Recently, the Supreme Court clarified that a Will cannot be discarded merely because an attesting witness failed to state every formal detail during examination-in-chief, so long as the evidentiary gap is credibly filled in cross-examination. While allowing the appeal and overturning concurrent findings against the Will, the Court delivered a pointed reminder on evidentiary appreciation, observing that “leading questions are permitted in cross-examinations and the response elicited cannot be said to have lesser probative value,” thereby shifting the focus from rigid formalism to a holistic reading of testimony.
Brief Facts:
The case arose from a challenge to a testamentary disposition under which a father bequeathed his properties to eight of his nine children, excluding one daughter. Although the Will was duly registered, an earlier injunction suit filed by one of the beneficiaries, in which a copy of the Will was produced, went uncontested. Years later, the excluded daughter instituted a suit for partition, disputing the validity of the Will. The Trial Court decreed the suit, holding that the Will was not proved in accordance with law, a view affirmed by the Kerala High Court on the ground that the surviving attesting witness, in his examination-in-chief, had not expressly deposed to the attestation by the other witness as required under Section 63(c) of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872.
Contentions of the Appellant:
The Appellant argued that the statutory mandate under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, was fully complied with. It was submitted that the attesting witness had clearly spoken to the execution of the Will by the testator, his own attestation, and the presence of the other attesting witness at the time of execution. The Appellant contended that the courts below adopted an overly technical approach by isolating portions of the testimony, overlooking that any perceived omission in the examination-in-chief stood adequately clarified during cross-examination. Placing reliance on established precedent, it was further urged that minor lapses or inconsistencies in evidence recorded long after the execution of a Will cannot, by themselves, displace a testamentary document otherwise proved in accordance with law.
Contentions of the Respondent:
On the other hand, the Respondent defended the concurrent findings of the Trial Court and the High Court, contending that the testimony of the attesting witness was riddled with inconsistencies and therefore unreliable. Emphasis was placed on the witness’s statement, suggesting a solitary visit to the testator’s residence, allegedly coinciding with the presence of the Sub-Registrar, to cast doubt on the manner of execution. The Respondent argued that the failure of the witness, in examination-in-chief, to expressly depose to the attestation by the other witness amounted to a fatal infirmity that could not be cured through leading questions in cross-examination. Reliance was placed on precedent, emphasising strict adherence to the statutory requirements governing the proof of Wills.
Observation of the Court:
The Court noted that earlier decisions, including Vishnu Ramkrishna Wani v. Nathu Vittal Wani and Janaki Narayan Bhoir v. Narayan Namdeo Kadam, turned on circumstances where the sole attesting witness had failed to speak about the attestation by the other witness at all, or where available attesting witnesses were not examined, thereby falling short of the mandate under Section 68 of the Evidence Act. At the same time, the Court cautioned, drawing from Mansinghrao Yeshwantrao Patil v. Ramchandra Govindrao Patil, that courts must avoid converting a question of fact into a question of law and mechanically invoking phrases such as satisfaction of judicial conscience, reiterating that proof of a Will remains a factual inquiry guided by prudence, not formulaic suspicion.
The Court emphasised that while a Will carries a degree of solemnity because “the will speaks from the death of the testator,” the propounder is required to establish due execution through satisfactory evidence, unless suspicious circumstances necessitate a higher degree of scrutiny. Applying this settled framework, the Bench found that the present case did not disclose circumstances warranting heightened suspicion. On examining the testimony of the attesting witness as a whole, the Court acknowledged that “if we look at the examination-in-chief alone, it cannot be said that there was proof of the other witness having put his signature in the document.” However, it decisively rejected the narrow approach adopted by the courts below, holding that “this missing piece was supplied in cross-examination by the plaintiff,” where the witness affirmed that he, the testator, and the other attesting witness had all signed the Will.
The Court further clarified that doubts sought to be raised regarding the witness’s visits to the testator’s house and the sequence of execution and registration were overstated, particularly when the evidence was being recorded decades after the execution of the Will. Terming it unrealistic to expect mathematical precision in such recollection, the Bench underscored that the witness’s close association with the testator and his consistent affirmation of the testator’s sound physical and mental condition dispelled any genuine suspicion. Significantly, the Court reiterated that “leading questions are permitted in cross-examinations and the response elicited cannot be said to have lesser probative value,” and stressed that courts cannot substitute their own notions of fairness for the intention of the testator, observing that adjudication must proceed by sitting in the arm-chair of the testator.
The decision of the Court:
In light of the foregoing discussion, the Supreme Court allowed the appeals, set aside the judgments of the Trial Court and the Kerala High Court, and dismissed the partition suit, holding that the Will stood duly and validly proved in accordance with law, leaving the plaintiff with no partible claim over the properties bequeathed under the testamentary instrument.
Case Title: K. S. Dinachandran v. Shyla Joseph & Ors.
Case No.: SLP (C) Nos. 11057–11058 of 2025
Coram: Hon’ble Justice Ahsanuddin Amanullah, Hon’ble Justice K. Vinod Chandran
Advocate for the Petitioner: Sr. Advs. A. Hariprasad, V. Chitambaresh, AORs Bijo Mathew Joy, Mukund P. Unny, Advs. Gifty Marium Joseph, Swathi H. Prasad, Sanjay Nair S.
Advocate for the Respondent: Sr. Adv. P. B. Krishnan, AORs Sarath S. Janardanan, Bijo Mathew Joy, Adv. Anila Tharakan Thomas
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