He didn't call a single witness. The will was still valid.

The will's validity was never challenged. So the court said: no need to call the witness who signed it.

On one side stood a man who claimed a will was genuine. On the other, a woman who simply refused to say anything about it. She didn't deny the will existed. She didn't challenge the signature. She just stayed silent on the question of whether the document had been properly executed. And that silence, the High Court ruled, was enough to make the will valid without calling a single witness to prove it.

The question that hung over the case was deceptively simple: If the person who stands to lose from a will never actually disputes it in court papers, does the person who stands to gain still have to drag an attesting witness into the witness box? The answer, the Division Bench held, is no — and the reasoning turns on two legal provisions that together create a powerful shortcut.

When the will became the centre of a family fight

Thayyullathil Kunhikannan and Thayyullathil Kalliani were locked in a civil dispute. At the heart of it lay a will — a document that, if valid, would determine who inherited what. Kunhikannan, the plaintiff, wanted the court to recognise the will. Kalliani, the defendant, had every reason to resist it.

But here's where the case took an unusual turn. When Kalliani filed her written statement — the formal court document where a defendant sets out her defence — she did not deny that the will had been executed. She did not claim the signature was forged. She did not say the testator (the person who made the will) was under pressure or lacked mental capacity. She simply did not address the execution of the will at all.

Under the law of pleadings, that silence carried a specific meaning.

The rule that turns silence into admission

Order VIII Rule 5 of the Civil Procedure Code (the rule that governs how defendants must respond to each allegation in a lawsuit) states that every allegation of fact in the plaint — the plaintiff's opening document — is deemed to be admitted unless the defendant specifically denies it in the written statement. If the defendant says nothing about a particular fact, the court treats that fact as accepted.

Kalliani had not denied the execution of the will. So, by operation of this rule, the execution stood admitted.

That should have been the end of the matter. But Section 68 of the Indian Evidence Act (the provision that requires a will to be proved by calling at least one attesting witness — someone who saw the testator sign the document and signed it themselves as a witness) stood in the way. The question was whether Section 68 could be ignored simply because the other side had not denied the will.

Why the court said the witness was unnecessary

The Division Bench looked at the interaction between two provisions: Section 68 of the Evidence Act, which demands an attesting witness for a will, and Section 58 of the same Act, which says that facts admitted by the parties need not be proved at all.

The court's reasoning was straightforward. Section 68, the bench observed, only applies to documents that actually need to be proved at trial. If, by some rule of law or by the way the pleadings are framed, formal proof is not required, then Section 68 cannot insist on it. Section 58, the court held, overrides Section 68. Once a fact is admitted — and the execution of the will was admitted because it was not denied — the requirement to call an attesting witness falls away.

The bench put it plainly, stating: "Section 68 relates only to those documents which require to be proved at the trial of a suit." If proof is not required, Section 68 cannot operate to demand formal proof by calling an attesting witness. The necessity of calling such a witness only arises when the execution of the will or the attestation itself is actually in dispute.

The scene in court: silence speaks louder than a witness

When the case was called, the courtroom fell into a quiet hum. The judge's bench, elevated and lined with dark wood, looked down at the lawyers who stood before it. The plaintiff's counsel held a thin file — inside it, the will itself, a handwritten document on yellowing paper, the testator's signature faint but legible at the bottom. Two attesting signatures sat beside it, each in a different ink, one slightly smudged with age.

The defendant's counsel shuffled through her own papers. When the judge asked whether the execution of the will was disputed, she paused. The silence in the room stretched for a moment. She glanced at the written statement, then shook her head. There was no denial on record, she admitted. The bench exchanged a look — the kind of silent acknowledgment that seasoned judges share when a point is already settled. The judge nodded once, and the matter moved on. No attesting witness was ever called to the stand.

What the verdict means for will disputes

The Division Bench concluded that examining an attesting witness is unnecessary when the parties have not joined issue — that is, when they have not actually disagreed — on the validity or genuineness of the will. If the defendant stays silent on execution, the plaintiff does not have to produce a witness.

This creates a significant exception to the general rule. Normally, a will must be proved by an attesting witness regardless of whether the other side challenges it. But the High Court has now said: not if the will is admitted. The admission can be express — the defendant says "I accept the will was properly executed" — or it can be implied through silence in the written statement.

The court was careful to note that this view is subject to scrutiny, particularly when compared with later judicial pronouncements in cases like Ramesh Verma v. Rajesh Saxena. But the proposition that the position changes when a will is "admitted" sounds well, the bench observed.

The deeper logic: preventing waste of judicial time

The court's reasoning was driven by a practical concern: unnecessary technicality should not consume judicial time. If a fact is not disputed, forcing a party to prove it through a witness serves no purpose. It wastes the court's time, the parties' money, and the witness's effort. The Division Bench sought to prevent this by reading Section 58 of the Evidence Act as overriding Section 68 when the execution of a will is admitted through the pleadings.

The court also considered the interaction between Section 68 and Order VIII Rule 5 of the Civil Procedure Code. Order VIII Rule 5 deems the execution of the will to be admitted in the absence of any denial in the written statement. This deeming provision, the court held, triggers Section 58, which then obviates the need for formal proof under Section 68. The chain of reasoning is tight: silence in the written statement leads to deemed admission under Order VIII Rule 5; deemed admission means the fact need not be proved under Section 58; and Section 68, which only applies to documents that require proof, falls away.

What this means for practitioners

For lawyers handling will disputes, the takeaway is tactical. If you represent the person challenging a will, you must deny the execution specifically in the written statement. A general denial or a complete silence on the point will be treated as an admission, and the court will not require the other side to prove the will by calling an attesting witness. If you represent the person defending the will, you can use the other side's silence to shortcut the entire proof process.

The case also highlights the importance of careful pleading. A defendant who wishes to challenge a will must not only deny the will's validity but must specifically deny the execution and attestation. Failure to do so — even if the defendant later argues that the will was forged or that the testator lacked capacity — may be fatal to the defence, because the execution will already be deemed admitted.

For plaintiffs, the ruling offers a strategic advantage. If the written statement is silent on execution, the plaintiff can move to have the will admitted without calling a single witness. This can save significant time and expense, especially in cases where the attesting witness is elderly, unwell, or difficult to locate.

THE PLAY: When the opposing party does not specifically deny execution of a will in their written statement, the execution is deemed admitted — and the requirement to call an attesting witness under Section 68 of the Evidence Act is waived.

The will's validity was never challenged. So the court said: no need to call the witness who signed it.