The Chhattisgarh High Court has reaffirmed a foundational principle of testamentary law: registration of a Will does not eliminate the statutory obligation to prove its execution through the testimony of an attesting witness. This judgment clarifies that procedural compliance under the Indian Succession Act is non-negotiable, even when a Will is formally registered.
Background & Facts
The Dispute
The dispute centers on the ownership of agricultural land in Village Sukulpara, Janjgir-Champa, comprising Khasra Nos. 1533, 1534, 1535, 1537, and 2450/1. The plaintiff, Kanti Kumar, claimed a one-third share in the property based on a prior oral partition among the three sons of the deceased Bhurwa. The defendants, led by Shanti Lal Yadav and Ful Bai, asserted title through a registered Will executed by Bhurwa in favor of Ful Bai, which formed the basis of revenue mutation.
Procedural History
The case progressed through three judicial forums:
- 2025: Trial Court dismissed the plaintiff’s suit, holding he failed to prove title or possession, and found the Will unproved due to absence of attesting witnesses.
- 2025: First Appellate Court allowed the appeal in part, granting the plaintiff a 1/3rd share, holding the Will unproved and the land as joint family property.
- 2026: Second Appeal filed under Section 100 CPC by defendants challenging the appellate finding.
Relief Sought
The plaintiff sought declaration of title and permanent injunction restraining defendants from alienating or interfering with his 1/3rd share. The defendants sought dismissal of the suit, relying on the registered Will as conclusive proof of title.
The Legal Issue
The central question was whether Section 63 of the Indian Succession Act permits a registered Will to be admitted in evidence without examination of any attesting witness, or whether proof through at least one living attesting witness remains mandatory.
Arguments Presented
For the Appellant
Counsel for the defendants argued that Section 68 of the Evidence Act exempts registered documents from the requirement of attesting witness testimony. They contended that registration under the Registration Act, 1908, renders the Will self-authenticating and that the First Appellate Court erred in requiring witness examination. Reliance was placed on the notion that registration equates to judicial validation.
For the Respondent
The plaintiff’s counsel countered that Section 63 of the Indian Succession Act imposes an independent and non-derogable requirement for proving a Will: at least one attesting witness must be examined unless their unavailability is proven. They emphasized that registration under the Registration Act is a procedural formality and does not substitute evidentiary proof under the Evidence Act and Succession Act.
The Court's Analysis
The Court undertook a rigorous analysis of the statutory framework governing the proof of Wills. It held that Section 63 of the Indian Succession Act mandates two distinct conditions: (1) the Will must be signed by the testator and attested by two witnesses, and (2) its execution must be proved by examining at least one attesting witness who is alive and capable of testifying.
"The requisites for proving of a will are well established... at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined."
The Court cited Gopal Krishan v. Daulat Ram (2025) 2 SCC 804 to reinforce that registration under the Registration Act does not override the evidentiary requirements under the Succession Act. The mere fact that a Will is registered does not dispense with the need to establish its authenticity through witness testimony. The scribe’s testimony alone, without corroboration from an attesting witness, is legally insufficient.
The Court further noted that the First Appellate Court correctly applied the triple test for Will proof: (1) testator’s signature, (2) attestation by two witnesses, and (3) proof by examination of at least one witness. The absence of any attesting witness, coupled with no evidence of their death or unavailability, rendered the Will inadmissible.
The Court also emphasized the limited scope of Section 100 CPC, holding that the second appeal raised no substantial question of law, as the appellate court’s findings were based on proper appreciation of evidence and consistent with settled legal principles.
The Verdict
The appellant’s second appeal was dismissed. The Court upheld the First Appellate Court’s finding that the Will was unproved and that the plaintiff was entitled to a 1/3rd share in the joint family property. The judgment affirmed that proof of a Will requires examination of an attesting witness, regardless of registration.
What This Means For Similar Cases
Registration Does Not Replace Witness Testimony
- Practitioners must now treat registered Wills as prima facie documents only - proof still requires at least one attesting witness.
- Failure to examine an attesting witness, even if the Will is registered, renders it inadmissible under Section 63 of the Indian Succession Act.
- Advocates should immediately verify the availability of attesting witnesses before filing or defending suits based on registered Wills.
Burden of Proof Remains on Propounder
- The burden to prove execution of a Will never shifts to the opponent.
- If any suspicious circumstance exists - such as a beneficiary’s involvement in drafting or a shaky signature - the propounder must dispel doubts with cogent evidence.
- Courts will not accept self-serving affidavits or scribe testimony as substitutes for witness examination.
Strategic Implications for Partition Suits
- In joint family property disputes, if a Will is unproved, the property reverts to its original character as joint property.
- Heirs may claim shares under Section 30 of the Hindu Succession Act if no valid testamentary disposition exists.
- Revenue records alone cannot override the evidentiary requirements for testamentary transfers.
