Will has to be proved by attesting witnesses and not by scribe, says Punjab & Haryana High Court

Read Order: Beena v. Manoj and Others 

Monika Rahar

Chandigarh, March 1, 2022:  While dealing with a case wherein the validity of a Will was a point of contention, the  Punjab and Haryana High Court has held that merely because the scribe did not ask for the identity of the testator of the Will, it cannot be held that execution of the Will by the testator was not proved. 

The Bench of Justice Sudhir Mittal further added that a Will has to be proved by attesting witnesses and not by the scribe. 

In this case, the second Respondent filed a suit for partition, recovery of mesne profits, declaration and permanent injunction. It was his case that the suit property (residential house and six shops on the ground floor) were owned by the father of the parties. Both father and mother had passed away and thus, all sons and daughters being class-I legal heirs were entitled to equal share therein. 

The trial Court passed a preliminary decree of partition and held that all legal heirs of the deceased (Than Singh) were owners in equal shares. Also, the Trial Court held that the Will dated January 7, 2011, produced by the first respondent (third defendant originally) was not a genuine document as it was surrounded by suspicion. 

Aggrieved, the first respondent (third defendant) filed an appeal against the judgment and the decree of the Trial Court. The First Appellate Court accepted the appeal and held that the Will was a genuine and valid document. Thus, the present Regular Second Appeal was preferred by the first defendant. 

The appellant’s counsel argued that the First Appellate Court was in error in accepting the validity of Will dated January 7, 2011. The said Will, the Counsel argued, remained in the custody of DW-3 (one of the attesting witnesses) for seven years and thus, the trial Court was justified in holding that the Will was surrounded by suspicious circumstances. It was also submitted that the scribe admitted in his cross-examination that he did not see the identity proof of the testator and thus, it could not be said that late Shri Than Singh was the testator. Also, the counsel contended that the signature of the testator was not proved by examination of an expert witness.

On the factual aspects of the case, the Court observed the Will was recovered from the maternal uncle of the parties (DW-3) and that he was also one of the attesting witnesses of the same. Also, the Court observed that the signature on the Will was compared by the Appellate Court with an admitted signature of the testator and the Appellate Court returned a finding of fact that the signatures matched. 

Thus, in view of the above facts, the Court opined that merely because the Will was produced by DW-3 after seven years of the death of the testator, did not give rise to any suspicion. Further, the Court opined that based on the late production of the document, the only argument that could be raised was that the said document was a forged document. And, in this case, the Court noted that forgery was not found as the signatures were found to be of the testator on a bare examination thereof through the naked eye. 

Also, the Court pointed out that for this purpose, examination of an expert was not necessary as signatures can always be compared through the naked eye.

Thus, the Court reached the conclusion that there was no error in the judgment of the First Appellate Court and that the Will was proved in accordance with law and was bound to be accepted.