Supreme Court of India· 17 December 2025
Under Section 68 of the Indian Evidence Act, 1872 read with Section 63(c) of the Indian Succession Act, 1925, what must the single attesting witness examined depose to before a will can be held proved?
K. S. Dinachandran v. Shyla Joseph & Ors.
2025 INSC 1451 · Civil Appeal arising out of SLP (C) Nos. 11057-11058 of 2025
Coram: K. Vinod Chandran; Ahsanuddin Amanullah
Answer
He must speak on the execution of the will by the testator — which he witnessed or which the testator acknowledged — on his own attestation, and also on the attestation by the other witness. If the attesting witness examined does not, besides his attestation, satisfy the requirement of attestation of the will by the other witness, it falls short of attestation of the will by at least two witnesses, because execution of a will does not merely mean the signing of it by the testator but fulfilling and proof of all the formalities required under Section 63 of the Succession Act.
Headnote
Indian Succession Act, 1925 — s.63(c) — Indian Evidence Act, 1872 — s.68 — s.71 — Proof of will — Attestation by both witnesses — Leading questions in cross-examination — Rule of prudence — Exclusion of one heir —
Indian Evidence Act, 1872 — s.68 — Indian Succession Act, 1925 — s.63(c) — Attesting witness must prove both attestations —
Held: The one attesting witness examined must speak on the execution of the will by the testator, on his own attestation and on the attestation by the other witness; anything short of that falls short of attestation by two witnesses. (¶15, 16)
Indian Evidence Act, 1872 — s.68 — Proof of will — Answer elicited by a leading question in cross-examination —
Held further: Where the examination-in-chief is silent on the other witness’s attestation but the plaintiff’s own cross-examination elicits an affirmative answer, that answer cannot be said to have lesser probative value; leading questions are permitted in cross-examinations. (¶23, 29)
Indian Succession Act, 1925 — s.63 — Deposition twenty-four years after execution — Mathematical precision not expected —
Held further: A witness examined twenty-four years after execution cannot be expected to remember his visits to the testator’s house with mathematical precision, particularly given his close association as a frequent visitor. (¶27)
Indian Succession Act, 1925 — Rule of prudence — One of nine children excluded — Arm-chair of the testator —
Held further: The caution required where the legal heirs are divested in whole does not arise where a single child out of nine is excluded for a stated reason; the court sits in the arm-chair of the testator and cannot substitute its own opinion. Appeals allowed. (¶28, 31)
In the Court's own words
Paragraph 15What is relevant for the present case, which does not bring forth any such suspicious circumstance, is the requirement that, at least one of the attesting witnesses, if alive and capable of being examined, shall be examined, who shall speak on the execution of the testator; which he had witnessed or was acknowledged by the testator himself, and the attestation by both witnesses. It is pertinent that in the earlier suit for injunction, in which the plaintiff herein first appeared as a defendant and then did not contest, the will was spoken of and a copy was produced. The suit was one for injunction simpliciter and there was neither occasion to offer proof of the will nor was there a declaration of title sought; which disables a claim of res judicata being raised since the will or title was not a matter substantially in issue in the said suit. But the fact remains that despite knowledge, the plaintiff pleaded no suspicious circumstances and did not even mention the will in the plaint. The plaintiff also did not mount the box, and none were examined on her side. The attesting witness examined, hence in the facts of this case should speak about the execution of the will by the testator, his attestation and also about the attestation of the other witness who was no more, at the time the suit went to trial.
Paragraph 16In Janaki Narayan Bhoir[^5], the impugned judgment of the High Court relied on the evidence of the scribe, led under Section 71 of the Evidence Act, which was found to be incompetent insofar as one of the two attesting witnesses failed to prove the attestation of the other and the other, though available was not examined. This affirms the principle in Vishnu Ramkrishna[^6]. In fact, the attesting witness examined, categorically stated that he was not even aware of the presence of the other attesting witness in the house wherein the execution was stated to have occurred. It was held in paragraph 10 that, “…The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. … (sic)”.
Acts & Sections
s.63(c) Indian Succession Act, 1925s.68 Indian Evidence Act, 1872s.71 Indian Evidence Act, 1872One judgment a day. That's the whole habit.
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