Signature, Thumb Impression Or Registration Not Enough To Prove A Will: Supreme Court

The Supreme Court has held that a Will cannot be treated as valid merely because it bears the testator's signature or thumb impression or has been registered. Every unprivileged Will must be attested by at least two witnesses, and its due execution and attestation must be proved in accordance with law, Court clarified.

A Bench of Justices Sanjay Karol and N Kotiswar Singh said the person seeking to rely on a Will must discharge the primary burden of proving its due execution and attestation. In the present case, the propounders failed to prove the Will either through the ordinary mode under Section 68 or the substituted mode under Section 69 of the Indian Evidence Act.

Section 69 of the Indian Evidence Act explains how to prove a signed document when you cannot find any of the witnesses who watched it get signed.

What Does The Law Require To Prove A Will?

Under Section 63(c) of the Indian Succession Act, a Will must be attested by at least two witnesses who have seen the testator sign or affix a mark on it, or received a personal acknowledgment of the signature or mark.

The Supreme Court said mere presence of a signature or mark is insufficient and the statutory requirement of attestation by two witnesses must be strictly proved.

Court also made it clear that registration does not alter this requirement. A registered Will must still be proved through an attesting witness if one is alive, available and capable of giving evidence.

"Section 68 does not dilute the requirement that the Will itself must have been 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," the Bench said.

Court further held that a person who was merely present when the Will was executed cannot substitute for an attesting witness by subsequently describing what he claims to have seen.

"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," it said.

Section 69 of the Evidence Act, therefore, is not an alternative mode of proof that the propounder can freely choose. It is an exceptional mode available only when proof through an attesting witness has become impossible.

In the present case, the respondents could not invoke Section 69 as they failed to establish the death or unavailability of one of the named attesting witnesses.

Why Did The Supreme Court Find The Will Suspicious?

The Bench said the burden lies on the propounder of a Will to remove legitimate suspicious circumstances surrounding its execution.

Where a Will substantially changes the normal line of succession or contains material factual errors, cogent and independent evidence is required to establish that the testator understood and freely adopted the disposition, Court said.

The Will in the present case contained several such circumstances.

It incorrectly described inherited property as "self-acquired". Court considered this a substantial suspicious circumstance, particularly since the scribe admitted that he had drafted the recitals without verifying the actual root of title.

The Will also described a step-daughter as a biological daughter without explaining the actual relationship. The bench said this created doubt, particularly because the testator was illiterate and had affixed a thumb impression. In such circumstances, clear proof was required that the contents of the Will had been explained to and understood by her.

Court also noted the unexplained exclusion of natural legal heirs. While excluding natural heirs is legally permissible, the absolute exclusion of entire branches of heirs without any reason stated in the Will calls for cogent explanatory evidence.

Similarly, an attesting witness being a close relative by marriage of a primary beneficiary does not disqualify the witness. However, the Bench said such testimony lacks an independent character and requires stricter scrutiny.

The fact that the attesting witnesses came from another village was also considered. Court said this was not illegal per se, but became a suspicious circumstance where the propounder claimed that the Will was openly known locally but failed to examine any local, independent witness.

The Bench further observed that where beneficiaries live close to, manage the property of, or care for an elderly or illiterate testator, the law does not automatically presume undue influence. However, such circumstances require clearer independent proof that the disposition was voluntary.

The non-examination of an available family member who was best placed to speak about the testator's mental alertness, care and testamentary intentions also weakened the propounder's case.

Court additionally noted that the Will remained in undisclosed custody for several years, without independent proof of when and how it was delivered to the beneficiaries. This weakened the defence based on the testator's long survival without revoking the Will.

What Happens To The Property When The Will Fails?

The case concerned a family succession and partition dispute arising from a registered Will dated December 15, 1976, allegedly executed by Arukkaniammal, the issueless third wife of Vaiyapuri Gounder, the original owner.

After examining the evidence, the Supreme Court held that the Will had not been proved as the lawful last Will and testament of Arukkaniammal under Section 63(c) of the Indian Succession Act read with Sections 68 and 69 of the Evidence Act.

Court said that once the Will failed, Arukkaniammal had to be treated as having died intestate in relation to the suit properties.

It then applied Section 15(2)(b) of the Hindu Succession Act, 1956. The provision provides that where a female Hindu dies intestate and without a son or daughter, property inherited by her from her husband or father-in-law devolves upon the heirs of her husband rather than her general heirs under Section 15(1).

"This provision dictates the devolution path once a testamentary disposition fails," the Bench said.

Accordingly, Court held that the property inherited by Arukkaniammal from her husband, in the absence of her own issue, would devolve upon her husband's heirs.

The Supreme Court restored the preliminary decree declaring the plaintiffs collectively entitled to a two-thirds share in the A and B schedule properties and directed that the suits for permanent injunction stand dismissed.

It consequently allowed the appeals against the common judgment and decree dated October 28, 2008, passed by the Madras High Court, which had allowed the respondents' first appeals and decreed their suit for permanent injunction.

Case Title: Pazhanathal (Dead) Thr LRs & Ors Vs Alamathal (Dead) Thr LRs & Ors

Bench: Justices Sanjay Karol and N Kotiswar Singh 

Date of Judgment: August 13, 2026