A Registered Will Still Needs Proof: Supreme Court Rejects 1976 Thumb-Impression Will After 13-Year Appeal

Case at a glance: The Supreme Court has held that a registered 1976 Will executed by thumb impression was not proved, because neither attesting witness was examined, Section 69 of the Evidence Act was wrongly invoked, and cumulative suspicious circumstances were not removed. It set aside the Madras High Court’s 2008 judgment and restored the trial court’s preliminary decree for partition.

The property belonged to Vaiyapuri Gounder, who died around 1925 leaving three wives. His third wife, Arukkaniammal, who had no children, executed a registered Will dated 15 December 1976 by thumb impression, giving the agricultural (A-schedule) land to four sons of Alamathal, the daughter of the second wife. The Will named two attesting witnesses and was written by a scribe. Arukkaniammal died in 1985.

The heirs from the first wife’s line sued for partition (O.S. No. 665 of 1985). The Coimbatore trial court held on 22 January 1991 that the Will was not proved and granted a preliminary decree for a 2/3 share. On 28 October 2008 the Madras High Court reversed, upholding the Will under Section 69 of the Evidence Act on the basis that both attesting witnesses were dead, and decreed the beneficiaries’ injunction suit.

The Key Question Before the Court

Was the 1976 Will proved in accordance with Section 63(c) of the Succession Act and Sections 68 and 69 of the Evidence Act, and were suspicious circumstances dispelled?

Attestation, Section 69 and Suspicious Circumstances

Applying Janki Narayan Bhoir, (2002) 12 SC CK 0087 and H. Venkatachala Iyengar, (1958) 11 SC CK 0008, the Court held that a Will must be proved by examining at least one attesting witness under Section 68, and that registration does not dispense with proof. The scribe was not an attesting witness because he lacked animus attestandi (M.L. Abdul Jabbar, (1969) 02 SC CK 0018, N. Kamalam, (2001) 08 SC CK 0033). Section 69 applies only if no attesting witness can be found: one witness’s death was proved, but the other’s death or unavailability was not. The Court added that “the absence of a contrary suggestion could not reverse the statutory burden.”

The Court did not find capacity disproved, but held that the propounders failed to show by cogent independent evidence that the testatrix understood and freely adopted the dispositions; the non-examination of Alamathal was significant. It identified ten suspicious circumstances which, though limited individually, together were substantial and unremoved.

What the Court Actually Held

• The Will (Ex. B-13) “has not been proved as the lawful last Will and testament” of the testatrix.
• The Madras High Court judgment of 28.10.2008 was set aside and the trial court judgment of 22.01.1991 restored.
• Succession follows Section 15(2)(b) of the Hindu Succession Act; partition was decreed on a 2/3 share, to be worked out in final decree proceedings.
• The beneficiaries’ injunction suit (O.S. No. 1344 of 1990) was dismissed.

Why This Judgment Matters

• It restates the strict requirements for proving a Will through attesting witnesses.
• It limits the use of Section 69 where the unavailability of a witness is not proved.
• It illustrates the cumulative approach to suspicious circumstances.

What Should Advocates Take Away From the Judgment?

For Propounders

• Examine at least one attesting witness or strictly prove why none can be found.
• Lead independent evidence that the testator understood and approved the contents.

For Those Challenging Wills

• Test whether Section 69 conditions are proved for every attesting witness.
• Build a cumulative case of suspicious circumstances.

Key Takeaways

Frequently Asked Questions

Because the death or unavailability of one of the two attesting witnesses was not proved.

No. Capacity was not disproved, but knowledge of contents and free agency were not established.

Leave was granted on 1 November 2013 and the judgment was delivered on 13 August 2026.

Conclusion