The Supreme Court has reiterated that Section 68 of the Indian Evidence Act, 1872 makes it mandatory to examine at least one attesting witness to a Will, and this statutory requirement cannot be dispensed with merely because the dispute does not involve contesting legal heirs.

A Bench comprising Justices Aravind Kumar and Sandeep Mehta delivered the ruling in a dispute over ownership of immovable property. The Plaintiff-Respondent asserted ownership on the basis of an Agreement to Sell, General Power of Attorney, affidavit, receipt, and a registered Will executed by his father in 1996. He alleged that his brother, the Defendant-Appellant Ramesh Chand, was initially permitted to reside as a licensee but subsequently sold a portion of the property to a third party without authority.

Conversely, the Defendant-Appellant claimed that the property had been orally gifted to him in 1973 and that he had been in possession since then. He disputed the validity of the plaintiff’s documents, including the Will, and sought a declaration of ownership in his favour.

The Delhi High Court had earlier ruled that failure to examine an attesting witness to the Will was not fatal, since the dispute was not between legal heirs—the Appellant having claimed an independent title by way of oral transfer. According to the High Court, the strict requirement of proof under Section 68 could be relaxed in such circumstances.

The Supreme Court, however, set aside the High Court’s reasoning. Authoring the judgment, Justice Aravind Kumar clarified that Section 68 contains no exception dependent on the nature of the contest or the identity of the opposing party. The Court held that whenever a Will is relied upon in judicial proceedings, the examination of at least one attesting witness is indispensable.

The Court observed:

“Even the High Court, while evaluating the validity of the Will, has gone on a different tangent and has erroneously held that the requirement of examining the attesting witnesses springs into action only in cases of disputes between legal heirs. Such an observation is contrary to law. Section 68 of the Evidence Act makes it mandatory to examine at least one of the attesting witnesses to the Will.”

Accordingly, the Supreme Court allowed the appeal and reaffirmed the mandatory evidentiary safeguard under Section 68.

Cause Title: Ramesh Chand (D) through LRs v. Suresh Chand & Anr.
Citation: 2025 LiveLaw (SC) 862