Supreme Court of India· 17 December 2025
Under the Indian Succession Act, 1925, does the heightened rule of prudence for upholding a will apply where the testator excluded only one of his nine children and a reason for the exclusion is stated?
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
No. The rule of prudence, of the caution required in upholding a will which divests the legal heirs as a whole, is not the situation where a single child out of nine is excluded and the propounders are that child’s own siblings, with a reason stated for the exclusion. The acceptability of that reason is not what the rule of prudence dictates — the court cannot substitute its opinion in place of that of the testator and must sit in the arm-chair of the testator; on these facts the judicial conscience is amply satisfied.
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 12Mansinghrao Yeshwantrao Patil[^8] cautioned the Courts from converting a question of fact into a question of law and mechanical use of time-honoured phrases like ‘the conscience of the Court being satisfied’. Though great caution should be exercised in upholding a will, where the legal heirs are divested in whole, proof of a will remains a question of fact and satisfaction of the conscience of the court is only a rule of prudence, was the declaration.
Paragraph 28We find that in the present case the only suspicion raised about the execution of the will is the testamentary capacity of the testator, relatable specifically to his physical disposition, questioned in the cross-examination of DW-2; unequivocally affirmed as sound. We also reiterate, with respect, that the rule of prudence; of the caution required in upholding a will which divests the legal heirs as a whole, is not the situation existing in the instant case. But, the person excluded was one of the children of the plaintiff, the sole one excluded. The propounders of the will are the siblings of the one excluded. There is a reason stated for such exclusion, the acceptability of which to our minds, is not what the rule of prudence dictates. We cannot put the testator in our shoes, and we should step into his. We cannot substitute our opinions in place of that of the testator; his desire prompted by his own justifications. As is trite, we would only ensure that, sitting in the arm-chair of the testator the rule of prudence is satisfied for the exclusion; which on the facts of this case amply satisfies the judicial conscience.
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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Also decided in this judgment
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?Under Section 68 of the Indian Evidence Act, 1872, where the examination-in-chief of the sole surviving attesting witness omits the other witness’s attestation but the opposite party’s own cross-examination elicits an affirmative answer to a leading question that all of them signed on the date the will was written, does that answer lack probative value?Under the Indian Succession Act, 1925, can confusion about an attesting witness’s visits to the testator’s house discredit the attestation where his deposition was recorded twenty-four years after the will was executed?Does an earlier suit for injunction simpliciter, in which a copy of the will was produced and the present plaintiff did not contest, bar a later partition suit by res judicata on the proof of that will?