A will is the one document the law refuses to take at face value. Its maker is dead by the time it is questioned, so the Evidence Act erects a strict mode of proof around it. In Pazhanathal (Dead) through LRs v. Alamathal (Dead) through LRs, Civil Appeal Nos. 10169–10170 of 2013, 2026 INSC 860, decided on 13 August 2026, a Bench of Justices Sanjay Karol and N. Kotiswar Singh explained the precise relationship between Section 68 and Section 69 of the Indian Evidence Act, 1872 — and set aside a High Court judgment that had treated the second as a shortcut around the first.
A 1976 will and a family divided
The dispute concerned agricultural properties said to have been bequeathed by one Arukkaniammal under a registered will of 1976. The will named two attesting witnesses. By the time the matter reached trial, neither was examined: the death of one was spoken to by his son, but the death or unavailability of the other was never satisfactorily established. The trial court held the will unproved and passed a preliminary decree giving the plaintiffs a two-thirds share. The Madras High Court reversed, resorting directly to Section 69 of the Evidence Act on the footing that the attesting witnesses were unavailable.
The Supreme Court restored the trial court’s decree. The High Court, it held, had crossed into Section 69 without first satisfying the statutory condition on which that provision opens.
The gateway between the two sections
Section 68 — the rule
A document required by law to be attested shall not be used as evidence until at least one attesting witness has been called to prove its execution, if a witness is alive, subject to the process of the court and capable of giving evidence. For wills, this is mandatory even where the will is registered.
Section 69 — the exception
Only where no attesting witness can be found may the propounder instead prove that the attestation of one witness is in his handwriting and that the signature of the executant is genuine. The impossibility of proof under Section 68 is the condition precedent, and the burden of establishing it lies on the propounder.
The Court described Section 69 as an exceptional mode available only when proof through an attesting witness has become impossible — not an alternative which the propounder may freely choose. Before invoking it, the party relying on the will must lead credible evidence that each named witness is dead, untraceable or beyond the court’s process. In the present case that foundation existed for one witness but not the other, so the statutory gateway was never crossed.
Beyond formal proof: the conscience of the court
The judgment did not rest on the technical failure alone. Even on the merits the will inspired little confidence: the principal beneficiary — crucial to explaining why natural heirs were excluded — was never examined, and the scribe’s testimony could not fill the gap on testamentary capacity and intent. The cumulative requirements of Section 63 of the Succession Act and Section 68 of the Evidence Act, the Court held, were not discharged.
What a propounder must be ready to show
- Execution by the testator and attestation by two witnesses conforming to Section 63 of the Succession Act, 1925.
- Evidence of at least one attesting witness under Section 68 Evidence Act / Section 67 BSA, wherever a witness is available.
- If no witness can be found, credible proof of that impossibility before resort to Section 69 / Section 68 BSA.
- An explanation dispelling suspicious circumstances — exclusion of heirs, the beneficiary’s role, the testator’s condition.
The provisions under the new evidence law
| Subject | Indian Evidence Act, 1872 | Bharatiya Sakshya Adhiniyam, 2023 |
|---|---|---|
| Proof of attested document through attesting witness | Section 68 | Section 67 |
| Proof where no attesting witness found | Section 69 | Section 68 |
| Requirements of a valid attestation of a will | Section 63, Indian Succession Act, 1925 | Section 63, Indian Succession Act, 1925 (unchanged) |
For estates administered through the Delhi courts, the message is practical: preserve contact with attesting witnesses, record their whereabouts, and where a witness has died, gather formal proof of that death early. A will that cannot be proved in the statutory mode is, in law, no will at all — however solemnly it was registered.
This article summarises a judgment of the Supreme Court of India for general information. Proof of testamentary documents is fact-sensitive; the applicable mode depends on when the proceedings arose and the availability of witnesses in each case.
Frequently Asked Questions
How is a will ordinarily proved in court?
Under Section 68 of the Evidence Act (Section 67 of the Bharatiya Sakshya Adhiniyam, 2023), a will must be proved by calling at least one attesting witness, if one is alive and capable of giving evidence. The witness speaks to execution and attestation as required by Section 63 of the Indian Succession Act, 1925. Registration of the will does not dispense with this requirement.
When can Section 69 of the Evidence Act be used instead?
Only when no attesting witness can be found — meaning the propounder first proves, through credible evidence, that the witnesses are dead, cannot be traced, or are beyond the reach of the court. Once that gateway is crossed, the propounder must prove that the attestation of at least one witness is in his handwriting and that the signature of the executant is genuine.
Does registration of a will make it self-proving?
No. Registration lends a degree of formality but does not replace the statutory mode of proof. The Supreme Court reiterated that even a registered will must be proved through an attesting witness under Section 68, or, where that is shown to be impossible, in the exceptional mode under Section 69.
What are suspicious circumstances in the proof of a will?
Factors that cast doubt on whether the document reflects the free will of the testator — exclusion of natural heirs without explanation, the propounder's active role in execution, uncertainty about the testator's capacity, or unexplained gaps in evidence. The propounder must dispel them to the conscience of the court in addition to proving formal execution.