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Searching Case Laws & Precedent on Legal Query.....!
Analysing the retrieved Case Laws
Scanned Judgements…!
Scribe as Attesting Witness - Generally Not Considered A person who signs a document solely as a scribe, to authenticate their role in drafting, is not automatically an attesting witness unless they also intend to attest the document. Courts have held that a signature placed for the purpose of certifying oneself as a scribe does not qualify as attestation. For example, in ILR 56 Cal 598 and AIR 1929 Cal 123, signatures marked as scribe or for identification purposes were deemed insufficient for attestation ["Varghese C. Philip Kutty, S/o. Varghese Chalakuzhy Malickal vs C. Varghese Mathai - Kerala"], ["Basavaramatarakam Memorial Medical Trust, Hyderabad vs Nandamuri Lakshmi Parvathi - Telangana"], ["Rathinavel VS Rajamanickam - Madras"].Analysis and Conclusion: The legal position is clear that a scribe's signature alone does not make them an attesting witness unless there is an explicit intent to attest, which must be evident from the circumstances or the document itself. Courts emphasize the importance of the animus attestandi (intent to attest) for someone to qualify as an attesting witness.
Legal Precedents and Law on Attesting Witnesses Multiple judgments confirm that signatures by a scribe or typist, made for purposes like authentication or certification, do not qualify as attestation unless accompanied by the intent to attest. The Indian Evidence Act (Section 68) states that for a document requiring attestation, at least one attesting witness must be examined, but the witness must have signed with the intent to attest, not merely for other purposes ["Tapati Patra VS Swarup Das - Calcutta"], ["Vijay Kumar Singh, S/o Late Ram Briksh Singha VS Ram Chandra Prasad Singh S/o Late Ram Briksh Singh - Patna"], ["Rathinavel VS Rajamanickam - Madras"].Analysis and Conclusion: The law does not prohibit a scribe from being an attesting witness per se, but the crucial factor is their intent. Without evidence of intent to attest, their signature is insufficient to establish attestation.
Exceptions and Special Cases In some cases, if the scribe also acts as an attesting witness or if their signature is made below the testator's signature without indicating their role as a scribe, they may be considered an attesting witness. Conversely, signatures made solely to certify one's role as a scribe or for identification are not sufficient ["Varghese C. Philip Kutty, S/o. Varghese Chalakuzhy Malickal vs C. Varghese Mathai - Kerala"], ["Brojendra Nath Roy Chowdhury VS Chittaranjan Ghosh - Calcutta"], ["Kashmir Singh VS Achhar Kaur - Punjab and Haryana"].Analysis and Conclusion: The context and wording of the signature are critical. If a signature is explicitly made for attestation, or if the person testifies to their intent to attest, they may qualify as an attesting witness. Otherwise, they remain a scribe.
Impact of Absence of Attesting Witnesses Courts have held that even if attesting witnesses are not examined, a Will can still be valid if the evidence of the testator and the scribe supports its due execution, provided the law's requirements are met. The failure to examine witnesses is not always fatal, especially when the circumstances suggest proper execution ["VIR SINGH ETC. vs PRITAM SINGH ETC. - Punjab and Haryana"].Analysis and Conclusion: While attesting witnesses are generally necessary, courts may uphold a Will based on other evidence if the law's criteria are satisfied, and the absence of witnesses is satisfactorily explained.
Summary Overall, a scribe is not usually considered an attesting witness unless they explicitly intend to attest the document at the time of signing. Signatures made solely for certification or identification purposes do not qualify as attestation. The courts emphasize the importance of the intent (animus attestandi) and the context of the signature.References:
In estate planning and probate disputes, a common question arises: Is it possible to prove a document without examining the scribe or the executant? This issue is particularly relevant for wills under Indian law, where attestation plays a critical role. Proving a will's authenticity often hinges on attesting witnesses, but what if the scribe—who drafted the document—is involved? Or if the executant (testator) is deceased?
This blog post delves into the legal nuances, drawing from statutory provisions like the Indian Succession Act, 1925 (Section 63), and the Indian Evidence Act, 1872 (Sections 68 and 69). We'll examine whether a scribe qualifies as an attesting witness, key judicial precedents, exceptions, and strategies for proving documents without direct examination of these parties. Note: This is general information based on precedents and not specific legal advice—consult a qualified lawyer for your case.
Under Indian law, a will must be attested by at least two witnesses to be valid. Section 63(c) of the Indian Succession Act defines attestation strictly. An attesting witness is someone who:- Witnesses the executant sign or affix their mark;- Receives personal acknowledgment of the signature; and- Signs the document animo attestandi (with the intent to attest) N. Kamalam VS Ayyasamy - Supreme Court (2001)M. L. Abdul Jabbar Sahib VS M. V. Venkata Sastri And Sons - Supreme Court (1969).
A scribe, however, typically writes or drafts the document. Courts have repeatedly held that if a person signs merely as a scribe, their signature authenticates their writing role, not attestation. In Abinash Chandra v. Dasrath Malo, it was ruled: a person who signs under the designation scribe is not an attesting witness as their signature is for the purpose of authenticating their role as a scribe, not for attestation M. L. Abdul Jabbar Sahib VS M. V. Venkata Sastri And Sons - Supreme Court (1969).
This distinction is crucial because proving a will generally requires examining at least one attesting witness under Section 68 of the Evidence Act. Without valid attesting witnesses, reliance on a scribe alone fails S. R. Srinivasa VS S. Padmavathamma - Supreme Court (2010)Janki Narayan Bhoir VS Narayan Namdeo Kadam - Supreme Court (2002).
Indian courts have consistently clarified that scribes do not automatically qualify as attesting witnesses. Here's a breakdown:
Girja Datt v. Gangotri: The Supreme Court held that signatures without intent to attest are invalid for attestation purposes M. L. Abdul Jabbar Sahib VS M. V. Venkata Sastri And Sons - Supreme Court (1969).
In Dharam Singh v. ASO, If a person puts his signature on a document only in discharge of a statutory duty, he may not be considered as an attesting witness... It was held that the scribe could be treated as an attesting witness but it must be shown that scribe put down his signatures for the purpose of attesting Vijay Kumar Singh vs Ram Chandra Prasad Singh - 2024 Supreme(Online)(Pat) 3654.
Shankar Bahadur Singh case: The witness signed as a scribe in an unregistered sale-deed and did not claim attesting status, rendering their evidence insufficient Smt Duigi Gupta W/O Shri Ramavtar Gupta Age 77 Farmer Thr. Rajmani Gupta vs Mohan Badhai - 2023 Supreme(Online)(MP) 863.
High Courts emphasize: Scribes' evidence cannot prove will validity unless they signed to attest S. R. Srinivasa VS S. Padmavathamma - Supreme Court (2010)Janki Narayan Bhoir VS Narayan Namdeo Kadam - Supreme Court (2002).
These rulings underscore that proving a document without examining true attesting witnesses is challenging if the scribe is the only available party.
The executant (testator) is often deceased, so direct examination is impossible. Section 68 of the Evidence Act allows proof via attesting witnesses. But if unavailable?
Example: In a Punjab & Haryana High Court case, a will was proved via the scribe (DW1) and another witness when attesting witnesses were unavailable, but only after verifying handwriting VIR SINGH ETC. vs PRITAM SINGH ETC.. The court noted: Proof where no attesting witness found... it is necessary to lead evidence to prove that the signatures/thumb impressions of the testator and at least one of the attesting witnesses on the Will are in their respective handwriting in accordance with Section 69.
However, cases like Kamalam v. Ayyaswamy affirm: It is well-settled that a scribe cannot act as an attesting witness Cauvery Belliappa (Since Deceased) By L. Rs VS B. B. ChengappaCauvery Belliappa (Since Deceased) By L. Rs VS B. B. Chengappa - 2015 Supreme(Kar) 944.
Exceptions exist if facts show attesting intent:- A scribe can be an attesting witness provided that he knows that he's putting his signatures as an attesting witness. It is necessary for the attesting witness to depose that he signed in the presence of the testator Sanjay Kumar Datta (deceased) VS Kamlesh Kumari Datta - 2023 Supreme(Jhk) 11.
In Janki Narayan Bhoir v. Narayan Namdeo Kadam, scribes were distinguished from attesting witnesses unless intent proven Cauvery Belliappa (Since Deceased) By L. Rs VS B. B. Chengappa.
Himachal Pradesh High Court: It is not universal rule that a scribe cannot be treated as an attesting witness... but it must be shown that the scribe put down his signature for the purposes of attesting the document Ram Niwas Rana & Ors. VS Anil Kumar & Ors. - 2014 Supreme(Del) 2656.
Registered wills may require full trials for mixed law-fact issues like attestation compliance Vijay Kumar Singh vs Ram Chandra Prasad Singh - 2024 Supreme(Online)(Pat) 3654.
In undue influence cases, if attestation is proven (e.g., by medical practitioner witnesses), probate is granted despite scribe involvement Cauvery Belliappa (Since Deceased) By L. Rs VS B. B. Chengappa.
To prove a document without relying solely on scribe or executant:1. Secure True Attesting Witnesses: Ensure two witnesses sign with clear intent—avoid scribe designation.2. Handwriting Experts: Use under Section 69 if witnesses unavailable.3. Corroborative Evidence: Bank records, prior conduct, or registrar testimony strengthen cases Ram Niwas Rana & Ors. VS Anil Kumar & Ors. - 2014 Supreme(Del) 2656.4. Full Trial: Courts mandate evidence hearings for validity issues Vijay Kumar Singh vs Ram Chandra Prasad Singh - 2024 Supreme(Online)(Pat) 3654.5. Avoid Suspicious Circumstances: Parroted witness accounts fail if totality suggests fraud Sanjay Kumar Datta (deceased) VS Kamlesh Kumari Datta - 2023 Supreme(Jhk) 11.
Generally, proving a document like a will without examining the scribe or executant is possible but hinges on valid attesting witnesses or Section 69 compliance. Scribes typically do not qualify unless attesting intent is proven—a high bar set by precedents like Abinash Chandra and Supreme Court rulings M. L. Abdul Jabbar Sahib VS M. V. Venkata Sastri And Sons - Supreme Court (1969)S. R. Srinivasa VS S. Padmavathamma - Supreme Court (2010).
Key Takeaways:- Scribe signatures authenticate drafting, not attestation.- Examine at least one attesting witness; use handwriting proof otherwise.- Exceptions are fact-specific—intent matters.- Always ensure proper execution to avoid probate disputes.
For wills, prioritize independent witnesses. This analysis draws from established case law; outcomes vary by facts. Seek professional advice to navigate your situation effectively.
References:- M. L. Abdul Jabbar Sahib VS M. V. Venkata Sastri And Sons - Supreme Court (1969)S. R. Srinivasa VS S. Padmavathamma - Supreme Court (2010)Janki Narayan Bhoir VS Narayan Namdeo Kadam - Supreme Court (2002)Mathew Oommen VS Suseela Mathew - Supreme Court (2006)Vijay Kumar Singh vs Ram Chandra Prasad Singh - 2024 Supreme(Online)(Pat) 3654VIR SINGH ETC. vs PRITAM SINGH ETC.Smt Duigi Gupta W/O Shri Ramavtar Gupta Age 77 Farmer Thr. Rajmani Gupta vs Mohan Badhai - 2023 Supreme(Online)(MP) 863Sanjay Kumar Datta (deceased) VS Kamlesh Kumari Datta - 2023 Supreme(Jhk) 11Bishnu Pada Saha VS Minati Saha - 2017 Supreme(Gau) 1193Cauvery Belliappa (Since Deceased) By L. Rs VS B. B. ChengappaCauvery Belliappa (Since Deceased) By L. Rs VS B. B. Chengappa - 2015 Supreme(Kar) 944Ram Niwas Rana & Ors. VS Anil Kumar & Ors. - 2014 Supreme(Del) 2656
#WillProbate #IndianLaw #AttestingWitness
That be so, the irresistible conclusion is that the second attesting witness had affixed the signature purely as an attesting witness and not as a scribe. ... The prime reason given by the trial court for disbelieving Ext.B1 Will was that, the scribe was examined as an attesting witness, which is impermissible under law and that there....
Bidyut has clearly stated in his evidence that he is a scribe and not an attesting witness. If a person puts his signature on the document for some other purpose like certifying that he is a scribe, he is not an attesting witness [See. M.L. Abdul Jabbar Sahib v. H. ... It is clear from the evidence of the executor that Dipen signed the Will as #HL_STAR....
Dasarath Malo [ILR 56 Cal 598 = AIR 1929 Cal 123], it was held that aperson who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In Shiam Sundar Singh v. ... If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an ident....
If a person puts his signature on a document only in discharge of a statutory duty, he may not be considered as an attesting witness as was held in Dharam Singh v. ASO and another. ... It was held that the scribe could be treated as an attesting witness but it must be shown that scribe put down his signatures for the purpose of attesting#HL_E....
If a person puts his signature on a document only in discharge of a statutory duty, he may not be considered as an attesting witness as was held in Dharam Singh v. ASO and another. ... It was held that the scribe could be treated as an attesting witness but it must be shown that scribe put down his signatures for the purpose of attesting#HL_E....
If a person puts his signature on a document only in discharge of a statutory duty, he may not be considered as an attesting witness as was held in Dharam Singh v. Aso. ... Cal. 598 it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that ....
Simply because Mangal Singh was not usually on visiting terms with Smt. Lal Kaur nor was related to her, cannot be considered to be a suspicious circumstance. ... Singh, was added later on with hand; - That attesting witnesses Moola Singh and Dewan Singh, Lambardar have not been examined; - That attesting witness Mangal Singh, as examined by the defendants, is #HL_STA....
In the considered view of this Court, this in itself is not a sufficient reason to discard the Will which has been duly proved by examining both the attesting witnesses and with the scribe. ... Proof where no attesting witness found. ... On the other hand, the Will dated 05.10.1985 is sought to be proved by examining DW1-Bhagwan Singh, the scribe, DW2-Harnek Sing....
There are two attesting witnesses in the Will. One Pulin Behari Mazumder is the scribe-cum-attesting witness. Pulin Behari Mazumder died prior to the filing of the probate case. Pulin Behari Mazumder died on 31st March, 1990. The other attesting witness was not produced. ... In view of the fact that in the earlier proceeding the probate case was dismissed, the evidence ....
If the evidence of Shankar Bahadur Singh (PW-3) is considered, then it is clear that he has not claimed himself to be an attesting witness. ... He has not claimed himself to be an attesting witness. Even in the unregistered sale-deed (Ex.-P/14), Shankar Bahadur Singh has signed as a scribe and not as an attesting ....
A scribe can be an attesting witness, provided that he knows that he's putting his signatures as an attesting witness. It is necessary for the attesting witness to depose that he signed in the presence of the testator.
"attested',' in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of....
It is well-settled that a scribe cannot act as an attesting witness. In this regard, the learned Counsel places reliance on two decisions, namely, Kamalam (dead) v Ayyaswamy, AIR 2001 SC 2802 : (2001) 7 SCC 503: [2001] Though Dr. Keith D’Souza has acted as an attesting witness the notary Anthony Da Costa was not acting as an attesting witness but was a merely a scribe. 5 Supreme 689 and Janki Narayan Bhoir v Narayan Namdeo Kadam, AIR 2003 SC 761 : (2003) 2 SCC 91: [2003]
Though Dr. Keith D'Souza has acted as an attesting witness the notary Anthony Da Costa was not acting as an attesting witness but was a merely a scribe. It is well-settled that a scribe cannot act as an attesting witness. In this regard, the learned Counsel places reliance on two decisions, namely, N. Kamalam (dead) v. Ayyaswamy AIR 2001 SC 2802 : (2001 )7 SCC 503 and Janki Narayan Bhoir v. Narayan Namdeo Kadam AIR 2003 SC 761 : (2003) 2 SCC 91, to assert that an attesting wi....
The relevant portion of the judgment is as under:- “10. ……………………………………………… It is not universal rule that a scribe cannot be treated as an attesting witness. Even in the decision of Himachal Pradesh High Court relied upon by learned counsel for the appellant it has been held that scribe may be an attesting witness of the Will, but it must be shown that the scribe put down his signature for the purposes of attesting the document.”
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