, marked as Ex.B-13, alleged to

have been executed by Arukkaniammal, the issueless third wife

of Vaiyapuri Gounder, the original owner. If Will (Ex.B-13) is

proved in accordance with law, the respondent branch succeeds

in respect of the A-schedule property. If the Will is not proved,

the property inherited by Arukkaniammal from her husband

would devolve, by operation of Section 15(2)(b) of the Hindu

Succession Act, 1956 (“Hindu Succession Act” for short), upon

the heirs of Vaiyapuri Gounder, and the appellants would be

entitled to their share as per the partition decree granted by the

Trial Court.

Page 3 of 65

3. The principal question, therefore, is, whether the Will

(Ex.B-13) is proved valid. That question requires the Court to

distinguish between testamentary power, due execution and

attestation, the statutory mode of proof, and the independent

obligation of the propounders to remove suspicious

circumstances. The validity of the Will is therefore the central

issue, the questions of partition, possession and injunction

being consequential.

FACTUAL BACKGROUND

4. One Vaiyapuri Gounder was the original owner of the suit

properties. The suit properties consisted principally of

agricultural lands described as A-schedule properties and a

house property described as B-schedule property. Partition of B-

schedule house property is not contested, also it is not in dispute

that the properties came to Vaiyapuri Gounder in a partition

between himself and his brothers.

5. Vaiyapuri Gounder had three wives. The first wife was

Mottaiammal (Appellant Branch). The second wife was

Pappammal (Respondent Branch). The third wife was

Arukkaniammal (Testator). The first two wives predeceased

Vaiyapuri Gounder. On the death of Vaiyapuri Gounder in or

Page 4 of 65

about 1925, Arukkaniammal alone survived him. She had no

children.

6. Mottaiammal, the first wife, had two daughters, namely

Ramathal and Chellammal. The Appellants in the present

appeals claim through the said two daughters of Mottaiammal.

Pazhanathal and Vaiyapuri represent the line of Ramathal.

Kandappan, Vellingiri, Marudhachalam, Velathal and Rangathal

trace their claim through Chellammal.

7. Pappammal, the second wife, had one daughter,

Alamathal. The contesting Respondents are Alamathal and four

sons of Alamathal, namely Ramaswami Gounder, Palaniswami

Gounder, Nataraja Gounder and Aruchami Gounder, with the

legal representatives of deceased parties being brought on record

at different stages.

8. There is also no dispute that, on the death of Vaiyapuri

Gounder, Arukkaniammal being his sole surviving wife, became

entitled to the suit properties. The Trial Court also recorded that

the properties belonging to Vaiyapuri Gounder, that on his death

would devolve on Arukkaniammal, and that after her death, if

she died intestate and without issue, the properties inherited by

Page 5 of 65

her from her husband would devolve upon the heirs of the

husband under Section 15(2)(b) of the Hindu Succession Act.

For convenience, the genealogy chart concerning these

Civil Appeals reproduced hereinbelow:

9. The case of Appellants-legal heirs of the first wife is that

Arukkaniammal died issueless and intestate on 18.09.1985, the

properties inherited by her must revert to the surviving heirs of

Vaiyapuri Gounder, the original owner. On that basis, they claim

that the branch of Mottaiammal would be entitled to 2/3 share,

because the branch had two out of three surviving daughters

Page 6 of 65

and the branch of Pappammal, represented by Alamathal, would

be entitled to 1/3 share, because the branch had the remaining

one surviving daughter.

10. The Respondent branch belonging to the second wife does

not dispute the broad genealogy or the fact that Arukkaniammal

was the absolute owner during her lifetime. Their answer to the

partition claim of the legal heirs of the first wife branch is

founded on two documents and the possession said to flow from

them. The first is a registered lease deed dated 10.04.1943 said

to have been executed by Arukkaniammal in favour of Nanjappa

Gounder, the husband of Alamathal. The second is the

registered Will dated 15.12.1976, Will (Ex.B-13), said to have

been executed by Arukkaniammal in favour of the four sons of

Alamathal.

11. The Will, as translated in the record, states that

Arukkaniammal was old, that she had no scope of living for a

long time, that she was in possession of the property described

thereunder, and that the property belonged to her by self -

acquisition. It then states that after her lifetime, since she had

no male issue, her grandsons, described as the male issues of

her daughter Alamathal, namely Ramaswami Gounder,

Page 7 of 65

Palaniswami Gounder, Nataraja Gounder and Aruchami

Gounder, shall derive absolute title and enjoy the property. The

document bears the left thumb impression of Arukkaniammal.

It names Marappa Gounder and Avanashi Gounder, both of

Karacheri, as attesting witnesses, and records that it was written

by K.S. Srinivasa Rao.

12. The description of the property in Will (Ex.B -13)

substantially corresponds to the A -schedule agricultural

property. No Will was relied upon in respect of the B-schedule

house property.

13. The first legal proceeding was O.S. No. 665 of 1985 initiated

by the Appellants’ branch of the first wife for partition and

separate possession of 2/3 share in the suit properties. Their

plaint pleaded the genealogy, the title of Vaiyapuri Gounder, the

absolute right of Arukkaniammal after his death, her death

issueless and intestate, and the consequent devolution under

Section 15(2)(b) of the Hindu Succession Act.

14. The plaint further alleged that Alamathal and her husband

(belonging to the Respondent-second wife branch) had close

association with Arukkaniammal in her lifetime and had

exercised undue influence over her. It was also pleaded that the

Page 8 of 65

first defendant was refusing amicable partition and was

asserting absolute title without producing any document. After

a notice dated 07.10.1985, the first defendant did not send a

reply accepting partition. According to the plaintiffs, the

subsequent assertion of a Will dated 15.12.1976 was false,

fabricated and not binding on their 2/3 share.

15. The Respondent branch (belonging to the 2nd wife) filed

written statements in O.S. No. 665 of 1985. They admitted the

relationship of parties and also admitted that, after the death of

Vaiyapuri Gounder, Arukkaniammal became entitled to the

entire suit property. However, they denied that she died

intestate. Their case was that Arukkaniammal leased out the

entire property to Nanjappa Gounder under the registered lease

deed dated 10.04.1943 and that, thereafter, on 15.12.1976, she

executed a registered Will in favour of the four sons of Alamathal.

It was further pleaded that the plaintiffs were never in

possession and that the village knew of the Will.

16. The second proceeding was O.S. No. 1344 of 1990. It was

filed by Nanjappa Gounder and his sons (belonging to the

Respondent-2nd wife branch) for permanent injunction

restraining the Appellants’ branch from entering the property or

Page 9 of 65

disturbing their alleged possession. The suit for injunction

repeated the case of lease, cultivation, possession, tenancy

registration, electric connection and title under the Will. The

defendants in that suit contended that it was a counterblast to

the partition suit and that an injunction could not be granted

against co-owners.

17. Both suits were tried together and disposed of by a common

judgment dated 22.01.1991 by the Trial Court. Since the claim

in the second suit O.S. No. 1344 of 1990 substantially depended

on the Will and on the title asserted by the Respondent branch,

the Trial Court rightly treated the proof and genuineness of Will

(Ex.B-13) as the central issue.

ISSUES AND EVIDENCE BEFORE THE TRIAL COURT

18. In the partition suit O.S. No. 665 of 1985, the Trial Court

framed the following issues:

firstly, whether the Will dated 15.12.1976 alleged to

have been executed by Arukkaniammal in favour of

defendants 2 to 5 was true and valid;

secondly, whether the plaintiffs were entitled to

partition as claimed; and

Page 10 of 65

thirdly, to what other reliefs the parties were entitled.

In O.S. No. 1344 of 1990, the issue was whether the

plaintiffs therein were entitled to permanent injunction.

19. The evidence led before the Trial Court may be noticed with

some care because the correctness of the High Court’s reversal

has to be examined in the light of that evidence. P.W.1 Vellingiri

(fourth plaintiff) and P.W.2 Palaniswami (a witness examined on

behalf of the plaintiffs who claimed to have treated

Arukkaniammal) were examined. Four documents were marked

on the plaintiffs’ side.

20. The documents marked on the side of the plaintiffs

included Ex. A-1, patta granted to Arukkaniammal; Ex. A-2, the

copy of notice dated 07.10.1985 issued by the plaintiffs’ counsel

to the first defendant; Ex. A-3, the postal acknowledgment card;

and Ex. A-4, a copy of a lease deed. These documents were relied

upon to establish the title of Arukkaniammal, the demand for

partition, and the plaintiffs’ case that the Respondent branch

did not have exclusive title.

21. On the side of the defendants, D.W.1 Ramaswami Gounder

(second defendant), D.W.2 K.S. Srinivasa Rao (scribe/document

writer of Will-Ex. B-13) and D.W.3 Mylasami (son of Marappa

Page 11 of 65

Gounder, one of the attesting witnesses to Will-Ex. B-13) were

examined. The defendants marked Exs. B-1 to B-14. Ex. B-1 was

the lease deed dated 10.04.1943 said to have been executed by

Arukkaniammal in favour of Nanjappa Gounder. Exs. B-2 to B-

4 were extracts from tenancy registers. Ex. B-5 was patta

granted to Alamathal. Exs. B-6 and B-9 were house-tax receipts.

Exs. B-7 and B-8 were demand notices issued by the Tamil Nadu

Electricity Board. Ex. B-10 was an elector’s card. Ex. B-11 was

an electricity service-charge card. Ex. B-12 consisted of kist

receipts. Ex. B-13 was the Will dated 15.12.1976. Ex. B-14 was

the reply notice dated 18.10.1985 issued by the first defendant.

22. P.W.1 Vellingiri (fourth plaintiff) supported the case of

intestacy and joint entitlement. In cross-examination, he denied

the suggestion that Arukkaniammal had executed the Will dated

15.12.1976 in favour of defendants 2 to 5. He also denied that

Arukkaniammal was in good health and possessed a sound

disposing state of mind until her death. He accepted that

Arukkaniammal used to affix her thumb impression. He further

denied that the A-Schedule property had been leased to

Nanjappa Gounder, the husband of Alamathal, in 1943 or that

Page 12 of 65

the Respondent branch had remained in exclusive possession

and enjoyment of that property.

23. P.W.2 Palaniswami (plaintiffs’ witness who claimed to have

treated Arukkaniammal) deposed that the suit property

originally belonged to Vaiyapuri Gounder. He stated that

Arukkaniammal stayed in her house and in her thottam (farm

house), that she had suffered from disease for a considerable

period, and that he had treated her. He further stated that

Arukkaniammal used to say that, after her lifetime, shares

should be given to the children of Ramathal and

Sellammal/Chellammal. In the cross-examination, P.W.2

Palaniswami admitted that the alleged statement regarding

equal shares was oral and had not been reduced to writing. He

could not recall when the statement was allegedly made. He also

admitted that there was no documentary record of the natural

treatment allegedly administered by him to Arukkaniammal.

24. D.W.1 Ramaswami Gounder (second defendant) stated in

his examination-in-chief that Arukkaniammal had leased the

property to his father, Nanjappa Gounder; that the Respondent

branch had remained in possession from the date of Ex. B-1;

that they had dug the well and installed the electric motor; that

Page 13 of 65

Arukkaniammal had lived with them; and that they had

maintained her until her death. He further stated that, in 1976,

Arukkaniammal executed the Will concerning the A -Schedule

property in favour of the four sons of Alamathal. D.W.1

Ramaswami Gounder (secon d defendant) also deposed that,

approximately four months before her death, Arukkaniammal

called the four beneficiaries and handed over the Will to them;

that the plaintiffs had never possessed or enjoyed the property;

that Arukkaniammal remained in good health and possessed a

sound disposing state of mind until her death; and that both

attesting witnesses to the Will were dead.

25. In the cross-examination of D.W.1 Ramaswami Gounder

(second defendant), he admitted that the suit property was the

ancestral property of Vaiyapuri Gounder. He also admitted that

Arukkaniammal was illiterate. He acknowledged that Marappa

Gounder, one of the attesting witnesses, was the father-in-law of

Nataraja Gounder, another beneficiary under the Will. He

further admitted that Avanashi Gounder, the other attesting

witness, belonged to Karacheri, situated approximately three

kilometres away. D.W.1 He also admitted that patta in favour of

the Respondent branch was issued only after the institution of

Page 14 of 65

the suit and that, prior thereto, the patta stood in the name of

Arukkaniammal. He stated that his mother, Alamathal, was

approximately 75 years old and capable of appearing before the

Court, nevertheless, Alamathal did not appear nor examined.

26. D.W.2 K.S. Srinivasa Rao (scribe/document writer of Will-

Ex. B-13) stated in his examination-in-chief that he had written

the Will; that Marappa Gounder and Arukkaniammal had

requested him on the previous day to prepare it; that the relevant

records were brought to him; that Arukkaniammal supplied the

instructions; that he wrote the Will near the Registrar’s office;

that he read over the contents to Arukkaniammal; that she

accepted the contents and affixed her thumb impression; and

that Marappa Gounder and Avanashi Gounder thereafter signed

as attesting witnesses. D.W.2 K.S. Srinivasa Rao (scribe of the

Will) further stated that Arukkaniammal was in good health at

the time of preparation and execution of the Will.

27. In cross-examination, however, D.W.2 K.S. Srinivasa Rao,

the scribe stated that he had signed the document only as its

scribe and not as an attesting witness. He did not know how the

property had devolved upon Arukkaniammal, nor was he

familiar with her family. He was not present when the Will was

Page 15 of 65

registered and did not know Nanjappa Gounder. D.W.2 K.S.

Srinivasa Rao admitted that the property had been described in

the Will as the self-acquired property of Arukkaniammal and

also stated that, where the property is genuinely self-acquired,

the particulars of the sale deed would ordinarily be mentioned.

Although he denied the suggestion that he, Marappa Gounder

and others had joined together to fabricate Will (Ex. B-13), the

Trial Court considered his evidence with caution.

28. D.W.3 Mylasami (son of Marappa Gounder, one of the two

attesting witnesses to Will-Ex. B-13, and brother-in-law of

beneficiary Defendant 4 - Nataraja Gounder) stated that his

father had died approximately ten years earlier and that he was

familiar with his father’s signature. He identified the signatures

of his father appearing on Will (Ex. B -13). In the cross-

examination, D.W.3 Mylasami admitted that his elder sister had

been given in marriage to Nataraja Gounder, one of the

beneficiaries under the Will an d the brother of D.W.1

Ramaswami Gounder. He stated that he had seen Will (Ex. B -

13) for the first time only on the date on which he gave evidence

and that he had come to the court along with his brother-in-law,

Nataraja Gounder. He did not know whether Avanashi Gounder,

Page 16 of 65

the other attesting witness, had left behind any legal heirs.

D.W.3 Mylasami also stated that he had last seen

Arukkaniammal four or five years earlier and that he did not

belong to her village.

JUDGMENT OF THE TRIAL COURT

29. The Trial Court first recorded the admitted facts. It noted

that the A and B schedule properties belonged to Vaiyapuri

Gounder; that he had three wives; that Arukkaniammal was the

only surviving wife at the time of his death; that she became

absolutely entitled to the properties; and that the parties before

the Court represented the heirs of the first and second wives of

Vaiyapuri Gounder.

30. The Trial Court then held that, in the absence of a valid

Will, Section 15(2)(b) of the Hindu Succession Act would apply.

It held that the property had come to Arukkaniammal through

her husband and that on her death without issue, the property

would devolve upon the heirs of Vaiyapuri Gounder. On such

devolution, plaintiffs 1 and 2 through daughter Mottaiammal

would together be entitled to 1/3 share, plaintiffs 3 to 7 would

together be entitled to 1/3 share through daughter Sellammal,

Page 17 of 65

and the first defendant Alamathal would be entitled to 1/3

share.

31. The Trial Court then considered Will (Ex.B-13). It correctly

adverted to the principle that a Will must be proved in

accordance with law and that, where suspicious circumstances

surround the Will, the propounder must remove those

circumstances to the satisfaction of the Court.

32. The Trial Court found several suspicious circumstances. It

noticed that Will (Ex.B-13) described the property as self-

acquired though the property had come to Arukkaniammal from

her husband. It found that the Will did not state why the heirs

of Mottaiammal were excluded. It further noticed that the Will

referred to Alamathal as if she were Arukkaniammal’s own

daughter, though Alamathal was the daughter of Pappammal,

the second wife of Vaiyapuri Gounder. It also noticed that

Marappa Gounder, one of the attes ting witnesses, was the

father-in-law of Nataraja Gounder, a beneficiary under the Will.

The other attesting witness, Avanashi Gounder, was also from

Karacheri village, and not from the village of the testatrix.

33. The Trial Court considered the plea that the Will was

registered and that Arukkaniammal survived for many years

Page 18 of 65

thereafter. It held that those circumstances by themselves could

not prove the Will. It further observed that Arukkaniammal was

illiterate and affixed her thumb impression. It examined the

evidence as to her physical and mental condition and found that

the defendants had not examined Alamathal, though she was

central to their case and was stated to be capable of coming to

the Court. The Trial Court also noticed that no independent

person from the village had been examined regarding

Arukkaniammal’s mental and physical condition at the time of

execution.

34. On the proof of attestation, the Trial Court held that D.W.3

identified the signature of his father Marappa Gounder but that

no acceptable evidence had been produced regarding the death

or unavailability of the other attesting witness, Avanashi

Gounder. No death certificate of Avanashi Gounder had been

produced and no steps had been taken to examine his relatives.

35. The Trial Court also rejected the attempt to treat D.W.2,

the scribe, as an attesting witness. It held that D.W.2 had signed

only as scribe and that animus attestandi could not be inferred.

The Trial Court found his testimony unreliable, especially

because he did not know the family of Arukkaniammal, did not

Page 19 of 65

know Nanjappa Gounder, did not know how the property

belonged to Arukkaniammal, and yet wrote it as self-acquired.

36. On an overall appreciation, the Trial Court concluded that

Will (Ex.B-13) was not true, valid or sustainable. Consequently,

it decreed O.S. No. 665 of 1985 by granting a preliminary decree

for partition declaring that the plaintiffs therein were entitled to

2/3 share in the A and B schedule properties. It dismissed O.S.

No. 1344 of 1990, holding that the plaintiffs in the injunction

suit could not obtain an injunction against other co-owners.

JUDGMENT OF THE HIGH COURT

37. The High Court reversed the Trial Court. It held that the

ownership of Arukkaniammal was admitted and that the crucial

issue was the genuineness of Will (Ex.B-13). It noticed that the

defendants were the propounders of the Will and that the burden

was on them.

38. The High Court accepted the respondents’ reliance on

Section 69 of the Evidence Act. It found that D.W.1 had spoken

about the death of both attesting witnesses and that there was

no cross-examination suggesting that the witnesses were still

alive. It further relied on the evidence of D.W.2, the scribe, and

Page 20 of 65

D.W.3, the son of Marappa Gounder, who identified his father’s

signature. On that basis, it held that the requirement of Section

69 stood of the Evidence Act, satisfied.

39. The High Court also disagreed with the Trial Court’s

treatment of suspicious circumstances. It held that a Will, by its

very nature, departs from normal succession, and therefore the

fact that some heirs were excluded could not by itself be treated

as suspicious. It further held that Arukkaniammal had reasons

to prefer the sons of Alamathal because the respondent branch

had been in possession, had taken care of her and had been

managing the property. The High Court also held that describing

the property as self-acquired could not be treated as a

suspicious circumstance because Arukkaniammal had become

absolute owner.

40. The High Court accordingly set aside the judgment and

decree in O.S. No. 665 of 1985, upheld the Will in respect of A-

schedule property, and decreed O.S. No. 1344 of 1990 for

permanent injunction. It is this reversal which is under

challenge before us.

Page 21 of 65

BRIEF SUBMISSIONS OF THE PARTIES

41. On behalf of the appellants, it was submitted that the High

Court gravely erred in accepting Will (Ex.B-13) as a valid Will

without insisting on strict proof under Section 63(c) of the Indian

Succession Act and Sections 68 and 69 of the Evidence Act. The

appellants submitted that a Will is not to be proved like an

ordinary document and that the conscience of the Court must

be satisfied.

42. It was urged that neither of the two attesting witnesses was

examined. Section 69 of the Evidence Act, could be invoked only

after establishing that no attesting witness could be found. The

appellants submitted that the death or unavailability of

Avanashi Gounder was never proved. D.W.1’s bare assertion,

made by an interested beneficiary, could not discharge that

burden, especially when D.W.3 himself did not know whether

Avanashi Gounder had legal heirs and no attempt had been

made to trace or examine anyone from his family.

43. The appellants further submitted that D.W.2 was only the

scribe and not an attesting witness. He had admitted that he

signed as scribe and not as witness. His evidence could not be

used to cure the absence of proof of attestation unless animus

Page 22 of 65

attestandi was established. Reliance was placed on N. Kamalam

v. Ayyasamy, (2001) 7 SCC 503.

44. On suspicious circumstances, the appellants submitted

that the Trial Court had assigned detailed and cogent reasons.

The property was wrongly described as self-acquired. Alamathal

was described in the Will as her daughter. No explanation was

given for excluding the heirs of the other wives. One attesting

witness was related by marriage to a beneficiary. Both attesting

witnesses came from another village. The Respondent branch

was already in possession under an alleged lease and was in a

position of advantage. The testatrix was illiterate and affixed a

thumb impression. The central person, Alamathal, was not

examined. It was, therefore, submitted that the High Court

reversed the Trial Court on general observations without dealing

with the cumulative effect of these circumstances.

45. On behalf of the Respondents, it was submitted that the

High Court was correct. The Respondents urged that the Will

was registered and Arukkaniammal lived for nearly nine years

thereafter without revoking it. It was submitted that survival of

the testatrix for several years after execution and registration is

a factor supporting genuineness.

Page 23 of 65

46. The Respondents submitted that D.W.1 had categorically

stated that both attesting witnesses were dead and that this

statement was not challenged in cross-examination. Once that

evidence remained unrebutted, Section 69 of the Evidence Act

was attracted. D.W.2 proved the execution and attestation, while

D.W.3 identified his father’s signature. Therefore, according to

the respondents, the Will was proved in the manner required by

law.

47. The Respondents also contended that there were no

suspicious circumstances. According to them, Alamathal was

brought up by Arukkaniammal and was treated by her as her

own daughter. The Rspondent branch cared for Arukkaniammal

in her old age. The Respondent branch had been in possession

under the lease since 1943, had improved the property, dug the

well and obtained electricity connection. The Will was therefore

natural and probable. It was submitted that the first appellate

court was the final court of facts and its judgment should not be

interfered with in an appeal under Article 136 of the

Constitution.

Page 24 of 65

ISSUES FOR CONSIDERATION

48. The main and central issue is whether the registered Will

(Ex.B-13) dated 15.12.1976, was validly executed by

Arukkaniammal and proved in the manner required by law. The

principal issue may conveniently be divided into the following

questions:

(i) Whether Will (Ex.B-13)-Will Was duly executed and

attested;

(ii) Whether Section 69 of the Evidence Act was

properly invoked;

(iii) Whether testamentary capacity, knowledge of

contents and free agency of the Will are satisfied;

(iv) Whether the suspicious circumstances under the

Will were satisfactorily removed;

ISSUE I: WHETHER Will (Ex.B -13) - WILL WAS DULY

EXECUTED AND ATTESTED

49. The validity of the Will (Ex. B-13) must first be tested at

the level of its execution and attestation. Arukkaniammal

undoubtedly possessed testamentary power over the property

held by her absolutely. The existence of such power, however, is

Page 25 of 65

distinct from proof that the particular instrument propounded

by the respondents was executed by her as a Will in the manner

prescribed by law.

50. Section 63 of the Indian Succession Act, 1925 prescribes

the manner in which an unprivileged Will must be executed. The

relevant provision reads:

“63. Execution of unprivileged wills.

Every testator, not being a soldier employed in an expedition

or engaged in actual warfare, or an airman so employed or

engaged, or a mariner at sea, shall execute his will according

to the following rules:

(a) The testator shall sign or shall affix his mark to the will,

or it shall be signed by some other person in his presence

and by his direction.

(b) The signature or mark of the testator, or the signature of

the person signing for him, shall be so placed that it shall

appear that it was intended thereby to give effect to the

writing as a will.

(c) The will shall be attested by two or more witnesses, each

of whom has seen the testator sign or affix his mark to

the will or has seen some other person sign the will, in

the presence and by the direction of the testator, or has

received from the testator a personal acknowledgment of

his signature or mark, or of the signature of such other

person; and each of the witnesses shall sign the will in

the presence of the testator, but it shall not be necessary

that more than one witness be present at the same time,

and no particular form of attestation shall be necessary.”

51. The provision requires proof of three distinct acts. First, the

testatrix must sign or affix her mark to the instrument.

Secondly, the placement of that signature or mark must indicate

Page 26 of 65

an intention to give effect to the writing as her Will. Thirdly, the

Will must be attested by at least two witnesses in the manner

stated in clause (c). Each attesting witness must either witness

the act of signing or affixing the mark, witness another person

signing on the testatrix’s direction, or receive a personal

acknowledgment from the testatrix. Each witness must

thereafter sign the instrument in the presence of the testatrix.

52. It is not necessary that both attesting witnesses should be

present simultaneously, but what is indispensable is the

substance of the statutory ceremony, that is the testatrix’s

execution or acknowledgment, the witnesses’ awareness of that

execution or acknowledgment, and their subscription of the

instrument in her presence with the intention of bearing witness

to that act.

53. The ordinary statutory mode of proving those acts was

contained in Section 68 of the Evidence Act, which reads:

“68. Proof of execution of document required by law to

be attested.

If a document is required by law to be attested, it shall not be

used as evidence until one attesting witness at least has been

called for the purpose of proving its execution, if there be an

attesting witness alive, and subject to the process of the Court

and capable of giving evidence:

Provided that it shall not be necessary to call an attesting

witness in proof of the execution of any document, not being

Page 27 of 65

a will, which has been registered in accordance with the

provisions of the Indian Registration Act, 1908, unless its

execution by the person by whom it purports to have been

executed is specifically denied.”

54. The words “not being a will” in the proviso are significant.

Even a registered Will remains subject to the requirement of

proof through an attesting witness where such a witness is alive,

available and capable of giving evidence. Registration may

furnish a supporting circumstance regarding genuineness, but

it does not dispense with proof of testamentary execution and

attestation.

55. Sections 63 of the Indian Succession Act and Section 68 of

the Evidence Act perform related but distinct functions. Section

63 of the Indian Succession Act prescribes what must have

occurred when the Will was executed. Section 68 of the Evidence

Act prescribes the ordinary manner in which the occurrence of

those acts must be proved before the Court. The two provisions

must be read cumulatively. Proof of the testatrix’s signature or

Page 28 of 65

thumb impression alone does not establish due execution of a

Will unless the statutory attestation is also proved.

56. In N. Kamalam v. Ayyasamy , (2001) 7 SCC 503, this

Court explained the burden resting upon the propounder. The

relevant paragraph reads:

“3. Turning on to the former expression onus probandi, it

is now a fairly well-settled principle that the same lies in

every case upon the party propounding the will and may

satisfy the court’s conscience that the instrument as

propounded is the last will of a free and capable testator,

meaning thereby obviously, that the testator at the time

when he subscribed his signature on to the will had a

sound and disposing state of mind and memory and

ordinarily, however, the onus is discharged as regards the

due execution of the will if the propounder leads evidence

to show that the will bears the signature and mark of the

testator and that the will is duly attested. This attestation

however, shall have to be in accordance with Section 68 of

the Evidence Act which requires that if a document is

required by law to be attested, it shall not be used as

evidence until at least one attesting witness has been

called for the purpose of proving its execution and the

same is so however, in the event of there being an attesting

witness alive and capable of giving the evidence. The law

is also equally well settled that in the event of there being

circumstances surrounding the execution of the will

shrouded in suspicion, it is the duty paramount on the part

of the propounder to remove that suspicion by leading

satisfactory evidence.”

57. The principle is that the initial burden does not stand

discharged merely by establishing that the mark appearing on

the document belongs to the testatrix. The propounder must

establish that the instrument represents the testamentary act of

a free and capable testatrix and that it was attested in the

Page 29 of 65

manner required by Section 63(c) of the Indian Succession Act

and free of suspicious circumstances.

58. In Janki Narayan Bhoir v. Narayan Namdeo Kadam ,

(2003) 2 SCC 91, this Court further explained the relationship

between Sections 63 of the Indian Succession Act and 68 of the

Evidence Act. The Court held that due execution cannot be

established merely by proving the testator’s signature, but

proper attestation must also be proved. Although Section 68

permits the examination of only one attesting witness, the

witness so examined must be capable of proving the complete

statutory execution of the Will, including attestation by both

witnesses in the manner contemplated by Section 63(c) of the

Indian Succession Act. The decisive part of the ruling is:

“10. But what is significant and to be noted is that one

attesting witness examined should be in a position to

prove the execution of a will. To put in other words, if one

attesting witness can prove execution of the will in terms

of clause (c) of Section 63 viz. attestation by two attesting

witnesses in the manner contemplated therein, the

examination of the other attesting witness can be

dispensed with. The one attesting witness examined,

in his evidence has to satisfy the attestation of a

will by him and the other attesting witness in order to

prove there was due execution of the will. If the

attesting witness examined besides his attestation

does not, in his evidence, satisfy the requirements

of attestation of the will by the other witness also

it falls short of attestation of will at least by two

witnesses for the simple reason that the execution

of the will does not merely mean the signing of it

by the testator but it means fulfilling and proof of

Page 30 of 65

all the formalities required under Section 63 of the

Succession Act...”

(emphasis added)

59. Thus, the concession granted by Section 68 of the Evidence

Act, concerns the number of witnesses required to be examined

in Court and it does not dilute the requirement that the Will itself

must have been attested by at least two witnesses. One attesting

witness may prove the entire ceremony. But where the witness

examined proves only his own signature and is unable to prove

the participation of the second attesting witness, the evidence

falls short of establishing due execution under Section 63(c) of

the Indian Succession Act.

60. With respect to the status of a scribe, a person who writes

a Will is not, by reason of having written or signed it, necessarily

an attesting witness. The act of writing and the act of attesting

serve different legal purposes. The scribe authenticates his

authorship of the writing. An attesting witness subscribes the

document to bear witness to the testatrix’s execution or

acknowledgment of execution.

61. In M.L. Abdul Jabbar Sahib v. H.V. Venkata Sastri &

Sons, (1969) 1 SCC 573 , this Court explained that valid

attestation requires not merely a signature but the intention to

Page 31 of 65

attest, that is animus attestandi. A person who signs only as a

scribe, identifier or registering officer does not become an

attesting witness unless the evidence establishes that he signed

for the purpose of bearing witness to the executant’s signature

or acknowledgment. The relevant para reads as follows:

“8. …It is essential that the witness should have put his

signature animo attestandi, that is, for the purpose of

attesting that he has seen the executant sign or has

received from him a personal acknowledgment of his

signature. If a person puts his signature on the document

for some other purpose, e.g., to certify that he is a scribe

or an identifier or a registering officer, he is not an

attesting witness…”

62. This principle was directly applied to testamentary

documents in N. Kamalam (supra). The Court held:

“25. The requirement of attestation presently in the

country is statutory in nature, as noticed hereinbefore,

and cannot as such be done away with, under any

circumstances. While it is true that in a testamentary

disposition, the intent of the attestor shall have to be

assessed in its proper perspective but that does not

however mean and imply non -compliance with a

statutory requirement. The intention of the attestor and

its paramount importance cannot thwart the statutory

requirement. No doubt the scribe has subscribed his

signature but a scribe in accordance with common

English parlance means and implies the person who

writes the document…”

63. The Court thereafter emphasised that the signature of a

scribe cannot automatically be equated with the signature of an

attesting witness. The controlling consideration is therefore not

Page 32 of 65

merely where the person signed, but why he signed and whether,

while signing, he intended to attest the testatrix’s execution.

64. Will (Ex. B-13) names Marappa Gounder and Avanashi

Gounder as its two witnesses separate from Scribe, the person

who wrote the instrument. Thus, the document itself

distinguishes between its two attesting witnesses and its scribe.

65. In his examination-in-chief, D.W.2 - Scribe K. S. Srinivasa

stated that Arukkaniammal supplied the instructions; that he

wrote the Will near the Registrar’s office; that he read it over to

her; that she accepted its contents and affixed her left thumb

impression; and that Marappa Gounder and Avanashi Gounder

signed as witnesses. This testimony is relevant as evidence from

a person claiming to have been present when the document was

prepared and signed.

66. His cross-examination, however, leaves no scope for

treating him as an attesting witness. D.W.2 expressly stated that

he signed only after writing the words “written by”; that he did

not sign as “written and witnessed”; and that he did not sign Will

Page 33 of 65

(Ex. B-13) as a witness. His own evidence therefore negatives the

requisite animus attestandi.

67. Consequently, D.W.2’s signature cannot be counted as a

third attestation. Nor can it be invoked to replace either Marappa

Gounder or Avanashi Gounder. His oral evidence may be

considered for the limited purpose of deciding whether, under

the exceptional mode of proof prescribed by Section 69, of the

Evidence Act, the acts attributed to the testatrix and the named

attesting witnesses stand established. It does not make D.W.2

an attesting witness and does not amount to compliance with

Section 68 of the Evidence Act

68. The distinction is material. A person may have been

physically present at the execution of a Will and may later testify

about what he claims to have seen. But Section 68 of Evidence

Act, specifically requires an attesting witness to be called, where

one is alive and available. The evidence of a person who did not

sign animo attestandi cannot be substituted for the evidence

required by the provision merely because he describes the

alleged execution in Court.

69. D.W.3 Mylasami (son of the attesting witness Marappa

Gounder; brother-in-law of beneficiary D4) was not present

Page 34 of 65

when Will (Ex. B-13) was executed. He saw the document for the

first time when he came to give evidence. He could identify only

his father’s signatures. He could not speak to Arukkaniammal

affixing her thumb impression, the acknowledgment of that

impression, or either attesting witness signing in her presence.

His evidence therefore does not constitute proof under Section

68 of Evidence Act, though it may have relevance to one of the

requirements of Section 69 of Evidence Act.

70. Neither Marappa Gounder nor Avanashi Gounder entered

the witness box. The respondents’ case is that both had died by

the time of trial. Therefore, Will (Ex. B-13) was plainly not proved

through the ordinary mode prescribed by Section 68 of Evidence

Act. The evidence of DW 3 falls short of the requirement of proof

an attestation in terms of Janki Narayan Bhoir (supra). The High

Court could not treat the evidence of the scribe as though it were

the evidence of an attesting witness, nor could the registration

of the document cure the absence of proof under that provision.

71. We accordingly, hold that proof of attestation under

Section 68 of the Evidence Act was therefore not satisfied and

the question whether the respondents proved that no attesting

witness could be found and whether the constituent

Page 35 of 65

requirements of Section 69 of the Evidence Act were established

must therefore be considered separately under the next issue.

ISSUE II: WHETHER SECTION 69 OF THE EVIDENCE ACT

WAS PROPERLY INVOKED AND SATISFIED

72. Having held under Issue I that neither of the two named

attesting witnesses was examined and that Will (Ex. B-13) was

not proved through the ordinary mode prescribed by Section 68

of the Evidence Act, the respondents could rely upon Section 69

of the Evidence Act only by establishing the factual conditions

which permitted departure from Section 68. The enquiry under

Section 69 of the Evidence Act must proceed in a definite

sequence: firstly, whether no attesting witness could be

produced; secondly, whether the handwriting of at least one

attesting witness was proved; and thirdly, whether the signature

or mark of the testatrix was proved. These stages cannot be

conflated. Section 69 of the Evidence Act, reads as follow:

“69. Proof where no attesting witness found.

If no such attesting witness can be found, or if the document

purports to have been executed in the United Kingdom, it must

be proved that the attestation of one attesting witness at least

is in his handwriting, and that the signature of the person

executing the document is in the handwriting of that person.”

Page 36 of 65

73. The opening words, “if no such attesting witness can be

found”, constitute the condition precedent. The remaining part

prescribes the substituted mode of proof after that condition is

established. Section 69 of the Evidence Act is, therefore, not an

alternative which the propounder may freely choose, but it is an

exceptional mode available only when proof through an attesting

witness has become impossible.

74. The expression “no such attesting witness can be found”

includes a situation where the witnesses are dead, beyond the

jurisdiction of the Court, kept out of the way by the adverse

party, incapable of giving evidence, or untraceable despite

diligent search. The propounder must establish whichever

ground of unavailability is relied upon. Where death is asserted,

no particular form of proof, such as a death certificate, is

invariably indispensable. Death may also be established through

credible oral evidence from a close relative or another person

having direct knowledge. What is essential is satisfactory proof

that no attesting witness remained available for examination.

75. In Babu Singh v. Ram Sahai alias Ram Singh , (2008)

14 SCC 754, the relevant discussion in paragraphs 17 to 19

reads:

Page 37 of 65

“17. It would apply, inter alia, in a case where the attesting

witness is either dead or out of the jurisdiction of the Court or

kept out of the way by the adverse party or cannot be traced

despite diligent search. Only in that event, the Will may be

proved in the manner indicated in Section 69, i.e. by examining

witnesses who were able to prove the handwriting of the

testator or executant. The burden of proof then may be shifted

to others.

18. Whereas, however, a Will ordinarily must be proved

keeping in view the provisions of Section 63 of the Indian

Succession Act and Section 68 of the Act, in the event the

ingredients thereof, as noticed hereinbefore, are brought on

record, strict proof of execution and attestation stands relaxed.

However, signature and handwriting, as contemplated in

Section 69, must be proved.

19. Indisputably, one of the attesting witnesses was dead. Our

attention, however, has been drawn to the fact that a purported

summons was taken out against the other attesting witness.

Admittedly, it was not served. There is nothing on record to

show that any step was taken to compel his appearance as a

witness. The propounder did not make any statement in his

deposition that the said witness had been won over by the

opposite party. He did not say that despite service of summons

the witness did not appear. It was only in answer to a question

in cross-examination that he stated that he did not intend to

examine the said witness. The witness might have been won

over, but there had to be some evidence on record in that behalf.

A bare statement by counsel that the attesting witness had

gone out of the country could not be accepted when the

propounder himself did not say so on oath, did not examine any

other witness and did not make any further attempt to secure

his attendance. A statement made through counsel cannot be

treated as evidence for invoking Section 69.”

76. The decision makes clear that the reason for non -

examination of an attesting witness must itself be proved. Only

after that foundation is established does the statutory relaxation

operate.

Page 38 of 65

77. In the present case, the availability of the two attesting

witnesses must be examined separately. As regards Marappa

Gounder, D.W.3 Mylasami (son of attesting witness Marappa

Gounder; brother-in-law of beneficiary Nataraja Gounder) stated

that his father had died approximately ten years earlier. Being

his son, D.W.3 was a natural witness to speak about his father’s

death. There is no material suggesting that Marappa Gounder

remained alive or available at the time of trial. The absence of a

death certificate in these circumstances was not fatal, and

Marappa Gounder’s unavailability by reason of death was

sufficiently established.

78. The position concerning Avanashi Gounder is materially

different. The only affirmative statement regarding his death was

made by D.W.1 Ramaswami Gounder (beneficiary under Will-Ex.

B-13), who stated generally that “the two witnesses signed in the

Will are dead”. He did not state when or where Avanashi

Gounder died, how he acquired knowledge of the death, whether

he knew Avanashi personally, or whether he had made any

enquiry from Avanashi’s family or village.

79. The non-production of Avanashi Gounder’s death

certificate would not, standing alone, defeat the respondents’

Page 39 of 65

case, but the difficulty is the absence of other natural form of

supporting evidence like, non-examination of the relative of

Avanashi; no resident of Karacheri was called to speak about his

death; no public or village record was produced; and no witness

described any attempt made to ascertain whether he was alive,

dead or traceable.

80. This omission assumes particular significance in the light

of D.W.3’s evidence. D.W.3 resided in Karacheri and stated that

Avanashi Gounder belonged to the same village, which had

about 300 houses. Yet D.W.3 did not state that Avanashi was

dead, but he stated that he did not even know whether Avanashi

had legal heirs. Thus, a witness belonging to Avanashi’s own

village, who was examined by the respondents, did not

corroborate the assertion of his death.

81. D.W.2, the scribe, also did not establish Avanashi

Gounder’s death or subsequent unavailability. His evidence was

confined to the alleged execution in 1976. Although he stated in

chief-examination and re-examination that Avanashi signed the

Will, he admitted in cross-examination that he did not know

Avanashi Gounder. He gave no evidence regarding Avanashi’s

position at the time of trial.

Page 40 of 65

82. The Trial Court’s finding was that no acceptable evidence

had been led to establish Avanashi Gounder’s death and that no

attempt had been made to examine his relatives or otherwise

ascertain his availability, which was a serious foundation where

its concern was the defense in the case of the propounders.

83. The High Court reversed that finding principally because

D.W.1’s statement that both witnesses were dead had not been

specifically challenged in cross-examination. It is true that the

absence of cross-examination on a material fact may add weight

to the testimony. That principle, however, is one of appreciation

of evidence and it does not mean that every unparticularised

statement must be accepted as conclusive merely because the

opposite party did not suggest the contrary.

84. Futher more importantly, the absence of a contrary

suggestion could not reverse the statutory burden. The

respondents sought to displace the ordinary requirement under

Section 68 of the Evidence Act by invoking Section 69 of

Evidence Act. It was therefore for them first to prove that no

attesting witness could be found. The appellants were not

required to establish that Avanashi Gounder was alive before the

respondents produced reliable evidence of his death or other

Page 41 of 65

unavailability. The High Court treated the absence of cross-

examination as shifting the burden even before the foundational

fact had been satisfactorily established.

85. We accordingly hold that the statutory gateway between

Sections 68 and 69 of the Evidence Act was not satisfactorily

crossed. 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 of the

Evidence Act.

86. Nevertheless, since the High Court proceeded on the basis

that Section 69 of the Evidence Act was applicable, it is

appropriate to consider whether the two substantive

requirements of that provision were otherwise fulfilled.

87. The first requirement was proof that the attestation of at

least one attesting witness was in that witness’s handwriting. In

this regard, it would be appropriate to refer to Section 47 of the

Evidence Act which reads as follows:

“47. Opinion as to handwriting, when relevant.

Page 42 of 65

When the Court has to form an opinion as to the person by

whom any document was written or signed, the opinion of any

person acquainted with the handwriting of the person by whom

it is supposed to be written or signed that it was or was not

written or signed by that person, is a relevant fact.

Explanation.- A person is said to be acquainted with the

handwriting of another person when he has seen that person

write, or when he has received documents purporting to be

written by that person in answer to documents written by

himself or under his authority and addressed to that person, or

when, in the ordinary course of business, documents purporting

to be written by that person have been habitually submitted to

him.”

88. D.W.3 stated that he knew his father’s signature and

identified the two signatures appearing on Will(Ex. B-13) as

those of Marappa Gounder. His sister was married to Nataraja

Gounder, one of the beneficiaries, and D.W.3 came to the Court

along with Nataraja. Those circumstances required cautious

assessment of his evidence, but they did not make him legally

incompetent to identify his father’s signature. A son may

naturally be acquainted with his father’s signature even though

he is related to one of the beneficiaries.

89. D.W.3’s evidence was, therefore, capable of satisfying the

first formal limb of Section 69 of the Evidence Act by proving

that the signatures attributed to Marappa Gounder were in

Marappa Gounder’s handwriting. However, the limits of his

evidence must be kept clear that D.W.3 was not present when

Page 43 of 65

Will (Ex. B-13) was executed and saw it for the first time on the

date of his deposition. He could not prove that Marappa actually

saw Arukkaniammal affix her thumb impression, received her

acknowledgment, or signed the Will in her presence. His

evidence proved the identity of the handwriting; it did not

constitute credible evidence of the ceremony of attestation.

90. The very purpose of Section 69 the Evidence Act is to

permit proof through handwriting when an attesting witness

cannot be produced. Thus, once the statutory gateway is

assumed to have been crossed, D.W.3’s inability to speak to the

actual execution does not prevent his evidence from satisfying

the limited requirement concerning one attestor’s handwriting.

However, it means that no independent attesting witness was

available to describe the actual manner in which Will (Ex. B-13)

was executed.

91. The second requirement was proof that the signature or

mark of the executant was that of the executant. Section 67 of

the Evidence Act states:

“67. Proof of signature and handwriting of person alleged

to have signed or written document produced.

If a document is alleged to be signed or to have been written

wholly or in part by any person, the signature or the

handwriting of so much of the document as is alleged to be in

Page 44 of 65

that person’s handwriting must be proved to be in his

handwriting.”

92. Arukkaniammal was illiterate and ordinarily affixed her

thumb impression. The corresponding enquiry was therefore

whether the left thumb impression appeared on Will (Ex. B-13)

belongs to Arukkaniammal.

93. D.W.2 stated that Arukkaniammal gave the instructions,

that he wrote and read over the document to her, that she

accepted it and affixed her thumb impression in his presence,

and that Marappa Gounder and Avanashi Gounder thereafter

signed. Although D.W.2 was only the scribe and not an attesting

witness, that circumstance did not make him incompetent to

testify about the physical act which he claimed to have

personally witnessed. His testimony was therefore relevant to the

second limb of Section 69 of the Evidence Act concerning the

testatrix’s mark.

94. At the same time, D.W.2’s evidence required careful

scrutiny. He admitted that he did not know Arukkaniammal’s

family or the source of her title, did not know Nanjappa Gounder,

did not know Avanashi Gounder and was not present at

registration. These admissions did not necessarily disprove his

Page 45 of 65

assertion that he saw the thumb impression being affixed.

However, they reduce the degree of independent assurance

available regarding the preparation, contents and surrounding

circumstances of the testamentary transaction, together with

the non-availability of primary witnesses.

95. Accordingly, if the applicability of Section 69 of the

Evidence Act were assumed in favour of the respondents,

D.W.3’s evidence was capable of proving the handwriting of one

attesting witness and D.W.2’s direct account was capable of

proving the thumb impression attributed to Arukkaniammal. To

that limited extent, the two formal limbs of Section 69 of the

Evidence Act could be regarded as supported by evidence.

96. That alternative conclusion does not cure the anterior

failure to establish why Avanashi Gounder could not be

produced. The evidence proving one attestor’s handwriting

becomes relevant only after the Court is satisfied that no

attesting witness can be found. It cannot retrospectively

establish the condition which activates Section 69 of the

Evidence Act.

97. Therefore, proof of the handwriting and thumb impression

does not conclude the entire enquiry into the validity of the Will.

Page 46 of 65

Section 69 of the Evidence Act, substitutes a mode of formal

proof where attesting witnesses are unavailable. It does not

create a presumption that the testatrix understood every recital,

freely adopted the testamentary scheme, possessed the requisite

capacity, or acted free from suspicious circumstances. Those

questions remain governed by the substantive principles relating

to proof of Wills.

98. We, therefore, hold that Section 69 of the Evidence Act was

not properly invoked because the Respondents failed to

satisfactorily establish the death or other unavailability of

Avanashi Gounder. Even assuming that the other provision was

available, the evidence of D.W.2 and D.W.3 would establish, at

its highest, the formal requirements concerning the mark of the

testatrix and the handwriting of one attesting witness. Whether

Will (Ex. B-13) represented the conscious, informed and

voluntary testamentary act of Arukkaniammal, and whether the

suspicious circumstances were satisfactorily removed, must be

examined under Issues III and IV.

Page 47 of 65

ISSUE III: WHETHER TESTAMENTARY CAPACITY,

KNOWLEDGE OF CONTENTS AND FREE AGENCY OF THE

WILL ARE SATISFIED

99. The enquiry under this issue is distinct from the formal

proof considered under Issues I and II. Proof that a thumb

impression appearing on Will (Ex. B -13) belonged to

Arukkaniammal would establish only the physical act attributed

to her. For the document to operate as her Will, the respondents

were also required to establish that, at the relevant time, she

possessed testamentary capacity, understood the nature and

effect of the dispositions contained in the instrument, and

adopted them as the expression of her own free will. Section 59

of the Indian Succession Act, 1925 provides:

“59. Person capable of making wills.

Every person of sound mind not being a minor may dispose of

his property by will.

Explanation 1.- A married woman may dispose by will of any

property which she could alienate by her own act during her

life.

Explanation 2.- Persons who are deaf or dumb or blind are not

thereby incapacitated for making a will if they are able to know

what they do by it.

Explanation 3.- A person who is ordinarily insane may make a

will during an interval in which he is of sound mind.

Explanation 4.- No person can make a will while he is in such

a state of mind, whether arising from intoxication or from illness

Page 48 of 65

or from any other cause, that he does not know what he is

doing.”

100. From the above, it is clear that advanced age, illness,

illiteracy, physical weakness or the use of a thumb impression

does not, by itself, render a person incapable of making a Will,

but the decisive question is whether the testatrix knew and

understood what she was doing when the instrument was

executed.

101. Section 61 deals with the separate but connected

requirement of free agency. It provides:

“61. Will obtained by fraud, coercion or importunity.

A will or any part of a will, the making of which has been

caused by fraud or coercion, or by such importunity as takes

away the free agency of the testator, is void.”

102. Thus, the Court must distinguish between a disposition

motivated by natural attachment and one produced by pressure

which overbore the testatrix’s independent judgment.

103. The governing principles were stated in H. Venkatachala

Iyengar v. B.N. Thimmajamma , AIR 1959 SC 443 and the

relevant paragraph reads as follows:

“19. However, there is one important feature which

distinguishes Wills from other documents. Unlike other

Page 49 of 65

documents the Will speaks from the death of the testator, and

so, when it is propounded or produced before a Court, the

testator who has already departed the world cannot say

whether it is his Will or not; and this aspect naturally introduces

an element of solemnity in the decision of the question as to

whether the document propounded is proved to be the last Will

and testament of the departed testator. Even so, in dealing with

the proof of Wills the Court will start on the same enquiry as in

the case of the proof of documents. The propounder would be

called upon to show by satisfactory evidence that the Will was

signed by the testator, that the testator at the relevant time was

in a sound and disposing state of mind, that he understood the

nature and effect of the dispositions and put his signature to

the document of his own free will. Ordinarily when the evidence

adduced in support of the Will is disinterested, satisfactory and

sufficient to prove the sound and disposing state of the

testator’s mind and his signature as required by law, Courts

would be justified in making a finding in favour of the

propounder. In other words, the onus on the propounder can be

taken to be discharged on proof of the essential facts just

indicated.”

104. The passage identifies four connected elements: execution

by the testatrix, a sound disposing mind, understanding of the

dispositions, and voluntary adoption of the document. Proof of

one element does not automatically establish the others.

105. The evidence of the Appellants must first be considered.

P.W.1 Vellingiri (P4) asserted that Arukkaniammal had suffered

from physical and mental incapacity from about 1975. P.W.2

Palaniswami (claimed to have treated Arukkaniammal) stated

that she had been suffering from illness for a considerable period

and that he had administered natural treatment to her.

Page 50 of 65

106. That evidence is insufficient to support an affirmative

finding that Arukkaniammal lacked testamentary capacity on

15.12.1976. P.W.2 produced no treatment record, could not

specify the relevant dates with precision and did not identify any

particular mental condition which prevented her from

understanding her acts. Evidence that an elderly person was ill

or received treatment does not, without more, establish that she

was incapable of making a Will on the particular date of

execution.

107. The case cannot therefore be decided on the footing that

incapacity was positively proved by the Appellants. The question

is whether the evidence produced by the respondents was

sufficiently satisfactory to establish the positive requirements

identified in H. Venkatachala Iyengar (supra).

108. The Respondents relied principally upon D.W.1

Ramaswami Gounder (beneficiary under Will -Ex. B-13) and

D.W.2 K.S. Srinivasa Rao (scribe of Will-Ex. B-13). D.W.1 stated

that Arukkaniammal remained in good health and sound mind

until her death. D.W.2 stated that she personally gave the

instructions for the Will; that he wrote the instrument; that it

Page 51 of 65

was read over to her; that she accepted its contents; and that

she thereafter affixed her thumb impression.

109. If these statements are considered in isolation, they

support the respondents on all three aspects: capacity,

knowledge and voluntary execution. D.W.2’s evidence, in

particular is direct evidence concerning the alleged preparation

and adoption of the document. The fact that he was only the

scribe did not make him incompetent to speak about events

which he claimed to have personally witnessed.

110. The reliability and sufficiency of that account must,

however, be tested against his cross-examination and the

contents of Will (Ex. B-13). D.W.2 admitted that he did not know

Arukkaniammal’s age, family circumstances or source of title;

did not know how the property had come to her; did not know

Nanjappa Gounder; and was not present when the Will was

registered. He also admitted that he had written the document

on the basis of the patta shown to him.

111. These admissions create a different difficulty by

weakening the assurance that D.W.2 was in a position to verify

that the material recitals and testamentary scheme truly

Page 52 of 65

originated from her informed instructions because the Will

described the properties as her self-acquired properties, whereas

the admitted case was that they had come to her from Vaiyapuri

Gounder, it also described Alamathal as her daughter and

Alamathal’s sons as her grandsons without disclosing the actual

step-relationship.

112. The descriptions of Alamathal and her sons are not

necessarily false merely because the relationship was not

biological. A person may naturally refer to a step-daughter who

was brought up as her own as “my daughter”, but in the case of

an illiterate testatrix who affixed a thumb impression, the Court

requires reliable assurance that the material contents including

the identity of the beneficiaries, exclusion of the other branches

and description of the property were explained to her and

consciously adopted by her.

113. D.W.2 stated generally that he read over the document

and that Arukkaniammal accepted it. That evidence is relevant

and cannot be ignored. However, more importantly, as he lacked

knowledge of her family and source of title, his statement does

not independently explain how the inaccurate or incomplete

Page 53 of 65

recitals entered the document or whether their legal and factual

implications were understood by her. The physical act of reading

a document aloud is not necessarily equivalent to proof that an

illiterate testatrix understood and approved the precise

testamentary scheme.

114. The need for further assurance becomes material because

Will (Ex. B-13) did not merely make a minor preference among

heirs. It conferred the entire A-Schedule property upon the four

sons of Alamathal and excluded the Ramathal and Chellammal

branches. Such a disposition was legally permissible.

Nevertheless, where the Will substantially alters the ordinary

line of succession, the evidence must demonstrate that the

exclusion was the conscious decision of the testatrix and not

merely a scheme prepared around her.

115. Alamathal was the most natural witness to explain that

part of the respondents’ case. According to the respondents,

Arukkaniammal had brought up Alamathal, regarded her as a

daughter, lived with her family, was maintained by them and

consequently intended to benefit her four sons. D.W.1

Ramaswami Gounder (beneficiary under Will-Ex. B-13) admitted

Page 54 of 65

that Alamathal was alive, approximately seventy-five years old

and capable of appearing before the Court. She who was a

crucial witness, nevertheless not examined.

116. Though, Alamathal was not an attesting witness, and her

evidence could not have cured the defects under Sections 68 or

69 of the Evidence Act. Her importance under the present issue

was different. She was the person best placed to speak about

Arukkaniammal’s relationship with the beneficiary branch, her

residence, day-to-day health, mental alertness and expressed

intentions. Her non-examination deprived the respondents’

account of the most natural source of independent confirmation.

117. No other independent person familiar with

Arukkaniammal’s daily life was examined. Neither a neighbour

nor a resident of her village was called to state that she was

mentally alert, understood her property and had expressed an

intention to exclude two branches. The principal evidence on

capacity and intention thus came from a beneficiary and the

scribe whose knowledge of the family and property was

admittedly limited.

Page 55 of 65

118. The Appellants also alleged that Alamathal and Nanjappa

Gounder exercised undue influence over Arukkaniammal. The

burden of proving fraud, coercion or undue influence ordinarily

rests upon the party who asserts it. The evidence does not justify

a positive finding that any particular act of coercion, fraud or

pressure was exercised when Will (Ex. B-13) was executed.

119. The correct conclusion must therefore be stated with

precision. The Appellants have not established that

Arukkaniammal was legally incapable of making a Will on

15.12.1976. Nor is there sufficient evidence for a positive finding

that Will (Ex. B-13) was obtained by proved fraud, coercion or

undue influence.

120. The failure lies in the Respondents’ proof. In the

circumstances of this case, an elderly and illiterate testatrix

affixing a thumb impression, substantial exclusion of two

branches, material recitals requiring explanation because of

factual errors, the beneficiary branch’s position of proximity,

and the non-examination of Alamathal, the respondents did not

produce sufficiently cogent and independent evidence that

Page 56 of 65

Arukkaniammal understood the nature and effect of the precise

dispositions and freely adopted Ex. B-13 as her Will.

121. We accordingly, on examination of all the circumstances

together, hold that testamentary incapacity was not affirmatively

proved and the Respondents failed to establish with the degree

of assurance required for a disputed Will that Ex. B-13 was the

informed mental as well as physical act of Arukkaniammal. The

connected question whether the circumstances surrounding the

document generated legitimate suspicion, and whether those

suspicions were satisfactorily removed, falls for consideration

under Issue IV.

ISSUE IV: WHETHER THE SUSPICIOUS CIRCUMSTANCES

UNDER THE WILL WERE SATISFACTORILY REMOVED

122. A suspicious circumstance is not a substitute for proof

and cannot be invented merely because a Will departs from

intestate succession. The Court must identify circumstances

arising from the document or evidence which legitimately call for

explanation. Once such circumstances exist, they must be

considered cumulatively, and the propounder must remove the

resulting doubt by cogent evidence.

Page 57 of 65

123. This Court in Bharpur Singh v. Shamsher Singh,

(2009) 3 SCC 687, identifies relevant illustrations and states

their legal effect. The complete relevant paragraphs are:

“23. Suspicious circumstances like the following may be

found to be surrounded in the execution of the Will:

(i) the signature of the testator may be very

shaky and doubtful or not appear to be his usual

signature

(ii) the condition of the testator's mind may be

very feeble and debilitated at the relevant time

(iii) the disposition may be unnatural,

improbable or unfair in the light of relevant

circumstances like exclusion of or absence of

adequate provisions for the natural heirs

without any reason

(iv) the dispositions may not appear to be the

result of the testator's free will and mind

(v) the propounder takes a prominent part in the

execution of the Will

vi) the testator used to sign blank papers

(vii) the Will did not see the light of the day for

long

(viii) incorrect recitals of essential facts.”

“24. The circumstances narrated hereinbefore are not

exhaustive. Subject to offer of reasonable explanation,

existence thereof must be taken into consideration for the

purpose of arriving at a finding as to whether the

execution of the Will had duly been proved or not. It may

be true that the Will was a registered one, but the same

by itself would not mean that the statutory requirements

of proving the Will need not be complied with.”

124. The first circumstance is the recital that the properties

were Arukkaniammal's self-acquired properties. The evidence

and the Respondents' own pleadings show that the properties

Page 58 of 65

had come to her from Vaiyapuri Gounder. Section 14(1) of the

Hindu Succession Act enlarged her interest into absolute

ownership and unquestionably gave her testamentary power. It

did not retrospectively alter the historical source of acquisition.

The High Court answered a question of power, whether she could

bequeath, whereas the Trial Court was addressing the accuracy

of a material recital in a document allegedly dictated by an

illiterate testatrix.

125. The error would not alone invalidate the Will. It assumes

significance because D.W.2 admitted that he did not know how

Arukkaniammal acquired the property and wrote on the basis of

the patta shown to him. His further admission that particulars

of the acquisition would ordinarily be mentioned if the property

were genuinely self-acquired supports the Trial Court's concern

that the recital might not have originated from an informed

instruction by the testatrix.

126. The second circumstance concerns the description of

Alamathal as “my daughter” and her sons as “my grandsons”.

Alamathal was the daughter of Pappammal, the second wife of

Vaiyapuri Gounder, and not the biological daughter of

Arukkaniammal. The responden ts offered a plausible social

Page 59 of 65

explanation that Arukkaniammal had brought up Alamathal

and treated her as her own daughter, but which is not ordinarily

acceptable for the legal instruments like Will, and that

explanation could have been established by Alamathal herself,

but she was withheld despite being available.

127. The third circumstance is the exclusion of the Ramathal

and Chellammal lines. Exclusion of an heir is not suspicious

merely because a Will changes the ordinary succession. The

relevant question is whether, in the factual context, the

preference appears to be the conscious choice of the testatrix.

Here, an issueless widow dealing with property inherited from

her husband excluded two of the three branches of the

husband's heirs and gave the entire A-schedule to the four sons

of the remaining branch. The Will states no reason for the

exclusion. The respondents rely upon care and maintenance;

but the best witness to that explanation, Alamathal, was not

examined.

128. The fourth circumstance is the relationship of Marappa

Gounder with a beneficiary. D.W.1 admitted that Marappa was

the father-in-law of Nataraja Gounder, one of the four legatees.

Also, D.W.3, Marappa's son, was the brother-in-law of Nataraja

Page 60 of 65

and he came to the Court with Nataraja and saw Will (Ex.B-13)

for the first time on the day of his evidence. Relationship does

not disqualify an attestor or make his signature false. It does

mean that the identification evidence is not wholly independent

and must be weighed with the remaining circumstances.

129. The fifth circumstance is that both named attestors

belonged to Karacheri rather than Arukkaniammal's village. No

legal rule requires a Will to be witnessed by persons from the

same village, and a distance of about three kilometres is not

inherently suspicious. The circumstance becomes relevant only

because the respondents asserted that the Will and their

possession were well known locally, yet no independent local

person was produced either to speak about execution or to

establish the testatrix's health and intention.

130. The sixth circumstance is the position of the beneficiary

branch. Nanjappa Gounder claimed possession under the 1943

lease, his family cultivated the land, effected improvements and,

according to the respondents, maintained Arukkaniammal.

These facts provide a natural reason for gratitude and

preference. They also placed that branch in a position of

proximity and practical control. The law does not presume

Page 61 of 65

influence from closeness or possession, but such a position calls

for clearer independent proof when the entire benefit is conferred

upon the same branch.

131. The seventh circumstance is the non -examination of

Alamathal. Though, she was not a formal attesting witness and

her examination could not have cured non -compliance with

Sections 68 or 69 of the Evidence Act, her evidence was

nevertheless central to the respondents' explanation of the Will

that Arukkaniammal treated her as a daughter, lived with her

family, was cared for by them and naturally wished to benefit

her sons. Withholding the person best placed to prove those facts

materially weakened the explanation.

132. The eighth circumstance concerns custody and

disclosure. D.W.1 stated that Arukkaniammal delivered the Will

to the four beneficiaries about four months before her death,

nearly nine years after execution. No independent witness to the

delivery was examined and the evidence does not explain where

the original remained during the intervening period. This

circumstance reduces the assurance otherwise sought to be

drawn from long survival and non-revocation.

Page 62 of 65

133. The ninth circumstance is a defect in the asserted mode

of proof that the Respondents did not satisfactorily establish the

death or unavailability of Avanashi Gounder. A Will already

requiring scrutiny cannot receive additional assurance from

Section 69 of the Evidence Act when the foundation for invoking

that provision is itself uncertain.

134. Each circumstance must be assigned its proper weight.

The inaccurate recital, the description of the step-daughter,

exclusion of two branches, relationship of one attestor, different

village of the witnesses, possession by the beneficiary branch,

non-examination of Alamathal, unexplained custody and weak

Section 69 of the Evidence Act foundation would not, separately,

necessarily defeat the Will. Their cumulative effect is

substantial. They required independent evidence demonstrating

that Arukkaniammal herself understood and freely adopted the

exact disposition. However, the High Court dealt with the

circumstances separately and that method did not address the

combined evidentiary picture. We agree with the Trial Court that

the legitimate doubts were not satisfactorily removed.

Page 63 of 65

CONCLUSION

135. Our conclusion in the light of the above discussion, is

that Will (Ex.B-13) has not been proved as the lawful last Will

and testament of Arukkaniammal in accordance with Section

63(c) of the Indian Succession Act read with Sections 68 and 69

of the Evidence Act. This conclusion concerns proof and

enforceability of the instrument.

136. Upon failure of the Will, Arukkaniammal must be treated

as having died intestate in relation to the suit properties. Section

15(2)(b) of the Hindu Succession Act provides that property

inherited by a female Hindu from her husband or father-in-law

shall, in the absence of any son or daughter of the deceased,

including children of a predeceased son or daughter, devolve not

upon the general heirs in Section 15(1) of the Hindu Succession

Act, but upon the heirs of the husband.

137. The properties came to Arukkaniammal from Vaiyapuri

Gounder and she died issueless. The Trial Court therefore

correctly identified three lines among the heirs of Vaiyapuri

Gounder: the line of Ramathal represented by plaintiffs 1 and 2

was entitled to one-third; the line of Chellammal represented by

plaintiffs 3 to 7 was entitled to one-third; and the line of

Page 64 of 65

Pappammal represented by Alamathal was entitled to one-third.

The plaintiffs in O.S. No. 665 of 1985 together represented the

first two lines and were collectively entitled to two-thirds.

138. Will (Ex.B-13) substantially dealt only with the A-

schedule agricultural lands and did not cover the B-schedule

house property. The Trial Court rightly granted a preliminary

decree in respect of both A and B schedules because both were

included in the partition suit and, once testamentary exclusion

failed, ordinary succession governed the parties' shares.

139. Upon failure of Will (Ex.B-13), Section 15(2)(b) of the

Hindu Succession Act governs succession. The preliminary

decree declaring the plaintiffs in O.S. No. 665 of 1985 collectively

entitled to two-thirds share in the A and B schedule properties

must be restored, and O.S. No. 1344 of 1990 for permanent

injunction must stand dismissed.

140. The appeals are accordingly allowed. The common

judgment and decree dated 28.10.2008 passed by the High

Court of Judicature at Madras in A.S. No. 231 of 1991 and

Tr.A.S. No. 503 of 2002 are set aside.

Page 65 of 65

141. The common judgment and decree dated 22.01.1991

passed by the Additional Subordinate Judge - III, Coimbatore in

O.S. No. 665 of 1985 and O.S. No. 1344 of 1990 are restored.

The parties may work out final division, possession, and

other consequential equities in final-decree proceedings and in

accordance with law.

O.S. No. 1344 of 1990 shall stand dismissed. There shall

be no order as to costs.

142. Pending applications, if any, shall stand disposed of.

……………………………………J.

(SANJAY KAROL)

……………………………………J.

(NONGMEIKAPAM KOTISWAR SINGH )

NEW DELHI;

AUGUST 13, 2026.