Madras High Court· 30 July 2026
Is a Will proved under Section 63(c) of the Indian Succession Act, 1925 where the attesting witness never identifies his signature in it?
G.Ravichandran v. K.Arulmozhi
S.A.Nos.609 of 2023 · S.A.Nos.609 of 2023
Coram: Justice S.Sounthar
Answer
No. The attestor of the testamentary document must identify his signature in the Will and depose about the attestation of that document. Where the Will was marked through the propounder and was already in the custody of the Court, and was never shown to the attestor when he was in the witness box, a general statement in his proof affidavit about execution and attestation is not useful to prove the Will.
Headnote
Indian Succession Act, 1925 — s.63(c) — Indian Evidence Act, 1872 — s.68 — Hindu Succession Act, 1956 — s.15(2)(a) — Proof of Will — Attestation — Adverse possession —
Indian Succession Act, 1925 — s.63(c) — Proof of Will — Attestor must identify his signature —
Held: The attestor of a testamentary document must identify his signature in the Will and depose about the attestation. Where the original Will lay in the custody of the Court and was never shown to the attestor in the witness box, a general statement in his proof affidavit does not prove the Will. (¶17, 18)
Indian Succession Act, 1925 — s.63(c) — Attestation — Deposition that the other attestor also signed —
Held further: Where the attestor identifies his signature, deposes that the testatrix signed in his presence and that the other attestor also signed the Will, the ingredients of Section 63(c) are substantially satisfied, more so when there is no specific cross examination on that attestation. (¶21)
Indian Succession Act, 1925 — Genuineness of Will — Inclusion of property already sold by testatrix —
Held further: Inadvertent inclusion of property already sold by the testatrix does not by itself raise suspicious circumstances impeaching the genuineness of the entire Will; the beneficiary simply acquires no title over the property so sold. (¶23)
Adverse possession — Plea must be specifically pleaded and strictly proved —
Held further: A plea of adverse possession shall be specifically pleaded and strictly proved by cogent evidence, and interested testimony alone cannot establish hostile possession for more than the statutory period. Second appeals dismissed. (¶30, 32, 33)
In the Court's own words
Paragraph 17A perusal of the records would indicate that Ex.A4-Will was not marked through attestor viz., P.W.2. However, it was marked through beneficiary viz., P.W.1 plaintiff. A perusal of the Court endorsement in Ex.A4-Will would indicate that it was marked through P.W.1 on 19.11.2012. The proof affidavit of attestor to the said testamentary document was sworn only on 29.01.2013 and the same was filed before the Court on 05.02.2013. Therefore, it is clear that when the proof affidavit was prepared in the office of the counsel for the plaintiff, Ex.A4-Will was already filed before the Court and P.W.2 attestor had no occasion to identify his signature in the said Will. A perusal of the chief examination of P.W.2 in Court on 05.02.2013 would indicate that he simply deposed that the averments found in his proof affidavit were true. Thereafter matter was adjourned for cross examination. Neither in the chief examination nor in the cross examination, Ex.A4-Will, S.A.Nos.609 of 2023 & 55 of 2025 which was already in the custody of the Court was shown to P.W.2 and he never identified his signature found in Ex.A4 before the Court. Though P.W.2 in his proof affidavit mentioned about the execution of Will by Rajamani Ammal and attestation of the same, when the original Will was not shown to the witness and he had no occasions to identify his signature found in the Will, we cannot say that the Will has been proved. In this regard, it would be appropriate to refer the judgment of this Court in Govindan Chettiar (Died) Vs. Akilandam alias Seethalakshmi and 24 others reported in 1997-3-L.W.673, wherein while dealing with the similar situation, this Court observed as follows:
Paragraph 18Therefore, it is clear that the attestor of the testamentary document must identify his signature in the Will and depose about the attestation of the said document. In the case on hand, in the proof affidavit, there is a general statement by the attestor P.W.2 regarding the attestation of the Will executed by Rajamani Ammal. However, as mentioned earlier, the original Will of Rajamani Ammal was not available with the plaintiff when proof affidavit was prepared on 29.01.2013 as the said document was filed before the Court as early as 19.12.2012 and marked as Ex.A4 through propounder of the Will, who was examined as P.W.1. When original Will has not been identified by the attestor and he has not made any statement regarding attestation of the Will after identifying his signature in the document, we cannot say that the evidence of P.W.2 regarding the attestation of the Will executed by Rajamani Ammal without identifying his signature in testamentary document would prove the said Will. A close scrutiny of evidence of attestor would indicate that the Will which was already in the custody of the Court was not at all shown to him when he was in witness box. Therefore, I have no hesitation in coming to the conclusion that evidence of P.W.2 attestor is not at all useful to prove the Ex.A4-Will relied S.A.Nos.609 of 2023 & 55 of 2025 on by the plaintiff.
Acts & Sections
s.63(c) Indian Succession Act, 1925s.15(2)(a) Hindu Succession Act, 1956s.68 Indian Evidence Act, 1872One judgment a day. That's the whole habit.
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