The Madras High Court has affirmed that a registered Will may be proved even when one attesting witness is deceased and the other is unavailable for examination, provided the signature of the testator and the surviving attesting witness are independently verified by credible witnesses. This judgment clarifies the evidentiary standards under Sections 68 and 69 of the Indian Evidence Act, 1872, and reinforces the presumption of genuineness attached to registered Wills.
Background & Facts
The Dispute
The dispute arose over the validity of a registered Will dated 04.02.1985 executed by K. Ramanathan, who died on 05.11.1996. The Will bequeathed the ground floor of a property at Old No.5, New No.9, 8th Cross Street West, Shenoy Nagar, Chennai - 600 030 to his son C.R. Chandrasekar, and the first floor to his other son, R. Nagarajan (the plaintiff). His wife, Sitalakshmi Ramanathan, was granted a life interest in the entire property. The Will did not appoint an executor.
Key Facts
- The Will (Ex.P1) was registered at the Sub-Registrar Office, Anna Nagar, Chennai.
- It was attested by two witnesses: D. Swaminathan and K.S. Padmanabhan.
- K.S. Padmanabhan, a neighbour of the plaintiff, informed R. Nagarajan of the Will’s existence in 1996.
- Sitalakshmi Ramanathan, the widow, produced the original Will to her son after this disclosure.
- C.R. Chandrasekar died in 2008, leaving legal representatives: Usha Chandrasekar, Karthik Chandrasekar, and Niranjana Chandrasekar.
- Sitalakshmi Ramanathan executed a Settlement Deed in favour of R. Nagarajan on 19.08.2010, acknowledging his claim to the property and stating that K. Ramanathan died intestate.
- Sitalakshmi died on 15.06.2022, and her daughter Indira Jayaraman was recognized as her legal representative.
- The plaintiff filed O.P. No.22 of 2015 seeking Letters of Administration on 15.03.2015.
- The delay in filing was explained as due to the Will not being located until 1996.
Procedural History
- 04.02.1985: Will executed and registered.
- 05.11.1996: Testator K. Ramanathan died.
- 15.03.2015: Original Petition filed seeking Letters of Administration.
- 07.09.2015: Court converted O.P. No.22 of 2015 into T.O.S. No.34 of 2015 after caveats filed by Sitalakshmi and Indira Jayaraman.
- 19.08.2010: Settlement Deed executed by Sitalakshmi in favour of plaintiff.
- 23.06.2022: Indira Jayaraman recognized as legal representative of deceased Sitalakshmi via A.No.1838 of 2022.
- 2023: Plaintiff filed A.No.6495 of 2023 seeking appointment of Advocate Commissioner to examine K.S. Padmanabhan.
- 2024: Advocate Commissioner appointed but unable to record evidence due to witness’s ill health.
- 04.12.2024: Single Judge decreed the suit, upholding the Will.
- 23.02.2026: Appeal reserved.
- 30.04.2026: Judgment pronounced.
The Parties' Positions
- Plaintiff (Respondent): Claimed the Will was genuine, produced by his mother after being informed by K.S. Padmanabhan. He examined PW-5 (son of K.S. Padmanabhan) and PW-6 (family friend) to verify signatures. All beneficiaries except the appellants consented.
- Defendants (Appellants): Contended the Will was forged, the testator lacked testamentary capacity due to poor eyesight and hearing, and the delay in filing was unexplained. They argued that no attesting witness was examined and the Settlement Deed contradicted the Will.
Relief Sought
The appellant sought to set aside the judgment dated 04.12.2024, declare the Will unproved, and dismiss the petition for Letters of Administration. No monetary relief was claimed, only declaratory and procedural relief.
The Legal Issue
The central question was whether a registered Will, attested by two witnesses, can be proved under Section 68 of the Indian Evidence Act, 1872 when one attesting witness is deceased and the other is unavailable for examination, and the signatures are verified by a son of the deceased witness and a close associate of the testator.
Arguments Presented
For the Appellant/Petitioner
The appellant’s counsel, Mr. A. Muthukumar, argued that neither attesting witness was examined during trial. Although K.S. Padmanabhan was alive at the time of filing, the plaintiff failed to secure his testimony despite an application for an Advocate Commissioner being allowed. The witness’s son, PW-5, was not an attesting witness and could not substitute for direct testimony. The counsel relied on Kamalam v. Sasikala (2024 (2) CTC 218 Mad) and S.P. Vijaykumar v. Smt. Padmavathy (2026-1-L.W.123), holding that Section 69 cannot be invoked unless both witnesses are truly unavailable. The counsel also contended that the Settlement Deed, which stated the testator died intestate, undermined the Will’s credibility. The failure to produce a death certificate for D. Swaminathan and the absence of any evidence from the defendants raised an adverse presumption under Section 114(g) of the Evidence Act.
For the Respondent/State
The respondent’s counsel, Mr. C.A. Diwakar, countered that the Will was registered, triggering a presumption of genuineness under Section 67 of the Indian Evidence Act and affirmed by Metpalli Lasum Bai v. Metapalli Muthaih (2025 SCC OnLine SC 1488). He argued that the plaintiff complied with Section 68 by examining PW-5, who identified his father’s signature on the Will and produced a prior document (Supplemental Agreement dated 10.04.1975) for comparison. PW-6, a long-time associate of the testator, independently verified the testator’s signature. The unavailability of K.S. Padmanabhan was due to his advanced age (94 years) and refusal by his son to permit examination, not due to negligence. The affidavits of both attesting witnesses filed at the time of filing the petition further supported authenticity. The counsel emphasized that the burden shifted to the appellants to prove suspicious circumstances, which they failed to do by not examining any witness.
The Court's Analysis
The Court began by affirming that a registered Will raises a presumption of genuineness under Section 67 of the Indian Evidence Act, 1872, and that the burden lies on the party challenging it to prove suspicious circumstances (Metpalli Lasum Bai v. Metapalli Muthaih). The Court noted that the appellants did not examine any witness, nor did they produce any evidence to rebut the presumption, thereby inviting an adverse inference under Section 114(g).
The Court then examined compliance with Section 68, which requires at least one attesting witness to be called if alive and available. The Court held that the unavailability of K.S. Padmanabhan was not due to negligence by the plaintiff. An application for an Advocate Commissioner was filed and granted, but the witness’s son refused permission due to his father’s deteriorating health. The Court accepted this as a legitimate impediment, distinguishing it from cases where parties deliberately avoid summoning witnesses.
The Court further held that Section 69 applied, as one attesting witness (D. Swaminathan) was deceased and the other (K.S. Padmanabhan) was unavailable. Under Section 69, it suffices to prove that the attestation of one witness is in his handwriting and that the testator’s signature is authentic. The Court found that PW-5, the son of K.S. Padmanabhan, had identified his father’s signature on the Will and corroborated it with a prior document. PW-6, a close associate of the testator, independently verified the testator’s signature. Both witnesses underwent rigorous cross-examination and withstood scrutiny.
"The evidence of PW-5 and PW-6, though not attesting witnesses, sufficiently established the handwriting of the attesting witness and the testator. The appellant’s failure to challenge the authenticity of these signatures or to tender any contrary evidence is fatal to their case."
The Court also dismissed the argument that the Settlement Deed invalidated the Will, noting that the deed was executed by Sitalakshmi, who was a life tenant, and her statement that the testator died intestate did not negate the existence of the Will. The Court further held that the offer of Rs. 50 lakhs to PW-4, as alleged, pertained to a private arrangement and did not impugn the Will’s validity.
The Court concluded that the plaintiff had discharged the burden of proof under Sections 68 and 69, and the Will was duly proved in manner known to law.
The Verdict
The appeal was dismissed. The Court confirmed the judgment and decree dated 04.12.2024 of the Single Judge, holding that the Will dated 04.02.1985 was duly proved in manner known to law under Sections 68 and 69 of the Indian Evidence Act, 1872. Letters of Administration were granted to the plaintiff. No costs were awarded. The connected Civil Miscellaneous Petitions were closed.
What This Means For Similar Cases
Registered Wills Carry a Presumption, But Must Still Be Proved
- Practitioners must now treat registered Wills as presumptively valid, but must still establish compliance with Sections 68 and 69.
- The burden shifts decisively to the challenger to prove suspicious circumstances - mere suspicion or silence is insufficient.
- Failure to examine any witness or produce contrary evidence invites adverse inference under Section 114(g).
Son of Attesting Witness Can Substitute for Direct Testimony Under Section 69
- A son or close relative who can authenticate the attesting witness’s signature through prior documents and personal knowledge satisfies Section 69.
- The key is corroboration: two independent witnesses verifying signatures (one of the attester, one of the testator) is sufficient.
- Courts will accept circumstantial evidence if it is credible and unchallenged.
Delay and Settlement Deeds Do Not Automatically Invalidate a Will
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Delay in filing for Letters of Administration must be explained, but is not fatal if credible (e.g., non-availability of Will).
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A settlement deed by a life tenant does not contradict a Will unless it explicitly revokes it.
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Offers of monetary consideration to beneficiaries are irrelevant to the Will’s validity unless proven to be inducement for forgery.
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Practitioners should always file affidavits of attesting witnesses at the time of filing a probate petition.
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When an attesting witness is elderly or uncooperative, immediately apply for an Advocate Commissioner and document the efforts.
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Always obtain and preserve prior documents bearing the testator’s or attester’s signature for comparison purposes.
