Prove signature of a Witness & the Testator
When no attesting witness can be found to prove the Will, the Propounder can prove it by proving that the attestation by at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in that person’s handwriting, says the High Court of Kerala in Dr.K.R. Leela Devi v K.R. Rajaram [ 2025:KER:36448].
Reading Sections 68 and 69 of the Evidence Act together, it is clear that if the propounder succeeds in proving that the attesting witnesses are dead, the Will can be proved by establishing that the signature of the executant and the attestation by at least one witness are in their respective handwritings.
The Witness proving u/s 69 need not see the Testator signing
A witness cited to prove a Will under Section 69 of the Indian Evidence Act need not necessarily be a person who had seen the executant and attesting witnesses affixing their signatures.
It is sufficient to prove that the signatures were in the handwriting of the respective persons. This is the essential distinction between the mode of proof under Section 68 and Section 69 of the Indian Evidence Act.
In arriving at the above decision, the High Court relied on an earlier judgment in C.G. Raveendran v C.G. Gopi (AIR 2015 Kerala 250).
Person witnessed the execution & attestation can testify
In a case where the witness cited to prove the Will under Section 69 of the Indian Evidence Act establishes that he had witnessed the testator and the witnesses signing the Will, it is sufficient proof that the attestation by the attesting witnesses is in their handwriting and that the signature of the testator is in that person’s handwriting. It constitutes sufficient compliance with Section 69 of the Indian Evidence Act.
When the witness deposes that he saw the executant and the attesting witnesses sign the document in question, it amounts to the proof required, under Section 69 of the Indian Evidence Act.
Identification of signature needed if nobody has seen signing
The Division Bench of the Patna High Court in Haradhan Mahatha and Others v. Dukhu Mahatha (AIR 1993 Pat 129), held, “Identification of signature is not necessary to prove a document, as required under Section 69 of the Act. Identification of signature is necessary only if document is not signed in presence of the witness. In a case, where document has been executed in presence of a witness, it is not necessary for him to say that he identifies the signature. It is sufficient for the witness, if he says that the document in question produced in Court, to which his attention was drawn, was executed and attested in his presence. Therefore, I am clearly of the view that the requirement of Section 69 of the Act has been complied with and the Will in question has been rightly admitted into evidence by trial Court.”
Section 68 & 69 provide two different scenarios
The Section 68 of the Evidence Act deals with the mode of proof of execution of documents required by law to be attested.
On the other hand, the Section 69 provides an alternative procedure for proving such a document when the mode provided in Section 68 cannot be resorted to in certain circumstances.
Nevertheless, Section 69 can be invoked only on satisfaction of the condition mentioned therein. Once the document is proved in the manner provided in Section 69, it amounts to the proof of due execution and attestation of that document.
Registration of Will provides some presumptions
The contention in the above case was that the execution of the Will was the result of coercion and undue influence allegedly exerted by the first defendant.
The Supreme Court in Pentakota Satyanarayana & Ors vs Pentakota Seetharatnam & Ors [AIR 2005 SC 4362] that although the registration of a Will does not absolve the propounder from adducing evidence to prove its due execution, the regularity of the official acts of the Registrar in respect of registering the document can be presumed under Section 114 of the Evidence Act, unless the contrary is proved.
Similarly, the Section 34 of the Registration Act, 1908 mandates that the registering authority shall conduct an enquiry into the identity of the executant of all registered deeds.
References
- K.R. Leela Devi v K.R. Rajaram [ 2025:KER:36448]
- G. Raveendran v C.G. Gopi (AIR 2015 Kerala 250)
- Haradhan Mahatha and Others v. Dukhu Mahatha (AIR 1993 Pat 129)
- Pentakota Satyanarayana & Ors vs Pentakota Seetharatnam & Ors [AIR 2005 SC 4362]
