IMPORTANT POINTS
• No mandate for any particular form of attestation anywhere in Section 63 of the Indian Succession Act. There is no prohibition for any scribe or the person who drafted the Will to act as an attesting witness and what is required is the animus to stand as an attesting witness and the court must be satisfied that what the witness did satisfies the intention to stand as an attesting witness to the document. Necessarily, the oral evidence being a subsequent one may have its own embellishment when the witness summoned at the instance of propounder or the party to proceedings and it should be tested under the background in which the Will or Codicil was executed in reference to the attending circumstances so as to find out indications from the document which would satisfy the intention possessed to stand as attesting witness. A mere subsequent assertion by the scribe in the witness box without having an indication to show elements of intention to stand as an attesting witness from the document may not be sufficient to sanctify the status of an “attesting witness”
• The scribe or the person who prepared the draft will not have much role to be played in the matter of proof of Will under Section 68 of the Indian Evidence Act except for the purpose of examining the reliability of the attesting witness who was summoned for that purpose.

A suit for declaration of title and injunction ended in a decree in the trial court, but it was reversed in appeal and the suit was dismissed. Aggrieved by the said divergent finding rendered by the First Appellate Court, the plaintiff came up with this appeal.

2. The subject matter of the suit is pertaining to Ext.A3 Will alleged to have been left out by the deceased father on 13.09.1995. The propounder plaintiff had given oral evidence as PW1 and the scribe was examined as PW2. The dispute centers around execution of Ext.A3 Will and the non-compliance of requirement under Section 63 of Indian Succession Act on the ground that there is only one attesting witness to the Will apart from the scribe. The trial court found that there is no prohibition for the scribe to act as an attesting witness and found that the scribe affixed his signature as an attesting witness to the Will - Ext.A3 and decreed the suit. But in appeal, the appellate court found that the examination of scribe will not discharge the burden lies on the propounder to prove the due execution of Ext.A3 and consequently the decree of the trial court was reversed and the suit was dismissed.

3. In Ext.A3 Will, there is only one attesting witness apart from the scribe. The learned counsel for the appellant relying on a Division Bench decision of this court rendered in George v. Elizabeth [1999 KHC 271] submitted that a scribe can also be an attestor though he was not labeled as an attesting witness in the document. A mere perusal of Ext.A3 would show that there is no indication that the scribe affixed his signature as one of the attesting witnesses. But his signature is seen affixed only as a scribe to the document. After the signature of the testator towards the last portion of the Will, one witness subscribed his signature in the capacity as an attesting witness. Thereafter the name and address of the scribe with his signature written in the capacity as scribe to the document. The witnesses were not numbered serially because there was only one attesting witness to the Will, apart from the scribe. It is specified in the Will itself that the scribe subscribed his signature as the scribe to the document by stating that “ezhuthiya” which stands for “written by”. In short, there is nothing in Ext.A3 to show that the scribe had affixed his signature both in the capacity as a scribe and as an attesting witness.

4. What actually constitute an attesting witness to a document of testamentary succession -Will or Codicil requires consideration, apart from the questions framed at the time of admission that whether the courts below have appreciated the evidence on record in accordance with the mandate under Section 63 of Indian Succession Act and under Section 68 of Indian Evidence Act and whether the propounder had dispelled all suspicious circumstances attached to the execution of the Will - Ext.A3.

5. In Ext.A3 Will, there is nothing to show that the scribe had affixed his signature in the document both in the capacity as an attesting witness and as a scribe to the document. The attesting witnesses were not serially numbered presumably on the reason that there is only one attesting witness to the document. The scribe signed on the document only in the status of scribe. If he had the intention to stand as an attesting witness to the document, apart from his status as scribe to the document, there might be some indication in the document itself either numbering the witnesses as 1 and 2 serially or stating that the status of scribe as “scribe and witness”. There is no such indication anywhere in Ext.A3 Will so as to satisfy that the scribe had affixed his signature both in the capacity as a scribe and as an attesting witness or that he had possessed the required animus to stand as an attesting witness. The subsequent oral evidence after the death of the testator, may have its own embellishment, especially when summoned at the instance of propounder or party to the litigation