Supreme Court of India· 13 August 2026

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?

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

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Answer

No particular form of proof, such as a death certificate, is invariably indispensable; death may be proved through credible oral evidence from a close relative or another person having direct knowledge. An interested beneficiary's bare, unparticularised assertion, unsupported by any village or family evidence, does not meet that standard.

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 74The 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.

Paragraph 77In 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.

Paragraph 78The 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.

Paragraph 79The non-production of Avanashi Gounder’s death certificate would not, standing alone, defeat the respondents’ 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.

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 India

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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?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?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?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections