Summary
| Category | Data |
|---|---|
| Court | Supreme Court of India |
| Case Number | C.A. No.-014825-014826 – 2025 |
| Diary Number | 16986/2025 |
| Judge Name | HON’BLE MR. JUSTICE AHSANUDDIN AMANULLAH |
| Bench | HON’BLE MR. JUSTICE AHSANUDDIN AMANULLAH; HON’BLE MR. JUSTICE K. VINOD CHANDRAN |
| Precedent Value | Binding |
| Overrules / Affirms |
|
| Type of Law | Civil law – Succession/Wills |
| Questions of Law | Whether a will can be duly proved under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act when an attesting witness’s testimony regarding a co-attestor is elicited through leading questions in cross-examination? |
| Ratio Decidendi |
The Court held that proof of a will under Section 63(c) of the Succession Act read with Section 68 of the Evidence Act requires examination of at least one attesting witness who must testify to the testator’s signature and co-witness attestation. Even if direct proof is missing in chief evidence, a positive suggestion in cross-examination establishing the missing attestation satisfies the statute. Responses to leading questions in cross-examination carry full probative value. Minor discrepancies in witness recollection after decades do not defeat proof where no suspicious circumstances on testamentary capacity exist. |
| Judgments Relied Upon |
|
| Logic / Jurisprudence / Authorities Relied Upon by the Court |
|
| Facts as Summarised by the Court |
A will dated 26.03.1988 (registered 27.03.1988) excluded one of nine children. An injunction suit in 1990 produced only a copy of the will; plaintiff did not contest. A partition suit was filed in 2011. Only one attesting witness (DW-2) was alive and examined; trial and High Court found the will unproved for lack of proof of the second attestation. The Supreme Court analysed the deposition of DW-2 (including cross-examination suggestions) and held the attestation requirement satisfied, reversing both courts. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts |
| Persuasive For | Other High Courts |
| Distinguishes | Gopal Swaroop v. Krishna Murari Mangal & Ors. (2010 14 SCC 266) |
| Follows |
|
What’s New / What Lawyers Should Note
- A will’s attestation requirement can be satisfied if an attesting witness confirms both signatures (self and co-witness) in response to a leading question in cross-examination.
- Responses to leading questions in cross-examination carry full probative value and are not to be disregarded when proving wills under Section 68 of the Evidence Act.
- Courts need examine only one available attesting witness under Section 63 of the Succession Act, provided that witness testifies to the testator’s signature and co-witness attestation.
- Minor discrepancies in witness recollection after decades do not preclude proof of a will when no suspicious circumstances as to testamentary capacity exist.
Summary of Legal Reasoning
- Trial court and High Court disbelieved the will due to lack of proof of the second attestor under Sections 63 and 68.
- The Supreme Court examined DW-2’s chief evidence: confirmation of the testator’s signature, presence of Sub-Registrar and attestors, and attestation by DW-2.
- In cross-examination, the plaintiff’s leading suggestion elicited DW-2’s admission that “others” (i.e., the second attestor) signed on the date the will was prepared.
- The Court held that such cross-examination admissions satisfy Section 68 Evidence Act’s requirement and carry full probative value.
- No suspicious circumstances on the testator’s physical or mental capacity were found, satisfying the judicial conscience rule.
- Concluded that the will was duly executed and attested; set aside the lower courts’ judgments.
Arguments by the Parties
Petitioner (Appellants):
- The sole attesting witness, DW-2, spoke to the testator’s signature and his own attestation, and via cross-examination confirmed the other attestor’s signature, satisfying Section 63 and 68.
- Minor memory lapses after 24 years are natural and do not undermine proof.
- The plaintiff had knowledge of the will since 1990 and is estopped from challenging it.
Respondent (Plaintiff):
- The will was not duly proved because DW-2 failed in his examination-in-chief to testify to the second attestor’s signature.
- Discrepancies about the dates of DW-2’s visits cast doubt on execution and attestation.
- The earlier injunction suit producing only a copy of the will does not bar a partition claim, but proof remains insufficient.
Factual Background
One N.S. Sreedharan executed a registered will on 26–27 March 1988 excluding one of his nine children. In 1990, his eight other children obtained an ex parte injunction restraining the excluded child from interference, producing only a copy of the will. The excluded child filed a partition suit in 2011. At trial, only one of two attesting witnesses (DW-2) was alive; both the trial court and High Court held the will unproved for lack of evidence on the second attestor’s signature. The Supreme Court granted leave and heard cross-examination of DW-2 before reversing.
Statutory Analysis
- Section 63(c), Indian Succession Act, 1925: A will must be signed by the testator and attested by at least two witnesses, each signing in the testator’s presence.
- Section 68, Indian Evidence Act, 1872: If attesting witnesses are alive and capable, they must be called to prove execution before resort to other evidence.
- Section 71, Indian Evidence Act: Secondary evidence of handwriting is impermissible without exhausting Section 68; not invoked in this case.
Alert Indicators
- ✔ Precedent Followed – Confirms established requirements for proof of wills under Section 63 Succession Act and Section 68 Evidence Act.
- 🔄 Conflicting Decisions – Distinguishes the departure in Gopal Swaroop v. Krishna Murari Mangal & Ors. regarding co-attestor proof.