Abstract
This article examines the recent judgement rendered by the Supreme Court in B. Sheena Naidu v. B. Narayana Naidu (2025) on the proof of an unregistered will in Indian succession cases. The court explained that the failure to register a will does not mean it has been made under suspicious circumstances. The article discusses the provisions of the Indian Evidence Act, 1872, and the Indian Succession Act, 1925, with regard to testamentary succession and the Indian law on suspicious circumstances and testamentary autonomy.
I. Introduction
Disputes relating to testamentary succession are common in India, where allegations of forgery, coercion, undue influence and suspicious circumstances arise in relation to the wills. One such assumption in succession conflicts is the notion that if an unregistered will is not registered, it is not legally effective or automatically presumed to be doubtful in its nature.
The recent judgement in B. Sheena Naidu vs B. Narayana Naidu (2025) has yet again stated an important principle of the Indian succession laws, which is that a mere lack of registration of a will cannot be used as a suspicious circumstance to suggest that the will may not have been genuine.
The judgement upheld the well-established legal position regarding the Indian law that registration of a will is voluntary and not mandatory. The court stressed that the lawfulness of execution, attestation and surrounding evidence should be considered when determining the genuineness of a will, even though it is not registered.
The decision not only bolsters the concept of testamentary freedom but also has profound implications for inheritance disputes and the requirements of evidence in India.
In this article this reasoning of the Supreme Court has been critically examined, as have the law and regulations surrounding ‘wills’ in India and the consequences of the ruling for succession law in India. In this article, the reasoning of the Supreme Court, the law and regulations governing ‘wills’ in India and the implications of the judgement for succession jurisprudence have been critically analysed.
II. The Legal Status Of A Will. The Validity Of A Will.
A will is a legal statement which a person makes about how he/she wishes his/her assets to be distributed after he/she dies. It is the testator’s will regarding succession and transfer of property.
In accordance with Sec. 2(h) of the Indian Succession Act, 1925, ‘will’ means the legal declaration of the intention of a person (hereafter called ‘testator’) with respect to his property, which he wishes to be carried into effect after his death.
Purpose Of A Will
The main purpose of a will is to give a person the freedom to leave their estate as they choose, rather than following the rules of intestate succession. This freedom itself is an integral part of the concept of succession law and has always been recognised by the courts of India.
Key Characteristics Of A Will
- A will is a legal declaration regarding the distribution of property after death.
- It reflects the intention of the testator concerning succession.
- It takes effect only after the death of the person making it.
- It remains revocable during the lifetime of the testator.
- It provides testamentary freedom in the disposition of property.
A will does not take effect until the death of the person who made it and is revocable while the person is alive, in contrast to a sale deed or a gift deed.
This means that courts tend to examine testamentary documents, as the document-maker is not available for examination during the course of litigation.
Also Read: Unregistered Wills in India: Supreme Court Rules, Legal Validity & Proof Explained
III. Under Indian law, one can register a will. As per the Indian law, a will can be registered.
The main question before the Supreme Court was whether the mere fact of non-registration of a will would be a suspicious circumstance to cast doubt on its genuineness.
The Court responded to this question in the negative.
Registration And Validity Of Wills
According to the Registration Act, 1908, some papers which relate to immovable property must be registered. A will, however, is not a document that has to be compulsorily registered.
Indian law, therefore, acknowledges both registered and unregistered wills to be legally valid, subject to certain conditions as to their execution and attestation.
| Aspect | Position Under Indian Law |
|---|---|
| Registration of Will | Not compulsory |
| Legal Validity | Both registered and unregistered Wills can be valid |
| Requirement | Proper execution and attestation |
| Effect of Non-Registration | Does not automatically create suspicion |
Supreme Court’s Observations
The Supreme Court commented that imposing the non-registration requirement as a suspicious requirement would have a significant effect on a large number of genuine wills which have been executed in private within families.
In Indian society, some people make wills which are handwritten or attested to by someone they know without formal registration. This practice alone will not provide a basis for a presumption of fabrication or fraud.
Reliance On Earlier Precedents
The Court has relied upon the previous cases, such as Ishwardeo Narain Singh v. Kamta Devi, AIR 1954 SC 280, where it was held that non-registration of a will does not by itself vitiate or impair the evidentiary value of a will.
Principle Reaffirmed By The Judgment
Given that, the judgement confirms the principle that “registration” should help establish evidentiary assurance but cannot be established as a judicial requirement.
IV. The Requirements for a Will in Order for It to Be Considered Valid
For a will to be valid, its primary elements are that it has to be legally formed and established in front of court.
The key requirements to make an unprivileged will are provided in Section 63 of the Indian Succession Act, 1925. It requires that:
- The person who makes the Will (the “testator”) must sign or put his mark on the Will;
- The signature should be accompanied by a notation to make it effective as a Will;
- There must be at least two witnesses to the Will.
Statutory Requirements Under Section 63
| Requirement | Description |
|---|---|
| Signature of Testator | The testator must sign or affix his mark on the will. |
| Intent to Execute | The signature should be accompanied by a notation to make it effective as a will. |
| Attestation | The will must be attested to by at least two witnesses. |
Moreover, Section 68 of the Indian Evidence Act, 1872, provides for the examination of not less than one of the attesting witnesses to establish the execution of the will before a court of law.
Burden of Proof on the Propounder of the Will
The Supreme Court restated the burden on the propounder of the will to prove the following:
- proper execution,
- competence of the person making the Will,
- impartiality, and
- absence of suspicious circumstances.
Thus, the actual exercise of proving genuineness is not through registration but through the requirement of statutory formalities and oral proof of genuineness.
V. Suspicious Circumstances and Judicial Scrutiny
The courts in India have developed the concept of “suspicious circumstances””,” to deter fraudulent claims of succession.
A situation could develop suspiciously when:
- the signature is not recognizable,
- the testator has an impaired mind,
- beneficiaries are actively involved in preparing the Will,
- information is withheld, or
- The disposition seems to be out of place for no reason.
Non-Registration Not a Suspicious Circumstance
But the Supreme Court said that non-registration of itself does not fit into this category.
Exclusion of part of the legal heirs does not, of itself, make a will suspicious, either. The court was correct in finding that the very nature of testamentary succession is that the decedent gets to choose how his property is distributed rather than how it is distributed in a typical “natural” manner.
The observation is a very strong affirmation to the doctrine of testamentary freedom in Indian jurisprudence.
VI. Comparative Perspective
In contrast to some jurisdictions in which the process of attestation and/or registration of testamentary documents remains very much institutionalised, Indian law still emphasises execution and attestation as overarching processes rather than formalities.
Indian law emphasises the voluntariness and authenticity of the contract over administrative registration.
The distinction reflects the adaptability of the Indian succession law and also highlights its weaknesses when it comes to forged and fabricated wills.
References
- Indian Succession Act, 1925, §2(h).
- Indian Succession Act, 1925, §63.
- Indian Evidence Act, 1872, §68.
- Registration Act, 1908.
