Scribe Being One Of The Attesting Witnesses Not More Competent Than Other Attesting Witnesses To Prove Execution Of Will: Kerala High Court

The Kerala High Court recently held that when the scribe is one of the attesting witnesses of a will, he is not more competent than other attesting witnesses to depose the execution of the Will. The Court noted that there is no law in place which states that when the scribe of a Will is one of the attesting witness, he/she is the best witness and is the most competent to depose the execution of the Will.

A single bench of Justice Mary Joseph observed,

“If the scribe is an attesting witness to the Will, he can be examined as an attestor to establish the execution of the Will and his competency will only be equivalent to the other attesting witness...There is no prescription in law that for establishing the execution of a Will the scribe must be examined. The examination of a scribe can be resorted to when he is an attesting witness to the document. In all other circumstances the law did not contemplate examination of a scribe to establish the execution of the Will.”

Section 68 of the Indian Evidence Act, 1872, which provides for how a Will is to be proved only says that one among the two attestors must be examined for proving the execution of the Will, the Court observed.

The Court was considering a challenge to the dismissal of a suit for partition filed by the mother of the deceased. The suit was dismissed on the ground that the deceased had executed a Will in favour of his wife and hence the property was not partible.

It was the case of the plaintiff that the deceased died intestate and that the plaintiff was entitled to 1/4th share in his property under Hindu Mitakshara Law. The Plaintiff contended that the Will was executed when the testator was young and healthy, which creates suspicion. It was also contended that the property being passed onto only his wife, without leaving anything behind for his mother or two daughters also creates suspicion on the genuineness of the Will, but these aspects were not examined by the trial court.

The Plaintiff also contended that the scribe needs to be examined to establish execution of a Will and the trial court failed to do so. However, the Defendant argued that there is no law that requires that the scribe, being one of the attesting witnesses, is the only witness competent to depose the execution of the Will.

The Court relied on the decision of the Madras High Court in Pattu v. Krishnammal alias Singari (LR of deceased) and others [2017 KHC 3051] to observe that if a scribe is an attesting witness, he/she will be equally competent as other attesting witnesses to prove the execution of the Will.

In the case at hand the Court refused to interfere with the order of the trial court that the property was not partible, as it was of the view that the execution of the Will had been established successfully.

Case Title: P Nanikutty V. K U Kalpakadevi

Citation: 2023 LiveLaw (Ker) 243

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