Proving a Will when no attesting witness can be found
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].
The witness proving u/s 69 need not see the signing of both
A witness summoned to prove a Will under Section 69 of the Indian Evidence Act need not necessarily be a person who had seen both the executant and the attesting witnesses affixing their signatures. It is sufficient to prove that the signatures were in the handwriting of the respective persons.
The essential distinction between the mode of proof under Section 68 and Section 69 of the Indian Evidence Act is that in the former, one of the attesting witnesses need to be brought before the court to testify his attestation, whereas in the latter, the only requirement is to prove the signatures of the executant and one of the witnesses.
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 (though he is not an attesting witness) brought in 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 to prove 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.
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.”
Registration of Will provides some presumption
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]
