OSA No. 170 of 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28-09-2026

CORAM

THE HON'BLE MR. JUSTICE P. VELMURUGAN

AND

THE HON'BLE MR. JUSTICE GK. MUTHUKUMAAR

O.S.A.No.170 of 2022

CNR: {HCMA013098392018}

1.N.Durgabai (Died)

W/o.Late K.Neelakandan

2.N.Uvarajan

S/o.Late K.Neelakandan

Both residing at

No.12, Gopal Reddy Colony,

3

rd

Cross Street,

Jawahar Nagar,

Chennai – 600 082.

..Appellant(s)

Vs

1.Mrs.C.S.Pandari Bai

W/o.Mr.Chandra Sekar,

No.15, Gopal Reddy Colony,

East Main Road,

Sembium,

Chennai – 600 082.

2.Mrs.Sasikala

W/o.Mr.Subramani,

No.25/51, Portuguese Church Street,

Seven Wells,

Chennai – 600 001.

3.N.Thirunavukkarasu

S/o.Late K.Neelakandan,

No.12, Gopal Reddy Colony,

3

rd

Cross Street, Jawahar Nagar,

Chennai – 600 08

(RR1 to 3 are recorded as LRs of the deceased

__________

Page1 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

1

st

appellant vide Court order dated 16.09.2019

in O.S.A.SR.No.30235 of 2018 as per memo

dated 04.04.2019 by this Court)

..Respondent(s)

Prayer: Original Side Appeal filed under Order XXXVI Rule 9 of Original Side

Rules read with Clause 15 of the Letters Patent, praying to set aside the

Judgment and Decree dated 27.02.2017 passed in T.O.S.No.22 of 2010 and to

allow the above said Original Side Appeal.

For Appellant(s): Mr.M.Balasubramanian

For Respondent(s):Mr.R.Chakkaravarthy for R1 and R2

R-3 – No appearance

JUDGMENT

GK. MUTHUKUMAAR, J.

This Original Side Appeal has been preferred by the unsuccessful

plaintiffs challenging the Judgment and Decree dated 27.02.2017 passed in

T.O.S.No.22 of 2010 by the Learned Single Judge of this Court, dismissing the

plaintiffs' relief seeking for grant of Letters of Administration with regard to the

registered Will dated 19.12.1983 of Late K.Neelakandan which has been

marked in the suit as Ex.P1.

2.The parties are referred to as per the array in the Testamentary Original

Suit.

3.The case of the plaintiffs is that the Late K. Neelakandan had executed

a registered Will dated 19.12.1983 with respect to three items of his property,

__________

Page2 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

which are the subject matter of the said Will Ex.P1. The said Neelakandan

(Testator) died on 18.1.1992, whereupon this Will came into effect.

3.1.The first plaintiff is the wife of the Testator. Plaintiffs 2 and 3 are his

sons, while defendants 1 and 2 are his daughters. The plaintiffs claim right to

three items of properties bequeathed to them under the said Will. No executors

have been appointed under the Will. Upon the death of the Testator, the

plaintiffs filed an Original Petition in O.P.No.160 of 2008 before this Court,

praying for the grant of Letters of Administration with the said Will annexed, to

the plaintiffs. The said Original Petition was contested by the defendants, and in

view of which, it was converted into a Testamentary Original Suit and

renumbered as T.O.S.No.22 of 2010.

3.2.The defendants contested the Testamentary Original Suit by filing a

written statement, whereby they denied the execution of the alleged Will by the

Testator. Further, they contended that, during the period of execution, the

Testator was not of stable mind and that the plaintiffs had obtained the Will by

fraudulent means, coercion, and misrepresentation.

4.During trial, two witnesses were examined as PW1 and PW2 on the

plaintiffs' side, and Exs.P1 to P7 were marked. On the defendants' side, the

second defendant examined herself as DW1, and no documents were marked.

__________

Page3 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

PW1 is the second plaintiff, while PW2 is one Mr.P.M.Ganesh, who had been

examined to identify the Testator's signature and execution of the Will and for

the purpose of Section 69 of the Indian Evidence Act, 1872 (Evidence Act).

5.Upon consideration of the pleadings, and evidence, and documents on

record, the Learned Single Judge, by order dated 27.02.2017, dismissed the

Testamentary Original Suit mainly on the ground that the plaintiffs had not

established the signatures of the attesting witnesses either under Section 68 or

under Section 69 of the Evidence Act, and hence, held that the plaintiffs had not

proved the Will Ex.P1 in the manner known to law.

6.Being thus aggrieved, the plaintiffs have preferred this Original Side

Appeal challenging the dismissal of the Testamentary Original Suit.

7.We have heard the detailed arguments of Mr.M.Balasubramanian,

Learned Counsel for the appellants, and Mr.R.Chakkaravarthy, Learned

Counsel for the respondents 1 and 2.

8.The main contention of the Learned Counsel for the appellants is that

the execution of Will Ex.P1 has been established in view of the oral testimony

of one Mr.P.M.Ganesh, who was examined as PW2. He would also contend

that, since the attesting witnesses are not available, they could not be examined

__________

Page4 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

and hence recourse had been taken to Section 69 of the Evidence Act to

establish the attestation of the Will by the attesting witnesses to the Will by

examining PW2 to identify the signatures of the attesting witnesses in the Will.

He drew the attention of this Court to the evidence of PW1, PW2, and DW1 to

substantiate his contention. He would further contend that, though the

defendants plead coercion, misrepresentation, and fraudulent means being

employed by the plaintiffs to get the Will executed, there is absolutely no

evidence to this effect and hence, in the absence of evidence, this attack of the

defendants on the Will fails. He would also rely on the proof affidavit of one R.

Natesan, about whom PW1 has spoken in the proof affidavit of PW1, as having

been present at the time of execution and registration of the Will by the

Testator. He would also rely on a registered Mortgage Deed, Ex.P4, to establish

the genuineness of the signature of the Testator. He would therefore contend

that the Learned Single Judge dismissed the petition for the grant of Letters of

Administration without proper consideration of the oral and documentary

evidence that was on record and hence, prayed that this Original Side Appeal

may be allowed and Letters of Administration be granted to the plaintiffs.

8.1.The Learned Counsel for the appellants would rely on the following

citations in support of his contentions:

1.Janaki Devi vs. R.Vasanthi & others reported in 2005-1-L.W.455;

2.Ganesan (D) through LRs. vs. Kalanjiam and Others reported in 2019

__________

Page5 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

(6) CTC 85;

3.Karpagam and Another vs. E.Purushothaman and Others reported in

2010-3-L.W.282;

4.Savithri and Others vs. Karthyayani Amma and Others reported in

(2007) 11 SCC 621.

9.Per contra, the Learned Counsel appearing for the defendants would

submit that none of the attesting witnesses were examined as per the mandatory

requirement of Section 68 of the Evidence Act. He would contend that PW2

only identifies the signature of the Testator, while there is no evidence as

regards the identification of the signature of the attesting witnesses. As such, he

would submit that the requirement under Sections 68 or 69 of the Evidence Act

has not been met.

10.Upon considering the arguments of both the Learned Counsel, the

pleadings, and the oral and documentary evidence on record and the law on this

aspect, this Court finds that the only issue which arises for consideration in this

appeal is as to whether the requirements of Sections 68 and 69 of the Evidence

Act with regard to the identification of the signatures of the attesting witnesses

in the Will Ex.P1 have been established.

__________

Page6 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

11.From the materials on record, we find that the Testator, Neelakandan,

is said to have executed a Will dated 19.12.1983, and that the same was

registered. The said Will has been marked as Ex.P1. The Will came into effect

upon the death of the Testator on 18.01.1992. In the suit, the execution of the

Will by the Testator has been established by the examination of PW1 and PW2.

Their evidence has not been dislodged in cross examination. However, we find

that none of the two attesting witnesses, viz., M.Munuswamy and R.Subramani

have been examined. The plaintiffs have not given any convincing reason as to

why any of the two attesting witnesses have not been examined. On the other

hand, there is a contradiction as regards the availability of the attesting

witnesses. In the Original Petition, at Para 4, it has been stated that the attesting

witnesses are no more, meaning that they are dead. Moreover, the second

plaintiff, who examined himself as PW1, in his proof affidavit dated

27.01.2016, would state that the whereabouts of the attesting witnesses are not

known since they left their residence long back in view of the closure of Binny

Mill where they were working. However, in his cross-examination, PW1 would

clarify this inconsistency by stating that what was stated in the Original Petition

is wrong and that the correct statement is that the attesting witnesses Subramani

and Munuswamy were not found at the address mentioned in the Will Ex.P1. In

this regard, it is seen that, the plaintiffs have not taken any steps to find out the

whereabouts of the two attesting witnesses and present them for examination.

No summons have also been taken out at their instance so as to secure the

__________

Page7 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

presence of the attesting witnesses for the purpose of giving evidence in these

proceedings so as to prove the Will. We also find that even the scribe has not

been examined and it is stated that he is no more.

12.It is therefore seen that both PW1 and PW2 identify the signature of

the Testator in the Will Ex.P1. This identification has not been dislodged by the

defendants in cross-examination. PW2 also speaks about the visit by the

Testator along with four others to the Sub-Registrar's Office for the purpose of

registration of the Will. The execution of the Will by the Testator by affixing

his signature on it is established. However, this by itself is not sufficient to hold

that the execution of the Will has been duly proved. This is because the law

mandates that the signature / handwriting of the attesting witness also has to be

proved, in addition to proving the signature of the Testator in the Will.

13.In this regard, the provisions of Section 63(c) of the Succession Act

are relevant. Section 63 reads thus:

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:—

__________

Page8 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

(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 acknowledgement 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.

13.1.From the above, particularly Section 63 clause 'c', it is clear that not

only should the Testator sign the Will in the presence of both the witnesses, but

both the witnesses have to attest the Will only in the presence of the Testator.

This is a statutory requirement. Only when this is satisfied, can it be said that

the Will has been duly executed and is valid.

14.In view of the above, it is amply clear that it is not sufficient if the

signature of the Testator in the Will and the execution by the Testator alone are

__________

Page9 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

proved. On the other hand, the attestation of the Will by both the witnesses in

the presence of the Testator will also have to be proved and for which purpose,

as per mandatory requirement of Section 68 of the Evidence Act, at least one of

the attesting witnesses has to be examined. Section 68 which is extracted

hereunder:

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 a Will, which has been registered in accordance with the

provisions of the Indian Registration Act, 1908 (16 of 1908),

unless its execution by the person by whom it purports to have

been executed is specifically denied.]

15.In this instant case, it is seen that there are no attesting witnesses

available for examination. So in a situation where no attesting witnesses can be

found, as in the present case, then resort can be had to establish the handwriting/

signature of the attesting witness in the Will, in accordance with Section 69 of

the Evidence Act.

15.1.Section 69 of the Evidence Act reads thus:

__________

Page10 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

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.

16.The judgment of the Hon’ble Supreme Court in the case of Ramesh

Chand (D) through LRs vs. Suresh Chand and another reported in 2025 INSC

1059 is of relevance on this point. The relevant paragraph of the said Judgement

is extracted hereunder:

“27.....There is not an iota of discussion about the

validity of the Will as contemplated under Section 63 of the

Succession Act, 1925 and Section 68 of the Evidence Act, 1872

and yet, the validity of the Will has been upheld. This is

contrary to law. Even the High Court, while evaluating the

validity of the Will, has gone on a different tangent and has

erroneously held that the requirement of examining the

attesting witnesses springs into action only in cases of disputes

between legal heirs. Such an observation is quite contrary to

law, for Section 68 of the Evidence Act makes it mandatory to

examine at least one of the attesting witnesses of the Will....”

17.From the above, we find that when the attesting witness is not

available, as in the instant case, then as per the mandate of Section 69, the

handwriting of atleast one of the attesting witnesses and the signature of the

executant (Testator) has to be proved as being that of the Testator or the

__________

Page11 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

attesting witnesses.

18.Therefore from the above, it is seen that even if the execution of the

Will by the Testator is not in dispute, still, as per the requirements of Section 63

of the Indian Succession Act, 1925 (Succession Act) and Section 68 of the

Evidence Act, the examination of at least one of the attesting witnesses or

proving his signature is a mandatory requirement and the same cannot be

dispensed with.

19.Now, in the backdrop of the legal propositions and the law laid down

by the Hon'ble Supreme Court as extracted above, in the instant case, we find

that though the signature of the Testator on Ex.P1, its execution, and

registration have been proved, as is evident from the evidence of PW1 and

PW2, and these aspects have not been dislodged in the cross-examination, still,

non-examination of the attesting witnesses and not proving the handwriting/

signature of the attesting witnesses on the Will is fatal to the case of the

plaintiffs. Though PW2 speaks about the Testator affixing his signature in his

presence in Ex.P1 and identifies the signature of the Testator in Ex.P1, there is

no specific identification of the two attesting witnesses by him. Further, the

names of the attesting witnesses are not spoken to by PW2. That apart, neither

PW2 nor PW1, in express terms, identify the handwriting and signature of the

attesting witnesses to the Will Ex.P1.

__________

Page12 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

20.Therefore, in a case of this nature, where, though the signature and

signing of the Will by the Testator have been established, non-examination of

the attesting witnesses as mandated under Section 68 of the Evidence Act or, in

their absence, not proving the handwriting/signature of at least one of the

attesting witnesses in the Will as mandated under Section 69 will lead to the

Will not being proved in the manner known to law. Therefore, we find that,

despite establishing the signature and execution by the Testator, since the

plaintiffs have failed to establish the signature of the attesting witnesses in the

Will, they have failed to comply with the requirements of Section 63(c) of the

Succession Act, and Sections 68 and 69 of the Evidence Act, which are

mandatory requirements that have to be strictly complied with.

21.In view of the above findings, we find that the Judgments relied upon

by the Learned Counsel for the appellants do not address the issue on hand

which we have discussed above, and hence, the same does not support the

contentions of the plaintiffs.

22.Therefore, we concur with the findings of the Learned Single Judge in

this regard, that the Will Ex.P1 has not been proved in the manner known to

law, and hence, the Will, Ex.P1 cannot be said to be a valid Will capable of

being granted Letters of Administration under law.

__________

Page13 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

23.For these reasons, we find no infirmity in the order of the Learned

Single Judge, and hence, we confirm the same. In view of the same, this

Original Side Appeal is dismissed.

23.1.In the facts and circumstances of this case, the parties are directed to

bear their own costs.

(P.V.,J.) (GK.M.,J.)

28-09-2026

Index: Yes/No

Speaking/Non-speaking order

Neutral Citation: Yes/No

PAM

__________

Page14 of 15 https://www.mhc.tn.gov.in/judis

OSA No. 170 of 2022

P. VELMURUGAN, J.

AND

GK. MUTHUKUMAAR, J.

PAM

O.S.A.No.170 of 2022

28-09-2026

__________

Page15 of 15 https://www.mhc.tn.gov.in/judis