Proof of a Will under the Bharatiya Sakshya Adhiniyam, 2023: Section 67, Hostile Attesting Witnesses and Suspicious Circumstances

A will is unlike every other document a court is asked to accept, and for one reason: the person who made it is dead. He cannot be asked whether the signature is his, whether he understood what he was signing, or whether anybody stood over him while he signed it. The law compensates by requiring more of the person who propounds the will than it requires of anybody relying on an ordinary document, and the additional requirement is not merely formal proof but the satisfaction of the court's conscience.

1. Two Requirements, Not One

Proving a will involves two distinct exercises, and a propounder may succeed at the first and fail at the second.

Statutory proof. The will must be executed in the manner the substantive law prescribes, and that execution must be proved in the manner the Adhiniyam prescribes. This is a matter of Section 63 of the Indian Succession Act, 1925 read with Sections 67 to 70 of the Adhiniyam.

Satisfaction of the conscience of the court. Beyond formal proof, the propounder must remove any suspicious circumstances surrounding the will and satisfy the court that the document represents the last testamentary disposition of a free and capable testator. This requirement is judge-made and has no counterpart for other documents.

⚠ Formal proof is not enough

A propounder who calls an attesting witness who deposes correctly to everything Section 63 requires has done what the statute demands and may still fail. Where the circumstances surrounding the will are suspicious, the court will not act on it until the suspicion is dispelled. This is the feature that distinguishes will litigation from every other kind of documentary dispute, and it is the reason so many wills that are formally unimpeachable are refused probate.

2. The Statutory Requirements of Execution

Section 63, Indian Succession Act, 1925 — Execution of unprivileged wills

Every testator shall execute his will according to the following rules —

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, or has seen some other person sign the will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Four elements must therefore be established: the testator's signature or mark; the intention that it give effect to the writing as a will; attestation by two or more witnesses each of whom saw the signing or received a personal acknowledgment; and the signing by each witness in the presence of the testator.

Two points of detail are frequently missed. The witnesses need not be present at the same time, so a will attested at different moments by different witnesses is validly attested. And no particular form of attestation is necessary, so the absence of the word 'witness' against a signature does not by itself defeat it — though the intention to attest must be established.

3. Proof under Section 67

Section 67, BSA — Proof of execution of document required by law to be attested

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court, and capable of giving evidence.

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908, unless its execution is specifically denied.

The words 'not being a will' are the most important four words in the block. A will must be proved by calling an attesting witness whether or not it is registered, and registration adds nothing whatever to its proof.

This surprises clients constantly. A registered will is taken to be safer than an unregistered one, and in a practical sense it is — the registering officer's record establishes that the document existed on a date and that the testator appeared before him. But as a matter of proof, registration confers no dispensation at all, and an attesting witness must still be called.

📖 Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91

Held: Although the provision corresponding to Section 67 requires only one attesting witness to be called, that witness must depose not only to his own attestation but also to the attestation by the other attesting witness, so as to establish that the will was attested by two witnesses as Section 63 of the Indian Succession Act, 1925 requires. Unless the attestation of both is proved, the will is not shown to have been duly executed. Where the witness called cannot prove the attestation of the other, it becomes necessary to examine the other attesting witness.

Ratio: One witness suffices procedurally, but the propounder must establish both attestations. This is the commonest technical failure in will litigation.

Where no attesting witness is alive, amenable and capable, Section 68 applies: it must be proved that the attestation of at least one attesting witness is in his handwriting, and that the signature of the testator is in his handwriting.

⚠ The thirty-year presumption does not apply to a will

It is settled that the presumption in Section 92 — under which a court may presume, of a document thirty years old produced from proper custody, that it was duly executed and attested — cannot be invoked to dispense with proof of a will. However old the will, it must be proved under Section 67, or under Section 68 where no attesting witness is available. The reason is the one that governs the whole subject: the testator is dead, and the passage of time does not make his intention any easier to ascertain.

4. Where the Attesting Witness Denies Execution

This is the situation that defeats more wills than any other, and it arises constantly. The attesting witnesses are usually connected with the family, the beneficiaries and the disappointed heirs are on opposite sides of the litigation, and a witness may be won over between the making of the will and the trial.

Section 70, BSA — Proof when attesting witness denies the execution

If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.

Section 70 prevents the propounder from being defeated by a witness he was obliged to call. He has no choice about calling an attesting witness; Section 67 requires it. Section 70 ensures that the obligation is not converted into a trap.

Three points govern its operation.

The witness must be called first. Section 70 opens only where an attesting witness has been called and has failed. A propounder who anticipates hostility and proceeds straight to other evidence has not complied with Section 67.

'Other evidence' is unrestricted. The second attesting witness, the scribe, a person present at the execution, evidence of the testator's handwriting under Section 65, the registering officer where the will was registered, evidence of the circumstances in which the will was made, and the conduct of the parties afterwards are all available.

The witness may be treated as hostile. Where the attesting witness turns against the party calling him, that party may apply under Section 157 for leave to put questions which might be put in cross-examination. This is a separate matter from Section 70 — Section 157 governs how the witness may be questioned, Section 70 governs what may be proved once he has failed.

📖 Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529

Held: The mode of proving a will does not ordinarily differ from that of proving any other document, except as to the special requirement of attestation. The onus of proving the will is on the propounder, and in the absence of suspicious circumstances surrounding the execution, proof of testamentary capacity and of the signature of the testator as required by law is sufficient to discharge it. Where suspicious circumstances exist, the onus is on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine.

Ratio: The onus is on the propounder throughout, and it expands where suspicious circumstances appear.

5. Suspicious Circumstances

This is the doctrine that governs will litigation, and it rests on a single decision that has been applied ever since.

📖 H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443

Held: The propounder of a will has to prove that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions, and that he put his signature to the document of his own free will.

Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the essential facts, the court would grant probate. But there may be cases in which the execution of the will is surrounded by suspicious circumstances — the signature may be shaky and doubtful, the condition of the testator's mind may appear feeble and debilitated, the dispositions may appear unnatural, improbable or unfair in the light of relevant circumstances, or the propounder may have taken a prominent part in the execution of the will which confers on him a substantial benefit.

In such cases the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. The propounder must satisfy the conscience of the court that the document is the last will of a free and capable testator.

Ratio: The foundational decision. Where suspicious circumstances surround a will, the propounder must remove them and satisfy the conscience of the court; formal proof alone is insufficient.

The reasoning is worth stating because it explains the whole doctrine. In ordinary litigation the maker of a document is available to be examined about it. A will comes before the court only after its maker is dead, in circumstances where those who benefit are present and the person whose intention matters is not. The court therefore applies a scrutiny it applies nowhere else.

6. What Counts as a Suspicious Circumstance

The circumstances are not a closed list and depend on the facts, but the decisions have identified recurring categories.

📖 Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687

Held: The Court set out an illustrative list of circumstances which may be regarded as suspicious — the signature of the testator may be very shaky and doubtful, or the evidence about its genuineness may not be satisfactory; the condition of the testator's mind may be very feeble and debilitated at the relevant time; the dispositions may be unnatural, improbable or unfair, as where near relations are excluded without any reason; the dispositions may not appear to be the result of the testator's free will and mind; the propounder may take a prominent part in the execution of the will; the testator may have executed the will while in an enfeebled state of mind; the attesting witnesses may be interested persons; and the will may have been kept secret or produced after an unexplained delay.

Ratio: A working catalogue of suspicious circumstances, to be applied cumulatively rather than individually.

It is convenient to group them.

Category	Instances
The signature	Shaky, doubtful or markedly different from admitted signatures; evidence about its genuineness unsatisfactory; a thumb mark where the testator was literate
The testator's condition	Feeble or debilitated mind; serious illness at the relevant time; advanced age with evidence of failing faculties; execution shortly before death
The dispositions	Unnatural, improbable or unfair; exclusion of near relations without explanation; a disproportionate benefit to one person; inconsistency with the testator's known intentions or earlier wills
The propounder's role	A prominent part in the preparation or execution; presence at the execution; procuring the scribe and the witnesses; and receiving a substantial benefit under the will
The attestation	Interested attesting witnesses; witnesses connected with the beneficiary; witnesses who cannot speak to the circumstances
The surrounding conduct	Secrecy; an unexplained delay in producing the will; the absence of any explanation for depriving natural heirs; inconsistent accounts of where the will was kept

📖 Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209

Held: The Court refused probate where a combination of circumstances remained unexplained. Where the propounder takes a prominent part in the execution of a will which confers a substantial benefit on her, this is a circumstance which the propounder must explain, and the burden is not discharged merely by proving formal execution. The Court examined the shape of the document itself — including the manner in which it was typed, the placement of the signature and the unexplained features of its preparation — and held that the cumulative effect of the circumstances left the conscience of the court unsatisfied.

Ratio: Suspicious circumstances operate cumulatively, and the physical characteristics of the document itself may contribute to them.

7. What the Propounder Must Do

Where suspicious circumstances appear, the propounder must remove them. What that requires depends on the circumstance, but the pattern is consistent.

Explain the propounder's role. Where he took part in the preparation or execution and takes a benefit, he must explain why, and the explanation must be credible. Silence on the point is fatal.
Establish testamentary capacity by evidence. Where the testator was old or ill, medical evidence about his condition at the relevant time, or the evidence of those who dealt with him, is required. An assertion that he was of sound mind is not evidence.
Explain the dispositions. Where natural heirs are excluded, the reason should be established — estrangement, prior provision, the conduct of the excluded person. An unexplained exclusion is itself the suspicion.
Account for the custody and production of the will. Where it was kept, by whom, and why it emerged when it did.
Call the scribe and any person present. The evidence of an independent person who saw the testator instruct and sign is the most effective answer to most suspicions.
Address the physical document. Alterations, interlineations, differences in ink or typing, and the placement of the signature should be explained rather than left for the other side to raise.

⚠ The circumstances operate cumulatively

A single feature may be capable of innocent explanation; several together frequently are not. Courts assess the cumulative effect, and a propounder who answers each circumstance individually while leaving the overall picture unexplained has not discharged the burden. Conversely, a party challenging a will is not obliged to prove fraud or undue influence affirmatively — it is enough to establish circumstances that call for explanation, and the burden of explaining them lies on the propounder throughout.

8. The Burden of Proof

The allocation is settled and is worth stating precisely, because it is frequently misdescribed.

The propounder bears the burden throughout. It does not shift to the objector. Section 104 of the Adhiniyam places the burden of proving a fact on the person who wishes the court to believe in its existence, and the propounder is the person asserting that the document is the testator's last will.

The objector need not prove fraud or undue influence. He may simply point to circumstances that excite suspicion, and the propounder must then dispel them. Where the objector does plead fraud, undue influence or coercion as a positive case, the burden of proving those pleas is on him — but that is an additional burden he has assumed, not a transfer of the propounder's.

The standard remains the civil standard. The court must be satisfied on a preponderance of probabilities, and the requirement that the conscience of the court be satisfied is not a higher standard of proof but a direction about the quality of the material required where suspicion exists.

9. Related Matters

Probate and its effect. A grant of probate is a judgment in rem under Section 35 of the Adhiniyam, conclusive against the world that the will is valid and was duly executed. It is not conclusive of the truth of recitals in the will, and it may be attacked under Section 38 for want of competence, fraud or collusion, or revoked by the probate court for just cause.

A will cannot be executed electronically. The First Schedule to the Information Technology Act, 2000 excludes a will and any other testamentary disposition from the provisions conferring legal recognition on electronic signatures. A will remains a paper instrument requiring attestation.

Registration. A will may be registered, and registration is evidence that it existed on the date of registration and that the testator appeared before the registering officer. It is not proof of execution, it does not dispense with an attesting witness, and it does not answer suspicious circumstances.

Comparison of signature. Where the testator's signature is disputed, the court may compare it under Section 72 with a signature admitted or proved to be genuine, and may receive expert opinion under Section 39(1). The caution in State (Delhi Administration) v. Pali Ram, (1979) 2 SCC 158 applies: a court should be slow to found a finding on its own comparison alone.

10. The Position Stated Shortly

Proving a will involves two requirements — statutory proof of execution, and satisfaction of the conscience of the court.
Section 63 of the Indian Succession Act, 1925 requires the testator's signature or mark, the intention to give effect to the writing as a will, attestation by two or more witnesses, and signature by each in the testator's presence.
A will must be proved by an attesting witness whether or not it is registered. The proviso to Section 67 expressly excludes wills.
One witness suffices, but he must prove both attestations — Janki Narayan Bhoir.
The thirty-year presumption in Section 92 does not extend to a will.
Where the attesting witness denies or does not recollect, Section 70 permits proof by other evidence — but the witness must be called first.
Suspicious circumstances must be removed by the propounder — Venkatachala Iyengar — and they operate cumulatively.
The burden lies on the propounder throughout, and the objector need not prove fraud affirmatively.

11. Related Topics and Provisions

Topic or provision	Connection
Proof of Attested Documents — Sections 67 to 71	The statutory block governing proof of execution
Judgments in Probate, Matrimonial, Admiralty and Insolvency Jurisdiction — Section 35	The conclusive effect of a grant of probate
Proof of Signature and Handwriting — Section 65	Where the testator's signature is disputed
Comparison of Signature, Writing, Seal and Finger Impression — Section 72	The court's power to compare, and its limits
Burden of Proof — Sections 104 onwards	The allocation of the burden on the propounder
Section 92, BSA	The thirty-year presumption, which does not extend to wills
Section 157, BSA	Questions to an attesting witness who turns hostile
Sections 63 and 68, Indian Succession Act, 1925	Execution of unprivileged wills, and the persons who may attest