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2004 Supreme(All) 1689
IN THE HIGH COURT OF ALLAHABAD
S. N. SRIVASTAVA
MOHD. YUSUF - Appellant
Versus
BOARD OF REVENUE, U. P. ALLAHABAD - Respondents
Civil Misc. Writ Petn 32788 Of 1996
Decided On : 09/16/2004
DEVRAJ, M.A.QADIR
The main legal point established in the judgment is that a Scribe cannot be considered an attesting witness unless specific conditions are met, as per the provisions of the Evidence Act and relevant case law.
Headnote:
Scribe - Will Dispute - U.P. Z.A. and L.R. Act, Evidence Act - Section 68, Transfer of Property Act - Section 3, Indian Succession Act - Section 63 - The court discussed the provisions of Section 68 of the Evidence Act and the definitions of 'attested' in the Transfer of Property Act and Indian Succession Act. It highlighted the requirement of attesting witnesses and the conditions for valid attestation. The court referred to case law to establish that a scribe cannot be considered an attesting witness unless specific conditions are met.
Fact of the Case:
The case involved a dispute over a Will claiming exclusive bhumidhar rights to a land plot. The trial court dismissed the suit as the Will was not proved by attesting witnesses. The Commissioner decreed the suit in appeal based on the Scribe's testimony, but the Board of Revenue overturned the decision, stating the Will was not proved by attesting witnesses.
Finding of the Court:
The court found that the Scribe could not be considered an attesting witness as per the provisions of the Evidence Act and relevant case law. It also noted the lack of valid justification in the Will for disinheriting the other sons, leading to doubts about its authenticity.
Issues: The key issues were the validity of the Will without attesting witnesses and the justification for disinheriting the other sons.
Ratio Decidendi: The court established that a Scribe cannot be considered an attesting witness unless specific conditions are met, as per the provisions of the Evidence Act and relevant case law. It also emphasized the need for valid justification in a Will for disinheriting legal heirs.
Final Decision: The writ petition was dismissed as devoid of merit.
( 2 ) IT would appear from the record that one Mohd. Hanif was Bhumidhar of land in suit comprising in plot No. 201, admeasuring 2 Bighas, 7 Biswas. He had three sons who are parties to the present proceedings. Mohd. Yusuf one of the sons instituted a suit under Section 229 B of the U. P. Z. A. and L. R. Act claiming himself to be the exclusive bhumidhar of the land in question on the basis of a Will dated 13-5-1979 which it was alleged was executed by his father mohd. Hanif in his favour. In the written statement, the other two sons of Mohd. Hanif i. e. the contesting Opp. parties repudiated the plaint allegations and denied exclusive rights as Bhumidhar of the plaintiff over the property in question and claimed l/3rd share each to all the three brothers. The contesting parties also denied execution of will and termed it as forged one. The trial court by means of judgment dated 29-6-1993 dismissed the suit on the ground that will was not proved by attesting witnesses. In appeal, the Commissioner clinched the issue in favour of plaintiff on the ground that though attesting witnesses were not examined but the Scribe proved the Will. In consequence, the suit was decreed in appeal. This decision of the Commissioner led to filing of second appeal by defendant respondents which was allowed by the Board of revenue recording a finding that there was no explanation in the Will for dis-inheriting the other brothers of the petitioner and further that the Will was not proved by attesting witnesses and a Scribe cannot be treated to be an attesting witnesses unless attesting witnesses were dead or were not in a position to be examined.
( 3 ) I have heard learned counsel for the parties and perused the materials on record. The learned counsel for the petitioner premised his submission by canvassing that the will dated 13-5-1979 was proved by the scribe and Board of Revenue erred in law in holding to the contrary. He further submitted that the father of the petitioner was residing in Bombay and he, with his free will and mind, executed the Will in favour of the petitioner. Per contra, learned counsel appearing for the Opp. Parties contended that the Will was not proved to have been executed by Mohd. Hanif and all the brothers succeeded the property in question.
( 4 ) BEFORE proceeding to scan the respective submissions on the aspect, it would be apt to acquaint myself with the provisions of the relevant Sections. Section 68 of the evidence Act being germane to the point involved, it is quoted below. "68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at. least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof the execution of any document not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. "
( 5 ) IT would thus crystallize, from the provisions of the above section that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
( 6 ) THE term "attested" has not been defined in the Evidence Act. In Transfer of property Act, the said term has been defined in Secti
