Supreme Court of India· 13 August 2026
Does an opposing party's failure to cross-examine a propounder's bare assertion that an attesting witness is dead, by itself, discharge the propounder's burden of proving unavailability?
Pazhanathal (Dead) Through LRs. & Ors v. Alamathal (Dead) Through LRs. & Ors
2026 INSC 860 · Civil Appeal Nos. 10169-10170 of 2013
Coram: Nongmeikapam Kotiswar Singh; Sanjay Karol
Answer
No. The absence of cross-examination on a material fact is a principle of appreciation of evidence; it does not mean that every unparticularised statement must be accepted as conclusive, and it cannot reverse the statutory burden resting on the propounder to prove the attesting witness's unavailability before invoking Section 69 of the Evidence Act.
Headnote
Indian Succession Act, 1925 — s.63(c) — Evidence Act — s.69 — Hindu Succession Act, 1956 — s.15(2)(b) — Proof of Wills — Attestation — Testamentary capacity — Suspicious circumstances — Devolution on intestacy —
Indian Succession Act, 1925 — s.63(c) — Attestation — Scribe without animus attestandi —
Held: An unprivileged Will must be attested by two or more witnesses who sign with animus attestandi. A scribe who signs only as writer, without that intention, is not an attesting witness and cannot be substituted for either named witness. (¶59, 67)
Evidence Act — s.69 — Proof of Wills — Condition precedent for substituted proof —
Held further: Section 69 permits proof by handwriting only after the propounder proves that no attesting witness can be found. An interested beneficiary's unrebutted but unparticularised assertion of death does not reverse the statutory burden or establish the condition precedent. (¶73, 84, 96)
Indian Succession Act, 1925 — s.59 — Testamentary capacity — Suspicious circumstances considered cumulatively —
Held further: Proof of a testatrix's mark establishes only the physical act, not a sound disposing mind, understanding of the dispositions, or voluntary adoption. Suspicious circumstances surrounding a Will must be considered cumulatively, with cogent evidence needed to remove the doubt. (¶104, 121, 134)
Hindu Succession Act, 1956 — s.15(2)(b) — Devolution on intestacy — Heirs of the husband —
Held further: Will (Ex.B-13) was not proved, so Arukkaniammal must be treated as having died intestate, and her properties devolve upon the heirs of her husband under Section 15(2)(b). The appeals are allowed and the Trial Court's decree stands restored. (¶135, 136, 140)
In the Court's own words
Paragraph 83The 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.
Paragraph 84Futher 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 unavailability. The High Court treated the absence of cross- examination as shifting the burden even before the foundational fact had been satisfactorily established.
Paragraph 85We 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.
Acts & Sections
Section 63(c) of the Indian Succession Act, 1925Section 68 of the Indian Evidence Act, 1872Section 69 of the Indian Evidence Act, 1872Section 15(2)(b) of the Hindu Succession Act, 1956Section 59 of the Indian Succession Act, 1925Section 61 of the Indian Succession Act, 1925Section 14(1) of the Hindu Succession Act, 1956Section 47 of the Indian Evidence Act, 1872Section 67 of the Indian Evidence Act, 1872Section 15(1) of the Hindu Succession Act, 1956Article 136 of the Constitution of IndiaOne judgment a day. That's the whole habit.
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Also decided in this judgment
Can a scribe who signs a Will only as its writer, without animus attestandi, be treated as an attesting witness proving due execution under Section 68 of the Evidence Act?Does proof of one attesting witness's handwriting and the testatrix's mark satisfy Section 69 of the Evidence Act where the propounder has not proved that no attesting witness could be found?Is a death certificate mandatory to prove an attesting witness's death under Section 69 of the Evidence Act, where the only evidence is an interested beneficiary's bare assertion?Does proof that a testatrix's thumb impression appears on a Will establish that she possessed testamentary capacity and freely adopted its contents?Does withholding a witness who was best placed to prove facts central to a Will's genuineness, though she was available and capable of appearing before the Court, weaken the propounder's explanation?Must suspicious circumstances surrounding a Will's execution be assessed cumulatively, or can each be explained away separately without considering their combined effect?Does Section 14(1) of the Hindu Succession Act, 1956, enlarging a widow's limited estate into absolute ownership, alter the historical source of the property for Section 15(2)(b) succession?Under Section 15(2)(b) of the Hindu Succession Act, 1956, upon whose heirs does property inherited by a female Hindu from her husband devolve where she dies issueless and intestate?